Fall/Winter 1999 - HR in the United States

continued . . . United States, by Timothy Holtz, MD

In 1948 the United Nations drafted the Universal Declaration of Human Rights. In a clarion call for common dignity and humanity among all persons, Article Five states that "no one shall be subjected to torture or cruel, inhuman, or degrading punishment or treatment." The right to life is regarded as one of the core principles of human rights, a right that is universal and underogable (never can be violated).

On our own shores, the imposition of the death penalty is as old as Jamestown. As many as 20,000 persons have been lawfully punished by death on this continent in the last 400 years. Only five states have managed to keep death penalty abolition on the books since the 1840s. Over the years there have been many setbacks and compromises on this issue.

In 1972, in Furman v. Georgia, the US Supreme Court invalidated hundreds of scheduled executions, declaring that existing state laws were applied in an "arbitrary and capricious" manner, thus violating the 8th Amendment’s prohibition against cruel and unusual punishment, and the 14th Amendment’s guarantees of equal protection under the law and due process. Just four years later, in Gregg v. Georgia, the Court resuscitated the death penalty, ruling that it "does not invariably violate the Constitution" if administered in a manner designed to guard against arbitrariness and discrimination, such as requiring judges and juries to take specific factors into consideration when deciding whether to impose the death penalty.

The closest challenge to the death penalty since that time has been the case of McCleskey v. Kemp, brought to the Supreme Court in 1987. Statistical evidence was presented—which the Court did not dispute—demonstrating that the death penalty does not deter crime. In its 5-4 decision, the Court held that evidence of an overall pattern of racial bias was not sufficient to strike down the death penalty and went so far as to state that 1) if we acknowledge racial disparities, it will open the floodgates, so if one can’t prove racial bias still continues, the law should be upheld; and 2) a quantum of racial bias is inevitable.

There are now 3,600 people on death row in the US, and nearly 500 people have been put to death since 1977. As recently as 1996 we have witnessed the death of citizens by firing squad (still legal in Idaho and Utah) and hanging (an option in Delaware, New Hampshire, and Washington). While most industrialized countries have abolished the death penalty, the United States continues to legally kill more of its citizens than all other countries combined, except Saudi Arabia and China. South Africa, known for its racist apartheid rules until 1991, now specifically prohibits the death penalty, calling it "inhumane punishment."

Beyond the debate over the morality of capital punishment, the facts show that the imposition of capital punishment in the US is racially and economically biased. Since the resumption of executions in the early 1980s, 40% of those executed have been black. According to a Congressional subcommittee on civil and constitutional rights in 1993, 89% of the death sentences carried out since 1976 have involved white victims, even though 50% of the homicides in this country involve black victims. A 1990 Government Accounting Office report found a "pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision." Another study of sentencing patterns in Georgia in the 1970s concluded that someone accused of killing a white person was 4.3 times more likely to be sentenced to death than a person accused of killing a black person. Discrimination against the poor is also well established. As Justice William O. Douglas noted in Furman v. Georgia, "One searches our chronicles in vain for the execution of any member of the affluent strata in this society."

Furthermore, there is no evidence that capital punishment deters crime. Since the re-imposition of death penalty statutes in 1976, the US national murder rate has fluctuated around 8, anywhere from 7.9 to 10.2. There is no obvious or consistent trend downward since that time.

Add to that the fact that it costs more than life imprisonment. "The death penalty in not now, nor has it ever been, a more economical alternative to life imprisonment." A study in Maryland from 1979-1984 concluded that a death penalty costs approximately 42% more than a case resulting in a non-death sentence. Florida spends about $3.2 million on each death row inmate, compared to about $550,000 for an average of 40 years for each prisoner sentenced to life.

And, perhaps most damming of all, Capital Punishment kills innocent people. The Stanford Law Review found 350 capital convictions in this century which were later overturned, though many of these convicts were executed before their innocence was proven.

In 1997 the American Bar Association (ABA) concluded that inequities in our system undermine confidence in the outcome of capital trials and appeals. This led the ABA, which has never taken a position for or against the death penalty, to call for an immediate halt to executions. The UN Commission on Human Rights has also issued a condemnatory report on the US death penalty, urging the US government to halt all executions while it brings the states into compliance with international standards and law. As the Marquis de Lafayette said in 1830, "I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me."

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