The Fiscally Irresponsible Death Penalty

Growing up here in the Lone Star State, I never gave capital punishment a second thought.  If you kill someone and you should expect consequences – it made sense, especially for those especially heinous news-making crimes for which we all want retribution.  A little history:

Capital punishment has been used in the U.S. state of Texas and its predecessor entities since 1819. As of February 22, 2011, 1,217 individuals (all but six of whom have been male) have been executed. As of 2010 the Texas Department of Criminal Justice (TDCJ) houses death row prisoners after they are transported from their counties of conviction, and the TDCJ administers the death penalty on a condemned person’s court-scheduled date of execution.

Texas has used a variety of execution methods – hanging (until 1924), shooting by firing squad (used only four times during the Civil War period), electrocution (1924–1964) and lethal injection (1982 to present). Most executions were for murder, but other crimes such as piracy, cattle rustling, treason, desertion and rape have been subject to death sentences.

Under current state law, the crimes of capital murder and capital sabotage (see Texas Government Code §557.012) or a second conviction for the aggravated sexual assault of someone under 14 is eligible for the death penalty (though the recent Supreme Court case Kennedy v. Louisiana removed the death penalty option for rapists).

Since the death penalty was re-instituted in the United States in the 1976 Gregg v. Georgia decision, beginning in 1982 with the execution of Charles Brooks Jr., Texas has executed (all via lethal injection) more inmates than any other state, notwithstanding that two states (California and Florida) have a larger death row population than Texas. Male death row inmates are held at the Allan B. Polunsky Unit and female death row inmates are held at the Mountain View Unit, while all executions occur at Huntsville Unit.

In order for a murder to be a “capital murder,” it must meet one of the special circumstances set forth by statute:

Murder of an on-duty public safety officer or firefighter (the defendant must have known that the victim was such)

Intentional murder in the course of committing or attempting to commit a felony offense (such as burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat)

Murder for remuneration or for promise of remuneration (both the person who does the actual murder and the person who hired them can be charged with capital murder)

Murder while escaping or attempting to escape a penal institution

Murder while incarcerated with one of the following three qualifiers:

a) While incarcerated for capital murder, the victim is an employee of the institution or the murder must be done “with the intent to establish, maintain, or participate in a combination or in the profits of a combination”,

b) While incarcerated for either capital murder or murder, or

c) While serving either a life sentence or a 99-year sentence under specified Penal Code sections not involving capital murder or murder.

Multiple murders (defined as two or more murders during the same “criminal act”, which can involve a series of events not taking place at the same time)

Murder of an individual under six years of age

Murder of a person in retaliation for, or on account of, the service or status of the other person as a judge or justice of any court

And although more rare, Texas law also provides that a participant in a crime who didn’t actually do the killing can be convicted of “felony murder” which may be a capital offense.  For example, the get away car driver waiting outside a bank whose accomplices kill multiple bank patrons would be eligible for the death penalty by virtue of his or her involvement in the criminal scheme.

The bottom line is that capital punishment is aimed at the nastiest crimes out there committed by some of the nastiest people out there – and there are some truly vile folks who have earned this punishment by virtue of their heinous criminal acts.  And until well after law school I never questioned the practice, even with my strong left-leaning political views, because there’s rarely any cause to question the viciousness with which the crimes were perpetrated.

In the 1760s, English jurist William Blackstone stated in his Commentaries on the Laws of England, “better that ten guilty persons escape than that one innocent suffer.”  And while no one wants those theoretical nine murderers running amuck, I think we can all envision the potential horror of being that one falsely accused and subsequently “brought to justice” by virtue of lethal injection – the type of justice that cannot be reversed.  According to the Texas Moratorium Network,

138 innocent people have walked off Death Row in the modern era after spending up to 33 years condemned to death. Twelve Death Row inmates in Texas have been fully exonerated of the crimes that sent them to death row. Anthony Graves was exonerated and released in Texas on October 27, 2010 after spending 18 years incarcerated for a crime he did not commit, including fourteen years on Texas death row. An innocent man named Ernest Willis walked off death row and into freedom in Texas on October 6, 2004. There are several people currently on Death Row in Texas with credible claims of innocence. There have also been reports in major media that three people executed in Texas were possibly innocent, Ruben Cantu, Todd Willingham and Carlos DeLuna.

If the thought of spending up to 33 years incarcerated and expecting death at the hands of the state while completely innocent doesn’t turn your stomach, well, then I’ve got nothing.   The irony, of course, is that the state wanted to kill these innocent men – which is exactly what the innocent men were accused of in the first place:  killing innocents.  Even though these men were exonerated, eventually, how can any logical person reconcile this?

And what about those who were actually put to death wrongfully?  It’s a troubling thought, but by the sheer numbers, common sense dictates that there were some innocent men killed by the state.  And even if they weren’t the most upstanding members of society, I don’t see that anyone would advocate that being a good thing.

But even if we could guarantee that these convicts were, in fact guilty, there are still other factors which make me uncomfortable with it:

69.7 percent of all people on Texas’s Death Row are non-white. Out of all the executions in Texas since 1982, no white person has ever been executed solely for the murder of an African-American. On Sept 10, 2003 Texas executed a white man for the murder of his white wife and a black female convenience store clerk. Of course, African-Americans are often sentenced to die in Texas for killing white people. For example, Napoleon Beazley, an African-American juvenile, was sentenced to death by an all-white jury for killing a white man. The last seven juvenile offenders executed in Texas were all African-Americans who committed their offenses at the age of 17.

That information makes me squirm in my seat – I don’t know how it could make anyone not, unless of course, that person was fine with the disproportional death penalty convictions of Blacks because of a bias due to racism.  And I don’t doubt many people are perfectly at peace with that.  But I’m not.

There are other reasons to discontinue executions in the United States, but these few are enough to convince me.  Not that most heinous killers don’t deserve an eye for their eye, but because we cannot guarantee that each and every single one is guilty and we cannot guarantee that each and every prosecutor, judge, and jury is completely colorblind.

And still, proponents of the death penalty will poo-poo these arguments, but here’s one that might appeal to even pro-death penalty conservatives, especially with the current state budget crises around the nation:  killing killers is expensive.   How expensive you may ask?  According to ThinkProgress:

Indeed, the Northern California chapter of the ACLU estimates that California spends $137 million each year on death penalty cases, mostly on legal fees, including the mandatory appeals process. In contrast, “the alternative of permanent imprisonment would cost just $11 million.”

Cutting out capital punishment to save taxpayer dollars has even gotten the support of Former California Superior Court Judge Donald McCartin, “a self-described “right-wing Republican” who earned the nickname “the hanging judge” for the numerous death penalty sentences he handed out” who is calling on California Gov. Jerry Brown (D) to abolish the death penalty.

Because experts agree that capital punishment does not serve as a deterrent to committing capital crimes,  one could argue that the only value in it is societal revenge:  retribution for the innocent lives taken violently before their time.  And I can’t say that I don’t see some intrinsic value in that.  But those lives are already long gone and killing the killers won’t bring them back.

Think, instead, of what could be constructively accomplished with the hundreds of millions of dollars used on the death penalty – hiring more police officers, teachers, fire fighters, providing much needed supplies for our schools, feeding the hungry, providing job skills training for those who want to better themselves, college scholarships.  Hundreds of millions of dollars could really make a difference of measurable positive value.   And of a far greater value to our society than any benefit we could possibly get from capital punishment.  Think about it.

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