America has a long and tainted history with the death sentence dating back to the era of slavery, when it was used to keep the enslaved under control. When the abolitionist movement began, its goal was to end slavery and to do away with the death penalty. With this goal only partially fulfilled, impoverished communities and minority groups, specifically blacks, have suffered disproportionately under capital punishment.
Across the world, there has been a trend of abolishing the death penalty over the past several decades. In 1977, the number of countries who abolished the death penalty was 16; while in 2013, this number has surpassed two-thirds of the world’s countries, increasing the number to 98. However, the U.S. has not conformed to this trend, maintaining the right to exercise the death penalty in 32 states. In order to understand the complex historical, political and ethical context of capital punishment, the Hamilton community welcomed two professionals to weigh in on the conversation.
Robert Blecker, professor of law at New York Law School, and Sarah Turberville, senior counsel at The Constitution Project, traveled to the Hill on Nov. 6 for a panel discussion of perspectives on capital punishment in the U.S. The event was moderated by Hamilton’s Frank Anechiarico, the Maynard-Knox Professor of Government and Law, and was sponsored by the Levitt Center and supported by the Tuggle Fund.
Turberville began by outlining the reasons capital punishment should be abolished. “The judicial system is not full of open-and-closed cases,” she explained. By utilizing human jurors and judges, all cases contain human decision making, and thus, human error. Out of all the people sentenced to death, “Four percent of [them] are innocent. Imagine every time you boarded a plane, there was a four percent chance it would crash,” she proposed to the audience. “The only way to ensure that we aren’t killing the innocent is to abolish the death penalty,” she stated.
Apart from erroneous sentencing, the justice system also disproportionately sentences people of color to death, compared to white perpetrators of the same crime. Although these rulings can often be attributed to implicit, or unconscious, biases, they nevertheless result in inconsistent rulings.
Turberville also made clear that the justice system does not treat individuals from different economic classes the same. “As they say about capital punishment: those with the capital, don’t get punished,” Turberville quipped, referring to the inability of disadvantaged individuals to hire quality lawyers and go through several stages of the appeal process. She also pointed out the extreme cost of capital punishment and the collateral consequences associated with it before she proposed replacing this sentence with life without parole, though also using this sparingly.
Blecker, author of The Death of Punishment: Searching for Justice Among the Worst of the Worst, took a somewhat oppositional stance. As the title of his book alludes to, he believes that only “the worst of the worst” should be subjected to capital punishment. Drawing on thousands of hours of personal experience with inmates in maximum security prisons and on death row, Blecker said, “I feel certain that some people deserve to die, and that we have the moral obligation to kill them.”
According to Blecker, The Constitution Project has done more to reform the death sentence than any other group or individual; yet their five circumstances for its use are not thought out well enough. For Blecker, a self-proclaimed retributivist, justice is tantamount to monetary cost and other collateral consequences. He differentiated between retribution and revenge by describing the former is directed solely against the perpetrator and is proportionate to the original crime, unlike the latter which is limitless and unreserved.
Still, the death sentence should only be reserved for “the worst of the worst,” Blecker stated. He explained that the action is not what is important for capital punishment, rather the defendant’s culpable mental state; for example premeditated murders, hate crimes, rape, torture and crimes committed against “vulnerable victims,” such as children and the elderly.
According to a Gallup Poll, America’s attitude toward the death penalty has remained relatively unchanged over the past 10 years. This is likely due to the complex interplay of factors such as ethical ambiguity, faith in the justice system, retribution versus revenge, and a host of other issues. The uncertainty felt by many individuals reflects the paradoxical nature of capital punishment and was echoed in the forum: at one moment, Turberville and Blecker would be diametrically opposed while the next they would emphatically agree.
The future of the death penalty in the United States is unclear. No obvious answer is present due to the fact that capital punishment falls in what is generally considered a ethically “gray” area. At this point, it seems likely for it to remain in place, leading The Constitution Project to propose reform and strict regulations. However, the global abolitionist trend indicates otherwise, favoring the idea that in the next few years even more countries will outlaw capital punishment and perhaps one will be the U.S.