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On the Death Sentence

First, of course, are victims. By definition murder victims are no longer alive and so have no continuing interest.

Second are survivors—family and close friends of victims who often suffer enormous grief and tangible losses. The harm to this class is immeasurable; but punishment of the defendant cannot reverse or adequately compensate any survivor’s loss. An execution may provide revenge and therapeutic benefits. But important as that may be, it cannot alone justify death sentences. We do not, after all, execute drunken drivers who cause fatal accidents.

Third are participants in judicial processes that end in executions—detectives, prosecutors, witnesses, judges, jurors, defense counsel, investigators, clemency board members, and the medically trained personnel who carry out the execution process and whom Garland describes as being somewhat embarrassed by doing so. While support of the death penalty wins votes for some elected officials, all participants in the process must realize the monumental costs that capital cases impose on the judicial system. The financial costs (which Garland estimates are at least double those of noncapital murder cases) are obvious; seldom mentioned is the impact on the conscientious juror obliged to make a life-or-death decision despite residual doubts about a defendant’s guilt.

The fourth category consists of the general public. If Garland’s comprehensive analysis is accurate—that the primary public benefits of the death penalty are “political exchange and cultural consumption”—and as long as the remedy of life imprisonment without the possibility of parole is available, those partisan and cultural considerations provide woefully inadequate justifications for putting anyone to death.

Fifth, of course, is the class of thousands of condemned inmates on death row who spend years in solitary confinement awaiting their executions. Many of them have repented and made positive contributions to society. The finality of an execution always ends that possibility. More importantly, that finality also includes the risk that the state may put an actually innocent person to death.

Two years ago, quoting from an earlier opinion written by Justice White, I wrote that the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.” Professor Garland identifies arguably relevant purposes without expressly drawing the conclusion that I think they dictate. Perhaps he will tell us his real position in his next installment, which I look forward to reading when (and if) it arrives. In the meantime, I commend Peculiar Institution to participants in the political process.

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