‘Tough on Crime’. It’s a mentality that wins over tabloids and the masses alike. For all we disagree on crime, nobody wants to see a criminal go unpunished. Sadly, talk of toughening up the criminal justice system inevitably includes a pinch of rhetoric about how we should bring back the death penalty.
In September, Conservative peer Lord Tebbit branded the arguments against capital punishment ‘thin’ in a statement concerning justice for the two murdered police officers in Manchester. It has not escaped the student forum either: reintroduction was the topic of a debate on campus on 29th October.
Working at the ‘Capital Punishment Center’ in Texas, I got to see how the death penalty worked in practice and it convinced me that it is a system we should be glad to have abolished. At the debate, it seemed that the proponents of reinstating capital punishment in the UK were all too happy to make their claim without addressing the realities of operating such a penalty.
The cost of the death penalty is one such reality. At the debate, the proposition understated this important economic consideration by playing off the moral claim that society shouldn’t pay for prisoners to live a ‘life of luxury’. It is a common misconception that bumping criminals off would save the costs of housing them and divert state funds towards more admirable pursuits. It sounds too good to be true – because it is. The death penalty costs the state of California approximately $138 million a year; life incarceration would only cost them $11.5 million a year. In fact, California’s current referendum on keeping the death penalty is likely to turn on the economic strain of capital punishment. The proposition asked why “we” should bear the cost of upkeep for a criminal but it seems illogical to do so by setting us up to bear an even greater social cost by executing them.
The focus of their case, unsurprisingly, was the moral justice which an ultimate punishment can provide. Yet a prerequisite to that moral debate is an assurance that the system works. In a perfect legal system, the perpetrator would conveniently commit his atrocity under the watchful eye of a CCTV camera and leave his DNA all over the crime scene. Under those circumstances we could begin to debate the morality of allowing a state the power to kill the guilty man, but our system is not perfect. The prospect of executing an innocent man slipped through our fingers as the last death sentence to be handed down in the UK was later quashed because the so-called confession had been made after six hours of water torture. We made the mistake once and abolition saved us; it is hardly a ‘thin’ argument.
America is the exception to the Western world for its unquenchable support of the practice so we must consider how they deal with the question of innocence. The double-edged sword of DNA technology highlights the growing tension. In the 90s cowboy labs and ‘expert witnesses’ allowed for a false confidence in trial outcomes but its recent use in exonerations is changing the game. The Governor of Illinois used his discretion to commute the sentences of the entire Illinois death row after a series of exonerations shook his state’s faith in capital punishment. It seems even across the Atlantic, where support for tough punishment is fervent, the ‘fear of executing the innocent’ argument is developing a powerful public persona.
In the 1970’s America suspended its use of the death penalty for 4 years as they tried to restructure their laws to ‘improve’ the death penalty. This aim of improvement is exactly what was asserted by the proposition as an answer to problems of procedure. Whether improving or reinstating, the following questions should be posed:
Should death simply be the mandatory sentence for those found guilty of murder or do you attempt to make it only the punishment for the most severe crimes, in line with the proportionate reasoning that we usually use to determine sentencing? If so, how does one pick which cases are the ‘worst of the worst’? When you have to strike a balance between aggravating factors like child victims, multiple murders or additional crimes like rape and mitigating circumstances like mental illness or extreme abuse in their own life, does it not become merely a battle of the lawyers?
Justice Ginsberg of the US Supreme Court famously pointed out that the well-represented do not get the death penalty, which inevitably points to an advantage of wealth. The proposition in the case dismissed this wholeheartedly as they spouted rhetoric about trusting the system and how they would do all that one could reasonably expect. Whilst it comforts me to think such dedicated people have ambitions within our legal system, I cannot forget what I experienced working with some of the best death penalty lawyers in Texas. My client had used a lawyer named Jerry Guerinot, a lawyer with such a bad reputation that a part of the Texas death row has been dubbed ‘The Guerinot Wing’ after all the ex-clients of his which it houses. In the current economy, as we face cutting our own legal aid programs, the concern now lies with how comfortable we should be with asserting that our own legal system is less susceptible than America to what is at best human error and at worst, abuse.
Issues of access to justice harbour an even darker home truth which the proposition failed to address at all. It is easy to dismiss a discussion of race by reference to America because their history is so much more turbulent, but its impact is under-discussed. What can be quantified is that victims of US cases which are tried for the death penalty are mostly white, overwhelmingly so when the defendant was actually executed. Inherent in its operation, there is a hierarchy of victims according to their race which is precisely what the Stephen Lawrence Inquiry suggested was true of access to justice in the UK. Our last death sentence was not only of an innocent man but a northern Irishman during the troubles of the 1960’s: a time of deep resentment and social divide. Frankly, it would be an injustice to underplay how the weaknesses in our criminal justice system would carry over to an attempt to reintroduce a death penalty.
The bottom line is that, in an imperfect system, a death sentence is an irreversible mistake. After 40 years of jurisprudence, the problems of innocence and fair trial are still pertinent in the USA. Why would we want to re-open that can of worms?