Death penalty on trial over its arbitrariness


WORLD VIEW:Concern over lottery- like nature of capital punishment in the US is driving abolitionism, writes PATRICK SMYTH

WHILE THERE appears little prospect soon of a majority of Americans accepting the majority view of European countries that its obnoxious death penalty should be repealed, there are interesting shifts taking place in US public attitudes, not least in as much as Americans reflect on their flawed justice system, arguments about which may eventually lead the supreme court, despite its conservative majority, to do the decent thing.

A poll from the Pew Research Centre this week reports that only 31 per cent oppose the death penalty, generally in line with results over recent years, but well up on the lowest recorded figure of 8 per cent opposition in 1996 (in Gallup/Pew polls abolitionists only ever outpolled supporters of capital punishment in the US in 1966 – by 47 per cent to 42 per cent).

But among those opposed to the death penalty there has been a highly significant shift in justification. Asked why they oppose it 27 per cent say they do so because it is immoral to kill, down from 41 per cent 20 years ago. But the proportion of those opposed because of concerns about flaws in the justice system and a fear that the innocent might be executed has more than doubled from 11 per cent to 27 per cent in the same period.

Given that two decades ago just 18 per cent opposed the death penalty it would appear that the vast majority of converts to abolitionism have come about through disillusionment with the fairness of the justice system. And not just because it convicts the innocent, but due to a widespread understanding that it is all too arbitrary and inconsistent.

More broadly defined, the arbitrariness issue is one of the most compelling legal arguments for abolition. The supreme court has not banned capital punishment per se, but it has held for some time that the death penalty is unconstitutional if randomly imposed or in a discriminatory way.

That black defendants are more likely to end up on death row has been well established by studies over many years. According to the Washington-based Death Penalty Information Center, 56 per cent of death row inmates are black or Hispanic, while Amnesty International also reports that 20 per cent of blacks on death row nationwide were convicted by all-white juries.

In some states abolitionists have used the constitutional argument to win legislation allowing inmates to contest death sentences by using statistical evidence of racial bias, including the exclusion of blacks from juries. (The policy is highly controversial – in North Carolina, despite evidence that defendants whose victims were white were 3.5 times more likely to receive a death sentence, the governor recently had to veto Republican attempts to repeal such provisions).

In defence of capital punishment it is also argued that somehow the system gets the most egregious offenders; the real monsters are those it takes down systematically and, allegedly, even-handedly – but that case has now been effectively demolished by a fascinating study based on capital cases in Connecticut conducted by John Donohue, a Stanford law professor.

Donohue looked at all murder cases in the state over 34 years – 4,686 murders, of which 205 were rated capital offences involving killing a policeman, rape-murder, murder for hire or committed during a kidnapping.

He found that arbitrariness started at the charging level: nearly a third of these death-eligible cases were not charged as capital offences as they could have been, but as lesser crimes. Sixty-six defendants were convicted of capital murder, 29 went to a hearing for a death sentence, nine death sentences were sustained and one person was executed.

The race of the defendant, and chance, are major determinants of where he will end up.

The survey then ranked all the potential capital cases by “egregiousness” – victim suffering, victim numbers and premeditation, or mitigating factors such as drink/drugs involved, or age. Counter-intuitively the study found that those who were to end up on death row were indistinguishable from equally violent offenders who escaped that penalty. Among the 32 most awful cases on the four-factor egregiousness scale, only one resulted in a death sentence.

“It shows,” the New York Timesargued this week, “that the process in Connecticut – similar to those in other death-penalty states – is utterly arbitrary and discriminatory.”

There were 43 executions in 13 US states last year, down from 46 in 2010, which represented a 56 per cent decline since 1999. In 2011, the number of new death sentences imposed fell by 25 per cent to 78, the lowest since capital punishment was restored in 1976.

Clearly the decline must be welcomed by abolitionists – it is the outcome of thousands of prosecutors deciding individually not to press capital charges against murderers for many reasons, ranging from cost of trial to the difficulty of conviction and also a less bloodthirsty public.

Ironically, however, the decline merely further emphasises the arbitrariness and lottery-like unconstitutionality of the system.

“This ‘freakishly’ rare application – among the thousands of murder cases a year – is strong evidence that every state system is arbitrary and capricious,” the NYTargues rightly. “The death penalty in Connecticut is clearly unconstitutional, barbaric, and should be abolished, as it should be everywhere.”