Alex Kozinski, Crime, Death Penalty, Sentencing Law

Is The Death Penalty Worth It?

Can we stomach the splatter? Conservative columnist Tamara Tabo argues that the death penalty isn't worth defending.

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Convicted murderer Joseph Wood’s execution began at 1:52 p.m. yesterday. He was pronounced dead at 3:49 p.m., according to a statement from Arizona Attorney General Tom Horne. Some witnesses insist that Wood continued to gasp for air at least 600 times after he was supposedly fully sedated. Others argue that he was merely snoring. Everyone agrees that the lethal injection process took a lot longer than the expected. Death by lethal injection typically occurs within ten minutes or so.

America has grown accustomed to long delays in carrying out the death penalty. Inmates sit on death row for years, even decades. As Chief Judge Alex Kozinski wrote, “Old age, not execution, is the most serious risk factor for inmates at the San Quentin death row.” We may be used to delays before denizens of death row get to the death chamber, but we have only recently started to see delays once an execution has actually begun….

Earlier this month, U.S. District Judge Cormac Carney of the Central District of California issued an order vacating the death sentence of Ernest Jones and declaring California’s system of capital punishment unconstitutional. Judge Carney wrote:

Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution. [ . . . ] As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.

Sometimes, in the swirl of controversy, people gloss over the fact that whether to include death as possible criminal sentence is never more than an option citizens through the democratic process can exercise or decline to exercise. Just because we can execute does not mean we must execute. So, for the moment, set aside the question of whether capital punishment violates the Eighth Amendment. Set aside whether it is morally permissible when administered properly. Even if the death penalty is a morally permissible option, and even if it is a constitutionally permissible option, is the death penalty an option worth exercising?

Here are three reasons why capital punishment is not worth fighting for.

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First, capital punishment is expensive. According to the Death Penalty Information Center, the difference between a capital murder trial and a non-capital one often exceeds $1 million. Jury selection for capital cases takes longer. Additional defense counsel must be appointed. Expert testimony presented as mitigating evidence is pricey. Even as long ago as 1992, the Dallas Morning News reported that the average cost of a Texas death penalty case was $2.3 million, whereas the average cost of a case involving a life sentence was $750,000. In Texas, individual counties bear the cost of capital trials and the automatic state appeals that follow. Despite these costs, only one in ten death sentences nationwide results in an actual execution.

From the defense side, handling capital cases requires expertise most lawyers lack. Yet because of the high number of indigent defendants in capital cases, many defendants rely on over-worked public defenders or poorly qualified court appointed counsel. (Most pro bono representation in capital cases occurs during post-conviction habeas proceedings.) Resources are scarce. Rather than being an effective cost-saving measure for the public, however, tight budgets may produce more error for the appeals process to sift through. Whatever costs we save by limiting public funding for capital defenses at trial, we may often lose by paying for the administration of state appeals and the habeas process under AEDPA. (I’ve complained about AEDPA before.)

Second, capital punishment is politically divisive when the body politic has better things to argue about. Cases like Halbig v. Burwell, the D.C. Circuit’s current conundrum about Obamacare, draw sharp divisions among members of the American public, but their impact touches the lives of millions of people. Fighting over such issues is worth the effort for both sides, and worth the cost the public pays in unity. On the other hand, relatively few people are directly affected by capital punishment. I don’t mean to dismiss the interests of capital defendants, victims, and the families of both, nor do I suggest that the general public has no stake in the administration of justice. But there’s no shortage of hot-button fundamental disagreements demanding a finite amount of public attention, many of them necessarily placing liberal and conservative values at odds. Why devote so much to an issue that affects so few? More importantly, why divide over an issue on which both conservatives and liberals can agree?

Third, capital punishment has a high potential for error. The specter of executing an actually innocent defendant haunts every death sentence. That’s old news, of course. (Pretty important news, granted. But old.) Recently, the potential for error involves the execution of executions.

In January 2014, Ohio’s execution of Dennis McGuire took 25 minutes, with witnesses reporting that McGuire struggled considerably more than expected. McGuire’s family filed suit after the execution, claiming that he continued “repeated cycles of snorting, gurgling, and arching his back, appearing to writhe in pain.” Then, in April, Oklahoma injected Clayton Lockett with an experimental drug protocol. Lockett’s execution drew public attention because, not only did he take longer than expected to die, but he appeared to revive after he was supposed to be sedated. After officials had declared him sedated, Lockett apparently started twitching, struggling against his restraints, gritting his teeth, and supposedly even uttering the understatement, “Oh, man.”

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In recent years, states moved away from electrocution and gas chambers as execution methods, largely because of a series of gruesome mishaps. For example, John Evans and Frank Coppola both caught fire while in the electric chair, and Jimmy Lee Gray died while banging his head against a steel pole in a gas chamber execution improperly administered by a drunk prison official. Lethal injection seemed a more humane — or at least more aesthetically acceptable — means of carrying out death sentences. However, with the recent shortage of drugs traditionally used for lethal injection, states have been experimenting with new cocktails, with some mixed results.

As Chief Judge Kozinski reasoned in his dissent from the denial of rehearing en banc in Joseph Wood’s case, “If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive — and foolproof — methods of execution.” Kozinski comments on a catalog of options, suggesting that “the guillotine is probably best but seems inconsistent with our national ethos,” but “the firing squad strikes me as the most promising.” He goes on to write, “Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.”

So, can we stomach the splatter? Can we tolerate experimentation with lethal drug cocktails? Do we want to allocate tax dollars to defending the right to do so? Is a rarely used, too frequently flawed punishment option worth the expense, the political division, and the perpetual potential for horrendous error? Voters, conservative and liberal, in the 32 states that currently allow capital punishment ought to conclude that death sentences are simply not worth the trouble.

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com

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