The death penalty is fatally flawed and its days are numbered

Donald Trump knows many things to be true, and perhaps some of them even are. But the guilt of the Central Park Five—convicted rapists, later exonerated by DNA evidence and recently reintroduced to the public consciousness by a Netflix documentary—is not one of them. At the time of their 1989 trial, the president-in-waiting bought full-page advertisements in the New York Times and the Daily News, headlined “Bring Back the Death Penalty. Bring Back Our Police!”. Questioned on 18th June, some 17 years after their release, the Leader of the Free World refused to admit his error.

Execution continues to enjoy generous support. Hillary Clinton, whose husband enacted arbitrary deadlines on the right of appeal for those condemned, affirms that the punishment should be maintained for “egregious cases”. Most polls still find that a majority of the American population concurs. Across the Atlantic, when the government introduced a facility for submitting online petitions, pledging to consider all those polls which received 100,000 votes, the call for a return to publicly funded sacrifice was the first to meet the threshold.

All the same, it dwindles in law and practice and what we are witnessing may, in fact, be its death throes. Last month, New Hampshire became the twentieth state to announce that it will do without capital punishment and, thirteen days later, Ohio passed a bill to exclude those who are severely mentally ill at the time of offending.

Even where immolation is still official practice, the actual use of it looks ever more like a thing of the past—the number of executions in the states in 2018 was a third of that in 1998, and 142 countries have now abolished the ritual altogether. Robert Dunham of the Death Penalty Information Center notes that “[in the US, the] number of new death sentences imposed fell sharply in 2015. Executions dropped to their lowest levels in 24 years.”

Clinton’s reservation for “egregious cases” misses the point, because the most egregious feature of the needle and the chair is that they are not reserved exclusively for the guilty. The advent of DNA evidence saw a wave of exonerations—130 to date—in the US, but it would be a grave mistake to infer that improvements in forensic science have rendered the judicial system inerrant all over again. In The Death of Innocents, Sister Prejean documents the chaos:

Some innocent persons were freed because of DNA evidence, others because committed citizens and lawyers were finally able to expose suppressed exculpatory evidence, outrageous testimonies of jailhouse snitches, falsified police reports, or evidence of ‘coached’ eyewitnesses. In Illinois, Anthony Porter, two days away from execution, was freed because journalism students from Northwestern University dismantled the case against him and exposed the real murderer.

But who knows how many more exonerations DNA testing would have granted? Prosecutors blocked Joseph O’Dell’s request for DNA evidence because “persons unknown may have contaminated the sample by mixing in someone else’s semen”. A striking admission from prosecutors themselves, then, that DNA testing does not liberate us from human stupidity and corruption.

Illinois declared a moratorium on execution after it was discovered that the innocent on death row outnumbered the guilty. Conservatives Concerned, a coalition of conservatives and libertarians opposing the death penalty, which formed in 2013, details a particularly harrowing case:

Ray Krone was sentenced to death for rape and murder in Arizona even though DNA found on the victim did not match him. The state argued against having the DNA submitted to the database since the jury found him guilty even without physical evidence. A decade later, a crime lab worker ran the DNA through a database on his own, without a court order, and uncovered the identity of the person who actually committed the crime.

The list goes on and on. “Texas Court of Criminal Appeals ruled three times” in one year, Chip Rowe writes, “that lawyers accused of sleeping through portions of trials had provided sufficient counsel”. A study by the American Journal of Psychiatry found that 12 of the 14 children pending execution across four states had IQs lower than 90, raising broader questions about the ability of the mentally subnormal to make a case in court.

Once condemned, demonstrating your innocence will not get you off the awaiting hook. The US Court Of Appeals Tenth Circuit ruled in 1999 that “even though [Sean Sellers] may be able to prove his factual innocence of those crimes, we believe that he must be left to the avenue of executive clemency to pursue that claim”. The legal precedent is the 1993 Supreme Court decision Herrera v. Collins, which stated that “Federal habeas courts do not sit to correct errors of fact but to ensure the individuals are not imprisoned in violation of the Constitution”. Read that again: to be put down like a dog, for crimes you did not commit, is not a violation of your constitutional rights. Citing Patterson v. New York, the majority stated: “We have also observed that ‘[d]ue process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person'”.

So the process of elimination is flawed in more ways than one. In a crowning flourish of absurdity the court asserted that the best and most reliable avenue along which to appeal for habeas corpus relief is executive clemency. Thus John Adams’s edict is reversed, and through the death penalty the United States becomes a government of men and not one of laws. The dissenting judge, Harry Blackmun, concluded that the system of ritual sacrifice is beyond reform and that the only solution is to dismantle the “machinery of death” in its entirety.

More of this growling machinery’s malfunctions continue to come to light. It costs more than the alternatives. Since there are such alternatives, it probably violates the Eighth Amendment’s prohibition against “cruel and unusual” punishment. The lethal injection, which degrades and inverts the medical profession and began with the National Socialist party, is applied with lackadaisical spirit: a Lancet study of 49 executions found that in 21 cases the level of thiopental administered was insufficient to put the condemned to sleep, and failed to meet the legal and ethical standard for putting down dogs.

So an American voter might start by asking: “Who of this rabble gets to decide whether I live or die?” Perhaps it will be Donald Trump, or Hillary Clinton. And if such people cannot be brought to see tax-sponsored sacrifice as cruel, perhaps we will simply have to wait for the day it becomes unusual.