The Prison That Replaces the Gallows | Should We Have the Death Penalty? | Part 3

Should We Have the Death Penalty? Part III | The Crime Ledger

Should We Have the Death Penalty? Part II of a three-part investigation. The Prison That Replaces the Gallows: The cell measures roughly the size of a parking space. The walls are concrete. In many facilities the light stays on for twenty-three hours a day. Meals come through a slot. Visits, when they happen, are conducted through reinforced glass. The man inside, in the cases that concern this argument, will not leave alive.

This is what abolition usually looks like in the United States. Not freedom for the worst killers. Not even the possibility of it. Approximately fifty-six thousand Americans now serve life-without-parole sentences, the largest such population in the world. Anders Breivik, who killed seventy-seven people in Norway in 2011, sits in a similar cell in Skien Prison and will, in all realistic projection, die there, even though Norway abolished the death penalty in 1902 and caps its formal sentences at twenty-one years. He is not coming out.

This is the punishment the abolition argument is, in fact, asking the public to accept. It is worth being honest about what it is.

It is not painless. The Sentencing Project's longtime researcher Ashley Nellis has spent two decades documenting what activists have come to call death by incarceration, the slow corrosion of mind and body across decades of confinement without hope. Pope Francis, in Fratelli Tutti and in earlier addresses, called life imprisonment a hidden death penalty and condemned it in nearly the same terms he used for execution itself. Federal judges have written, in their own opinions, that the certainty of dying in prison shapes a person's psychology in ways the law does not adequately understand.

The honest abolitionist must take this seriously. Replacing one terminal punishment with another, one administered with a needle and one administered through fluorescent lighting and forty years of small rooms, is not, on its face, an obvious moral victory.

And yet the comparison, examined carefully, does not collapse. It clarifies.

Begin with deterrence, the argument that has carried more weight in public debate than the evidence warrants. The 2012 report by the National Research Council, the most authoritative review of three decades of econometric studies, concluded that existing research is not informative on whether the death penalty deters murder more effectively than long imprisonment, and that it should not be used to make policy. A 2009 survey of leading American criminologists by Michael Radelet and Traci Lacock found that 88 percent rejected the deterrence claim. Murder rates in death-penalty states have, for years, run higher on average than in states without it. This does not prove that capital punishment causes more murder. It proves that the proposition that it prevents murder is not, on the available evidence, sustainable.

Move to cost. California has spent more than four billion dollars on its death penalty since 1978 and has carried out thirteen executions. The state spends an estimated 184 million dollars more per year on capital cases than it would on equivalent life-without-parole prosecutions. Studies in Kansas, Maryland, North Carolina, Indiana, and Nevada have found similar multiples. The death penalty is, by a substantial margin, the slowest and most expensive sanction in American criminal law. The average time between sentence and execution is now nineteen years. The promise of finality is, in practice, is a promise of decades.

Move to the people commanded to carry it out. The research on execution staff is small and consistent. Robert Johnson's Death Work, the foundational study, documented elevated rates of trauma, depression, and substance abuse in correctional officers assigned to execution teams. A 2021 study in The Prison Journal by Casey Chiappetta and Robert Johnson reported similar findings. Jerry Givens, who carried out sixty-two executions in Virginia, became a public abolitionist after his retirement and spoke for years about what the work had done to him. Allen Ault, the former commissioner of the Georgia Department of Corrections, has called execution staff the hidden victims of the death penalty. None of this is dispositive. All of it has to be counted.

Move to victims' families, the constituency the death penalty most often invokes. The Armour and Umbreit research already cited found that families in death-penalty states reported worse psychological and physical outcomes than families in life-without-parole states, in part because the appeals process kept the case alive in their lives for decades. Some families want execution. Others, organized through groups such as Murder Victims' Families for Reconciliation and Murder Victims' Families for Human Rights, oppose it precisely because they have lived through what the death-penalty process actually does to people who have already lost too much. To say the death penalty serves victims is to choose, silently, which victims one is willing to listen to.

The argument that survives all of this is the philosophical one, that the worst crimes deserve the worst punishment, and that life imprisonment falls short of what justice, properly understood, demands. The argument has weight. It is also, on examination, the only argument that survives.

The case against it is the case Beccaria made in 1764 and the case the evidence has reinforced ever since. Even if the death penalty is, in some abstract sense, deserved by some particular killers, the institution that decides which killers is the same institution that, in fifty years of modern American practice, has produced two hundred death-row exonerations, a likely-wrongful execution rate near four percent, racial disparities the Supreme Court itself has called intolerable while declining to remedy them, and a pattern of forensic and prosecutorial failure documented across thousands of pages of academic and government review. The institution that would kill Bundy is the same institution that nearly killed the Hinton, the McCollum, the Bloodsworth, the Willingham. There is no version of it that produces the first without risking the second.

This is the editorial position The Crime Ledger takes after looking carefully. It is not the position that the worst killers do not deserve death. The hardest version of the retributive argument is real, and pretending otherwise is intellectually dishonest. It is the position that the justice system is not, and cannot reasonably be made to be, good enough to be trusted with that particular power. The asymmetry between a wrongful imprisonment, which can be undone, and a wrongful execution, which cannot, is the line a serious society does not cross.

Twenty-three states and the District of Columbia have stopped crossing it. The European Court of Human Rights treats the act of housing someone on a foreign country's death row as inhuman treatment within the meaning of Article 3 of the Convention. The United Kingdom, after the wrongful hangings of Timothy Evans, Derek Bentley, and Ruth Ellis, decided in 1965 that the cost of being wrong was a cost it would no longer pay. The country has not regretted that choice in sixty years.

The argument for abolition, properly stated, is not that the worst killers are innocent. It is not that their crimes are forgivable. It is that we are not, and have never been, all-knowing. We make mistakes in the cases we are most certain of, in front of the witnesses we trust most, with the sciences we believed most settled. We will continue to make them. The only question is what we are willing to do with that knowledge.

The serious answer, the answer the evidence supports, is to stop killing.

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By Karma Gray, Editor-in-Chief, The Crime Ledger   Karma Gray is the founder and Editor-in-Chief of The Crime Ledger (crimeledger.org), an independent criminology publication dedicated to analytical, non-sensationalist crime coverage. For more criminology analysis, criminal psychology research, and crime reporting, visit crimeledger.org.