The death penalty: 35 years of a failed experiment

As a new report from the Death Penalty Information Center, “Struck by Lightning,” shows, if you are too poor to afford a good lawyer, killed a white victim rather than a black victim, or commit the crime in a county that puts time and money into capital cases, you are more likely to get the death penalty. If you are serial killer who has information the government wants and can make a deal, you are more likely to receive a life sentence.
 
An example involves Gary Ridgway, who pled guilty to killing 48 people in Washington State; he received a life sentence in 2003 because he agreed to provide detailed confessions. In contrast, borderline mentally retarded Teresa Lewis, who was present while co-defendants shot and killed her husband, was executed in Virginia last year.
          
Thirty-five years after the Supreme Court attempted to bring objective criteria to capital sentencing in Gregg v. Georgia, the death penalty is still as unpredictable as being “struck by lightning,” as Justice Stewart observed. Every year, there are approximately 15,000 murders nationwide. In 2010, there were 46 executions, yielding a ratio of one execution for every 326 murders, which is obviously too random to act as a deterrent.
          
Despite layers of appellate review, courts do not attempt to identify the offenders who deserve death from among the universe of those eligible for a capital sentence. Nationwide, about two-thirds of death sentences are overturned on appeal, and when the cases are reconsidered at a new trial, about 80 percent of the sentences are other than death. How can we trust a system that yields dramatically different results based on the same facts?
          
Other factors leading to Illinois’ recent repeal of capital punishment were the serious risk of error – since 1985, we have experienced exonerations of 20 men from death row – and experts’ findings that our system was infected with racial and geographical disparities.
       
Another major consideration was the high cost of capital punishment at this time of budget crisis. Illinois paid over $68 million in damages to 16 of the men who were wrongly convicted and sentenced to death. And since 2003, we spent over $100 million pursuing capital cases, with 18 men sentenced to death. The millions saved by abolition will be spent on police forces and facilities, forensic labs and personnel, careful investigations, aggressive but fair prosecutions, and services for victims of crimes and their families.
          
Another persuasive factor was the lack of credible evidence that the threat of death deters crime. Indeed, Illinois’ experience could be used to contend that the absence of the threat of death decreases the murder rate. After the governor declared a moratorium on executions in 2000, and in 2003 commuted the sentences of over 160 from death to life without parole, the Illinois murder rate has consistently dropped.
          
Ultimately, legislators will follow the will of the people. Polls show that Americans are growing uncomfortable with the death penalty, in part because they know that income, race, geography, and other arbitrary factors make it unfair. In a 2010 poll, voters rated unfairness as one of the top reasons for replacing the death penalty with a sentence of life in prison, along with concerns about executing the innocent.
          
After 35 years, the verdict on the death penalty is clear: capital punishment does not make us safer, diverts taxpayer dollars from more effective crime-fighting programs and victims’ services, and is applied in a manner that violates our ideals of fairness and equal protection of the law.

Thomas P. Sullivan has practiced law with the Chicago firm of Jenner & Block since 1954, except when he served as U.S. Attorney for the Northern District of Illinois from 1977 to 1981.

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