The tide has turned against capital punishment in America.

The New Jersey legislature abolished its death penalty last week after years of moratorium and state-commissioned study. New York’s death penalty has been paralyzed by its courts and left for dead by its legislature – its death row shut down last month. Maryland came close this year to passing repeal legislation, and succeed in the next legislative session. An abolition bill passed the senate in Montana earlier this year, and the state of Nebraska came within one vote. In the meantime, with the protocols of lethal injection currently frozen under scrutiny by the Supreme Court, the country has not gone this long without a single execution in decades.

But all of this is happening not because the American populace has experienced some sort of moral rebirth, like a cowboy learning mercy. No, the new discomfort with executions actually has little to do with the ethics of crime and punishment. Rather it has everything to do with whether the death penalty works – and, if it doesn’t work, whether it’s actually dangerous and harmful to those whom the justice system is meant to protect.

Indeed, a majority of Americans still believe that our worst criminals deserve to be put to death. But when asked whether in practice it might be better to simply send them away for a life in prison, a slim but growing majority of Americans prefer this simpler, more consistent version of justice. And a large majority support a moratorium on executions.

The primary reason for this sea change is the alarming streak of exonerations that rippled throughout our justice system after the advent of DNA testing decades ago. Over 200 people have been exonerated by DNA evidence that proved their innocence. And as of this writing, 124 people have been exonerated from death rows in 25 states.

Their stories are shocking: forced false confessions, eyewitness misidentification, prosecutorial misconduct, incompetent or fraudulent forensic analysis. Some of these failures occur due to people with great power, under great pressure, doing bad things; some of it is just due to plain old (and inevitable) human error. But regardless of why, it is clear to many that if our justice system can go this wrong, we can’t allow it to continue as is – especially not with the irreversible act of execution.

A broken system

Behind the spectre of wrongful execution, many other reasons to abandon capital punishment pile up. So many that the American Bar Association called for a moratorium this year.

The death penalty is arbitrary – a given state will likely see the vast majority of its capital sentences come from a tiny minority of its counties. Crimes of similar magnitude will receive different sentences depending on any number of external factors.

The death penalty is biased – almost all of the people who typically receive the death penalty are dirt poor, and often mentally unstable. Crimes of the same magnitude committed by persons with the resources to get a good lawyer typically do not result in death sentences. Crimes in which the victim was black almost never result in death sentences.

The death penalty is harmful to family members of victims of crime, who must endure years, even decades of entanglement with the legal system as the case winds the long road from sentencing to execution.

Last and perhaps least is the cost of the death penalty: counterintuitively, a capital case costs the state many times more than a life in prison. With innocent people being exonerated from death row every year, who could suggest that the justice system cut more corners to make the trial process cheaper? Read More »