An eleventh-hour reprieve in Nevada last night for condemned murderer William Patrick Castillo marked the latest victory for opponents of the death penalty who do not regard lethal injection as the humane method of execution that its supporters say it is.
The Supreme Court is scheduled to hear oral arguments on the subject in the coming months, and death penalty opponents plan to argue that the three-chemical cocktail used by most of the 37 states that carry out lethal injection immobilizes the condemned and hides the pain they experience before they die. They say the process violates the Eighth Amendment’s ban against cruel and unusual punishment.
“It’s cruel because we think there might be pain involved, but we can’t prove it?” This is the argument? That seems a bit week. While I admit to being ambivilent about the death penalty, the Constitution clearly allows it and the methods that were in use in the 18th and 19th centuries were not considered cruel even though they caused pain for a brief time before death. Scripture also clearly allows for the death penalty, so I can’t think of a theological issue that would not allow a justly applied death penalty for the protection of society. The key, there, is “justly applied” and that is my major problem with the death penalty – that it is not justly applied. The argument that the condemned might briefly feel pain doesn’t convince me that the penalty is both cruel and unusual.
YBIC,
Phil Snyder
I feel torn about the death penalty. I agree with Phil above that I don’t buy that the framers of the constitution were opposed to it. Similarly, I am not bothered by the fact that they might endure pain before they die. I guess the question I continually ask myself has to do with it being an absolute end. That is, to kill someone seems to believe there is no possibility of redemption for these human beings. That because of something horrible that they did, they are not allowed forgiveness. I’m not saying that they should be allowed to just apologize and we all move on. I don’t know – like I said, I just feel torn. Similarly, if I’m pro-life, I don’t know how that works with criminals; I’m not sure it’s fair to having exemptions to believing in the sanctity of life. No easy answer I suppose. If someone is a continued threat to other people’s safety – then it’s easy to be for the death penalty. Similarly, has it been proven that it’s actually a deterrant? It seems there are facts on both sides to support their respective causes. I think this is an issue the (non-Roman Catholic) Church should continue to wrestle to understand.
Mark,
I’ve been involved in prison ministry for 12 years now. I can think of nor more soul-destroying place than a maximum security prison – especially the “super-seg” (solitary for hardened offenders or death row inmates) wing(s). Each time I walk into the prison, I can feel the anger and hatred in the walls. I believe that I would rather die than spend the rest of my life in a max environment or in seg/super-seg.
I believe in redemption for all people – especially for those incarcerated. Nothing focuses the mind like the prospect of dying. If the person cannot bring himself to confess and ask forgiveness in 5 years, what makes you think it will happen in 10 or 15 or 25 or more? If a man can’t confess now, then I can only entrust him to God’s mercy.
I am more concerned that the application of the death penalty is very skewed to the lower economic classes (and, thus skewed racially) and that there are not sufficient safeguards in place to ensure that innocent people are not killed by the state. I think that a true “pro-life” stand allows for capital punishment because of the worth of the victims’ lives. Capital punishment takes the lives of the victims and the safety of society seriously and asks for a balancing of the scales that was upset by the crimes to begin with.
YBIC,
Phil Snyder
There is some cruelty in all these last-minute reprieves, in cases where guilt is not in question. When lawyers delay the inevitable by advancing some novel & weak legal theory, it is cruel both for the criminal, and for the family of his victims. If the guy is guilty, better to get it over with, than subject him to 2, 3, or 4 last meals before he meets the hang-man.
At one time I was a strong supporter of the death penalty. However as Winston Churchill once observed when asked why he was reversing his position on a policy, “I absolutely reserve the right to be smarter today, than I was yesterday.” Today I am opposed to capital punishment. My opposition is not based on the issue of cruelty or justice. The truth is that some of those on death row deserve a level of punishment that we as a civilized nation can not impose. My reasons for opposing the DP are…
1. It has no proven deterrent value. Indeed the overwhelming body of evidence indicates the DP has no statistically significant deterrent effect.
2. There are no uniform standards for effective legal council. In some states if the defense attorney has a pulse and is not CURRENTLY disbarred he will do. Examples of some who have passed muster in the courts as adequate legal council in capital trials include lawyers who had no experience trying criminal cases (one was a tax lawyer who had never even tried a traffic ticket), drunks, a lawyer who slept through most of the trial, lawyers who called no witnesses for the defense and did not cross examine any prosecution witnesses, attorneys who have been previously suspended or disbarred and so on. It is not surprising that those states with the higher rates of executions tend to be the ones with the lowest (or no) standards for effective council.
3. Both in capital and non-capital cases their have been a disturbingly high number of wrongful convictions which have been brought to light in recent years. There are also at least two post Furman cases (one in Texas and one in Missouri) where available evidence indicates an overwhelming likelihood that innocent persons were put to death.
4. The appeals process is excruciatingly long and so expensive that it is generally cheaper to incarcerate someone for their natural life than pursue a death sentence.
5. Some states have severely limited the right of appeal in order to reduce expenses and speed up the rate of executions. In some of those states this even extends to prohibiting the introduction of exculpatory evidence discovered after the conviction! This greatly increases what I believe to be an already unacceptable risk of miscarriage of justice.
6. Statistics show that cases where the defendants were able to afford good legal council prosecutors rarely seek the death penalty even when the vital circumstances of the crime are demonstrably the same as other cases where the defendants could not afford top notch lawyers and the death penalty was sought.
7. States that do (or did in New York’s case) have very high standards for competent legal defense in death penalty cases see few capital sentences and very few or no executions.
New York had the highest standards for capital defense lawyers in the country during the roughly ten years the death penalty was on the books. Of the seventy-two capital cases prosecuted in New York between 1995 and 2005, sixty-three resulted in First Degree Murder convictions, fifty-one of those resulted in Natural Life sentences, eleven in death sentences and one died before being sentenced. Of the nine not convicted of First Degree Murder, seven were convicted of lesser charges and two were acquitted.
Of the eleven sentenced to death over that ten year period, in 2005 five were still on death row, six had had their sentences overturned on appeal and none had been executed. Shortly thereafter New York’s Court of Appeals overturned part of the death penalty law. Subsequently the state legislature declined to amend the law to restore capital punishment to the state. The cost to the taxpayers over that ten year period exceeded $100 million (!) dollars. (Exact figures were not available from my primary sources since several counties had not reported their total expenses. The aforementioned figure is therefore conservative.)
8. There have been numerous documented instances of prosecutorial and police misconduct in capital cases. Those who question if this really ever happens should take a look at the recent case in Durham NC where a prosecutor attempted to railroad three young student from Duke University for a crime he knew never happened. It is likely the only reason they were into packed off to prison is that they came from families with the means to hire outstanding criminal defense teams.
9. Although the United States is a sovereign country, and we are within our rights to order our justice system as we see fit, I think that when virtually the entire of the developed world has abolished capital punishment and we have not, that should be cause for reassessing our position. When we stand alone in the developed world in defense of an institution that has been uniformly rejected, to not ask ourselves some very tough questions is perhaps tending towards the sin of pride and hubris. Why are we so isolated on this matter?
#5 Ad Orientem:
I just want to say that those are pretty much exactly the reasons I oppose the death penalty. I do think that in principle there are cases where society is justified in exercising the ultimate penalty, but the record does not show that we are good enough at figuring out which cases those are to be trusted with it.
I live in Nevada. I am a lawyer. I have a good friend who worked on this case. She wrote to me yesterday. This is her comment:
“Also, if you would, say a prayer today for Billy Castillo. His execution is tonight in Carson City. Even though this was his “choice,” and our office respected it, it is a very sad day. He’s 35 years old and probably has one of the worst mitigation stories I have ever seen. He says that he is at peace; he’s extremely remorseful, and really wants a tabular rasa for the next time around. From where I sit, I’ve learned that you cannot
separate a child’s experiences and how it shapes, deforms, the adult that child becomes. May he get that chance.”
[blockquote]Under the procedure followed by most states, the condemned inmate is strapped to a gurney, sedated with sodium thiopental, injected with pancuronium bromide to collapse the diaphragm and lungs, and then administered potassium chloride to stop the heart.[/blockquote]
It is curious why they use sodium thiopental, better known as sodium pentothal an older drug with no analgesic effects. It is possible that some might have what are known as “awareness” episodes where the the patient is aware and the paralytic, pancuronium bromide, would be very scary, with the guilty party dying of asphyxiation. However, the statement
[blockquote]Condemned inmates are “alive all the way through the process, feeling pain until the bitter end,” said Lisa McCalmont, a lawyer and consultant to the death penalty clinic at the University of California at Berkeley’s law school.[/blockquote]
is nonsense.
Propofol (Diprivan) is an excellent amnestic and analgesic. Really no other medicine is needed. One could simply titrate the medicine up. Amnesia and anesthesia (no pain) first, then respiratory depression and then cardiovascular collapse.
Alternatively, a [url=http://en.wikipedia.org/wiki/Bispectral_index]”bis monitor”[/url] might be used which measures brain wave activity and could be used to reduce the possibility of awareness episodes, although this is certainly not without controversy.
That being said, I would never participate in the carrying out of the death penalty. See [url=http://www.johnpatrick.ca/papers/jp_hippoc.htm ]here[/url], for a discussion of the Christian physician of the Hippocratic oath.
In previous posts on this blog and mine, I’ve voiced my opposition to the death penalty on the grounds that I believe no one is beyond redemption. Although I have great sympathy for Phil’s position, I honestly believe if Jesus was asked about the death penalty, he would have given the same answer as he did in the case of divorce. Yes, the law provides this, because of the hardness of your hearts. In saying this, I mean all of our hearts.
However, I want to address just the lethal injection issue. At lunch today with other lawyers in the firm, the subject came up about some idiot doctor locally who hunted deer with a spear. While a largely ineffective weapon against a nimble deer, a lawyer in the office (who is a very conservative Anglican who has left the Episcopal Church) but a vegetarian and animal rights person (okay, yes, conservative Anglicans come in all stripes on other issues), said she would rather have folks shoot the deer rather than spear them. Hunters in the group agreed.
We’ve tried to come up with all sorts of ways to try to kill human beings and animals in more humane ways, but, honestly, a bullet to the brain is probably the least painful. In the capital punishment arena, we’ve gone from firing squad to the electric chair to lethal injection after we abandoned hanging in this country. If someone wants to kill me, I’d prefer a bullet to the brain rather than electric shocks or a chemical cocktail. Instant destruction of the brain so there is no pain and immediate cessation of life functions.
Think about deer for a second. Would you want hunters to use long range tasers, chemical darts, or bullets to kill deer? The same logic ought to apply to human beings, I would think.
It has no proven deterrent value. Indeed the overwhelming body of evidence indicates the DP has no statistically significant deterrent effect.
Could you tell me, what happened to the murder rate in all those places where the death penalty once existed and was used but which has been abolished or reduced to the shadow it is in most states now where it takes twenty years to kill a murderer? Has the rate decreased, increased or remained flat.
I’m just wondering how you define “statistically significant”.
I respect those who are against all forms of state-sponsored and state-condoned killing. But, legally, the case against capital punishment is frivolous. Those who want to abandon the death penalty need to go to the legislature, not the courts.
It’s that darn new technology that is at fault here. We will have to use what has been tried, tested and approved by the Founding Fathers. (“Get a rope!”)
By the way, anyone claiming that the death penalty is not a deterrent needs to look at crime figures from at least fifty years ago. Since then, the incidence of the death penalty has been so slight as to have limited effect. In Nevada a woman sentenced to death in the prime of her life died a couple of years ago on death row — from old age. I doubt that your actuarial statistics would change much if you were tried, convicted and sentenced to death today.
Re: 9
Brad,
You make a good argument. I don’t think that the modus operandi of execution has become much more humane. Lethal injection is not really for the benefit of the condemned. Done properly shooting, decapitation (guillotine) and yes even hanging are all quicker and probably more humane. The real beneficiaries of lethal injection are the witnesses. We don’t want to actually see violent death. Lethal injection is not violent to the yes or sensibilities of most people. You just see someone apparently drift off to a sleep from which they do not awaken. We have been bending over in an effort to make the process of killing as antiseptic and clinical as possible. If I were going to be executed I would want the long walk up the 13 steps to the gallows. It takes less than 1 second from the time the trap door is pulled for the condemned to reach the end of the rope. If the correct formula is used to determine how much rope to give, the knot will slam into the person’s neck breaking it instantly. In the unfortunate event that a little too much is given the condemned is decapitated. In either case the result, though undoubtedly disturbing for the witnesses would be more or less instant death. All in all a far more humane death than that provided by lethal injection.
The primary reason hanging was abandoned in this country is that with a few exceptions we never really had a class of highly trained professional executioners. Most executions were carried out by people with little or no proper training. The result predictably was botched executions. In England the position of hangman was a civil service position that required extensive training as an apprentice before being certified to do the job on one’s own. This might explain why hanging never gained the bad reputation over there that it did here in the US. Hanging remained the official method of execution until Britain abolished the DP. There were also very few recorded botched executions. Albert Pierrepoint, one of Britain’s last and greatest hangmen, was so proficient in his trade that he considered it a personal and professional failure if a hanging took more than twenty seconds from the time the condemned mounted the trap door. His best time was just seven seconds.
Re: 10
Christopher,
There have been more than a dozen exhaustive studies using massive amounts of empirical data and taking into consideration every conceivable variable conducted over the last 30 years or so by various entities. With one very notable exception they all concluded that capital punishment had no discernable deterrent value. In the exception I mentioned above the professor (whose name I can not remember) that wrote the study concluded that a certain number of lives were saved each time there was an execution. His methodology was severely criticized however. He failed to take into consideration many possible factors that influence homicide rates like population density and shockingly even the availability of firearms (which should be a no brainer). After reviewing his study and the criticisms leveled against it he acknowledged its flaws and effectively disowned its results. Unfortunately to this day the study continues to be cited by some proponents of the death penalty. As of this date I am not aware of a single reputable study which demonstrates any deterrent effect for the DP. On the contrary the evidence against it is so overwhelming that it is only out of an abundance of caution that I do not state the lack of deterrence to be established fact.
Re: 11
Vinnie,
You make an excellent point. I am a strong supporter of original intent in matters constitutional. The issue of the DP for the most part belongs in the political arena for the elected legislatures to deal with, not the courts. Regards your concern over the murder rates from many decades ago, this is a problematic point of comparison since it is not just the legal landscape and the number of executions which have changed since then. It is simply impossible to make an effective comparison without taking into consideration the massive sociological changes which have occurred. Such a study would indeed be fascinating if it could ever actually be done. But the number of variable elements which could impact the study would be prohibitive. I fear that a truly accurate study comparing the impact of the DP on crime during the period of the 1940-1950’s with today, that adhered to accepted principals of modern sociology and statistics would be all but impossible.
As a follow up to my point 9 in post #5 the NY Times has an interesting article on our being the only country that sentences children to natural life terms of imprisonment. It can be found here.
http://www.nytimes.com/2007/10/17/us/17teenage.html?hp
Having worked in the field of anesthesia for about 25 years it is my opinion that lethal injection with the massive doses of Na Pent used it is probably pretty pain less. I used to do 20 to 25 min D&C;’s with 200 to 250mg pentathol and nitrous oxide with no recall. We used to give relative over doses (300 to 500 mg) when I was first learning and due to the pharmokinetics of the drug (redistribution) the patients would stay asleep for a fairly long time. Given that exacution victims get grams of the drug I serously doubt there is any pain or awareness during the process.
[blockquote]I think this is an issue the (non-Roman Catholic) Church should continue to wrestle to understand. [/blockquote]
I take it you’re under the impression that capital punishment is a settled issue for the Catholic Church? From what I understand it certainly is not. AFAIK, the Church does not condemn capital punishment in theory, but Pope JPII (and most Catholic leaders, it seems) have purported that in our society, the necessity of capital punishment to protect society is no longer there when we can incarcerate a person safely and indefinitely.
Actually the Roman Church is pretty solid in its opposition to the DP. +John Paul II said that the circumstances now in existence render the DP rarely if ever morally permissible. This was also substantially the language used in the new version of the Catechism.
Thanks to many for this excellent discussion (especially Ad O. #5).
In #1, Phil states that scripture clearly allows for the death penalty, and #9 Brad provides an interesting comment. I confess that scripture regularly turns me around, but I tend to rely on the two great commandments, and I cannot “love thy neighbor” with the death penalty. First, it seems to me that any premeditated death runs counter to the command to love our neighbors. Second, because we are fallible, we are open to the possibility that we are guilty of the same crime as those we execute (same reason I don’t spank my children — I can’t teach them to use reason and compassion to solve their problems if I solve mine through force).
Ad Orientum, I asked about the murder stats, not the conclusions of people perhaps looking at the data. What was the raw data upon which they made their conclusions? Did the murder rate go up, stay flat or decrease when the death penalty was reduced or eliminated?
This you did not answer. Thus I cannot see any reason to change my opinion on the matter.
Christopher,
If you ignore all of the other variable influences on homicide rates the answer is that they did all of the things you asked about. In some places they went up, in some they went down, and in others they stayed the same. However my point is that you can not draw conclusions about the influence of the DP by examining only those statistics because there are other influences besides the DP or lack thereof on homicide rates. And those influences can be dramatically different from place to place.
If however you adjust for all those variables, then the answer is that there was no statistically significant change in the murder rates in any reputable study of the influence of the DP on homicide rates. The studies almost all showed no change in murder rates following abolition of capital punishment. Two showed slight decreases in the murder rate following abolition. An interesting study done in the early 90’s by the University of Michigan showed a moderate rise in homicide rates in those states where executions became more frequent. However the results of that study were not duplicated in similar studies. Although a rise in homicide rates was noted in several other studies the numbers were within their margin of error.
What are the other variables and how are they relevant? You offer me no concrete facts, just conclusions. How am I supposed to evaluate your argument that way?
There are tons of things which influence murder rates ranging from population demographics, i.e. how many people live in close proximity to one another, racial and ethnic conflicts, poverty rates, availability of firearms, education rates, education and employment rates and so on. Any accurate measuring of changes in murder rates especially if assigning a causative factor needs to take into consideration all of these issues and others.
It sounds like you have so many variables that you could come out with any conclusion based upon how you rank their importance and relationship. What then is the value of such subjective “studies”?
Interpretation of data and assigning relative values to all of the variables is indeed a laborious process. However the value can be enormous when trying to decide issues of great moment such as whether or not killing offenders deters murder. If one does not cite that as an argument in favor of execution (and I have heard supporters of the DP dismiss the relevance of deterrence to the issue) then these studies may not be of much worth.
But traditionally deterrence has been one of the linchpin arguments in favor of capital punishment. If you remove it you are essentially left with Lex Talionis as your only justification. And I think that when weighed against all of the arguments against the DP that is a rather weak defense for the premeditated killing of someone who poses no immediate threat to society.
My point is given all the variables you list no argument based upon them has any force because their calculation is too subjective. Lex Talonis is indeed the one moral principle backed up by Scripture and Common sense that needs no statistics to defend it. Arguments of deterrence are problematical if not backed up by Lex Talonis. You could get more people to wear seat belts if you just brutally punished a few offenders first. Punishment must first and last be determined by guilt. Everything else gets us into the realm of playing God and calculating the state of men’s souls and the long term consequences multiple variables. We are supremely incompetant at such a role.
God set up punishment for evil. It hasn’t been repealed despite how some interpet John 8, as Paul makes clear in Romans.