criminal law

Are Collateral Damages Acceptable in the Administration of the Death Penalty?

This November, California voters will face a literal life-or-death decision. Proposition 34, titled “Death Penalty. Initiative Statute,” proposes to repeal the death penalty and replace it with life imprisonment without the possibility of parole.

At first glance, the initiative may appear as a referendum on whether our society should have the right to kill those who commit particularly heinous crimes. Some believe that certain criminals deserve the death penalty. And, few will disagree. A Gallup poll shows that around 60% of Americans support the death penalty for a murder conviction with the predominant justification being “an eye for an eye.”

However, the issue is more nuanced. While the death penalty does satiate our primal desire for retribution, we must decide whether we are willing to accept a degree of collateral damage in this pursuit of justice. Consider the dissent from In re Troy Anthony Davis, 557 U.S. ___ (2009), in which Justice Scalia stated:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

In just over a month, when we mail in our absentee ballots or vote at our local polling places, we can embrace or reject Justice Scalia’s vision. If a defendant is convicted and sentenced to death after a fair trial, should we still error on the side of caution and surrender capital punishment as a safeguard? We will have the opportunity to decide whether the benefit of punishing the guilty by way of the death penalty outweighs the cost of killing an innocent. For some, the potential chance of killing an innocent person may be a line that cannot be crossed. They may demand that the criminal justice system be perfect.

However, we can also view the death penalty within the context of our every day lives. For the past three decades, traffic accidents have claimed 30,000-40,000 victims each year in the United States. Certainly, a lot more innocent people die in traffic accidents than from wrongful executions, but we don’t halt traffic until we have an accident-free system in place. According to the Center for Justice & Democracy, the number of deaths from medical accidents each year range from 65,000 to 200,000. Again, we do not suspend the entire health care system until the practice of medicine is free of accidental deaths.

A lot of people die in accidents. It is for each of us to determine how we want justice administered in our system. Are the wrongfully convicted just collateral damage? Are mistakes just a fact of life? Are wrongful executions so far and few between that in the grand scheme of life, there are bigger priorities to tackle?

5 replies on “Are Collateral Damages Acceptable in the Administration of the Death Penalty?”

Your analogies are off the mark. Traffic and health care involve situations where an “innocent” person comes to the occasion which causes his or her death. People DECIDE to drive or DECIDE to obtain medical care, despite the risk that they may be an innocent victim of a traffic accident or medical malpractice. A person convicted and murdered by the death penalty, but later found to have been innocent (DNA or other such evidence) does not have the same factual context. The innocent decedent is scooped up out of his or her life and executed in cold blood by a system that can never be perfect. Knowing this, every supporter of the death penalty is responsible for every innocent death that results. What is so lenient about Life in Prison Without Possibility of Parole that makes it an insufficient punishment for our purposes? The cost to execute a person is astronomical due to the number of mandatory and then discretionary appeals, inadequacy assistance of counsel claims, and habeas petition rights that the person has. But streamlining the process would be draconian and increase the likelihood of murdering an innocent. Get rid of this stupid penalty. We are not qualified to dispense death as a penalty.

It is not fair to say that those who wish to end capital punishment are demanding that the criminal justice system be perfect. They are not; rather, they generally argue that state-sanctioned killing is not right by virtue of its irreversibility.

Presumably, a sentence to life-in-prison without the possibility of parole is still commutable, should the convicted person later be deemed factually innocent. A sentence to death, once carried out, can never be commuted.

Rather than demand that the criminal justice system be perfect, anti-death penalty advocates recognize that it is not. It is provably prone to failure. Innocent men and women have been executed when they were factually innocent.

When we enter a car, we do not expect to die, and when we enter the care of a hospital, we know our caretakers will do absolutely everything possible to prevent our harm or death.. medical professionals tend to follow the Hippocratic oath. The hangman, on the other hand, promises only and always to kill. To take the life of another man, in a cold, detached, premeditated, and by definition inhumane manner.

When we enter the execution chamber, we expect to die. The only accident possible is an unintentional killing, sanctioned wrongly by the state. So – an “accident” in this context is not comparable to a car crash or medical malpractice, since only outcomes that are the opposite of death are strived for and expected. In health care and in our cars, we expect to live, and live better, as do all the professionals involved in the auto industry and the health industry. The capital punishment industry is a professional, state-sanctioned, killing machine, but it can be easily eliminated without any “collateral damage” to our prison industrial complex, let alone our justice system, imperfect as it certainly is. Rather, both would arguably be improved, especially the criminal justice system, which would be more likely seen as fair and impartial, not menacing and dangerous.

Basic principles of morality proscribe the cold-blooded, pre-meditated murder of any human being under any circumstances. To carry the death penalty out, at least one human must be directly involved in just such a morally abhorrant duty, as their *job*, knowing that the system directing him or her, the state, is fallible, because it is comprised of us, human beings, all fallible. This cannot be correct. It is morally wrong and completely unnecessary.

We no longer peel off people’s skin or boil them in oil. As our civilisations’ ideas about capital punishment have evolved, they have tended to move from processes involving long and drawn out torture of the body, the public infliction of spectacular pain and humiliation, to, in modern times, a quiet, painless, abstract bureaucratic process performed by state functionaries. It has become unremarkable, a process that is in fact enforceably not unusual.

State-sanctioned killing should be reserved for only the most *unusual* of circumstances. Accidents. Those circumstances where we *do* as a society agree. These deaths are neither caused purposefully by individuals or by the state. They are accidents. If they are legitimate accidents, the context doesn’t matter, car, hospital, trampoline, pool, jetski, or too much soda or fried chicken…

Car accidents are not “collateral damage” of the car industry… if they were, the primary objective of the car industry would be to kill everyone who gets in a car *and deserves it* and accidents would only be those times cars killed *the wrong person* – someone who didn’t deserve it. Your comparison to the health care industry is even more obviously flawed. Accidental deaths in a hospital could only be considered “collateral damage” if the purpose of the hospital was to do damage to a certain class of people… for instance, if the hospital’s prime directive were to kill everyone who came in and was sick with the flu, but it accidentally killed some people who came in and were not sick at all, *those* people could be considered “collateral damage.”

The only reasonable comparison you could have made with capital punishment would be to the context from which you borrowed the term “collateral damage” in the first place — war.

Not healthcare or driving cars.

Since state action against its own citizenry is not legal war,

I agree that the death penalty is not a good idea. I would venture to say that it is a holdover from our medieval past, and should be thrown out with all the other barbarous, retributive penalties that our ancestors meted out. Far better, I say, is life without parole. I would have no objection to making that life in solitary confinement with no visitors, except counsel. At least, the possiblity exists that new exculpatory evidence might emerge, but, if the prisoner is indeed guilty of the heinous crime, then he or she will have a lifetime of boredom to think about it.

People in love with the death penalty have no idea what prison is like. I went stir crazy snowed in for four days in my house with internet, cable, food, books, etc. Living in a 7 x 10 cell with a toilet and roommate for four days, four years, forty years — now that’s punishment. Okay, I know they get some yard time and the Hi Max guys don’t get a roommate but the Hi Max guys are typically locked down 23/7.

Our nation, on our behalf, does engage in wars because of avarice, punishment, defense, etc, and not according to any set rules, but rather the whim of a president and sometimes a majority in Congress. In such wars, many putative innocent suffer directly and indirectly. Pacifists moan about it. Many irresponsible people drive who ought not, and injure others as a consequence. All who venture forth in life know they can become victims of their own ignorance, stupidity, carelessness, ire, and irresponsibility, or that of others. We all know we have a statistical likelihood of suffering. And that includes getting falsely arrested, convicted, and sentenced to death. And I might remind the rational here that knowingly giving birth while stupid wantonly risks inflicting lifelong stupidity upon the innocent child, a penalty that deserves death as much as intentionally injecting a stupidity serum in a random passerby. That ought to be a crime. We could suggest something similar for cops who falsely accuse and arrest or kill their victims, and prosecutors who plea bargain. If they received death penalties for that, they might lighten up a bit, and that would reduce the number of people wrongly punished by the death sentence OR life (or any amount of time) in prison.

All arguments against the death penalty therefore seem fallacious to me. We who want the death sentence demand it not merely to punish, for that lasts but an instant and does not punish, generally, but rather to eliminate a dangerous threat from our midst. We do that to diminish the likelihood that going abroad in out society will make us statistical or collateral victims of circumstance, accident, or intention. We cannot perfectly eliminate that risk no matter what we do, but we have a duty to do SOMETHING practical and cost effective to eliminate it.

The death penalty does not constitute a cost-effective means of dealing with those who deserve it. And, true, we might administer it to an innocent person or two now and then, but the preponderant majority (97+%?) everybody who gets it deserves it. And let us not forget that we owe reasonable safety to the enormous number of people imprisoned for other than a death sentence and who die while in prison from murders, accidents, and natural causes. Why doesn’t your heart bleed for those relative innocents?

We could and should do something to reduce the monumental cost of the death penalty and of incarceration for life. We, the society should have no obligation to pay the cost of that. Economically, those who experience life or death in prison, might cost non-criminal society more than the peace of mind and security their incarceration buys. Why not forget about prisons altogether for capitol criminals, and execute those on the spot who get the death sentence? Or why not let capitol criminals run around on the loose?

I say if we have a penal system, we must accept it with all its warts, including the specious reasoning against the death penalty. Most people of common sense know we experience mortal death sooner or later anyway and then face a judgment day and continued spiritual life afterward, if we warrant it. Oops, many of us might face an order of personality annihilation at that judgment day for failing ever to have constructed a soul for personality survival while we had the chance. Shall we chasten the Ancients of Days for that heavenly justice? I think not. We shall instead realize that God extinguishes worthless lives as a matter of course, and from the spiritual view, the fat lady doesn’t really sing on our world, in spite of apparencies

The death penalty, for all its wrinkles and warts, eliminates dangerous or worthless lives from our midst. I find only one fault with it. It should eliminate them with more immediacy. Maybe thereby the departed will live a more fruitful life next time.

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