5 Arguments Against State Executions: From Racism to Drug Shortages

Source: Thinkstock

Source: Thinkstock

Lethal injection and state executions are once more a topic of considerable debate following the recent Oklahoma execution gone wrong. Earlier this week, Clayton Lockett was put to death on conviction of rape, murder, robbery, and kidnapping. The execution, administered by lethal injection, did not go as planned, with Lockett speaking long after he was meant to be unconscious, convulsing and having a vein explode before eventually dying of a heart attack. While hardly the first time a lethal injection has been problematic, Lockett’s death especially highlighted the issue of those drugs being used, which have changed in recent years from the usual three drug cocktail. It has also brought up once more the question of whether or not corporal punishment should continue in the United States. Here are just five of the more salient arguments being made against the death penalty — though they likely will not be enough to see executions outlawed in the U.S.

1. Racial Disproportion

The topic of race as it relates to the death penalty is a complex one. On the surface, numbers show that an overwhelming majority of executions are white at 56 percent, 34 percent African American, and 8 percent Latino — according to The Death Penalty Information Center. That translates to 473 African American executions, 110 Latino, and 771 White since 1976.

However, this information is misleading in many ways, because racial disproportion reveals itself in ways other than overall general numbers. One such way has to deal with interracial murders, which shows a very clear and obvious racial divide in how defendants are sentenced. Since 1976 there have been 270 African American defendants who had white murder victims sentenced to death, and only 20 white defendants with black victims given the same sentence.

These numbers are not simply a result of how murder rates fall out racially either, at least according to the United States General Accounting office, which said that, “In 82 percent of the studies [reviewed], race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those who murdered blacks.” This was after consideration of 28 studies, and “the race of victim influence was found at all stages of the criminal justice system process,” the study stated. The racial discrepancy was found to be the case across the U.S., a situation that Richard C. Dieter, Esq., the executive director of the Death Penalty Information Center, discussed as “reverberations of injustice.”

2. Drug Shortage Problems

The issue of lethal injection has become one entangled in morality, law, and most notably, supply and demand. More specifically, that the supply of historically used drugs is running down to zero, while the demand, though shrinking, still remains. What’s more, the drugs being utilized now are considerably more controversial, and at times appear to be less successful, or successful but less humane. This opens it up for potential lawsuits to the state, and may swing wide the door for further approaches to the Supreme Court on the issue of cruel and unusual punishment on untried drugs.

But the issue of which drugs are used goes beyond just what new drugs are being resorted to. Some suggest that even those three drugs that have long been in use and were passed by the Supreme Court may never have been the right method. Rather, their continued use is a result of habit combined with the lack of well-informed practices in the prison system. Still, a single drug method is becoming more accepted in many states, and seems to be more widely approved of by doctors, especially now that the drug used to put individuals under — sodium thiopental — is no longer being produced in the U.S., and is difficult to obtain from foreign companies that do not approve of its use. Without sodium thiopental, or with a less effective drug, the two drugs that follow after and actually stop the heart and lung functions are administered to a patient who is improperly unconscious and can still feel.

A single drug solution, with high doses of a barbiturate or anesthetic, is less risky and holds fewer chances of a painful death. “I have not seen a single complaint, not an unhappy warden or family or anybody, from the single-drug barbiturate approach,” said Dr. Mark J. Heath, an anesthesiologist at Columbia University who is  an expert in lethal injections, to The New York Times.

In discussion of the present system, he said that, “The second two drugs are completely unnecessary and only have a prospect of causing pain,” referring to the second drug, which can paralyze the individual and make them feel suffocated while they may be unable to show signs of distress, and the third agent which causes burning and pain. Arthur L. Caplan, director of medical ethics at NYU Langone Medical Center, also spoke with The New York Times, saying that the change in drugs has been problematic, and that the “medical knowledge is iffy” among executioners in the system. “When you take away their traditional supply of drugs, they are out at sea in a tiny rowboat, not sure what to do.”

3. Life Without Parole Is Now an Option

For many prosecutors, because life without parole is now an option, the death penalty is no longer as attractive, at least according to Craig Watkins, a DA in Dallas County, who spoke with The Economist. “You saw a decrease in prosecutors even bringing death penalty cases,” he said. “Now you have a choice. Before, you didn’t.”

With harsh enough alternatives in place, it becomes easier for courts to avoid death penalty cases for a number of reasons. One such reason is clearly shown through in this example: a comparative summary of death penalty case costs for the state of Kansas. Released by the Judicial Council’s Death Penalty Advisory Committee, it compares cases that did and did not seek the death penalty at many different levels in the judiciary, and showed an enormous difference in cost, with death penalty cases costing almost four times as much, and considerably more man hours.

Report of the Judicial Council Death Penalty Advisory Committee

For example, within the Kansas Supreme Court it was found that court justices spent twenty times more hours on death row cases than on other cases, and even those cases where justices did not write the opinion showed five times more hours being spent. Of course, a cost analysis of an entire lifetime spent in prison versus the cost to execute an offender is a different matter, but regarding the initial process cost for those dealing with court proceedings and without consideration of future costs, the difference is obvious.

4. False Conviction Rate

One of the main arguments against the death penalty has to do with the high propensity for mistakes in the legal system. The Death Penalty Information Center has a large collection of information on the number of exonerations statewide, and as the table below shows for the eight year period leading up to 2004 compared to previous periods, the number of exonerations has increased considerably.

Screen Shot 2014-05-02 at 3.10.02 PM

Source: http://www.deathpenaltyinfo.org/innocence-and-crisis-american-death-penalty#en33

Exonerations and halted executions have become a rather politicized issue, with disagreements on “innocence” of those taken off death row. Even so, there is a solid amount of doubt being shown as to the certainty of guilt and proper procedure surrounding many death sentence cases. “Of the 151 Tennessee death sentences reviewed on appeal since 1977, half were overturned, primarily because of trial errors or inadequate representation,” according to The Death Penalty Information Center. It also listed a study done by Columbia University Law school in 2000, “Error Rates in Capital Cases,” which examined the period between 1973 and 1995 to find an astounding 68 percent error rate. The study stated that capital sentences in the U.S. are “persistently and systematically fraught with error that seriously undermines their reliability.”

5. Public Opinion and Overall Decrease

One major reason the death penalty isn’t likely to go anywhere has been public opinion, but recent polls show that this majority, while still clearly present, has gone down over the years. As Pew Research shows, there is a 23 percentage point gap between the 78 percent who favored the death penalty in 1996, and the 55 percent who favored it in 2013. Gallup showed those in favor of the death penalty up at 60 percent, but still a significant decrease from the 80 percent in 1994.

Also significant is the decrease in death sentences being handed out regardless of public opinion. The Economist reports that 2013 showed only 80 death sentences, which is a small increase from 2012, but still places the statistics as one of the lowest in forty years.

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