Kill Bill?

Kareem Abdul-Jabbar

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On May 6th in Georgia, William Earl Lynd, 53, became the first death-row inmate executed in the U.S. in seven months.  Executions have been on hold all these months while the U.S. Supreme Court decided whether or not lethal injection protocols are constitutional.  In an overwhelming vote of 7-2, the Court decided they were constitutional and execution chambers in the 36 states that allow the death penalty are preparing to return to duty.
The Court’s decision, and Lynd’s execution, have provided another national platform for passionate voices to be raised over the use of death penalty.  What’s interesting is how loud and zealous the voices on both sides are when we consider that the death penalty itself affects a relatively small number of people.  There are 3,263 people on death row, 669 of them in California (which has by far the largest death-row population in the country).  Yet, the death penalty is constantly on the front page of newspapers, the lead story on TV news, and a litmus test for many voters on which candidate they will vote for.  Why is this one issue so foremost in our heads and hearts?  Because when people pass laws about who should live and who should die, they are defining themselves as community.  They are proclaiming their values, not through bland patriotic rhetoric, but through their deliberate actions.  We know that when the government kills in war, we all have our hands on that trigger—and when they execute in peace, we all have our hands on that syringe.
So what does the death penalty say about us?

The primary purpose of the death penalty, like all laws, is to protect the innocent.  Theoretically, if someone deliberately murders someone else, executing that person protects the rest of us by removing him from society, never again to be a threat.  But, as always, there’s a big difference between theory and practice.  While it’s true that the death penalty may protect us from the few individuals it does execute, it does not come without a price tag.  What Californians have to decide is whether or not we’re paying too much for what we’re getting.

How Much Money Does the Death Penalty Cost?
Every society is on a limited budget.  Therefore, priorities have to be made and every society must face some difficult choices about how to get the most protection out of each dollar.  California’s current $16 billion deficit threatens to handicap or destroy many institutions designed to protect society—and to save lives.  Already a $2-billion cut in school programs and health care for the poor has been approved by the Legislature.
Our hospital situation was already bad, now it can only get worse.  Los Angeles County alone lost 27 acute-care hospitals between 1994 and 2004; 7 other hospitals reduced services or cancelled their mental health units.  Trauma centers, which save hundreds of lives by providing immediate, specially trained medical care for life-threatening injuries, have closed throughout the state.  Of L.A. County’s 23 trauma centers, 13 closed or were downgraded into emergency rooms.  The Hospital Survey and Construction Act of 1946 compelled hospitals to achieve 4.5 beds per 1,000 people.  In 2003, California’s ratio had dropped to 1.9 beds per 1,000.
Public schools, which protect our future by providing citizens who are competitive in the economic marketplace and educated in the needs of democracy, have also fumbled the ball.  Some inner-city students go through classes without textbooks.  Perhaps the greatest threat to California’s future is the fact that our students rank next to last in academic achievement in the United States.  We rank 50th in the nation (including District of Columbia) in school staff to student ratio, 51st in librarians ratio; 51st in guidance counselor ratio, and 49th in teacher ratio.  A 2007 study ranked California 34th in its students’ potential for success.  That’s not surprising when our students test below the national average in math, science, reading, and writing.  And current budget woes have caused the state to cut $4.8 billion from education and to issue pink slips to 24,000 teachers, librarians and nurses in our public schools.
While money is lacking in those areas, California has not hesitated in spending $114 million a year of taxpayers’ money on the death penalty (beyond the cost of lifetime imprisonment, and not including post-conviction hearings that cost millions more).  According to a 2005 Los Angeles Times study, we pay $90,000 more a year per inmate to keep them on death row rather than in the general prison population, which adds up to $57.5 million annually.  California’s Attorney General spends 15% of his annual budget ($11 million) on death penalty cases; our state Supreme Court spends $11.8 million appointing lawyers in death penalty cases; the Office of the State Public Defender and the Habeas Corpus Resource Center spend $22.3 million defending indigents in death penalty cases.  A 2008 study by the ACLU of Northern California concluded that to execute all the people currently on death row will cost $4 billion more than if they had been sentenced to life imprisonment to die of disease, injury, old age.  State after state has conducted cost-efficiency studies of the death penalty—most recently New Jersey, Indiana, North Carolina, Florida, Kansas, Tennessee, and Texas—and all have concluded that the death penalty costs significantly more than sentencing someone to Life Without Possibility of Parole (LWOPP).
Because counties that seek the death penalty must pay for the costs, many smaller counties have faced bankruptcy, reduction of social services, and/or increased taxes in order to pay for a death penalty trial.  Studies indicate that putting more police officers on the streets would reduce crime and make us safer; yet, budget cuts have forced the early release of thousands of prisoners while at the same time forcing some smaller counties to reduce the number of police officers and firefighters.  In 1988, Sierra County, California cut their police force in order to pay for their death penalty trials.  District Attorney James Reichele explained, “If we didn’t have to pay $500,000 a pop for Sacramento’s murders, I’d have an investigator and the sheriff would have a couple of extra deputies and we could do some lasting good for Sierra County law enforcement. The sewage system at the courthouse is failing, a bridge collapsed, there’s no county library, no county park, and we have volunteer fire and volunteer search and rescue.”
I know some will ask, “How can you put a price on justice?” and “What if it were your mother or son who’d been murdered?”  Fair enough.  But given the current cost of the death penalty, my family is much more at risk from not having enough police on the street, firefighters in their stations, thousands of inmates released into our communities, and from a critical lack of hospital staff.  There are 7,000 deaths annually in hospitals from errors in medication, partially due to understaffing.  That’s 7,000 every year versus the possibility that an inmate sentenced to LWOPP might possibly escape and kill again.

Is the Death Penalty Color Blind?
A lot has been made of the ratio of whites to blacks on death row.  I don’t think that statistic in itself proves racism.  It’s possible that people who have been systematically discriminated against for centuries have less economic opportunities than others and therefore may resort to crime and violence to a greater extent than those with the opportunity to resort to college and business school.  In other words, the poor may more often act out of desperation and ignorance more than those who are financially secure.  They may have less respect for the rules of a society they see as not giving them a fair break.  That could explain why 42% of men on death row are black, though they comprise only 6% of the total U.S. population.
Or it could be that people of color are more likely to be singled out to receive the death penalty.  The study by David Baldus and George Woodwort in the 1980s exposed a nationwide practice in which the district attorneys (98% of which are white, 1% are African-American) were much more likely to go after black defendants for killing a white victim, than for killing a black victim, or than go after white defendant for killing a white or black victim.  More than twenty years later nothing has changed.  A recent Santa Clara Law Review study found that the victim’s race significantly influenced whether or not the death penalty would be sought.  Studies in Ohio, Illinois, and New Jersey reached similar conclusions.  Since then, discrimination continues in various forms, the most common is the attempt by district attorneys to exclude jurors of color, which is unconstitutional.
The studies are condemning enough, but add to that the voices of the experts, and it’s pretty convincing that racial bias permeates the death penalty process.  Former U.S. Supreme Court Justice Harry Blackmun, who had started as a death penalty supporter, became an ardent abolitionist.  He stated, “Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die….I cannot see any of these death penalty cases where there hasn’t been a violation on the ground of either poverty or race. If we can ever get that straightened out, it will help. But, of course, the real answer to it is to do away with the death penalty.”  Former U.S. Supreme Court Justice Thurgood Marshall was equally appalled at the injustice of the death penalty: “When in Gregg v. Georgia the Supreme Court gave its seal of approval to capital punishment, this endorsement was premised on the promise that capital punishment would be administered with fairness and justice. Instead, the promise has become a cruel and empty mockery. If not remedied, the scandalous state of our present system of capital punishment will cast a pall of shame over our society for years to come. We cannot let it continue.”  Former U.S. Supreme Court Justice William J. Brennan reached the same conclusion: “Perhaps the bleakest fact of all is that the death penalty is imposed not only in a freakish and discriminatory manner, but also in some cases upon defendants who are actually innocent.”
Yes, some people sentenced to die have been proven to be innocent.  In the last 25 years, 129 people in 26 states have been released from death row because of new evidence proving their innocence.  Some may think that proves the system is working; innocent people are being found out and released.  The problem with that logic is that while these people are still alive long enough for us to discover their innocence, what about those who are executed before their innocence is discovered?  Few people will keep trying to prove convicts’ innocence after they’re dead.  Many of the people released have been on death row for decades.  A couple weeks ago in California, Adam Miranda, who had been on death row for 26 years, had his death sentence voided by the state Supreme Court after it was discovered that the main witness against him had signed a confession to the murder.  The letter was placed in Miranda’s file by then-deputy district attorney Lance Ito (who later was the judge in the O.J. Simpson case) without sharing it with Miranda’s attorneys.  After 26 years on death row, the truth is finally out there.
Various studies have been conducted that conclude innocent people have been executed.  That’s mathematically inevitable.  So, the questions comes down to this analogy: You have ten people condemned to be executed and you know one is innocent, but you don’t know which one.  Do you execute all of them anyway, chalking up the innocent victim as collateral damage, or do you put them all in prison for life without possibility of parole hoping that one innocent person will be discovered?  If this choice defines my community’s morality, I would hope we’d choose to protect that innocent person.  After all, isn’t that what this is all about in the first place?

Final Word: The Body of Evidence
Are there people who commit crimes so heinous and barbaric and unconscionable that they deserve to die?  Damn right.  But the death penalty, as we now have it, isn’t the instrument of justice to achieve that goal.  It’s like going hunting with a broken gun that blows up in our faces every once in a while, though we never know when.  Until that gun is fixed, it’s better to use a different weapon.
Yes, we should have enormous outrage over the victims and on behalf of the victims’ families who must endure a lifetime of pain.  But we can’t express that outrage by deliberately risking the lives and welfare of everyone else in society.  Instead, we should lock the criminals away for life and get on with the business of serving our community—including the families of the victims—by protecting them with more police, firefighters, hospitals, and teachers.  We honor the memories of the slain by redoubling our efforts to protect all the innocent members of our community.

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