PERSPECTIVE • Aug. 26, 2010
The Death Penalty: Facing the Facts
By James P. Gray
The death penalty is certainly an emotional issue that affects many people in lots of different ways. While all people are fully entitled to their own opinions in this or any other matter, no one is entitled to his or her own facts.
Typically the proponents of the death penalty present five justifications for its implementation. First, this is the appropriate punishment for the offender of such a serious crime. Second, this is rightful societal vengeance (often cited as an "eye for an eye"). Third, this reduces to zero the chances that the offender will return to society. Fourth, this deters against future violations by other offenders. And fifth, this provides closure for the families of the victims.
Let's first discuss the possibility of offenders returning to society. As you know, when a person is convicted of a "special circumstance" murder, the only two sentences allowed under California law are the death penalty or life without the possibility of parole. In times past, a person receiving a "life" sentence could still be paroled, but now if an offender receives life without parole, parole is not possible without a pardon from the Governor - which is extremely unlikely. Furthermore, to my knowledge no one serving such a sentence has ever escaped from prison. As a result, this is probably no longer a justification for the death penalty.
Regarding the issue of closure for the victims' families, consider that California has had only 15 executions since the death penalty was reinstated in 1978. But currently, there are more than 660 convicted offenders on death row. Of those offenders, 30 have been there for more than 25 years, 119 for more than 20 years, and 408 for longer than 10 years. The last two people executed were Clarence Ray Allen and Stanley "Tookey" Williams, both of whom were executed about 26 years after their offenses were committed. As a result, "closure" for the families, if it comes at all, comes after keeping the books open for decades.
Moreover, the death penalty keeps the families of the victims on an emotional roller coaster. Because of the appeals and occasional re-trials, the families are forced for years to relive the grisly details of their loved one's death - over and over again. In many ways, this is actually using the grieving families as bit-players in a long-continuing political drama. And when it comes down to it, does it furnish much satisfaction to see the object of one's hatred simply go to sleep when hooked up to a needle? So maybe what we are doing is the opposite of closure for those victimized people.
In addition, since many people view it as an "insult" to the memory of the deceased victim not to invoke the maximum punishment, there is a perceived obligation to seek the death penalty regardless of the costs, either human or financial. But if the maximum punishment were to be a sentence to life without the possibility of parole, the families would more likely be satisfied with that result and move on with their lives.
And what about deterrence against future offenders? Probably the only circumstances in which deterrence would be a factor would be offenses like murder for hire (both for the people paying for the deed to be done and for the killers themselves), murder after laying in wait, kidnapping in which the victim is killed, multiple murders or murders while already serving life without the possibility of parole, and treason. These involve situations in which the acts are well thought out in advance.
But the large majority of offenses subject to the death penalty are offenses that are not planned. For example, most burglars and robbers do not plan in advance to kill anybody, but things get out of control and people are killed as a result. And the offenders that do make prior plans are often involved in heavy emotional situations (jilted lovers) or suffer from severe psychiatric disorders. These individuals are not focused on the deterrence effect of the death penalty. Those realities, coupled with the fact that most offenders never feel that they will be caught at all, negate the effects of deterrence for most offenses.
As a practical matter, if a person knows that he has committed an offense that would qualify him for the death penalty, that person tends to feel with some justification that he has nothing more to lose. That belief results in the perpetrator killing witnesses to the offense to keep them from testifying against him, and also killing the police officers attempting to arrest him. So in effect, what we end up with is the opposite of deterrence.
As for the punishment of the offender, I have no particular wisdom to suggest to you other than saying that in many ways, serving a sentence of life without the possibility of ever being released would be more severe for most offenders than execution.
Last but not least is social vengeance, which is a complicated and multifaceted issue. On the one hand, there is historical and biblical rationale that the proper penalty for wrongly taking the life of another is to forfeit one's own life. On the other hand, it is hard to justify our country as being the world's champion of human rights if it is so at odds with much of the rest of the world on the issue of capital punishment.
For example, since California reinstated the death penalty in 1978, no fewer than 60 other countries have chosen to abolish it. Although there are dozens of countries that still have the death penalty on the books, only six of those countries, including the United States, are responsible for 90 percent of all of the executions. The other five are China, Pakistan, Iran, Iraq and the Sudan. As such we are keeping pretty lowly company in the area of human rights.
I realize that this can be an emotional subject, and that many people who present information like this are considered to be "bleeding heart liberals." But I was a trial court judge in Orange County from 1993, when I was appointed by Gov. George Deukmejian, until January of 2009, and I wanted to share for your consideration the facts as I have seen and observed them.
James P. Gray is a retired judge of the Orange County Superior Court, works as a private mediator for ADR Services Inc., is the author of "A Voter's Handbook: Effective Solutions to America's Problems" (The Forum Press, 2010), and can be contacted at JimPGray@sbcglobal.net or through www.JudgeJimGray.com.