Capital punishment is unjust, immoral and prone to error, as most of the world’s developed nations have figured out. But the United States, unwilling to put aside a desire for revenge, continues to kill its own citizens; 32 states and the federal government still impose the death penalty. At the very least, they ought to perform that barbaric task as fairly and humanely as possible.
A report released Wednesday by the Constitution Project, a bipartisan think tank that includes both death penalty abolitionists and death penalty supporters, calls for a complete overhaul of the process, from arrest to execution.
Given the human factor in capital punishment — prosecutors, witnesses, judges, jurors — this page does not believe the system can ever be “fixed.” It should be abolished. But there are changes that can reduce errors, misapplication and misconduct. Many of the recommendations of the Constitution Project would move the system in a positive direction, so policymakers would be wise to read the report closely.
The 208-page report offers 39 proposals — most of them reasonable, some crucial — including dropping the widely used three-drug execution cocktail (California has already scrapped it under the weight of a legal challenge) in favor of the single-shot method. Administering a single overdose of a barbiturate, according to the report, would decrease problems associated with the administration of drugs as well as the risks associated with the use of paralyzing and painful chemical agents. Presumably, that would lead to fewer torturous executions such as the one that occurred earlier this year in Oklahoma, in which the condemned man said after the first injection that “I feel my whole body burning,” and in Ohio, where it took a convicted murderer 25 minutes to die.
The report says — as this page has — that there should be complete transparency in how the drugs are obtained, which has become an issue in Oklahoma, Missouri and Texas. Laws in those states bar disclosure of the sources of the drugs, without which condemned prisoners can’t determine whether their execution would violate the U.S. Constitution’s protection against cruel and unusual punishment.
The report also calls for changes in the legal process, including allowing the introduction of exculpatory evidence at the appellate court level, even if the evidence was not part of the original trial. That is an issue of basic fairness. And the report suggests that jurisdictions — it could be the state or the county — should conduct a review of death penalty cases in which the convicted were later exonerated in order to identify systemic problems and to devise mechanisms to avoid them in the future.
Coerced confessions are a source of continuing problems. It makes sense to require, as the report recommends, that all interviews with murder suspects in custody be recorded when practical, and that a jury be allowed to consider the lack of a taped interview in weighing the veracity of an alleged confession. Similarly, the independence of laboratory analysis of evidence would be enhanced if the federal government were to establish national standards and if crime labs were not affiliated with law enforcement departments. According to the report, forensic scientists who work for police agencies and prosecutors’ offices are “subject to a general risk of bias.”
The decision to seek the death penalty now lies, in most jurisdictions, solely in the hands of the prosecutor. A “charging review committee” within the prosecutor’s office to approve those decisions could help reduce that objectionable concentration of power in a single individual and perhaps reduce the over-application of capital punishment to people of color (states should also collect and analyze data to detect race-connected patterns). We would suggest that the committee be created at the state level; county district attorneys within the same state can have different standards for seeking the death penalty, which means a capital crime can unfairly hinge on where in a state it occurs.
Those who are interested in justice, whether they are supporters of the death penalty or opponents, owe it to their fellow citizens to embrace the kinds of systemic changes the Constitution Project advocates. A recent study published by the Proceedings of the National Academy of Sciences concluded that at least 4% of death row inmates are likely to have been wrongfully convicted. While that represents a relatively small number of people, it amounts to a lot of innocent blood if they are executed. Any steps to lessen that miscarriage of justice would be welcome, particularly by the innocent facing death at the command of their own government.