LITTLE ROCK — Last Friday, the Arkansas Supreme Court ruled that our state’s lethal-injection statute is unconstitutional. Arkansas still has a death penalty, but with no legal means of carrying it out, all executions are on hold until the Legislature passes a new law.
Forty years ago today, the U.S. Supreme Court issued a similar ruling in Furman v. Georgia. The court found that death sentences were being imposed seemingly at random, prompting Justice Potter Stewart to write that the death penalty was “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” The court effectively banned capital punishment across the county until states devised a more just system for administering it. When the court reinstated the death penalty four years later, it expressed confidence that new procedures would prevent arbitrary and unjust sentencing.
We now know that the court was wrong.
Today’s death penalty is as capriciously applied as ever. Rather than being reserved for the “worst of the worst,” the imposition of the death penalty often rests on such random factors as the jurisdiction in which the crime was committed and the unpredictable quality of court appointed defense counsel.
Alarmingly, one of the best predictors of whether the death penalty will be sought is race-the victim’s and the defendant’s. Last year, a study of the Louisiana death penalty found that the odds of a death sentence were 97 percent higher for those whose victim was white than for those whose victim was black. A 2009 study of prosecutions in southwest Arkansas identified similar patterns of racially biased sentencing in our own state, finding that the death penalty was disproportionately sought by prosecutors and imposed by juries in cases with black defendants and white victims.
What’s worse, this arbitrary system routinely condemns the innocent. Since 1973, 140 inmates sentenced to die and awaiting execution have been formally exonerated and released from prison, most after spending a decade or more behind bars. The reality of wrongful conviction should come as no surprise to Arkansans familiar with the West Memphis Three case. Three men, including one on death row, spent almost two decades wrongfully in prison before being released last year.
And these are the lucky ones. In May, a Columbia University study proved that Texas likely wrongfully convicted and executed an innocent man, Carlos DeLuna, in 1989. We can place DeLuna’s name on a list alongside Cameron Todd Willingham, Troy Davis, and scores of others who were executed despite strong evidence of innocence.
The death penalty wastes money as well. From start to finish, it costs taxpayers more to carry out a capital sentence than to incarcerate an inmate for life. In California, for example, a comprehensive 2011 cost study revealed that commuting all that state’s death sentences to life without parole would save $170 million per year.
The appeals process, a favorite scapegoat of death-penalty proponents, in reality explains only a fraction of the added financial burden of capital punishment. A typical capital trial can cost the state more than double the average expense of a noncapital murder trial. The maximum security facilities housing death rows cost more per prisoner than other forms of incarceration. Even if appeals were the real fiscal culprit, further caps on appellate rights would only exacerbate the already unacceptable risk of wrongful execution.
These costs might be worth it if the death penalty deterred crime. But it doesn’t. If capital punishment prevented crime, one would expect the South, which performs the vast majority of American executions, to be the safest region in the country. In fact, the opposite is true. FBI data from 2010 show that the South, by a wide margin, owns the nation’s highest rate of violent crime, including murder.
Although a handful of studies over the years purported to show a link between capital punishment and deterrence, a recent analysis by the National Academy of Sciences found them unsound and unreliable. One cannot credibly argue that Arkansans are safer because of the death penalty.
Arkansans will soon face a choice. Our Supreme Court told us that capital punishment cannot continue in its present form. We could place a Band-Aid on a system broken beyond repair and simply pass a new lethal injection statute. But this would be a step backwards.
Instead, we should join a growing national movement that rejects the death penalty. Seventeen states no longer use capital punishment, including five who have changed their laws in the last five years.
Arkansas has the opportunity to lead. It can become the first state in the South to reject the waste and injustice of capital punishment.
It’s time for Arkansas to get rid of the death penalty.
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Samuel Kooistra is executive director of the Arkansas Coalition to Abolish the Death Penalty.
Editorial, Pages 19 on 06/29/2012