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Policy Statements- The Death Penalty

California Attorneys for Criminal Justice is opposed to the use of executions as a punishment for criminal behavior. We reach this conclusion on the basis of several considerations:

  1. As lawyers we are keenly aware that whether a particular defendant is executed is largely determined by variables which have nothing to do with the defendant's criminal behavior and which are beyond the defendant's control, including: his race, the race of the person he killed, his social and economic status, the lawyers who represent him, the district attorneys and attorneys general who prosecute him, and the judges who decide his case.
  2. In particular, as lawyers we know that the quality of the lawyer appointed or retained to represent a capital defendant at trial, on appeal, and in post-appeal proceedings may be the single most significant determinant in whether he is ultimately executed. A substantial percentage of defendants now on death row got there, and will remain there, because their lawyers were only marginally competent or worse, and/or lacked the resources necessary to provide adequate representation.
  3. We also know that because of prosecutorial discretion most homicides that could be charged as capital offenses under the death penalty law are not, or are not pursued as capital offenses even if at some point they were so charged. In only one intentional homicide out of 20, approximately, does the prosecutor insist on pursuing a death judgment, which means that unreviewed prosecutorial discretion will determine the very small percentage of cases in which the defendant is actually at risk of execution. It is inevitable that considerations of politics, workload, and personal ambition, sensibilities, prejudices, and energy will shape whether the defendant falls under the capital net.

    Once he does, the identity of the judges who pass on his case will have a significant impact on its outcome. Decisions which affect whether hundreds of people will live or die are made by badly divided courts where a single vote can be critical. Changes in the composition of a court may mean that defendants who would previously have lived will now die.

  4. Furthermore, it is clear that racial discrimination has always been a component of capital punishment in this country. Before executions for the rape of an adult woman were abolished by the United States Supreme Court in 1977, 90 percent of the men executed in this century for rape were black men convicted of raping white women. No white man has ever been executed in this country for raping a black woman. The recent decision, in April, 1987, of the United States Supreme Court in McCleskey v. Kemp accepts as valid the results of a study in Georgia which establishes that a person who kills a white victim is more than four times more likely to be executed than someone who kills a black victim. This disparity is intolerable.
  5. As defense lawyers we are also aware that innocent defendants have been and inevitably will continue to be executed. It is not possible for our system of criminal justice to avoid errors-either in whether the defendant was involved in the crime at all, or in the degree of his culpability-in a significant number of the cases it processes. Despite assurances from prosecutors and politicians that "it can't happen here," every year we see a steady stream of people who were wrongfully convicted of serious crimes. Fortunately, without executions those people can be exonerated and released if and when the error is uncovered. An execution, however, makes the inevitable mistakes irrevocable. Society might just as well line up 100 people on death row and say to them, "We know that one or more of you are innocent. But we don't know which ones. We're sorry if you happen to be one of them, but we're so determined to go ahead with executions that we can't be troubled by the reality that some of you are here by mistake."
  6. Executions are a poor instrument of social policy, an ineffective way of dealing with the problem of violent crime in this society. The homicide rate in this country is high, albeit decreasing; executions are not a productive way of reducing it. There is no reliable statistical evidence that executions serve as a deterrent to other homicides. Although executions may deter a very small number of individuals who might otherwise commit homicides, the evidence suggests that executions will make no appreciable dent in the overall number of homicides, and that for some individuals who are suicidal or desirous of notoriety the prospect of execution may actually serve as a stimulus to murder.

To our young people executions send the message that it is all right to calmly and deliberately kill people-under certain circumstances. It is highly doubtful whether all of them will have the wisdom and maturity to understand the limits of those circumstances and to appreciate that it is not permissible for them to decide when it is all right to kill others.

It must also be remembered that the real question is not whether the death penalty is a deterrent, but whether it has a significant marginal deterrent effect on someone about to commit murder, compared to the deterrent effect of a sentence of life without possibility of parole. It is hard to believe that many potential murderers think they will be apprehended and punished for the killing, and then reason to themselves, "I will persist in killing this person so long as the punishment is only life in prison without possibility of parole, but not if it is execution." It is not the nature of the overwhelming majority of homicides that their perpetrators engage in such refined calculations.

The death penalty is also an extremely expensive instrument of social policy. The increased costs of trials, appeals, prison security, etc. which are inherent in the implementation of capital punishment in our system of criminal justice result in substantial resources being diverted to resolving the question of whether a small number of murderers should be executed or spend the rest of their lives in prison, instead of being used to deal directly with the social factors which we know contribute to the homicide rate.

If we think of our homicide rate in epidemiological terms-i.e., as a social disease that needs treatment-then executions do nothing to treat the causes of the disease. They are an easy rhetorical vehicle for politicians who lack the wisdom to provide tangible solutions to the homicide problem and instead use executions to channel popular frustration and dissatisfaction with crime. To take only one example, when we execute those who killed while suffering from Post Traumatic Stress Disorder resulting from their combat duty in Vietnam, we sanctimoniously ignore the consequences and costs of our country's military policies.

Executions provide little assistance to the potential victims of homicides or to the families of actual victims. They do not reduce the chances that our citizens will be victimized by violent crime-i.e., they do not protect us-and they do not provide much assistance to the families of victims in healing their wounds. They are an empty ritual with high cost and little benefit.

  1. Most of the major religious denominations in this country regard executions as immoral. Our spiritual leaders oppose executions because executions deny the sanctity of life and the hope for repentance and change. We share their belief that it is wrong for the state to take human life under such circumstances.
  2. Furthermore, the vast majority of countries in Western Europe and North and South America have abandoned capital punishment, and it is disturbing that the United States is now in company with a small number of countries who are major users of capital punishment, including South Africa, Iran, the Soviet Union, and China. At a time when most industrialized countries are abolishing executions, our country is moving against the historical tide and has not only reinstated the death penalty but is straining to increase the rate at which it is used. This movement is also contrary to international law, which encourages governments to restrict progressively their use of the death penalty. As a result, we find ourselves condemned by organizations like Amnesty International, which views executions as a barbaric and anachronistic form of torture.
  3. As members of the bar we are proud of the fact that in September, 1984 the Conference of Delegates of the State Bar of California voted to abolish the death penalty in California.
  4. If executions are to begin in earnest in this country, we will be killing persons in numbers unparalleled in this country's history. In 1987 there are almost 2000 people on death row; more than 200 are being sentenced to death every year. In the past 10 years we have executed 70 people, less than one a month. Even if we were to execute one person a day, 365 people a year-more than we have executed at any time in this century-it would still take until the next century before the "backlog" on death row is eliminated.
  5. These executions take an additional toll on our society, which many of our members experience directly. They force many persons who wish to have no part in the killing of other people-defense lawyers, prosecutors, judges, prison officials, doctors and nurses-to participate in a process which they find degrading and morally offensive.

As criminal law practitioners, we disapprove of the use of the death penalty as a criminal sanction. The death penalty is an ineffective, inequitable, and immoral instrument of social policy. It continues to divide the American people and to deflect us from dealing seriously and constructively with the problem of violent crime in our society. We should acknowledge its substantial liabilities and abandon it.

FORUM, NOVEMBER-DECEMBER 1987, VOLUME 14, NO. 6

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