"To kill for murder is a punishment incomparably worse than the crime itself. Murder by legal sentence is immeasurably more terrible than murder by brigands. Anyone murdered by brigands, whose throat is cut at night in a wood or something of that sort, must surely hope to escape till the very last minute ..., but in the other case (execution), all that last hope which makes dying 10 times as easy is taken away for certain. There is the sentence, and the whole awful torture lies in the fact that there is certainly no escape, and there is no torture in the world more terrible."
- Fyodor Dostoevsky
Despite this quote by my literary hero (and author of the novel Crime and Punishment), I'm not sure I agree.
I actually think life imprisonment in some prisons such as the Supermax, which impose solitary confinement in tiny cells, seems like a more terrible torture to me, knowing it will last for the rest of your life. But then again, unlike Dostoevsky - who was moments away from death by firing squad with his blindfold on before being granted a reprieve (he was being punished for his political activities) - I have not faced a death sentence, so I'm less qualified to say.
After all the decades of fierce debate about the death penalty, an interesting thing is happening: It is quietly being abolished in many states, not by court order but by legislative action that has more to do with practical reasons than with morality. New Mexico abolished it last spring, New Jersey did so in 2007, and many others recently have considered it.
Sixteen states have abolished it completely, and the number of executions steadily is decreasing.
There are many reasons behind this move: money savings, the recognition that capital punishment does not deter crime, the risk of putting innocent people to death and racial bias for minority execution. It generally is cheaper to imprison people for life than to execute them - read an article by The Seattle Times at http://tiny.cc/pC3QM. Few will avoid committing heinous crimes simply because the penalty is death rather than life without parole. And the emergence of DNA evidence has highlighted the possibility of executing the innocent.
General opposition to the idea of capital punishment itself seems to be a small factor.
I long have thought that if we are to have a death penalty, two reforms were needed. First, there should at least be a higher standard of proof for execution - perhaps "beyond a shadow of a doubt" instead of just "reasonable doubt" - to reduce the risk of the execution of innocents as much as possible, which all acknowledge happens periodically. It is impossible to know with certainty, but based on various sources (not all anti-death penalty sources), perhaps a dozen innocent people have been executed since the mid-1970s, with more than 100 released from death row after evidence of their innocence surfaced.
This latter is the primary reason we can't just speed up executions and eliminate appeals for inmates on death row. These procedures and delays really do result in saving innocent people from the injection gurney.
But having a higher standard of proof would reduce the need for such appeals and delays based on claims of innocence, and, after all, we really should be absolutely certain before taking the irrevocable step of execution.
Second, and perhaps more fundamentally, we could learn something from our treatment of animals. When a mad dog has proved it cannot be trusted not to attack people, we put it down. We don't lock it in a small cage for years, because killing is the more humane thing to do. Yet we seem to have it backwards, locking the criminally insane in institutions, while the person who kills for money gets executed. Maybe it should be the other way around?
I realize this raises large philosophical questions, such as whether someone who murders pathologically really can be "punished" or if he really is more like a mad dog that just needs to be put out of its misery, but I think they are worth asking.
But, this all may be moot if the states keep abolishing the death penalty. If a majority of states go this way, the Supreme Court eventually may rule it "cruel and unusual" for the holdouts because that determination is based on community standards, which include the laws of the other states.
Texas, with the greatest number of executions in recent times, surely will be last, but it may only be another generation before it, too, goes by the wayside.
Matt Kenna is a Durango lawyer with the Western Environmental Law Center.