The death penalty has declined sharply in the United States over the past two decades. According to the Death Penalty Information Center’s 2022 year-end report, annual death sentences have fallen by over 80% over the past 25 years, and the 18 executions in 2022 represent an 82% drop from the 1999 peak of 98. 37 states have either abolished the death penalty or, as in Indiana, have not executed anyone for at least 10 years. A few weeks ago, Oregon’s governor commuted the death sentences of 17 convicted state inmates to life imprisonment without the possibility of parole. Two irreversible flaws in the death penalty—its arbitrary use and the risk of executing innocent people—are undoubtedly driving this decline.
The Death Penalty Information Center explains that the arbitrary use of the death penalty results in death sentences for some but not for others, without justifying the inequality. Issues that shouldn’t be in play – especially race – can affect who gets a death sentence and who doesn’t. No legal standard, rule of procedure, or judicial oversight eliminates the arbitrariness of the death penalty. In the 1980 Supreme Court decision Godfrey v. Georgia, Judge Thurgood Marshall called the “de-arbitrariness” of the death penalty “proving” an incompetence for “our criminal justice system — and perhaps any criminal justice system.”
All criminal proceedings are subject to error. Alone, however, stand the errors of the death penalty; Wrongful executions – executions of the most innocent of the most ruthless – cannot be rectified. Arguments in favor of the death penalty often rationalize the unrecognizable risk of innocent executions as low. Low risk is an actuarial claim, not a principle or basis that makes it acceptable to execute someone who has not committed a felony. Over 185 convicted prisoners, at least 18 by DNA evidence exonerated since the 1970s, continue to face claims of low risk.
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Arbitrariness and the risk of the execution of innocent people make for flawed capital justice. In May 2022, the Supreme Court added another unscrupulous punishment to our nation’s death penalty. In Shinn v. Martinez Ramirez, the Supreme Court interpreted a federal statute to prohibit state prisoners from presenting evidence of invalid representation to federal appeals courts. The case involved two convicted Arizona prisoners whose attorneys failed to examine available evidence of innocence and intellectual disability during state trials. Federal appeals courts had affirmed and upheld these errors. However, the Supreme Court found that the Counter-Terrorism and Effective Death Penalty Act of 1996 barred federal courts from considering such evidence, and based its opinion in part on the state’s sovereignty in enforcing its laws. Prohibiting such evidence in deaths can cost the lives of defendants who are innocent or ineligible for the death penalty, or who warrant a lesser sentence. Imposing death sentences without considering all available evidence encourages uneven application of the death penalty. As with arbitrary trials, an unevenly applied statutory death penalty undermines the same protections.
Supporting arguments for the death penalty are not unfounded. Retaliation for taking someone’s life is a human reaction. But what argument nullifies or invalidates the arbitrary nature of the application, the risk of executing innocent people, and the law that blocks available evidence during federal appeals?
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Indiana has not executed anyone since 2009 and has not passed a death sentence since 2014. Eight remain on the state’s death row — one has been there for 29 years — and no execution dates are scheduled. However, this picture does not close the door on the state death penalty. In the September 2022 Indiana Capital Chronicle, Editor-in-Chief Niki Kelly identified five pending felony counts and argued that Indiana was at a “crossroads” with the death penalty.
Humanity has advocated death as a punishment for almost four millennia since the Code of Hammurabi – evidence that widely differing cultures have treated punishment as an advancing civilization. However, much of contemporary humanity across the country and around the world has abolished the death penalty as an unacceptable injustice. What’s next in Indiana?
Michael Quattrocchi, Ph.D., is a retired clinical psychologist who has overseen psychiatric services in a variety of settings, including state prisons, and has a particular interest in select areas of psychiatric law.