Abolish the Death Penalty

This week Idaho passed a bill bringing back the firing squad for state executions and the governor subsequently signed the bill into law. In my opinion there really isn’t anything extra morally egregious about the bill compared to lethal injection or other methods used by the state to murder people. There is no moral high ground in alternative methods of violence, but there is something shockingly depraved about the cruelty and violence House Bill 186 represents. It’s also not much of a surprise coming from ever more fascist Idaho.

The bill shows something deeply unfortunate about the public view of the death penalty. There is a popular liberal view that society is progressing and evolving. This view has lost some esteem in the face of the Supreme Court overturning Roe v. Wade and all manner of legislation targeting trans people. This firing squad bill is just one more piece of evidence in the case against the moral arc of history bending toward justice. In some periods there is significant backsliding. South Carolina courts found the firing squad unconstitutional (though they maintain the electric chair is not) but Idaho courts likely won’t take the same approach and even if they do, there is little reason to count on the courts, both on the state and federal level.

In the 1972 case Furman v. Georgia, the Supreme Court declared the death penalty unconstitutional. The case spawned over 100 pages of opinion and dissent, laying out the contemporary debate on the death penalty. The controlling opinion written by Justices Potter Stewart, Byron White, and William Douglas declared as applied at that moment the death penalty was unconstitutional as it was used too arbitrarily and often with racial bias. Two justices, William Brennan and Thurgood Marshall, declared the death penalty unconstitutional wholesale and argued it was “against the evolving standards of society.” Thurgood Marshall went on to state, “No matter how careful courts are, the possibility of perjured testimony, mistaken honest testimony and human error remain too real. We have no way of judging how many innocent persons have been executed, but we can be certain that there were some.” And on the basis of this opinion all executions in the United States were halted until the opinion was overturned in 1976. 

Thurgood Marshall was absolutely correct and the death penalty does not square with the standards we should strive for in society. However, society is clearly not as “evolved” as Marshall believed. Idaho’s bill to revitalize the use of a more ‘inhumane’ form of murder is just one example of this, Tennessee is attempting to pass a similar firing squad bill, South Carolina recently brought back the practice until it was declared unconstitutional by state courts (though they still use the electric chair). 

Some 35 states technically allow for the death penalty, in some of those states voters, courts, and governors have declared the death penalty illegal, or enacted moratoriums to stop it. Practically speaking, there are only 21 states that allow the death penalty and many face logistical hurdles in actually enacting it in cases where a death penalty conviction has occurred. Shortage of the drugs required for lethal injections has brought executions to a halt in many states, prompting some, like Idaho, Tennessee, and South Carolina, to bring back far more dubious methods of execution. While some sadistic state houses spend time trying to inflict the maximum cruelty possible, we should be under no illusion that death by firing squad is any more depraved than any other method the state uses to end people’s lives be that hanging or the electric chair. None of them should exist and the death penalty should be abolished. 

Public opinion on the death penalty isn’t so clear in support of abolition and reflects the deeply racist beliefs in this country. According to Pew Research polling on the death penalty, some 78% of Americans agree with the basis of Thurgood Marshall’s objection in Furman and believe that there is some risk that an innocent person will be put to death. Likewise only 21% of Americans believe that “there are adequate safeguards to ensure that no innocent person will be put to death.” As a whole 60% of Americans either somewhat or strongly favor the death penalty while 39% of Americans either somewhat or strongly oppose the death penalty. A majority of Americans support the death penalty, even in the face of the fact that 56% of Americans believe “Black people are more likely than white people to be sentenced to the death penalty for committing similar crimes.” The possibility of executing innocent people, combined with the arbitrary and racist nature of the death penalty once prompted the Supreme Court to ban the practice. Now a majority of Americans fully recognize those realities, but still a majority supports the death penalty. 

To make matters worse 63% of Americans believe the death penalty doesn't deter people from committing serious crimes and to that end empirical data shows there is no strong correlation between the death penalty and preventing murder. Americans seem to see the flaws and pitfalls of the death penalty very clearly, yet still support it and elect state governments that strengthen the practice. It’s worth pondering why that is. According to Joe Soss of American University, support for the death penalty was basically exactly the same in 1936 at 61% of Americans in support, basically as it is today. Support reached a low of 47% in 1966 and a high of 80% in 1994. Soss finds this number is markedly higher amongst white people. Particularly white people who hold racist attitudes, but also unsurprisingly amongst conservatives generally (which might be a distinction without a difference). 

That a vast majority of white people have historically supported the death penalty, that 56% of Americans believe black people are more likely to be executed, and still a majority support the death penalty, the racial disparity in executions can’t be seen as an accident, it’s a feature, not a bug. Since 1976 some 43% of total executions and 55% of those awaiting execution are people of color. This further disproportionately impacts black people and 34% of those executed since 1976 were black and 40% of people currently on death row are black. In many ways this is on the back of prosecutors. David Baldus, a law professor at the University of Iowa, found that in the 1980’s Georgia prosecutors sought the death penalty for “70% of black defendants with white victims but for only 15% of white defendants with black victims.” Again, these disparities are intentional and part of the institutional legacy of the death penalty and racism in the criminal legal system. 

According to the Equal Justice Initiative 95% of people on death row lived at or below the poverty line. Just as the death penalty is a racist institution and intentionally so, it’s also a classist institution. Enforcing class hierarchies is the entire point of the criminal legal system, the reason it exists as it does, the same is true of racial hierarchies. This dynamic is even more egregious in cases of the death penalty where that enforcement is quite literally and overtly, life or death. 

It’s also worth noting that the death penalty is purely reserved for cases of individual or interpersonal violence. Structural and systemic violence is not punished by the death penalty, despite killing far more people. Billionaires who profit from healthcare networks, insurance companies, and an average price of $98.70 cents for a vial of insulin (free in most industrialized countries) will never see the inside of a jail cell, much less an execution. The death penalty is itself a source of systemic and structural violence. It’s the final backstop for a racist and classist criminal legal system. The ever present reality that the state can and under the right conditions will kill you. 

Those are the terms abolitionists should oppose the death penalty on. It’s racist, it’s classist, and it shouldn’t exist, because it’s cruel, but also just because the state shouldn’t be in the business of killing people. Many people support the death penalty but there is more than enough skepticism to build on. And if people can be taught the systemic injustice inherent in the death penalty, it’s not too far a leap to see the same injustice runs through every aspect of the carceral state. There are important inroads to be built and at the end of the day it’s pretty simple, people shouldn’t be executed.