Jerry Seinfeld once observed, “When you think about it, the death penalty is a little bit more than just a penalty.” I suppose he’s right. In a game of hockey, a penalty sends you to the penalty box. As you sit out, your team plays handicapped. But after several minutes, you return to the ice. In the game of life, the death penalty sends you to a different sort of box-we call it a tomb-and you don’t return. Anywhere. Ever. Your friends, your family and your children, your “team,” play handicapped the rest of the way.
You might think a society as “advanced” as our own would have long ago done away with the most cruel and conclusive of punishments. All the more so because America remains, for better or for worse, a religious nation, and spiritual texts suggest it is God-not humans-who ought to render judgment. Especially as humankind is neither all knowing, several people we sent to the gas chamber were later found to be innocent, nor all merciful, we’ve executed children and the mentally handicapped.
But the opposite is true. Rather than outlaw the death penalty, the United States over the past several decades has created, in the words of former Washington University law professor Stuart Banner, “an arcane set of rules that haphazardly selected who would live and who would die.” In 2002, we applied these rules, ignored human fallibility, and executed 71 individuals. Our use of capital punishment puts us in great company with other free societies, among them China, Iraq and Saudi Arabia.
A little closer to home, however, the “machinery of death” has recently ground to a halt. Across the Mississippi, Governor George Ryan on Saturday commuted all of Illinois’ pending death sentences to prison terms because he doubted the accuracy and fairness of the capital punishment system. In January 2000, after Northwestern University journalism students discovered 13 men on death row had been wrongly convicted, Ryan suspended all executions. He also established a commission to study the death penalty and suggest systematic reforms that might reduce prosecutorial error.
But Ryan’s decision, however compassionate, was not easy to foresee. Once a fierce proponent of the death penalty, Ryan, then a state legislator, voted in 1977 to reinstate the capital punishment in Illinois. Rather his conversion to a death penalty opponent occurred gradually, as he learned of its many faults. Particularly influential was his experience with Anthony Porter, a man who came within just 48 hours of execution before the students’ research proved him innocent.
In recent speeches at Northwestern and DePaul Universities, Ryan explained his decision and affirmed the main arguments made against the use of the death penalty. First, the Governor noted that it is applied in a racially discriminatory manner. In Illinois, more than two-thirds of death row inmates were black. Second, he argued that capital punishment is often used in error, to kill innocent people. Across the Mississippi, 17 people were recently found to have been wrongly convicted (four more than the students had originally discovered). Third, Ryan observed that the death penalty does little to deter violent crime. Despite its use of capital punishment, Illinois actually has a higher murder rate than Michigan, a neighbor state that has roughly the same racial makeup, income levels, and population distribution between cities and rural areas, but does not use the death penalty. Indeed, in the past decade the murder rate in states without the death penalty has been consistently lower than in states in which governments executes public citizens.
My hope is that Missouri Governor Bob Holden takes after his cross-state colleague. A recent poll suggests such action may not only be morally right, but also politically expedient. The survey, taken by the Center for Social Sciences and Public Policy Research at Southwest Missouri State University, found that 56 percent of Missouri residents support a three-year moratorium on executions to investigate sentencing practices and effects. Further, only 46 percent of the state’s voters favor government-administered executions when offered an option of life with no parole plus restitution.
A recent petition suggests campus educators likewise favor a reconsideration of the state’s death penalty policies. Larry May, currently a WU philosophy professor, circulated a petition last spring calling on Governor Holden to declare a death penalty moratorium. The staff’s response was, in his words, “overwhelmingly positive. After only a week, 25 administrators and department chairs signed on as well 200 faculty members from all over campus.” Encouraged by his success, May, who also runs a small criminal defense practice, examined the cases of each person currently on death row in Missouri. His research, soon to be published in the Journal of the Missouri Bar, found “serious problems with the death penalty in Missouri, including rampant prosecutorial misconduct.” He also “discovered that several people on death row are almost certainly innocent, yet judges are refusing to look at new exculpatory evidence in their cases.”
“Seinfeld” was a show about nothing. Yet when Jerry spoke about capital punishment, he recognized that for some-many innocent, most black-the death penalty means everything.