JURIST Guest Columnist Crystal Whalen, Texas Tech University School of Law Class of 2012, is a student attorney at the Regional Public Defender’s Office for Capital Cases in Lubbock, Texas. She argues in favor of moving away from the death penalty and makes a case for its unconstitutionality…

As Americans, we would like to assume that each and every one of us is protected by the US Constitution. We want to assume that the police cannot just come into our homes on a Sunday night, while we are watching television, and randomly search in violation of the Fourth Amendment. We want to assume that if we were arrested, we would have a fair trial, be represented by a competent attorney and judged by a well-informed cross section of our peers according to our Fifth, Sixth and Seventh Amendment rights. As Americans, we believe that these rights are available to us whether we need them or not. However, many Americans do not fully appreciate that our Eighth Amendment right, which protects us against cruel and unusual punishment, is not as secure as it should be. There are 34 states that currently use the death penalty, which owes its existence to an erroneous stamp of constitutional approval, as a punishment for capital offenses.

In Gregg v. Georgia, the Supreme Court concluded that the death penalty was, in fact, constitutional under the Eighth Amendment of the US Constitution. However, since 1976, it has become increasingly clear that a “constitutional death penalty” is a practically unattainable legal fiction, with no basis in the realities of the US justice system. There is no realistic way to administer capital punishment in a manner that is consistent, reliable and free from arbitrariness. The death penalty is cruel and unusual under the Eighth Amendment, and thus, unconstitutional.

A few select statistics will help the reader to better understand exactly why the capital punishment system is unconstitutional. First, the questionable culpability of people sentenced to death evidences the system’s unreliability. Since 1973, there have been 140 exonerations based on innocence. This means that there have been 140 people arrested, accused, subjected to a full trial, convicted, sentenced and placed on death row to await their execution for crimes that a court later determined they did not commit. Even with all the procedural safeguards presumed to be in place, mistakes continue to be made. Of the 34 states that currently have the death penalty, only 11 of those have not had individuals on death row exonerated based on innocence.

However, these statistics must be viewed with an critical eye. The “zero statistic” could mean that those 11 states truly have not convicted an innocent person, or it could mean that mistakes have not been caught. Is this a statistic that Americans should be content to live with? Or does even one innocent person being put to death mean the system has failed? The American legal system is fraught with imperfections, as humans are responsible for its administration. The permanence of death and the inability to go back and rectify mistakes makes such fallibility unacceptable.

Second, it is difficult to predict what will be considered proper use of the death penalty in the future, the legal standards are constantly changing. For example, in the 2002 case, Atkins v. Virginia, the Supreme Court held that it was unconstitutional to execute people who have mental disabilities. People with IQ scores of less than 70 are considered mentally disabled for purposes of capital punishment. However, the use of IQ level as a standard in and of itself should be unconstitutional, as it is inherently arbitrary given its dubious accuracy in reflecting one’s mental capacity. In the 2005 case, Roper v. Simmons, the Supreme Court held that it was unconstitutional to execute juveniles. Between 1976 and 2005, however, 22 people were executed for crimes they committed as juveniles. This means that 22 people died at the hands of a state in a manner that would be deemed unconstitutional today. In light of our ever-progressing mores, it is difficult to reconcile the continuing evolution of the death penalty with the fact that while we wait for the law to catch up, people are being executed.

Third, regional statistics illustrate the arbitrary nature of the death penalty. Since 1976, there have been a total of 1,278 executions and 1,049 of those executions have taken place in the southern region of the US. Texas leads with the most executions, having executed 477 people. The disconcerting aspect of this regional disparity is further highlighted by the murder rates of the various regions. The South had the highest murder rate in 2010, with 5.6 murders per 100,000 people. Perhaps, at first, it is reasonable to assume that the region with the highest murder rate would be the region in which the death penalty is the most frequently utilized. However, the West, Midwest and Northeast had rates not dissimilar from the South’s, at just over 4 murders per 100,000 people. Despite the similarity in murder rates, the South has accounted for 82 percent of all executions in the US since 1976. Thus, a person who commits murder in the South, is exponentially more likely to receive the death penalty than a person who commits the same crime just over the region’s border.

Given the unreliable, unpredictable and arbitrary nature of the administration of the death penalty, evidenced by the statistics, the death penalty is inherently unconstitutional and realistically incapable of being made so. Accordingly, the most reasonable solution would be to abolish it and elect to use the punishment of life without parole. The idea of alternative punishments for violent crimes is supported by public opinion regarding methods of deterrence. About 61 percent of Americans believe life without parole, or even life with the possibility of parole, is sufficient. All of the 34 states that have the death penalty also have life without the possibility of parole as an available option. If life without parole is used as an alternative, at the very least, when a mistake is discovered, the exonerated individual can leave prison and attempt to reconstruct his or her life.

For the most part, the current trend in US seems to be moving away from the use of the death penalty. Death as a punishment cannot be reconciled with the Eighth Amendment of the Constitution because it cannot be administered in a reliable, predictable and systematic manner throughout the nation and across cases. As such, we should examine more humane alternatives.

Crystal Whalen is a student at Texas Tech University School of Law, and is a student attorney at the Regional Public Defender’s Office for Capital Cases in Lubbock, Texas.

Suggested citation: Crystal Whalen, A Case for Moving Away From the Death Penalty, JURIST – Dateline, Feb. 2, 2011, http://jurist.org/dateline/2012/02/crystal-whalen-death-penalty.php.