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The Death Penalty Debate

Illinois has just become the 16th state to abolish the death penalty—a decision that has reignited the long-running battle over capital punishment

By Patricia Smith

Johnnie Baston was 20 years old when he killed a 53-year-old man during a robbery at a store in Toledo, Ohio, in 1994. The store owner, a South Korean immigrant, was shot execution-style in the back of the head.

Baston, who already had a juvenile record as a thief, was found a few days later with the murder weapon and stolen merchandise from the store. He was convicted the following year.

Last month at the Southern Ohio Correctional Facility, Baston was put to death for his crime. A day after his execution, in another Midwestern state, Governor Pat Quinn, a Democrat, signed legislation making Illinois the 16th state to ban capital punishment.

"Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it," said Governor Quinn.

Illinois's move revived the long-running debate about the death penalty and the many questions it raises: Should the government put people to death? Does the death penalty deter future crime? Does it discriminate against minorities? What about the possibility of mistakenly executing innocent people? Conversely, are some crimes so horrific—mass murders or acts of terrorism, for example—that any punishment short of the death penalty is simply inadequate?

And why do so few industrialized democracies, aside from the U.S., still have the death penalty? (Ninety-five countries have abolished it, including most of Europe, and many other countries that have it on the books don't actually use it.)

Fewer Executions

"Illinois's experience of trying to fix the death penalty, and finding it can't be done, sends a real message to other states that are also grappling with the same problems," says Shari Silberstein, executive director of Equal Justice USA, a group that opposes capital punishment. "It's a real turning point in the conversation about the death penalty in the United States."

But Kent Scheidegger, legal director for the Criminal Justice Legal Foundation, which supports the death penalty, disagrees.

"I think it's unfortunate because there are going to be cases where the crime really cries out for the death penalty, and it won't be available," Scheidegger says. "There are times when life in prison without parole is just not a sufficient punishment."

Over the last decade, the number of executions in the United States has declined from a high of 98 in 1999 to 46 in 2010, most of them in Texas and Ohio. And the legislatures of three other states—Connecticut, Maryland, and Montana—are also currently considering abolishing the death penalty.

"There's been a change in mood about the death penalty," says Richard Dieter, director of the Death Penalty Information Center in Washington, D.C. "There's a lot more caution."

The U.S. Supreme Court has issued several rulings restricting the death penaltyOT. In 2002, the Court ruled in Atkins v. Virginia that the Eighth Amendment, which prohibits "cruel or unusual punishments," bars the execution of the mentally retarded.

In 2005, in Roper v. Simmons, the Court ruled that capital punishment for juvenile offenders is unconstitutional. Christopher Simmons was 17 when he and a friend robbed, bound, and gagged an elderly woman in Missouri, then pushed her into a river, where she drowned. The Justices said Simmons could not be held to the same standard of accountability as an adult.

An Eye For An Eye?

In 2008, the Court struck down a Louisiana law that permitted capital punishment for raping a child, restricting the death penalty to cases of murder or treason. In its 5-to-4 decision, the Court said that use of the death penalty in cases in which the victim had not been killed constituted cruel and unusual punishment.

But that same year, the Court ruled in Baze v. Rees that execution by lethal injection—the most common method today—does not violate the Eighth Amendment.

In that case, Justice John Paul Stevens, who had previously voted to uphold the death penalty's constitutionality, reversed himself, saying the death penalty as practiced in the United States was racially discriminatory, hopelessly flawed, and, therefore, unconstitutional.

The morality and the deterrent effect of capital punishment have been debated for thousands of years. Many death penalty supporters interpret the biblical phrase "an eye for an eye, and a tooth for a tooth" to mean that those who commit murder should meet the same fate.

Other death penalty supporters say that capital punishment serves as a deterrent, preventing would-be killers from committing crimes, since they'd fear the possibility of execution. And many feel that putting a killer to death can bring some closure and sense of justice to a victim's family.

President Barack Obama has said he supports the death penalty but thinks it should be reserved for truly heinous crimes.

Opponents say killing is wrong no matter who is doing it, even if it's the government, and that it's too final a punishment in a world where mistakes can happen.

They also point to statistics that indicate the death penalty discriminates against blacks, who make up 12 percent of the population but 42 percent of death-row inmates. A 2005 study in California found that murderers who killed whites were three times more likely to be sentenced to death than those who killed blacks.

Reintroduced in 1976

The death penalty in the United States dates to colonial times, when European settlers brought capital punishment to the New World. Until about 1900, hanging was the most common method of execution, though firing squads were also used. By the 1950s, most states were using either the gas chamber or electrocution.

In 1972, the Supreme Court seemed to be on the verge of declaring capital punishment unconstitutional, because it said the standards for applying it were arbitrary and inconsistent. Instead, the Court imposed a moratorium on executions until the states developed ways to ensure that it was being reserved for only the worst offenders, and it was reintroduced in 1976. Since then, more than 1,200 people have been put to death, most by lethal injection.

Support among Americans for the death penalty seems to be dropping. After years in which solid majorities approved of capital punishment, a recent Gallup poll showed the nation about equally divided when life without parole is offered as an alternative.

Death Row Exonerations

In recent years, the death penalty has come under increasing scrutiny. Exonerations of death row inmates, based on DNA and other evidence, have led to charges that the death penalty is simply too irreversible a punishment. Since 1973, 138 death row inmates have been exonerated.

That was part of Illinois Governor Quinn's rationale: "I am deeply concerned by the possibility of an innocent person being executed," he said before signing the ban.

In Illinois, the 15 prisoners who had been on death row will have their sentences commuted to life without the possibility of parole. The state's death penalty machinery had been halted since 2000, when the governor at the time, George Ryan, called the system "broken" and declared a moratorium on executions. Before leaving office in 2003, Ryan, a Republican, commuted the sentences of 167 death row inmates to life in prison and pardoned four others.

Ronald Tabak, a lawyer in New York who has argued death penalty cases, says that legislators around the country are coming to understand that they can vote to abolish the death penalty without losing their next election, as long as they avoid moralistic arguments and focus instead on factors like accuracy, fairness, and cost.

"At least outside of the South, it is not the political death sentence, as often perceived by politicians, to be willing to vote for, or be willing to sign into law, an abolition bill," Tabak says.

And now, with so many states facing budget crises, the issue of how much the death penalty costs is coming into play.

A 2008 study in Maryland by the Urban Institute concluded that because of appeals, it costs almost $2 million more for Maryland to put someone to death than it costs to keep them in prison, even for a life sentence.

Capital cases are expensive because the trials tend to take longer, they typically require more lawyers and more costly expert witnesses, and they are far more likely to lead to multiple appeals. In many states, death row inmates often spend decades in prison before their appeals are exhausted.

"For states that don't use the death penalty much, here's something you can cut and not lose much," says Dieter of the Death Penalty Information Center.

"The other big factor in all this," Dieter says, "is that all death penalty states have as an alternative life without parole. That wasn't always the case. Now, there's an alternate punishment that's very final but stops short of death."

(The New York Times Upfront, Vol. 143, April 18, 2011)