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When Does it Become Murder?
An analysis of capital punishment

All Content © Copyright 2007, Paul LutusMessage Page

Introduction |  Some History |  The Present |  The Arguments
Conclusion |  References |  Footnotes |  Feedback

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In 2000, Illinois Governor George Ryan reluctantly ordered an immediate moratorium on executions in his state. Governor Ryan is a conservative Republican, a person one would expect to be in favor of capital punishment (and he is). What made him call a halt to executions? Well, it's very simple — he realized fewer than half of the inmates who passed through death row[1] in his state were actually guilty of the crimes they were convicted of. More than half were freed — not "sentence commuted to life," but freed — in one man's case, within 48 hours of his scheduled execution. "I still believe the death penalty is a proper response to heinous crimes," said Ryan. "But I want to make sure ... that the person who is put to death is absolutely guilty."

Let me say that again. In Illinois, since the reinstatement of the death penalty in 1977, more death row inmates have been freed than executed. In many of these cases, there was no factual basis at all for their convictions — a witness lied, or a prosecutor invented evidence, or new scientific methods like DNA testing proved that the conviction was in error.

Sometimes the claim is made that no one has ever been wrongfully put to death, that all those executed were guilty. But this is very misleading. One reason is the criminal court system won't review the cases of those who have already been executed, on a number of grounds:

  • A technical legal issue called "standing," having to do with who has the right to bring an issue before a court (the dead have no standing). More on this below.
  • To avoid spending time reviewing the cases of people beyond the help of the justice system.
  • To avoid acknowledging errors, which would erode public confidence in the criminal justice system.
  • To avoid sending the signal that one can have yet another appeal, even after death.

For the foregoing reasons, issues like this can't be resolved in courts of law, but based on statistics and the information coming out of Illinois and elsewhere, it is virtually certain that innocent people have been executed. This is a fact, and it is a moral outrage.

When it becomes essentially certain that innocent people have been (and will be) executed, capital punishment stops being a political issue and becomes a moral one. No civilized people, however strongly we may feel about capital punishment, can accept the killing of innocent people as part of a justice system. In the face of accumulating evidence, we have to stop asking whether capital punishment is justified, and instead ask whether it has become state-sanctioned murder. In the largest sense, when the state executes an innocent person for murder, and thereby commits a murder of its own, its moral authority evaporates.

Some History

Before the rise of the modern state, communities and individuals sometimes killed particular individuals, sometimes to deal with an immediate threat, sometimes in battles, sometimes for less noble reasons. It turns out that, in those early times, people willing to kill outsiders or miscreants gained high status in their communities. Successful hunters acquired respect, but successful hunters of people acquired power.

As civilized as we moderns believe ourselves to be, that connection still exists — the easiest way to gain political power is to be in a position to kill people, either through war or by way of the legal system. Most U.S. presidents have had military experience, and it seems their election chances were improved by this connection, even though there is no demonstrated correlation with civilian leadership skills. It seems those willing to kill for the common good gain a status that transcends easy explanation, and this only serves to remind us that we aren't so distant from the world of animals.

Others gain political power by being aggressive policemen or criminal prosecutors, and a track record in death penalty cases is a well-established route to power. This means politically ambitious police and prosecutors have a strong motivation to pursue the death penalty for reasons other than the guilt of a defendant.

In modern times and among civilized countries, the death penalty has gradually fallen out of favor, and there is a longstanding debate about its purpose and effectiveness in deterring crime. At the time of writing (2007) and not to oversimplify a complex issue, if one counts countries, more have abolished capital punishment than retain it, but if one instead counts population, more people live in systems that have capital punishment, primarily because China, India, the U.S. and Russia — the most populous countries — all have capital punishment.

On the basis of these statistics, one might argue for capital punishment on the ground that it is commonplace. But I personally don't think "everyone is doing it" is a particularly strong argument, especially when spitting on the sidewalk can be punished by death in China[2].

But all such arguments pale before the question of whether we can reliably identify the guilty. If we cannot, and if we continue to apply the death penalty in the face of this knowledge, we become murderers.

The Present

In the past several decades, new methods for gathering evidence, and more aggressive investigations of the criminal justice system, have created widespread doubt about the basis for many convictions, including death penalty convictions. To date, the efforts of the "Innocence Project" have resulted in the exoneration of 196 falsely convicted people on the basis of DNA testing alone (not all related to the death penalty). Overall, since 1973 and at the time of writing, 123 people have been sentenced to death, spent time on death row, then were exonerated and released. The average amount of time these people were falsely imprisoned, awaiting execution, was 9.2 years.

How is this possible? How can so many people be charged, tried, convicted, sentenced to death, go though a lengthy process of mandatory appeals, end up on death row, only then to be exonerated and released? There are any number of reasons:

  • Overzealous police and prosecutors, more intent on personal career advancement than on justice.
  • Erroneous or malicious witness testimony, or false testimony by convicts ("jailhouse snitches") bargaining for lighter sentences.
  • Incompetent legal counsel, a particular problem for poor defendants (wealthy defendants virtually never get the death penalty).
  • Mishandling of, or deliberate fabrication of, evidence.
  • Incompetent juries, unable to evaluate courtroom arguments or grasp the meaning of legal principles such as "presumption of innocence" and "beyond a reasonable doubt".
  • Community and political pressure to find a perpetrator for notorious crimes, regardless of the facts.

Because of TV programs like "CSI: Crime Scene Investigation," there is now widespread public confusion about what constitutes sufficient evidence in a capital case. Contrary to the TV version of criminal investigation and prosecution, a person can be convicted of murder and sentenced to death based on an astonishingly flimsy set of claims. In many cases, a person ends up on death row simply because there wasn't anyone more likely to have committed the crime. And some of these people are innocent.

Many of my readers will have heard these arguments before, and many intelligent people defend the death penalty on reasonable grounds in spite of flaws in the criminal justice system. But I present these points:

  1. No civilized, thoughtful person would support the death penalty if it can be shown that innocent people are being executed.
  2. Once persuasive evidence for point (1) is presented, we confront a moral imperative to end the death penalty.
  3. For such an important issue and in fairness, the "persuasive evidence" of point (2) should be more persuasive than the evidence that put the majority of people on death row. This is an easy standard to meet.
  4. In point of fact, the present rate of exoneration, the rate at which people who are scheduled to be executed, but are discovered to be innocent and are freed, surely constitutes the "persuasive evidence" that some less fortunate people, people not reached by DNA testing or innocence projects, have been put to death for crimes they did not commit, and that this will happen again.
  5. If we ignore this moral imperative and carry on as before, we become what we imagine we're fighting with the death penalty — we embrace all the primitive, uncivilized, cruel, vile impulses and actions we believe we're eradicating.

In short, we can't expect to wrestle with pigs in our Sunday best without getting as dirty as the pigs. How do we justify this?

The Arguments

Here are some commonly heard arguments for and against for the death penalty.


Perhaps the noblest argument for the death penalty is that it deters others from committing the same crimes. Unfortunately the majority of criminologists find there is no deterrent effect, and there is even some evidence for a negative correlation. Some studies even show a "brutalizing effect," a paradoxical increase in brutal crimes around the time of a well-publicized execution.

Another argument is that the execution permanently removes the threat posed by the criminal. This isn't a particularly strong argument, now that incarceration without the possibility of parole is commonplace.

On hearing the above argument, some respond that it's cheaper to execute prisoners than to keep them locked up indefinitely. Unfortunately, this isn't true. The cost of the mandatory appeals process is so high that it's much cheaper to lock a criminal up for life than to execute him (see references below). So this oft-heard argument is baseless.

Vengeance and Retribution. This is the argument that an execution makes the victims, or victims' families, feel better. This falls into the category of wrestling with pigs, discussed above, and can hardly be accepted as a justification among civilized people.


The death penalty constitutes "cruel and unusual punishment," something prohibited by the Eighth Amendment to the U.S. Constitution. This was the basis for the 1972 U.S. Supreme Court ruling that temporarily abolished capital punishment. Unfortunately, four years later the Court had a change of heart and decided that there were circumstances where it wasn't cruel and unusual. To fully understand these rulings it is necessary to think like a lawyer (and IANAL[3]). To a lawyer, for the expression "cruel and unusual punishment" to apply, both conditions must apply, in other words the punishment must be both cruel and unusual. There have been unbelievably cruel punishments meted out in the history of U.S. capital punishment, but most weren't particularly unusual. So this argument isn't persuasive.

The death penalty is immoral in a religious sense. It confronts the religious conviction that taking a life under any circumstances is a sin. Unfortunately this argument isn't compelling in the U.S. because of the Establishment Clause of the U.S. Constitution (the principle of separation of church and state), and even if this were not so, there are so many qualifiers and exceptions in Judeo-Christian writings that allow for public stonings of insufficiently pious souls and outright killing in the event of a war against infidels, that this argument deflates rather quickly when examined closely.

The death penalty is so brutal and primitive that it can have no place in modern society. This somewhat hyperbolic argument may seem to lose some of its persuasiveness when one discovers how brutal and primitive modern society is, except for the fact that capital punishment itself contributes materially to that state. So this argument has some degree of persuasiveness.

The death penalty is applied unevenly, arbitrarily, unfairly, and can be shown to be an instrument of racist public policies. A rich literature documents the truth of this proposition. For example, the largest single statistical factor in the imposition of the U.S. death penalty is, not the race of the perpetrator, but the race of the victim — one study showed that those who killed white victims were 4.3 times more likely to be put to death than those who killed African-Americans. Some have appealed their convictions on the ground that this pattern of discrimination violates the equal protection clause of the Fourteenth Amendment, but so far without effect[4]. One wonders how quickly the legal system would react if the statistic were reversed (if it were found that those who killed white victims were less likely to be put to death).

Innocent people have been put to death, and will be put to death, by the present criminal justice system. This is the central argument of this article. From a statistical standpoint, this claim is virtually certain, but as explained above, there is a legal requirement that such a condition would have to apply to a particular defendant, and those "particular defendants" are ipso facto dead, which removes their standing to argue for themselves in court.

Let me state that legal Catch-22 again:

  • Statistically speaking, it is virtually certain that the criminal justice system sometimes puts innocent people to death.
  • In the criminal justice system, a statistical principle cannot lead to a ruling[5], instead a particular defendant must appear before the court to argue for his own interest.
  • Such a defendant must have been put to death for this condition to apply.
  • A dead person has no standing before the court.

Got that?

When I first learned quantum physics, I thought, "This is really weird, and it totally confronts common sense." But one learns to expect that from an esoteric scientific field, and no one is put to death for failing to understand it.


The criminal justice system is not going to clean its own house. There are any number of reasons for this, among which are that such a housecleaning would work against the vested self-interest of the many who benefit politically from the existence of the death penalty, plus a more noble principle called "judicial restraint," which basically condemns activist judges who try to create laws instead of enforcing them.

The Judicial branch isn't likely to change the status of the death penalty, because it seems to possess Constitutional justification, at least as filtered by contemporary perceptions (and the notion that "strict constructionists" sit on the Supreme Court is a myth). The Legislative branch would have to act to create a change, and for that to happen, public support for capital punishment (measured at 66% in 2004) would have to decrease. Which means this issue belongs to "we, the people."

This issue, in its full moral dimensions, belongs to us, and as we read and think, innocent people are being put to death.

None of this should be mistaken as sympathy for murderers. I am opposed to the present system of capital punishment, not because I like murderers, but because I don't want to become one.

  1. Meaning death row inmates who were either executed or freed.
  2. A draconian measure meant to limit the spread of the SARS virus.
  3. "I Am Not A Lawyer".
  4. The Supreme Court has ruled that a defendant must show racial discrimination in his specific case, not as a statistical pattern.
  5. This authority is the province of the Legislative, not the Judicial, branch of government.

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