Blog of Rights

Unlikely Allies and Their Arguments

By Tanya Greene, Advocacy and Policy Counsel, ACLU at 5:54pm

When the famous author (and lawyer) Scott Turow was chosen in 2000 to participate in a commission reviewing the Illinois death penalty, he was on the fence about the death penalty because of his concern that some crimes deserved no other punishment than death. After two years of studying the death penalty, however, Turow became convinced that some of the most powerful arguments against the death penalty were rooted in traditionally conservative values and he grew to strongly support them. This finding supports an assertion we've long believed: opposition to the death penalty isn't a conservative v. liberal argument. It's unfair, and, as Turow ultimately describes it, un-American.

Argument #1 — The death penalty is yet another government program that has failed.

Turow concluded capital punishment inefficient, slow and often gets the wrong man. There have been 138 individuals exonerated and released from death row since 1973 at least one innocent person has been executed. Capital punishment across the country is "freakish", "arbitrary" and racist. For instance, individuals charged with the same capital crime in different jurisdictions may face different punishment possibilities or individuals charged with the same crime as codefendants, with similar roles, can be prosecuted differently. And finally, whether an individual is charged with murder of a black person or a white person continues to affect whether the death penalty is sought. In banking, in taxes, in education, these types of inconsistent effects would result in overhaul of a government program. In the capital punishment context, death is the result of this failed experiment.

Argument #2 — The death penalty is a waste of money.

For a system that is not guaranteed to work and can potentially condemn the wrong person, it's very expensive. In federal court, a capital case (a case in which the death penalty is sought), costs about eight times that of a non-capital murder case. At the very least, capital prosecutions across the country cost two and three times more than "regular" murder prosecutions. I recall news reports of a county issuing a bond to fund a capital prosecution when I practiced in Alabama. Much of the added expense is generated by keeping death row inmates in separate, often solitary, confinement and the like.

Argument #3 — The death penalty is incompatible with the notion of limited government.

Turow also argues capital punishment is also incompatible with popular conservative federalism arguments. We have states in the Union — among them Michigan, Iowa, Vermont, Massachusetts and New York — whose citizens have rejected the death penalty for a host of reasons, yet who are forced to deal with it when a federal capital prosecution is sought in their states.

Certainly conservatives are not the sole critical thinkers on this subject. The three arguments discussed here echo similar arguments heard from liberals and draw the same conclusion — abolish the death penalty.

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