In a move that received very little attention, Gov. Phil Bredesen recently suspended all executions in Tennessee until May, pending a full review of what he called our “sloppy” execution procedures. The governor is to be commended for this brave and wise decision.
But I suggest that he take this opportunity to review not just the execution procedures, but the entire application of the death penalty in this state. That will take far longer than a few months. We need a death penalty moratorium—not just in Tennessee but in all states.
When the Supreme Court ruled in 1976 that states could resume executions, they mandated that any state doing so must apply this ultimate penalty in a fair and consistent, rather than arbitrary and capricious, manner. No one can honestly look at the current application of the death penalty in Tennessee and believe that we have met that test.
Tennessee's death-penalty sentencing is rife with error. Half of all death sentences in our state are overturned on appeal due to serious constitutional error, according to a study by the Tennessean. That number does not include those sitting on death row who are, in all likelihood, innocent of the crimes for which they were convicted. One example is Paul House, awaiting execution for over 20 years despite uncontested DNA evidence that he did not rape the woman he was accused of murdering (rape being the state's theory of the crime). In June 2006, the U.S. Supreme Court found that “viewing the record as a whole, no reasonable juror would have lacked a reasonable doubt.”
Then there's the way that race affects the use of the death penalty. It is really no coincidence that public-opinion polling finds far less support for capital punishment among blacks than among whites. National studies repeatedly find both race-of-perpetrator and race-of-victim bias in death-penalty sentencing. In Tennessee and most states, racial/ethnic minorities are vastly over-represented on death row, and a full quarter of African-Americans on Tennessee's death row were sentenced by all-white juries.
Besides race, social class is another distorting factor in the use of the death penalty. If you don't have money for an attorney, your goose is cooked. In Tennessee, nearly every one of the 102 people on death row could not afford an attorney at trial. With all due respect to our public defenders, if my life were on the line I would want the best private attorney that money could buy. But that is not an option for almost anyone who faces this situation in our state—with predictable results.
We have to be careful and systematic in our thinking here. It is not logical to respond to this evidence by affirming one's visceral support for the principle of life-for-life. Fine, for argument's sake, let's grant that for a moment. Would not such a passion for justice also require the fair application of this penalty? Would we not also want to assure such basics as the actual guilt of the people we are executing, the class-blind and color-blind application of this penalty and the opportunity for adequate legal representation? Would we also want to be sure that the people we are executing are morally responsible for their actions, rather than clinically insane, as are a number of our death row inmates?
Nationally, the application of the death penalty is about as rational and orderly as who wins the lottery. Thousands of people murder and are murdered each year. A small number of (mainly southern) states execute the great majority of those convicted of murder. Evidentiary requirements vary. Which particular types of murder are eligible for capital sentencing vary. Appeals processes vary. Quality of legal representation varies. In the end, a small percentage of convicted murderers get the death penalty, and an even smaller group is actually executed. And more and more, across the country, DNA evidence is showing up to exonerate a significant minority of those executed. How many innocent executed persons is too many?
It would take another column to review the biblical arguments, which in the South are a profound factor in support for the death penalty. Even if we were to take the Old Testament alone as our guide, it requires the eyewitness testimony of two or three witnesses (Deut. 17:6), a stricter standard than our own. It also requires that the justice system “not show partiality” (Deut. 16:19) and therefore that every accused person be treated similarly. And this is not even to consider the profound issues raised by the New Testament's focus on mercy.
As of now, at least, the death penalty is a public policy that fails the most basic standards of justice. It is time for a moratorium and a comprehensive review.
-30-
— David P. Gushee is University Fellow and Graves Professor of Moral Philosophy at Union University in Jackson, Tenn. www.davidgushee.com