The death penalty system is broken

The U.S. death penalty system is broken. A new report outlines numerous problems and needed reforms.

By David Gushee

Follow David: @dpgushee

Oftentimes Christians deal with contemporary moral issues in the abstract. They are “against abortion” or “for peace” or “against divorce” in the abstract. They attempt to reason directly from what they understand to be biblical rules or principles to offer blanket judgments on contemporary moral problems. This often leaves their judgments hopelessly out of touch with what is really going on in relation to the issue at hand.

Some Christians are “for the death penalty” in the abstract, while others are “against the death penalty,” equally in the abstract. I have long thought these abstract positions were inadequate.

My convictions about this were reinforced over the last couple of years as I have had the privilege of serving in a small role on a committee led by genuine policy experts on the actual practice of the death penalty in America. Under the aegis of the Constitution Project in Washington, last week leaders of this bipartisan panel — some of whom favor the death penalty in principle, others of whom oppose it in principle — released a lengthy, detailed report called Irreversible Error: Recommended Reforms for Preventing and Correcting Errors in the Administration of Capital Punishment. I believe it is required reading of anyone who might like to weigh in on the death penalty.

Here are some of the key findings of the panel. I will simply quote them:

“The administration of capital punishment [in the U.S.] is deeply flawed and…years of mounting evidence demonstrate a continuing and alarming lack of accuracy and fairness” (p. xv).

“Several jurisdictions have continued to maintain or have adopted outdated policies that do not reflect current best practices and that increase the risk of wrongful convictions and executions” (p. xvi).

“Serious concerns about the safety and efficacy of lethal injection as a method of execution have resulted in litigation and suspensions of executions in some jurisdictions. Due to ... drug manufacturers refusing to provide drugs if they are to be used for executions, prisons have also encountered difficulty in obtaining some drugs previously relied on for this purpose, thus creating acute shortages. In light of these shortages, some states have proceeded with executions using drugs never before used to execute humans. They have also used drugs whose safety and effectiveness cannot be assured ... [and] have intensified their efforts to obscure information regarding the development and implementation of their lethal injection protocols” (pp. xvi, 141). We all saw the impact of this problem in the recent botched execution of Clayton Lockett in Oklahoma.

“The National Academy of Sciences and other well-regarded experts also have raised significant new questions about the scientific reliability of certain forensic disciplines, calling into doubt the convictions in hundreds, if not thousands, of capital and non-capital cases. Faulty eyewitness testimony and false confessions are now known to contribute greatly to wrongful convictions” (p. xvi).

“In the face of continued evidence of error, mistake and fraud in the administration of the death penalty, the Committee has observed some legislative and court developments that hinder the promotion of fairness in capital cases” (p. xvi).

“Ineffective assistance of counsel continues to be a major reason for wrongful convictions and death sentences, and too many states continue to resist the reforms that must be made to ensure competent counsel in capital cases” (p. xvii).

“Several jurisdictions have repealed their death penalty laws or instituted a suspension of executions within the last several years ... [due to] the numerous problems endemic in the administration of the death penalty. Six states have eliminated the death penalty in the last six years, concluding that reforms are insufficient to cure identified systemic problems. Thus, they have opted to do away with capital punishment altogether” (p. xvii).

“While [the Committee’s] prior recommendation to prohibit imposition of the death penalty on those with intellectual disability is now the law of the land, jurisdictions have adopted widely divergent procedures to implement this ban. The Committee recommend[s] that jurisdictions not impose the death penalty on people with mental disorders that significantly impair their capacity to appreciate the nature, consequences or wrongfulness of their conduct” (p. xvii).

“The Committee recommends procedural reforms to help reduce arbitrariness. It recommends that capital punishment not be imposed in the absence of a unanimous verdict…The trial court should instruct the jury about all available sentencing options. If a jury imposes a life sentence, the judge should not be allowed to “override” that recommendation and impose a sentence of death” (p. xviii).

“The Committee recommends that every jurisdiction adopt a framework for the collection and use of statistical evidence regarding racial disparities in the application of capital punishment” (p. xviii).

My personal take is that our criminal justice system does not demonstrate the capacity to administer the death penalty in a manner just enough to entrust it with this awesome power. Flaws that are bad enough in relation to lesser punishments rise to the level of the truly intolerable in relation to this ultimate punishment. These flaws crop up at every point in the administration of what passes for justice in the United States. 

And none of this is to say anything about how dubious it is for those who claim to follow an unjustly executed Savior to look blithely on the execution of others. 

OPINION: Views expressed in Baptist News Global columns and commentaries are solely those of the authors.