We Don't Need To Execute the Mass Shooters
The death penalty accomplishes little, is morally questionable, endangers the innocent, and warps the entire criminal justice system
The two mass shootings these past two weeks, in Georgia and Colorado, could draw the death penalty. Georgia is a death penalty state, multiple murderers often receive it, and domestic terrorist acts sometimes fall under federal death penalty statutes as well, giving Colorado prosecutors a potential opportunity to seek it and Georgia prosecutors a backup option.
And obviously, if we are just talking about what people deserve, someone who shoots up innocent people, whether at a massage parlor, or a supermarket, deserves very harsh punishment. Many people feel this is an especially important principle if a crime is motivated by racism or misogyny.
But the death penalty is a purely symbolic issue. Prison works perfectly well at keeping the most dangerous people off the streets. For instance, Charles Manson, who originally got the death penalty, lucked out because his sentence was reviewed on appeal during the short period when courts were invalidating the death penalty as unconstitutional. Accordingly, his sentence was reduced to life in prison, and… nothing bad happened. He was repeatedly denied parole, he wasn’t able to continue running his cult in prison, and he wasn’t able to order any more murders.
Or take the blind Sheikh, Omar Abdel-Rahman, who masterminded the 1993 World Trade Center bombing that killed six people. He got life in prison, and lived until 2017. He participated in no more criminal conspiracies, and killed no more people.
Indeed, many of the terrorists who perpetrated 9/11 have received de facto life sentences at Guantanamo (the federal government would probably like to execute them, but stupidly decided that treating them like common criminals and putting them through the federal court system was somehow being “soft” on them, and instead finds itself in a legally questionable military court system hemmed in by court rulings and delays). The fact that Khalid Sheikh Mohammed is alive has not in any way endangered the American public.
Prison sentences have other advantages besides being effective at incapacitating the most dangerous criminals. They also do not raise the moral issues the death penalty does, and there’s always the danger that an innocent person might be executed. Numerous people in prison have been later exonerated and released; that’s obviously impossible once a death sentence is carried out.
In addition, though, and probably less understood by most people, the death penalty warps the entire criminal justice system. For instance, a 1990’s backlash against court proceedings intended to ensure innocent people did not get executed (but which allowed inmates on death row to tie up their executions with appeals) led to the passage of crime bills, supported and signed by President Clinton, which substantially reduced the availability of habeas corpus petitions for all inmates, not just those sentenced to death. This would never have happened absent the existence of the death penalty- habeas petitions filed by inmates with prison terms do not bother the public, because the inmate does not get out of prison unless he or she wins the case. It only bothers the public when an inmate’s habeas petitions delay an execution. And yet, as a result of this concern, all inmates saw a crucial legal protection cut back.
Another way the death penalty warps the criminal justice system is more subtle. Public interest lawyers have a great, very human interest in saving lives. Accordingly, death penalty cases get a lot of lawyering. Interestingly, many of them get insufficient lawyering at the trial level (especially with poor and Black litigants in the deep South), but once a death sentence is handed down, the public interest law firms of America spring into action and try to save the defendant’s life. This is absolutely understandable and I wouldn’t have it any other way, but it’s also important to understand that the vast majority of people who get a death sentence in America are obviously guilty murderers who committed some of the worst crimes imaginable. (I should mention here that this statement is not inconsistent with the well documented fact that you are more likely to get the death penalty if you kill a white or wealthy person than if you kill a poor Black person. Race discrimination is one more reason you should oppose the death penalty. But nonetheless, nobody really denies that most of the people who get the death penalty committed really awful murders.)
Here’s the point- in a perfect world, should a vast amount of the resources of public interest law go to litigating the cases of a few mostly extremely awful criminals? Meanwhile, there are innocent people in prison, or people who have been grossly oversentenced for relatively minor offenses, whose cases draw far less resources than multiple murderers, rapist-murderers, and torture-murderers who are sentenced to die. As a result of this, some lives are of course saved (and again, I wouldn’t ever presume to tell public interest firms that they shouldn’t try and save lives), but meanwhile, a lot of people languish in prison who can’t obtain good legal counsel to get them out.
Abolishing the death penalty would restore an equilibrium to the criminal justice system. Obviously there wouldn’t be nearly as much public interest work committed to habeas petitions on behalf of obviously guilty murderers with life prison sentences, which would free up a lot more resources to work on ordinary inmate habeas petitions. And there might be congressional support (especially in this moment, where the First Step Act passed and was signed with bipartisan support) to restore some habeas rights if members of Congress were not concerned about the assertion of such rights delaying executions.
The death penalty makes a mess of the criminal justice system, purely for the purpose of carrying out a few symbolic acts that have no actual effect on the crime rate. It’s time to change.