Edited by Robert M. Baird & Stuart E. Rosenbaum
Reviewed by Ralph Dellapiana
“In early October 1283, Prince David of Wales was hanged, drawn, and quartered for an attack during the Easter season against the English King Edward.” The Death Penalty: Debating the Moral, Legal, and Political Issues, starts with a graphic look at the historical use of the death penalty, and then describes its rapidly declining use in most of the modern world.
The editors, both professors of philosophy at Baylor University in Texas, have compiled a compendium of some thirty articles by a diverse selection of authors on both sides of the issue. The book is divided into six sections, covering topics including: the history and current status of the death penalty, arguments for and against the death penalty, whether lethal injection is cruel or unusual, whether capital punishment may be applied to crimes other than murder, such as the rape of children, how DNA advances have led to the exoneration of innocent people who would otherwise have been executed, and whether obvious racial disparities in the application of the death penalty make it unconstitutional.
Historically, the book notes, the death penalty was the norm. In 7th Century B.C., the Draconian Code of Athens made the death penalty the punishment for all crimes. In Europe people were hanged, drawn and quartered or both, pressed to death under stones, or burned alive. Until almost the 20th Century, “death was a standard punishment for almost any offense against established authority” be it church or state.
Religions, ironically, have been the source of much death. “The Inquisition was a natural Catholic response to the Protestant Reformation, and it demanded death by burning at the stake for many thousand of heretics who refused to bend to the authority of Catholicism.” And, seventh-century America saw witch hunts that produced torture and execution on religious grounds. Individuals were executed for murder, burglary, forgery, arson, and theft. Among modern religions (note that the authors discuss only Christian religions), Evangelicals support the death penalty, and Catholic and Protestant oppose it. Notably, the authors list the LDS Church separately, perhaps because of its unique position “neither promoting nor opposing” capital punishment.
It wasn’t until almost the 20th Century that the death penalty was called into question at all. The authors suggest that one reason for the common use of the death penalty in those early American times was that there were, “no prisons where offenses against community standards might be expiated by ‘serving time.’” But in modern times the death penalty has been widely disavowed as a human rights violation in most of the world. As the authors note, “in the ‘first world,’ the world of the Western democracies, the practice of capital punishment does not exist except in the United States of America.”
And even here in America there is a recent movement away from the death penalty. For example, over the last ten years, citing “evolving standards of decency,” the United States Supreme Court has found the death penalty to be “cruel and unusual punishment” when applied to the mentally retarded, see Atkins v. Virginia, 536 U.S. 304 (2002), to murders committed by juveniles, see Roper v. Simmons, 543 U.S. 551 (2005), and to crimes not involving death, such as rape of a child, see Kennedy v. Louisiana, 554 U.S. 407 (2008). And five states in the last five years have ended the use of the death penalty: New York, New Jersey, New Mexico, Illinois, and now Connecticut. Repeal legislation is pending in a few other states, and the question will be on the ballot for a referendum in California this fall.
But other states (like Utah) have continued to expand the categories of cases to which the death penalty applies, and states like Texas and Georgia have recently executed men despite evidence of potential innocence. Moreover, the majority of Americans, when asked the simple question if they are “for” or “against” the death penalty, still answer in support of it. Thus, the death penalty debate in America is pervasive and divisive. Consequently, The Death Penalty: Debating the Moral, Legal and Political Issues is as timely as it is informative.
Support for the death penalty is highlighted in the book. For example, the authors include the dissenting opinions in Kennedy v. Louisiana and other articles in favor of permitting the death penalty for non-death crimes such as child rape. And, adamant support for the necessity of the death penalty is argued in the article The Morality of Anger. The author here has a simple message, “We punish criminals principally in order to pay them back, and we execute the worst of them out of moral necessity.” Where “the worst of them” are concerned, the author eschews both rehabilitation and deterrence, stating, “We surely don’t expect to rehabilitate them,” and “It would be foolish to think that by punishing them we might thereby deter others.” He asserts support for his position from Simon Wiesenthal, Abraham Lincoln, Albert Camus, and William Shakespeare. And for the most pithy summary of his position he quotes Aristotle: “Anger is accompanied not only by the pain caused by the one who is the object of anger, but by the pleasure arising from the expectation of inflicting revenge on someone who is thought to deserve it.”
Several other key death penalty issues are also covered in the book. Regarding method of execution, there are seven chapters concerning lethal injection, including the main opinion from Baze v. Rees, 553 U.S. 35 (2008), the 2008 decision upholding lethal injection as a “humane” method of execution, as well as one dissenting and four concurring opinions.
The problem of executing innocent people has its own five-chapter section, primarily pointing out that the technological improvements in DNA analysis have led to the exoneration and release from death row of numerous individuals. In addition, there is a 42-page article analyzing whether Texas executed an innocent man when they executed Cameron Todd Willingham for the arson death of his three small children. A panel of scientists unanimously found that “there was no scientific basis for claiming that the fire was arson, [the state] ignored evidence that contradicted their theory, had no comprehension of fire dynamics, relied on discredited folklore, and failed to eliminate potential accidental or alternative causes for the fire.” Yet, despite these serious questions about the reliability of the evidence in his case, Texas executed him anyway.
Utah has the death penalty. And there is strong general support for it despite complaints about how expensive it is, how it delays justice for the families of murder victims, how innocent people are executed, and how it is immoral to kill others except in times of war or in self-defense. Given the gravity and magnitude of the issues surrounding the death penalty, perhaps, as this book suggests, we in Utah should be open to a civil debate about the propriety of continuing to use it here.