Capital Punishment: Proposing a New Model

The United States not only incarcerates more people than any other country, but we are one of the few that executes people. A Christian nation that sanctions state killing is a contradiction that requires some thoughtful consideration. One doesn’t need to be a biblical scholar to figure out Christ’s view of capital punishment. Trials like those of James Holmes and Dzhokhar Tsarnaev make the public debate all the more urgent. Exhibit A is that we have Supreme Court justices like Antonin Scalia who actually deny that innocent people have been executed in this country. This in spite of the fact that two men he used as examples of why we need the death penalty were later proven innocent after thirty years on death row. Scalia has even offered the argument that mere innocence is not enough to legally protect someone from execution. Like many controversial issues throughout our history, it is citizens, not politicians or courts, who must take the lead on this debate.

Personally, I have flip-flopped on this issue more than an Asian carp on a hot boat deck. I know both sides of the debate very well, and I’d like to offer a slightly different view of the matter. People on the extreme ends of the debate won’t budge. But I think most people are like me. We are uncomfortable with certain aspects of execution, but we don’t want to do away with it all together. What I propose are changes based on the real world, not on fictional narratives. I want a capital punishment system that strictly adheres to certain principles. The first and most important principle is that we never execute an innocent person.

In spite of Scalia’s assurance that this event has never occurred, it is absurd to think it hasn’t or couldn’t happen. Coerced confessions, tainted testimony, prosecutor malfeasance, and bogus lab evidence are just some of the problems that have been uncovered in our criminal justice system in the last twenty years. And we’re not talking about isolated incidents. The FBI fabricated hair sample evidence for decades, affecting thousands of convictions. Project Innocence has used DNA analysis to overturn hundreds of convictions. We know that a father, Cameron Todd Willingham, was executed in Texas in 2004 based on bogus arson analysis. New evidence proved his innocence. Did you hear that Justice Scalia?

We need to have a higher standard of evidence before we execute people. One that demands 100% assurance that the person is guilty of premeditated murder. The Timothy McVeigh, Tsarnaev, and Holmes cases all fit these criteria. There are no doubts about their planning or guilt in committing murder. The next question is whether these individuals were capable of doing otherwise. Most people understand that children’s brains are not developed enough to really choose right from wrong. So not executing children should be a no-brainer. But what about mental illness? Were they legally insane? This is another area that needs updating based on current brain science. Some will argue that anyone who commits murder is mentally ill by definition. But I don’t buy it. The Tsarnaev and McVeigh cases are fairly easy. Both of them tried to escape. That’s pretty clear evidence that they understood that what they were doing was wrong. Holmes is a little trickier. On the one hand, he waited around to be caught. On the other, he booby trapped his apartment to kill police who he knew would investigate. I think we should always err on the side of caution before executing someone who is mentally ill or of low IQ. Better life in prison than executing the mentally ill.

It is in prison that I think we need to make our biggest change in capital punishment. There are people for whom prison is not a motivation for better behavior. In fact, there are people for whom prison is just another venue for their antisocial behavior. People commit murder, rape, and robbery in prison. Felons continue to run criminal enterprises while in prison, and this includes contract murders. For my second idea, I propose that we create a new category for capital punishment: flunking out of prison.

If you ask any line staff at a prison, they will tell you that felons run the prison, not staff. USR even published an essay from Mike Yordy, a former guard at Supermax, detailing how things really work in prison. As a society, this should be unacceptable. Americans should be outraged and demand changes. Prison should provide both punishment and rehabilitation, and staff should be in charge. We want people to fear going to prison, not see it as a status symbol in their gang. We want to motivate them toward obeying the law, and that is not happening. We want the prison experience to turn people’s lives around. We don’t want people to get out of prison and commit worse crimes than when they went in. This is not happening either. We could spend a lot of money hiring more staff and building bigger more secure prisons. But we won’t do that for obvious reasons.

So, besides reducing our prison population by redirecting non-violent offenders into substance abuse programs (which are way cheaper and more effective than incarceration), we need to start grading prisoners. People who follow the rules get good grades and time off of their sentences. This is done to some extent now, but not nearly enough. But the biggest problem is what to do with the failures? Currently, segregation is the only alternative, and that makes the situation worse if used long term. The rioters at Tecumseh State Correctional Institution, the felons who raped female guards in the Arizona state prison, and inmates who kill guards and other inmates need the ultimate penalty.

I know that correctional staff cannot be allowed to make this determination. They, like law enforcement, do not always make legal or ethical decisions that can support taking a human life. But in the case of former football star Lawrence Phillips, for example, there is no doubt that he strangled his cell mate. Many times we have video evidence of assaults on staff and inmates. Although such evidence is lacking here, we know Phillips was the only other person in the cell. He needs to die. He has had enough chances in life. In fact, he should go to the head of the death row line. His case should get priority in the courts. We should have a single appeals court whose sole responsibility is to determine whether the evidence is sufficient (i.e. 100% positive) to warrant execution of someone already in prison. And then they should be killed. If a person cannot stop committing or directing violent crimes while in prison, then they have lost their right to be part of the human family. We should no longer feed, clothe, and house them. Long-term prisoners and lifers need to know there is a limit to our patience in taking care for them. Their incentive for good behavior is that we will let them live.

Justice Scalia is not concerned about the current state of the criminal justice system. He doesn’t have to work with felons or live in neighborhoods with angry ex-offenders. Maybe his religious beliefs allow him to have a clear conscience if an innocent person is executed because he believes God will reward that person in paradise. But the “Kill them all and let God sort them out” mentality is not the standard a civilized society should uphold. I don’t think that ““beyond a reasonable doubt” is sufficient grounds for such a permanent solution. We should demand 100% pure proof. We can release an innocent person from prison. We cannot release them from the cemetery. We must grow up as a society. As long as we have prisons and capital punishment, they should be reserved for the worst and most dangerous offenders in order to protect ourselves. And that protection should apply to all of society. Failure to provide measures that shield correctional staff and inmates from incorrigible violent felons is ethically just as wrong as failure to protect citizens on the street and in their homes. In the interests of our safety and in justice, we must act to change a system that provides little safety and even less justice. If we don’t, then it is we who have failed and we who deserve the consequences.