The Death Penalty’s Practical Failure

In 1991, despite his incessant pleas of innocence, Cameron Willingham was convicted of capital murder. Arson investigators had concluded he set three separate fires inside his home, killing his three daughters. He was subsequently executed “with confidence” by the State of Texas.

Later evidence, however, seriously undermined his conviction. The arson findings were discredited, and the testimony by jailhouse “snitch” Johnny E. Webb was found to have been coerced. Jurors on the case have since reported feeling deeply troubled, knowing they must live with the possibility of a catastrophic mistake for the rest of their lives.

This is but one of many cases documented by the Death Penalty Information Center as “Executed But Possibly Innocent”. It is no longer credible to argue that innocent Americans have never been executed.

It is perfectly understandable, perfectly normal — perfectly human — to want retribution for crimes that provoke overwhelming moral outrage. Retribution feels good. No doubt about it. Humans want those scales of justice to balance out, and many people sincerely believe death is the only proportional punishment. That impulse is unlikely to disappear.

However, when evaluating capital punishment strictly as a matter of public policy, the arguments for it are simply not persuasive.

First of all, pursuing the death penalty is a long and extraordinarily expensive process — more costly than life without parole by a factor of several. Appeals are almost always mandatory, and death row confinement is its own major budget line. Lawyers, paralegals, bailiffs, judges, clerks, and other court personnel all must be paid. If a jury is sequestered, there are hotel and meal costs. Expert witnesses command enormous fees. Litigation over execution methods has become increasingly common. It all adds up.

And it actually makes sense that it is so costly. The system knows execution is irreversible, so safeguards are layered upon safeguards. Appeals are not a bug — they are the system protecting itself. Death penalty cases, by definition, simply cannot be good and fast and cheap (you can only have two of those).

But the unhappy truth is that, despite all the due diligence, death row exonerations are real. Innocent people have come within days of execution, and some executions were later surrounded by serious doubt. And then there is the specter of horribly botched executions.

So why pursue the death penalty at all? Proponents trot out the old argument about deterrence, but there is simply no clear proof that the death penalty deters murder more effectively than life without parole. Most murders are impulsive, emotional, irrational acts. Rarely is a murderer deterred even by the possibility of being caught, much less by the possibility of execution. And states without the death penalty are hardly lawless dystopias.

So, if capital punishment is not cheaper, not clearly better at deterrence, not foolproof, and in some cases downright inhumane, then what exactly is the system accomplishing?

If the death penalty’s primary purpose is retribution, then the public should say so honestly. Debate should not hide behind unsupported claims of efficiency or deterrence. But the simple truth is that society can permanently remove dangerous offenders without killing them. A murderer behind bars presents no greater danger to the public than a murderer who has been executed.

Yes, there is something to be said for the sense of closure some victims’ families feel after an execution. But at the same time, some may feel retraumatized by decades of appeals, and wish only to put the entire ordeal behind them forever.

Death penalty cases are long and costly because the legal system is terrified of making a mistake. And yet, despite all the safeguards, appeals, costs, and delays, mistakes have been made.

Our justice system should restrain human impulses, not merely reflect them. Do we value retribution enough to risk getting it wrong?