Found here. Reproduced here for fair use and discussion purposes. My comments in bold.
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Note: the following is adapted from a 2013 essay the author co-wrote with former ThinkProgress reporter Zack Beauchamp, “The Case Against The Death Penalty For Dzhokhar Tsarnaev.”
Attorney General Loretta Lynch announced on Tuesday that federal prosecutors will seek the death penalty against Dylann Roof. And, indeed, if anyone deserves such a consequence for his actions, it is this particular individual. Roof allegedly joined a Bible study group at an historic black church in Charleston, South Carolina, waited for the parishioners to close their eyes in prayer, and then opened fire upon them. Nine people died, including the church’s senior pastor, state Sen. Clementa Pinckney. Roof later confessed to the killings. He told friends that he wanted to start a “race war.”
So Dylann Roof presents one of the strongest possible cases for the death penalty. He stands accused of a racist act of terror, and there is little doubt about his guilt. And yet, even in this case, the argument for pursuing a death sentence against Roof does not hold up.
The best argument for the death penalty is that it deters people from committing homicides in the first place, an argument that suggests we should execute far more people than just Dylann Roof. If you think the death penalty is about deterrence, then more executions means less crime. By killing the guilty, we can potentially save innocent lives. (Deterrence is not the best argument for the death penalty. Punishment is.)
The deterrence argument, however, is doubtful at best. According to Dartmouth University statistician John Lamperti, “an overwhelming majority among America’s leading criminologists [have concluded that] that capital punishment does not contribute to lower rates of homicide.” While some studies do claim a deterrent effect, these studies are based on tiny data samples that yield doubtful results. As Yale Law Professor John Donohue explains, death sentences are “applied so rarely that the number of homicides it can plausibly have caused or deterred cannot reliably be disentangled from the large year-to-year changes in the homicide rate caused by other factors.” Murder rates in states without the death penalty are consistently lower than those in states that do sentence people to die. (I suspect that the death penalty might have more of a deterrent influence if the process of execution didn't result in seemingly endless legal maneuvering, delays, and appeals. If justice is not swift, it is not justice at all, and the deterrent effect lessens.)
Meanwhile, few institutions expose the hazards inherent in government-mandated punishment more nakedly than the death penalty. Capital cases are difficult and incredibly expensive for prosecutors. (This extended process is the direct result of leftist protests and lawsuits in an effort to de-legitimize the death penalty. So they have achieved the complication of the death penalty process and are now using that complication as a reason to end the death penalty.
And why is the expense of any government process suddenly a concern for the left? They are never concerned with any other financial burdens imposed on the people.)
As a consequence, the wealthy and privileged, who have the resources to hire outstanding legal counsel, are very rarely executed. The people that are convicted, by contrast, tend to be poor and disproportionately non-white. Nor is such arbitrariness limited to the way we distinguish among defendants, as the way we dole out death sentences also gives the lie to any claim that America values all human life equally. According to one study, defendants who kill high-status white people with college degrees are six times more likely to be sentenced to die than defendants who kill black victims closer to the margins of society.
Indeed, there is simply no escaping the role that race plays in determining death sentences. To take one demonstrative statistic from an ocean of them, six percent of murders in Alabama involved black defendants and white victims, but ten times that percentage of black death row inmates were convicted of murdering whites.
The death penalty also kills innocent people. Roughly 139 death row inmates have been exonerated since 1973, 61 percent of whom were people of color. At least ten innocent people that we know of have been executed — and these are only the ones that we know of. (It is unfortunate that justice fails. However, the reason innocent people are being freed is because the state-of-the-art in criminal forensics has improved so much. This means that fewer innocent people will be incarcerated and suffer the death penalty.
But if the occasional failure of justice is a reason to discontinue a punishment, should we not send convicted criminals to jail because there's the possibility of innocence?
After all, if it's reprehensible to execute what may turn out to be an innocent man, then it must be reprehensible to send a possibly innocent man to jail. By that logic, no one should be sent to jail because of the possibility that they're innocent. Indeed, then what's the point in having a trial? Why bother to arrest them? What's the point of having a police force, if there's even the slightest possibility of the innocence of the person?)
These three realities — the impact of wealth, the disparate treatment based on race, and the risk of killing innocents — are themselves reasons why the death penalty should not exist. But are they arguments against applying it, so long as it does exist, in the most heinous of cases?
Roof isn’t just a white man, he is a white man who admits to committing a brutal hate crime. Unlike many capital defendants, Roof has outstanding counsel — one of his attorneys defended Boston Marathon bomber Dzhokhar Tsarnaev as well as 80 other individuals accused of homicide. And there is very little doubt that Mr. Roof is guilty.
The Charleston massacre is as horrible a crime as one can imagine, so Roof’s case raises the difficult question of whether America can limit executions to only the most heinous crimes — at least under circumstances where the defendant’s guilt isn’t in question and there’s no evidence that his trial will be conducted unfairly in any fashion. Can we limit death sentences only to people as evil as Roof appears to be?
The simplest answer to this question is that we are a nation of laws, and our most fundamental law says we cannot create a brutal, rarely applied punishment targeting just a handful of crimes. (The author inserts a novel criteria, "rarely applied." However, there is no legal principle that measures the propriety of a sentence by how often it is applied.
Beyond that, it is the crime of murder that receives the death penalty, and there were 13,472 in 2014. That is not a particularly rare occurrence.)
The Constitution forbids “cruel and unusual punishments. So as a punishment becomes more “unusual” — or, in the Supreme Court’s words, as it no longer can be squared with “evolving standards of decency that mark the progress of a maturing society” — it stands on increasingly weaker constitutional ground. (Evolving standards of decency is but a single criteria among many. "The U.S. Supreme Court has held that the death penalty itself is not inherently cruel, but has described it as "an extreme sanction, suitable to the most extreme of crimes" (gregg v. georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L. Ed. 2d 859 [1976])."
Indeed, it is likely that the death penalty is already unconstitutional under this rule. (If it were the only rule, but it isn't.
Further, the 14th Amendment grants the power to government to inflict capital punishment. "...nor shall any State deprive any person of life, liberty, or property, without due process of law..." So in order for the author's assertion to hold water, the Constitution would have to be amended.)
The number of death sentences has been on the decline in the United States, but not principally because of legal reforms limiting the death penalty to a small number of cases: it’s a combination of full legal abolition in some jurisdictions and the spread of anti-death penalty norms among citizens and prosecutors in others. 60 percent of U.S. counties have stopped seeking the death penalty entirely as a punishment for any crime.
One study of death sentences and executions from 2004-2009 discovered that just 10 percent of counties returned a single death sentence, and only 1 percent of counties produced more than one death sentence. Just four states made up 65 percent of national new death penalty convictions. In 2011, there were an estimated 14,612 murders in the United States, but only 43 executions. In 2015, only six states performed executions, killing a total of 28 individuals. That’s down over 70 percent from 1999, when annual executions peaked at 98.
These data strongly suggests that executions no longer comport with our “evolving standards of decency.” We are increasingly uncomfortable with death sentences, and unwilling to execute people. (Perhaps, but that doesn't speak to the constitutional authority of the practice.)
But beyond the cold language of the law, there is a deeply personal reason why we should not preserve the death penalty simply for the most heinous criminals like Roof. If you think the death penalty is a just response to murder or important to provide victims’ families with closure, then trying to limit it to a small number of multiple murders makes no sense. Why does taking one life not merit death, while taking two, three, or any other arbitrary number does? Why is the pain of one victim’s family any less important to address than the pain of families whose loved one was part of a multiple murder?
There are many families that deserve the satisfaction of knowing their loved one’s murderer received society’s stiffest sanction for their crime, and it’s far from clear that the death penalty fills that need better than life without parole — indeed, it may even prolong a families’ grief. (Indeed. But that is the arbitrary nature of the leftist opposition to the death penalty. They are happy to protest and litigate to prevent a death sentence to be carried out, with little care for the hell they're putting families through as they prolong the process through endless appeals.)
Yet the moment we say one victim, or set of victims, must be avenged by death, we lose the ability to consistently limit the death penalty’s application to rare cases — and the uncertainty and arbitrariness that plagues capital sentencing generally comes flooding back. When life without parole is the harshest penalty our courts dole out, such a sentence will stamp everyone who receives it as among the very worst criminals without opening the door to an unjust and unconstitutional policy.
So the death penalty is arbitrary. It discriminates on the basis of race and income. It kills the innocent. It is unconstitutional. And it may even deepen the wounds of families already grieving from the most terrible tragedy imaginable. Even in the worst of cases, it cannot be justified.
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