all executions by lethal injection in the USA encounter complications in some way 6 . The problems illustrated above show the method of execution used to be flawed and unreliable.
The fallibility of justice systems all around the world mean that there will always be an element of human error and miscarriages of justice are bound to occur. There is a compelling argument that focuses on the fact that the death penalty is irreversible. Clive Stafford Smith sums this up thus: if we take ‘beyond reasonable doubt’ to mean roughly 75% (as a US federal judge estimated it to be) then out of the three thousand odd death row inmates in the USA, seven hundred and fifty (25%) are likely to be innocent if the American justice system gets it right on average 75% of the time 7 . Looking at inmates on Indiana State death row further endorses this as there is not a single one who doesn’t have some kind of mitigating circumstance. The majority are either mentally ill, substance abusers or were subject to abuse when growing up or, in a number of cases, all three. For example Howard Neal has been on death row for twenty years and has an IQ of fifty four and, as Stafford Smith writes, can be persuaded into confessing to the murders of Lincoln and Kennedy 8 . This raises the question of whether those on death row with a lack of mental capacity or who are insane can be criminally liable due to the lack of the necessary mens rea . I am not suggesting that their crimes are excusable but I believe that as a democracy we have a duty of care towards these people and that instead of demonizing them and committing them to death (the easy way out) we should take responsibility for them perhaps through a sentence of life imprisonment in a psychiatric hospital. Stafford Smith also talks of the racism and prejudices that cloud the American justice system and in particular issues concerning death row. He argues that there is an inherent racism and highlights this with a story from Alabama where the prosecutor got rid of all seventeen black jurymen who came up on jury duty. This story, comic were it not true, illustrates that, in the words of Stafford Smith: ‘the death penalty is a privilege of the poor and a disproportionate privilege of [ethnic] minorities’ 9 . It is generally accepted that there are four aims of punishment in a democratic society. These are rehabilitation, retribution, protection and deterrence. By considering the death penalty in relation to these four aims of punishment it should give a clear indication of whether any justification for the death penalty can be found in a democratic society. Punishment has the aim of acting as a deterrent to future crimes. The death penalty can be seen to be the ultimate deterrent to ‘future murderers’. This belief is backed up by various statistics such as those from Emory University showing that each execution across America deters an average of 18 murderers 10 . Thus it seems logical to assume that with the stakes so high, anyone thinking of committing a murder in states that use capital punishment will be dissuaded. However the majority of murders in the USA are not pre-meditated killings but are impulse murders and those who commit these crimes tend not to have planned their actions and weighed up the possible consequences. Moreover, those who commit impulse murders tend not to be thinking logically. A survey by the journal Criminal Justice and Behaviour found premeditated murderers to be twice as likely to have a history of mood or psychotic disorders and 93% of impulsive murders and 76% of premeditated murders either have long term issues with drug and alcohol abuse or were intoxicated at the time of their crimes. In fact I would argue that the death penalty has a negative effect on society. It unsurprisingly creates a lot of anger amongst communities, which may translate into more crime. This is highlighted by statistics showing that the murder rate in states that use the death penalty is consistently higher than in those that don’t use it. In 2011 states that used the death penalty had a murder rate 18% higher than those which didn’t 11 . There is also an argument put forward by George Kateb in his book ‘The Inner Ocean: Individualism and Democratic Culture’ that claims that the death 6 http://www.bbc.co.uk/news/world-us-canada-27215508 7 Clive Stafford Smith. The Death Penalty in the US: Poverty, Prejudice and Politics. 8 Clive Stafford Smith. The Death Penalty in the US: Poverty, Prejudice and Politics. 9 Clive Stafford Smith. The Death Penalty in the US: Poverty, Prejudice and Politics. 10 http://www.washingtonpost.com/wp-dyn/content/article/2007/06/11/AR2007061100406.html 11 http://www.deathpenaltyinfo.org/deterrence-states-without-death-penalty-have-had-consistently-lower-murder-rates
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