Today, Bob Herbert in the New York Times had a piece on Cameron Todd Willingham, a man executed by lethal injection for the arson murder of his children. Analysis published on August 17, 2009 by Dr Craig Beyler concluded:

in the end, the only (basis) for the determination of arson … is the burn patterns on the floor of the children’s bedroom, the hallway and the porch interpreted as accelerant spill. None of these determinations have any basis in modern fire science.

and

the state fire marshal who investigated the case and testified against Willingham “seems to be wholly without any realistic understanding of fires.” He said the marshal’s approach seemed to lack “rational reasoning” and he likened it to the practices “of mystics or psychics.”

These are some pretty damning statements.

Now, I am against the death penalty, though I wasn’t always, and I posted the article on Facebook as a textbook example of why I believe the death penalty should be abolished. It garnered a few comments, one of which I want to address in a more comprehensive way.

So let’s spend millions of dollars keeping inmates locked up for life, build new prisons, take care of their health problems, etc rather than run the very slim risk that there may be a mistake?

All eliminating the death penalty does is guarantee that people who commit lesser offenses such as manslaughter and rape will be released after the minimum required sentence (or less) due to overcrowding.

I’ve heard this, and similar arguments many times over the years. In the past, I’ve even said similar things myself. However, these arguments are spurious.

1. It is more expensive to execute a prisoner than it is to lock one up for life. “Fixing the appeals process” is incompatible with lowering that cost, because the marginal cost of holding one more prisoner is quite low, and the appeals process is necessarily time- and labor-intensive. (More below.)
2. The people who are likely to be released from prison in a real, honest-to-God prison reform are nonviolent criminals. (Drug users and the like) Of the 2.2 million prisoners, 1 million of them are non-violent.

That report, by the way, is from 1999… ten years ago. Many of these nonviolent offenders are in prison for drug-related crimes. Regardless of your opinion of whether or not drugs should be legalized, drug abuse is a medical problem, not a criminal justice problem. As such, it should be dealt with by the healthcare system, not the criminal justice system. Indeed, in any graduate-level mental health program, a significant portion of the curriculum is spent on substance abuse and its treatment. In fact, the federal government itself recognizes this, as it has quite a few openings for substance abuse experts.

There’s plenty of room to improve our criminal justice system from redesigning prisons to reforming the law itself to rethinking how we imprison people instead of just the “why”. Looking back at history offers some lessons as well (long-term imprisonment as a concept is only 200 years old (PPT)). Continuing to execute individuals, and justifying it using counterfactual ideas like “cost savings” doesn’t make sense. If we could reform our criminal justice system to the point where executing one more person made fiscal sense, then we will have made significant headway in criminal justice policy in general. And I would go so far as to argue if we ever get to that point, we won’t need to execute people at all because there won’t be any crimes committed that justify execution.

But of course, we’re nowhere near that point, so it’d be purely a game of “what-if”.

Some numbers:

• 3,297 people on death row
• 2,310,984 total prisoners
• 0.1% of the prison population is on death row

You’re not going to save the system much (if any) money even if you executed all of these prisoners tomorrow.

Going further, the argument seems to be one of ideology: having an opinion and working backwards to justify it rather than letting the evidence guide one to a logical conclusion — even if it is a conclusion that one would otherwise not prefer. Speaking for myself, I have no problem with the concept of putting someone to death, though I could never do it myself. I’m apathetic about the death penalty as an institution, but what gets me going is the possibility of error. If there is a chance that an innocent person could be put to death, the whys and hows of execution are irrelevant. Life in prison is reversable. Execution is not; ergo we don’t kill people. Moral arguments over the right-ness or wrong-ness of killing someone cease to matter.

There are too many possible points of failure. Arguing that we should lower the costs of execution, by streamlining the appeals process while still doing “due justice” to satisfy some moral compunction reeks of trying to alter the world to conform to what one would prefer rather than making policy based on reality.

I have no patience for this kind of thinking.

Other links of interest:

• Vera institute of justice
• Troy Davis, another (probably) wrongfully-convicted individual on death row