Abolish the death penalty!: Here are 8 good reasons why

In Texas--of course--a man faces execution for a crime he probably didn't commit. We can do better, America

By John Avignone
Published February 28, 2015 4:00PM (EST)
Texas Death Row inmate Rodney Reed; Rick Perry      (AP/Mark Thiessen)
Texas Death Row inmate Rodney Reed; Rick Perry (AP/Mark Thiessen)

The death penalty is back in the news. Pennsylvania Gov. Tom Wolf (D) has fulfilled a campaign promise by placing a moratorium on executions in the state. Citing what he calls "a flawed system," Gov. Wolf has called for a special task force to report on capital punishment. From the governor's statement...

I take this action only after significant consideration and reflection. There is perhaps no more weighty a responsibility assigned to the Governor than his or her role as the final check in the capital punishment process.
To be clear at the outset, this reprieve is in no way an expression of sympathy for the guilty on death row, all of whom have been convicted of committing heinous crimes, and all of whom must be held to account.
There are currently 186 individuals on Pennsylvania’s death row.
Since reinstatement of the death penalty, 150 people have been exonerated from death row nationwide, including six men in Pennsylvania.
Numerous recent studies have called into question the accuracy, and fundamental fairness of Pennsylvania’s capital sentencing system.

Gov. Wolf goes on to cite a study done by the Pennsylvania Supreme Court that found gender and racial bias in the state's capital justice system as well as the high cost of maintaining the system.

Meanwhile, in Texas, the execution capital of the western World, Rodney Reed, convicted of the 1996 murder of Stacey Stites, was scheduled to be executed by lethal injection on March 5. As of this writing the Texas Court of Criminal Appeals has issued a stay. The court did not elaborate its reasoning for issuing this stay, but an examination of the filing by Reed's attorney, Bryce Benjet, shows compelling new forensic testimony.

Reed's case is a prime example of the system gone wrong. Multiple independent investigators have come to the conclusion that Stacey Stites was murdered by her fiancé, then Giddings, Texas, police officer Jimmy Fennell. A Texas jury disagreed.

Reed faced two nearly impossible hurdles in small-town Texas. Multiple sources confirm that Reed, an African-American, was having an affair with Stacey Stites, a white woman. This is dangerous enough in a small Southern town, but Stites was engaged to a white police officer, which sealed Reed's fate. He was convicted primarily on the strength of two pieces of evidence. Reed's DNA was found in the form of active semen in Stites. The other damning evidence was provided by medical examiner Roberto Bayardo's testimony on the time of death. Bayardo testified that Reed had been killed sometime after 3 a.m., which fit perfectly with the prosecution's assertions. Bayardo also testified that the active sperm found in Stites had to have been deposited no longer than 26 hours prior, which contradicted Reed's claim that he had last had sex with Stites two days before. An all-white jury took only four hours to convict Reed. Two weeks later the same jury sentenced him to death.

Bayardo has since recanted this testimony. Investigative reporter Jordan Smith, who has covered the case for longer and in more depth than anyone, first as a reporter for the Austin Chronicle and now as a staff writer for the Intercept, Glenn Greenwald's investigative website, reports:

In a declaration for the court, Bayardo, the same medical examiner who testified for the state at Reed’s trial, said that it had been incorrect to assume that “spermatozoa can remain intact in the vaginal cavity for no more” than 26 hours. The fact that Bayardo saw “very few” such sperm were found in Stites suggests they had been there for a longer period of time. Moreover, while he still concluded that there was evidence that Stites had been sodomized, he said that her injuries were “more consistent with penetration by a rod-like instrument, such as a police baton.”

Based on video and photographic records of the crime scene, Bayardo has also recanted his time of death estimate. He now says he cannot pinpoint the time of death. In addition, in this latest appeal three eminent medical examiners have said Bayardo's time of death estimate is off by several hours. All three believe Stacey Stites must have been killed sometime before midnight. This is crucial, as Jimmy Fennell, the police officer engaged to Stites, has testified that she was alone with him up until 3 a.m. Fennell, who has a history of violence against women, also failed two polygraph examinations, specifically when asked if he strangled Stacey Stites. Investigators had considered Fennell the prime suspect, but dismissed this suspicion when DNA evidence linked Rodney Reed to Stacey Stites. This new testimony clearly incriminates Fennell, who is currently serving a 10-year prison term for beating and raping a woman he had taken into custody, on the hood of his police cruiser.

None of this means the Court of Criminal Appeals will order a new trial for Rodney Reed. All of Reed's previous appeals have been rejected, including an appeal to the Supreme Court. The Texas court can lift the stay at any time. That Reed's execution has been temporarily stayed is cause for guarded optimism, but the court may well reject his appeal. If it does reject Reed's appeal his options will be exhausted and he will be put to death.

Reed's case vividly highlights two of the major problems with the death penalty. Capital punishment is an issue that crosses party lines and ideologies; polls show support for the death penalty appears to be strong. There are liberal Democrats who support capital punishment and conservative Republicans opposed. The fact that 150 people have been exonerated from death row just since 1989 makes it clear we have almost certainly executed innocent people. This alone is reason enough to reexamine our capital justice system, but it's not the only reason. Racism, both in small town Texas culture and in our capital punishment system, has been a factor in Reed's case from the beginning. An honest assessment of the facts leads to one inevitable conclusion: Rodney Reed is innocent. His case is but the latest of many that demonstrate why America should join the rest of the civilized world and abolish the death penalty.

Eight Reasons to Abolish the Death Penalty

Ironically, the most common arguments in favor of the death penalty also provide the strongest arguments to abolish capital punishment. Here are the eight most common arguments turned on their heads.

1. America is a democracy and a clear majority of Americans favor the death penalty.

Thirty-two states, the U.S. military and the federal government currently have the death penalty on the books. Overall, the number of states with the death penalty has been slowly declining, but some states, like California, have banned and then reinstated capital punishment. Gallup has been tracking attitudes about the death penalty since 1936. Currently, 60 percent of Americans are in favor of the death penalty. This number has been steadily falling from the all-time high of 80 percent in 1994. Tellingly, support for the death penalty declined most rapidly after WWII and continued to fall as the baby boomers came of age, hitting an all-time low of 42 percent in 1967.

It's clear that a majority of Americans support the death penalty. Or is it? Support for the death penalty appears to be strong, but a funny thing happens when you give people an alternative. A recent ABC/Washington Post poll found that given a choice, a majority of Americans, 52 percent, favor life without parole over the death penalty. Given the current trend, it's clear that a majority of Americans support life without parole over the death penalty and that support will continue to grow.

2. Why waste money keeping a prisoner alive for life without parole when it's cheaper to execute someone?

On its face this seems to be strong argument, and it would be except for one small detail. It's not true. When you factor in the costs of a capital trial, including the appeals process and the costs of maintaining a death row facility as well as the costs of the actual execution, it's less expensive to incarcerate someone for life without parole. Considerably less expensive. Costs vary by state, but in all cases life without parole is a less expensive alternative. In Texas, for example, by far the leader in executions, an investigation by the Dallas Morning News found that it costs about three times more to execute a prisoner than it does to incarcerate them at the highest possible security level for 40 years. The difference is even more pronounced in other states.

3. Executing a murderer guarantees he or she will never murder anyone else.

The logic of this argument is flawless, but this is the easiest of arguments to dispel, as the same can be said of life without parole. Nor does resentencing prisoners to life without parole lead to a rise in prison murders. Numerous studies have shown prisoners resentenced to life without parole do not present more of a threat to other prisoners or guards than the general prison population.

4. The death penalty serves as a deterrent.

There is no evidence that this is true or ever has been true. It might seem that it would be so to a reasonable person, but by definition murder is an unreasonable crime. In fact, the death penalty does not reduce murder rates. Nor does the lack of a death penalty increase murder rates. States that have abolished the death penalty have not seen a rise in murders. States that have abolished, and then reinstated, the death penalty, most notably California, have not seen murder rates fall.

5. Fair is fair. Taking a life should be punished by losing one's life.

This is a philosophical argument, and as such it's a matter of belief, but at its root it's a rather poor philosophical argument, as it fails one very important test. Essentially, this is an argument in favor of vengeance, as the only purpose of the death penalty is to extract the ultimate punishment, the ultimate price, for the ultimate crime. Revenge may have some satisfaction for the family and friends of victims, but it's impossible to frame as an ethical remedy. If taking a life is wrong, how is taking a life in return right? Or, put more simply, two wrongs do not make a right.

6. We have the finest system of justice the world has ever known, including an appeals process that guarantees that the rare mistake will be corrected in the appeals process.

We may well have the finest justice system in the word, but that does not mean we don't make mistakes. In recent years hundreds of convictions have been overturned, some decades later and long after appeals have been exhausted. One hundred and fifty death row inmates have been freed by DNA evidence that was unavailable earlier, recanted testimony and other means.

Earlier this year Glenn Ford was released after spending 30 years in appalling conditions on death row at Louisiana's infamous Angola Prison. His conviction was vacated after prosecutors in Shreveport became aware of new evidence provided by a confidential informant. It's vanishingly rare for prosecutors to admit to errors in capital cases, but that's exactly what happened here. Few are the wrongly convicted who are so lucky. As a general rule, prosecutors fight tooth and nail to protect convictions, even in cases where it's clear that mistakes were made.

In another recent case two mentally challenged half-brothers, Henry McCollum and Leon Brown, were declared innocent and released after spending 31 years on death row in North Carolina. They were cleared by DNA evidence decades after being convicted of a particularly gruesome crime, the gang rape and murder of 11-year-old Sabrina Buie, killed by having her panties shoved down her throat with a stick. Ironically, for years death penalty supporters, including Supreme Court Justice Antonin Scalia, cited this case as an example of why the death penalty was warranted. Justice Scalia hasn't offered comment since the two were exonerated.

How many other cases have there been where miscarriages of justice weren't caught? It's fairly certain that we have executed innocent men. How many is anyone's guess. Exoneration after three decades wasn't the only thing these two cases had in common. In both cases all-white Southern juries had convicted black defendants, which brings us to the next point.

7. Justice is blind.

We'd like to think that justice is blind, but when it comes to capital cases it's not colorblind. Defendants of color are convicted in capital cases at higher rates and given the death penalty at much higher rates than are white defendants. Earlier this year a University of Washington study of three decades of capital cases in Washington state found that African-American defendants were three times more likely to be sentenced to death than white defendants, even though prosecutors sought the death penalty more often for white defendants.

In a report titled "US: Death by Discrimination - The Continuing Role of Race in Capital Cases," Amnesty International found that while blacks and whites are victims of murder in roughly equal numbers, in 80 percent of the executions since the death penalty was reinstated in 1976, the victim was white. Amnesty also found that more than 20 percent of African-Americans sentenced to death were convicted by all-white juries.

Many other studies have found that race plays a major role in determining who is convicted of capital crimes and who is sentenced to death, including reports by the ACLU, the University of North Carolina, and a Justice Department study of the federal death penalty system.

8. The death penalty is carried out in a humane way.

In 1972 the Supreme Court suspended the death penalty in the United States in the Furman v. Georgia case, ruling that as applied it constituted cruel and unusual punishment, a violation of the Eighth Amendment to the Constitution. Thirty-seven states sought to amend their laws to address the concerns of the court and in 1976 the court clarified its earlier ruling in Woodson v. North Carolina, effectively reinstating the death penalty.

In 2014 there's ample reason to believe that the death penalty is both cruel and usual. Among developed nations, it's extremely unusual. In fact, out of 34 developed nations, as recognized by the Organization for Economic Co-operation and Development, the only other nation with a death penalty is Japan, and it uses it exceedingly rarely. In 2013 there were only four executions in Japan. By any possible measure or definition, in the modern world execution is an unusual form of punishment. But is it cruel?

There are five methods of execution that are legal in the United States: lethal injection, electrocution, firing squad, hanging and lethal gas. In current practice, lethal injection has become the standard, in large part to curtail any legal claims of cruel and unusual punishment. Recently pharmaceutical companies have refused to sell states drugs for execution by lethal injection. This has forced states to buy drugs with other medical uses and come up with their own lethal cocktails, which they've kept secret from the public. This has led to several high-profile cases where executions were botched. In a recent case in Oklahoma, the man to be executed wheezed and convulsed for two hours before dying. The unavoidable conclusion is there is no way to execute someone that isn't cruel in at least some cases. As there's no way to know in advance when an execution will be botched, there's no way to guarantee the rights granted under the Eighth Amendment.

In 2000 the State of Illinois suspended the death penalty. After careful study of many of the same facts presented here, Illinois abolished the death penalty completely in 2011. An honest reading of the facts brings one to the inevitable conclusion that none of the arguments in favor of the death penalty holds water. It's past time for us to join the rest of the civilized world in ending the death penalty once and for all. Better late than never.

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John Avignone

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Death Penalty Execution Rodney Reed Texas