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Policy Position Paper: Alternatives to the Death Penalty

Olivia C. Mundie

School of Arts, Humanities, and Social Sciences, Florida SouthWestern State College

POS 2041: American National Government

Professor Jimmy L. Camp, Jr.

December 6, 2020
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Abstract

Since the Supreme Court ruling in Gregg v. Georgia in 1976, the death penalty has been

recognized as constitutional. Currently, the death penalty is legal in 28 states and the federal

government. This paper explains issues with current policy regarding capital punishment: it’s

disproportionate effect on minorities and people with disabilities, the risk of executing innocent

people, extreme costs, and ineffectiveness in reducing crime rates. This paper also explores

several non-lethal alternatives to the death penalty. The negative consequences of using solitary

confinement and parole in the sentencing process are explained. Concerns regarding parole

eligibility and the impact parole has on the sentencing process are discussed. The importance of

restitution for families of victims is explained. Ultimately, a sentence of life without the

possibility of parole combined with restitution is recommended as the best alternative to current

capital punishment policy.

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Policy Position Paper: Alternatives to the Death Penalty

In 1972, death penalty abolitionists claimed a victory when Furman v. Georgia declared

that capital punishment was discriminatory and a means of cruel and unusual punishment and

thus violated the eighth and fourteenth amendments. All pending death sentences were reduced

to life sentences. No executions were held in the United States on neither the state nor federal

level for several years, until after Gregg v. Georgia reinstated the death penalty in 1976. Because

of factors that will be discussed in the following paragraphs, I recommend that the death penalty

be abolished in all fifty states, and the sentence of life without possibility of parole coupled with

restitution be instituted as an alternative.

Currently, the United States is the only Western country that continues to use the death

penalty (Bienen, 2010). Only twenty-one states have completely abolished the death penalty.

Executions have recently been carried out by fifteen states and the federal government. Other

than being arguably morally wrong, there are several concrete problems posed by the current use

of the death penalty.

The first of these is the disproportionately harsh treatment of racial minorities in capital

cases. The history of executions in the United States cannot be discussed without recognizing the

ways in which it has discriminatorily been applied to minorities, particularly black people. Black

people have historically been executed at a higher rate, for non-homicidal crimes, and been

subjected to more extreme methods of execution as compared to their white counterparts (Steiker

& Steiker, 2015). According to a review published in 2000 by the U.S. Department of Justice,

72% of federal capital cases where the death penalty was approved involved defendants who

were of a racial minority. For individual states, it has also been found that the death penalty is

applied more often in cases where the victim was white than in cases where the victim was non-
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white (Johnson et al., 2012; Phillips, 2012). It is clear that the use of capital punishment in the

United States has a history of racial discrimination which still affects individuals today.

There are concerns that come with sentencing procedures in capital cases. Despite the

ruling made in Atkins v. Virginia, which ruled the execution of intellectually disabled persons

unconstitutional, those with mental disabilities, including mental illness, are still

disproportionately affected by current death penalty policy. Perlin (2016) notes that individuals

with mental disabilities are more easily manipulated by the criminal justice system, particularly

through false confessions in capital cases. Perlin (2016) says, “Of the first 130 exonerations that

the New York-based Innocence Project obtained via DNA evidence, 85 involved people

convicted after false confessions” (p. 1509). The greater susceptibility of mentally handicapped

persons to being manipulated during trial due to their inability to properly process reality puts

them at greater risk of receiving a sentence they do not actually deserve.

Atkins v. Virginia left it up to the states to define intellectual disability in capital cases. In

twelve of the states that use the death penalty, it is the responsibility of the jurors to decide

whether or not a defendant is mentally handicapped. In a study done by University of California

students, it was found that jurors are heavily influenced by expert opinion and details of the

crime when determining the mental ability of a defendant (Shaw et al., 2018). Although the

opinion is from an expert and, thus, largely reliable, they are still just one single person, which

means that the process by which mental capacity is determined can be too easily manipulated by

a single opinion. In addition, with exposure to knowledge of the circumstances of the crime,

some jurors believed that the crime was too complex for a disabled person to even have the

capacity to carry out (Shaw et al., 2018). This led to the disabled defendant being ruled not

disabled, and thus unfairly eligible for the death penalty.

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These issues with sentencing the mentally disabled bring to light problems with

sentencing innocent people. Although less common today because of modern DNA analysis, the

inevitable presence of human error could be enough to cause someone to lose their life.

The costliness of keeping the death penalty is yet another issue to be discussed.

McLaughlin (2014) cites several reports on the cost of the death penalty in several states which

found that capital cases cost significantly more per case as compared to non-capital cases. For

example, “in 1988, The Miami Herald reported that the cost of the death penalty in Florida was

$3.2 million per execution compared to $600,000 for life imprisonment” (McLaughlin, 2014, p.

689). The high cost of death penalty cases result from lengthy trials and appeals processes, as

well as from the requirement that death row inmates be housed in separate facilities from the rest

of the prison population (McLaughlin, 2014). The money saved from the abolition of the death

penalty could be put towards crime prevention programs, rehabilitation services for prisoners,

and counseling services for families of victims, which will all be discussed in later paragraphs.

Finally, current death penalty policy does not deter crime. Death penalty proponents

commonly argue that death is necessary to have as a sentencing option as a means of deterrence.

However, studies have shown that the death penalty has not actually had any effect on crime

rates. Radelet and Akers (1996) conducted a study which outlines criminology experts’ opinions

on whether or not the death penalty deters crime. Researchers contacted current and former

presidents of the American Society of Criminology, Academy of Criminal Justice Sciences, and

the Law and Society Association, all of which are highly respected criminological associations.

After asking these experts’ a series of questions—which they were instructed to answer using

their scholarly knowledge of criminological research—they found that the presence of the death

penalty does very little to reduce rates of crime (Radelet & Akers, 1996). Moreover, from 1990
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to 2018, murder rates in states that allow the death penalty have consistently been higher than

murder rates in states that do not allow the death penalty, according to FBI crime report data

cited by the Death Penalty Information Center (n.d.). From this, it can be said that the presence

of the death penalty actually promotes a violent climate, leading to higher crime rates. Because

of problems posed by current death penalty policy, it is imperative that alternative sentences be

considered. The following paragraphs will discuss alternate sentences that could be used in place

of the death penalty.

The first alternative is solitary confinement. Solitary confinement works as an alternative

because it ensures prisoners are not only not a threat to the public but are also not a threat to their

fellow inmates. However, solitary confinement can be incredibly harmful. Conditions in solitary

confinement lead to negative psychological effects that can inhibit a prisoner’s ability to interact

with others after release if parole is an option. Marshall (2020) states, “studies have only

confirmed that solitary confinement can lead to delusions, hallucinations, anxiety, and other

serious mental illness” (p. 70). Even if parole isn’t an option, those that spend extended periods

of time in solitary confinement are at a greater risk of fatal diseases (Marshall, 2020). This,

coupled with the unnecessary mental deterioration and the fact that solitary confinement does not

account for the rehabilitation of criminals and does nothing to support the families of victims, is

enough to recommend the discontinuance of solitary confinement and the use of a different

alternate sentence to the death penalty.

The second alternative is life with the possibility of parole only after a prisoner has

served a minimum sentence. According to Schwartzapfel (2015), “The minimum date by which

[those sentenced to life] can go before the parole board varies by state: in some states it's as little

as 15 years; in other states it's as many as 50” (para. 1). Since parole isn’t even an option until
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after fifteen years, this gives the defendant time for some rehabilitation so that they will be less

of a danger to society. Proponents of the death penalty have suggested that a criminal’s future

dangerousness can be reevaluated every five years, and if found to be less of a threat his death

sentence could be reduced to a life sentence (McLeod, 2018). This same method of evaluating

the dangerousness of a person on death row can be applied to those eligible for parole, ensuring

that these criminals are not just simply released after their minimum sentence without taking into

account their mental progress while imprisoned.

However, many people object to allowing capital offenders the possibility of parole. They

argue that since these offenders were so corrupt to commit the crime in the first place, there is no

chance of them ever actually recovering from that heinous mindset so they should never be

released into society again. This brings in the third alternative to the death penalty: life without

the possibility of parole without the requirement of restitution. Removing the possibility of

parole eliminates concerns about prisoners being released back into society. There are multiple

benefits to not allowing parole which will be described in the following paragraphs. Not

requiring restitution has the benefit of prisoners not having to work around fellow inmates or

prison staff to make money to pay restitution. But, if restitution is not required, then the family of

the victim is not being fairly compensated. There are benefits to restitution as well, which will

also be described in the following paragraphs.

The fourth alternative to current death penalty policy, and the alternative which I most

recommend, is life without the possibility of parole combined with restitution.

Parole eligibility plays a huge part in jurors’ decisions to return a death sentence. Because

of concerns about a criminal being released into society again, jurors may return a death sentence

if the judge does not explicitly state that the defendant is not and will never be eligible for parole.
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This death sentence may not necessarily be deserved by the defendant, and may only be returned

as a protective measure. The amount of information about parole eligibility given to jurors can

influence their decision. The judge of any capital case is “inherently persuasive” (Dutile, 1969, p.

315). Informing jurors of any parole possibilities may make them more likely to return a death

sentence. Also, completely withholding parole eligibility information from jurors may make

them more likely to return a death sentence. For example, in Jones v. Commonwealth (1952) and

State v. White (1958), the lack of information about parole eligibility given to the jury made them

more likely to return a death sentence (Dutile, 1969). In addition, interviews of jurors in capital

cases from Georgia, North Carolina, Mississippi, Maryland, Virginia, and Texas have indicated

that a lack of knowledge of whether or not the defendant would be eligible for parole after a

certain number of years has led the jury to return a death sentence (Lane, 1993). Since the jurors

were not given enough information about parole eligibility, they gave a death sentence simply as

a precaution; the death sentence was not necessarily what the defendant deserved.

Jurors also use possible future dangerousness as a factor when considering what sentence

to give someone who could be eligible for parole. For example, in Texas, over 550 capital

offenders have been executed after juries decided that they would be too dangerous of a threat to

society if allowed to live (McLeod, 2018). Prediction error also plagues many evaluations of

future dangerousness (McLeod, 2018). While awaiting execution, prisoners could exhibit

improved behavior over time, but they will still be executed because of the highly subjective

method of judging defendants based on future dangerousness at the time of their sentencing.

So, no matter whether the jurors are aware of parole possibilities or are kept completely

in the dark about them, they still may return a death sentence out of concerns over the criminal

being released into society. The only way to completely eliminate these concerns and prevent
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death sentences being unfairly returned is by completely eliminating parole as a possibility for

capital offenders.

Even if parole is not an option, the possibility of a life sentence being commutated means

that a prisoner could still be released into society again. However, life sentences are rarely ever

commutated. Dieter (1993) gives examples of how rarely clemency is granted in several U.S.

states. For example, in South Dakota, no one convicted of homicide has been granted clemency

since 1974, and a prisoner serving life without parole in California cannot even apply for

clemency until after serving thirty years (Dieter, 1993). Since sentences are rarely ever

commutated, there is little need to worry about prisoners sentenced to life ever being released

back into society.

The death penalty is typically used as a means of retribution for victims’ families or

deterrence of capital crimes (McLeod, 2018). There are problems with this as the death penalty

really serves more as something that makes the process for victims’ families harder due to drawn

out appeals process and the fact that taking a life does not bring their loved one back, and the fact

that the death penalty does not actually deter crime, as discussed earlier.

Years and years of legal proceedings in capital cases only reopen the wounds every few

years. In fact, there was a judge in a capital case that sentenced a man to life without parole

rather than the death sentence just so the victim’s family wouldn’t have to deal with years of

legal proceedings (Berns, 2009). Many families also feel worse after viewing executions. They

do not feel an immediate sense of closure; in fact, they may feel even more disappointed and

angrier than before (Berns, 2009). Focusing on the death penalty as a means of vengeance will

only serve to impede the healing process; it prolongs feelings of anger and does not help families
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move through the grieving process. (Berns, 2009). Temporary relief will fade, and underlying

grief will resurface.

Executing the defendant does not solve the underlying problem for the victim’s family:

the fact that their loved one is dead. The main way that victims’ families can be supported is

through restitution. In a New York opinion poll, residents of the state suggested a $150,000

restitution fee. Funds to pay for prisoners’ labor will come from the millions of dollars saved if

the death penalty were abolished (Dieter, 1993). This money could go to families of victims for

therapy and counselling services. Restitution money can also be used to go to programs to

prevent crime and to rehabilitate prisoners.

To ensure all parties—on both the defendant and plaintiff’s sides—are represented fairly

in the sentencing process, it is important that life without the possibility of parole with the

requirement of restitution be instituted as an alternative to the death penalty.

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References

Berns, N. (2009). Contesting the victim card: Closure discourse and emotion in death penalty

rhetoric. The Sociological Quarterly, 50(3), 383–406. https://doi.org/10.1111/j.1533-

8525.2009.01145.x

Berry, W. W. (2010). Ending death by dangerousness: A path to the de facto abolition of the

death penalty. Arizona Law Review, 52(4), 889–924.

Bienen, L. B. (2010). Murder and its consequences: Essays on capital punishment in America.

(1st ed.). Northwestern University Press.

Dieter, R. C. (1993). (rep.). Sentencing for Life: Americans Embrace Alternatives to the Death

Penalty (pp. 1–29). Washington, DC: The Death Penalty Information Center.

https://www.ncjrs.gov/pdffiles1/Photocopy/142881NCJRS.pdf

Dutile, F. N. (1969). Jury consideration of parole. Catholic University Law Review, 18(3), 308–

334.

Lane, J. M. (1993). "Is there life without parole?": A capital defendant's right to a meaningful

alternative sentence. Loyola of Los Angeles Law Review, 26(2), 327–394.

Marshall, M. (2020). Promise of Porter? Porter v. Clarke and its potential impact on solitary

confinement litigation. Columbia Law Review Forum, 120, 67–79.

https://doi.org/https://dx.doi.org/10.2139/ssrn.3528493

McLaughlin, J. (2014). The price of justice: interest-Convergence, cost, and the anti-death

penalty movement. Northwestern University Law Review, 108(2), 675–710.

McLeod, M. (2018). The death penalty as incapacitation. Virginia Law Review, 104(6), 1123-

1198. doi:10.2307/26790704
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Perlin, M. L. (2016). “Merchants and thieves, hungry for power”: Prosecutorial misconduct and

passive judicial complicity in death penalty trials of defendants with mental

disabilities. Washington & Lee Law Review, 73(3), 1501–1545.

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experts. The Journal of Criminal Law & Criminology, 87(1), 1–16. https://doi-

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