This article first appeared in the St. Louis Beacon: This last month has seen a surge in stories about the death penalty: the Boston bomber charged with a federal crime that carries the death penalty; the jury in the Jody Arias trial deadlocked on whether she deserves to be executed; and prosecutors in Ohio weighing whether to pursue capital punishment in the Castro kidnapping case.
In addition, Maryland joined a growing number of states, including Illinois, which have abolished the death penalty. Even closer to home, legislators recently debated, and defeated, a proposal to study the cost of the death penalty in Missouri.
Can we make sense of all these conflicting data points? Yes and no. On the one hand, they show a nation profoundly divided on the death penalty, both as a matter of state policy and when applied to particular cases. That division goes deep, and reflects all sorts of lines: philosophical, religious and regional. People disagree on whether the death penalty should be used, and even those who endorse the penalty divide on which criminals deserve it.
On the other hand, we can discern a pattern in the stories from the last month. In particular cases, when emotions are high, we are apt to think that capital punishment can be an appropriate response. We can see this most clearly in the Boston bombing case. Although Massachusetts does not have the death penalty for state crimes, the federal government can execute people for some violations of federal law. So the younger Tsarnaev brother was promptly rung up on federal charges, and many were relieved.
When we move away from the particular case, however, and our emotions settle, many people start to take a different view of the death penalty. With countless appeals, the costs add up, and there always hangs over the proceedings the possibility that we might execute an innocent person. In many ways, the whole thing can seem not to be worth it, and more and more states have come to this conclusion. The Missouri study, which now will not happen, probably would have confirmed what we already know: that the death penalty is very expensive. What might have come as a surprise (and so have made the study worth doing) is just how expensive it really is.
We could make putting people death less expensive and less time-consuming, but doing so would also have its costs. We could get rid of the many layers of appeals for death sentences, give death-eligible defendants barely adequate counsel (something which we sometimes do even now), and in the process go back on years of Supreme Court precedent. This is what China, where I’ve been teaching for the past year, does; and the death penalty there is cheap. Florida’s legislature has recently passed a bill requiring “timely executions.”
This isn’t the direction America as a whole is going -- but that doesn’t mean we (America or Missouri) will be getting rid of the death penalty anytime soon, either. What is going on may be what the Supreme Court has called our “evolving standards of decency.” The meaning of that phrase has never been entirely clear, but we can see in the back and forth of the last few months that evolution working itself out.
Particular crimes outrage us, and the death penalty seems an appropriate punishment. But then, and almost at the same time, we question the wisdom of the death penalty as policy. So we chip away, slowly, at the death penalty, removing some crimes and some criminals from its ambit, but never getting rid of the penalty altogether. Our standards of what is decent when it comes to the death penalty “evolve.”
This strikes me as a story of progress. For some it may be too slow, for others it may not be slow enough: hence our collective ambivalence. But it seems unquestionable that it is happening.
Chad Flanders is an assistant professor at St. Louis University. During the 2012-2013 academic year, he was a visiting Fulbright lecturer at Nanjing University, China.