One of the key rights set out in the Universal Declaration of Human Rights is the right to life. Article 3 ties with Article 9 (protection against arbitrary arrest, detention, or exile) as the shortest article in the declaration at eleven words.
Article 3 is the foundation of the world’s opposition to the death penalty. Currently, 55 countries—including the United States—kill people. It’s a pretty shady bunch and includes Afghanistan, China, Iran, and Qatar (this will be my only sideswipe at the 2022 World Cup).
In the United States, only 20 states still execute people. Since 1998, several states have outlawed the death penalty and death sentences issued by juries have dropped sharply overall (lots of data here). This is due to a number of factors including the inclusion of mitigation information during death penalty trials.
Mitigation doesn’t excuse people for crimes. Instead, this information helps juries see the larger picture of how and why a person may have committed a horrible crime. Then jurors—who must reach a unanimous verdict—can weigh a sense of proportionality and consider mercy in their deliberations.
Cases involving actual innocence—people sentenced to death who had nothing to do with the crime they were prosecuted for—have also grabbed attention. One of the most spectacular involves Curtis Flowers, a Mississippi man tried six times for a crime he had nothing to do with. The subject of a spectacular podcast, “In the Dark,” Flowers spent more than 20 years fighting to reclaim his innocence and avoid execution.
But what about people who DO commit horrible crimes and who continue to be a danger to others while incarcerated? Advocates for the death penalty point to these cases as the reason why the death penalty should continue to exist.
This is often the case made to keep the death penalty. This comes with a litany of monsters like John Wayne Gacy, Ted Bundy, or Jeffrey Dahmer.
Recently a new example has entered the debate. On February 14, 2019, a shooter massacred 17 students, teachers, and staff at Marjory Stoneman Douglas High School in Parkland, Florida. Among the dead were Martin Duque, 14, who dreamed of becoming a Navy Seal; Aaron Feis, 37, an assistant football coach who shielded students during the attack; and Joaquin Oliver, 17, known as "Guac" and devoted to music.
The losses shattered families and a community. Many student and family survivors organized to campaign for stricter gun laws, to date with mixed success. As I write this, we’re mourning yet another mass shooting that resulted in five deaths, at ClubQ in Colorado Springs, Colorado, on the night of November 19, 2022.
The state asked for the death penalty for the Parkland gunman, who pled guilty. In addition to the mass shooting, he attacked a guard in the Broward County Jail in 2018, demonstrating that he remains a danger to others. During the sentencing phase of the trial, several family members spoke passionately in favor of death. Their pleas were heart-wrenching. I believe these families have every right to use the tremendous harm Cruz did to them to advocate for the death penalty.
I also believe they are wrong.
Here’s the problem. The death penalty doesn’t reliably distinguish between cases like the Parkland shooter and people swept into the system because of their race, class, or disability. To put it another way, if you advocate for Cruz’s death, you must also accept that others, some of whom deserve mercy or are demonstrably innocent, will also be executed.
You can’t just kill the monsters. The system will never be perfect enough. The history of the death penalty is crystal clear on this. The punishment will reap the lives of people who merit our mercy—or are entirely innocent.
This point was made powerfully in Scott Turow’s examination of the death penalty based on his work as a prosecutor, defense lawyer, and a member of the Illinois Commission on Capital Punishment (Turow is perhaps more famous as a successful crime novelist). The Ultimate Punishment examines the death penalty from every angle, including from the views of people directly hurt by crime, jailers who fear still-violent inmates, and those who want to see dangerous perpetrators killed.
Turow goes through familiar arguments. Whether a defendant faces the death penalty or not depends not on the severity of the alleged crime, but on race or class or the race or class of the victim; and poor people can’t afford good lawyers or even lawyers familiar with capital cases.
For me, though, Turow’s most compelling point was this one. Like the Parkland families, we may be attracted to a punishment that, in Turow’s words, is “available for the crimes of unimaginable dimensions.” But the pivotal question is this: “whether a system of justice can be constructed that reaches over the rare, right cases, without also occasionally condemning the innocent or the undeserving."
Sadly, the answer to that is a resounding no. If we want that rare, “deserving execution,” we must tolerate killing people solely because they are poor; solely because they drew an incompetent lawyer; and despite the fact that some are completely innocent.
For every Parkland shooter, you will have a Curtis Flowers. To me, that is unacceptable.
For an eloquent explanation of the systemic inequalities in our current system of capital punishment, “Racist Roots” is an excellent resource. The short documentary also includes information on a North Carolina case of actual innocence involving Henry McCollum and his half-brother, Leon Brown.
There’s also a revived argument against the death penalty that Turow’s book could not have foreseen: the eagerness of some contemporary politicians to emulate autocrats in other countries and expand the death penalty to other crimes, including drug trafficking.
Inevitably, that expansion would expand injustice. It’s just a terrible, god-awful, horrible, stinking idea.
RESOURCES
Banner, Stuart. The Death Penalty: An American History. Harvard University Press, 2003.
Prejean, Helen. The Death of Innocents: An Eyewitness Account of Wrongful Executions. New York: Vintage, 2006.
Turow, Scott. Ultimate Punishment. Picador, 2004.
UPDATE: “Is Abortion a human right?”
The November 8 midterms brought some heartbreak (NC House Rep. Ricky Hurtado’s loss in NC House 63 cut deep for many Tar Heel progressives) and some seriously excellent news, including for women’s rights. Voters clearly see attacks on choice as attacks on rights, demonstrating the point my newsletter was making in the previous issue. It’s a right if people say it is, frame it, pass it, and defend it.
The defense on November 8 was massive.
If this is an issue you really care about, please consider subscribing to
’s excellent Substack and podcast, . As she noted in her newsletter on November 9, “Abortion was on the ballot in five different states—and we won every single fucking one of them.” Valenti singled out deep-red Kentucky, where Protect Kentucky Access and others did a fab job of informing and organizing voters to reject an anti-abortion campaign to change the state constitution.Vermont enshrined abortion rights in the state constitution, a first. California voters passed a proposition that proposed adding language to protect abortion rights and the right to contraception. Michigan not only flipped blue but passed resoundingly a ballot measure protecting abortion rights.
Leaders who ran on women’s rights also prevailed: Michigan’s Gov. Gretchen Whitmer, New York Gov. Kathy Hochul, Pennsylvania’s Josh Shapiro, and (thrillingly) John Fetterman in the PA senate race against quack doctor Mehmet Oz.
In my own North Carolina, there were bright spots against a bleak backdrop. An anti-choice Republican won an open US Senate seat, but we managed to stave off a supermajority in the state legislature, hopefully a bulwark against Republicans being able to override Governor Roy Cooper’s veto of anything anti-choice.
Nate Cohn from the New York Times dug deep into the data and came out with a stunning observation. What turned the tables were twin (and related) issues, abortion, and democracy. “Democrats viewed a potential Mastriano victory (in Pennsylvania’s governor’s race) as a threat to democracy. It might have put abortion rights at risk as well: Mastriano is a strident opponent, and Republicans controlled the state legislature, though Democrats are on track to flip it.
There’s still a lot of work to be done. As Valenti points out, in places like Virginia, Florida, and possibly my state of North Carolina, Republicans will likely restrict or ban abortion. “(Florida) Senate President Kathleen Passidomo said that she wants the 15-week ban approved last year reduced to 12 weeks. Incoming House Speaker Paul Renner was unwilling to name a particular week limitation, likely because he wants an outright ban on abortion,” Valenti writes.
Anyway, here’s me and my canvassing buddy Sara door-knocking in Graham on election day (10 miles, 3 turfs, 100 doors,
GOOD NEWS
The Mother’s Wheel, Book 3 in The Bond Trilogy, won the Indie Author Project’s North Carolina award for best young adult book — WOOT!!!
Finally, if you have a young person in your life who could use a good fantasy read, do check out The Bond (also available as a paperback and audiobook)
Thank you for reading!
Very well said. I am opposed to the death penalty in all cases, and not only because of the impact using the death penalty has on individual cases (such as is argued in Turow's book - which is quite an excellent read), but also because of what maintaining a death penalty says to society. Statistics have failed to ever effectively prove the death penalty deters. There is however a correlation between the death penalty and higher rates of homicide compared to similar societies without the death penalty. There is a basic fundamental human right to live. The death penalty divides us into those who "deserve" to live and those who "don't deserve" to live. In a society with deserving versus underserving lives, you open up all forms of discrimination, you open up and excuse all forms of injustice. You undermine the very principle of the rule of law. It becomes selective and that seems to be absorbed by the society as a lesson (a corrupt lesson) that enables more violence. More victims. Abolition sends the message that our society leads by example. We value the living and human dignity.
Amnesty International points not only to Article 3 of the UDHR, but also to Article 5, the right not to be subjected to cruel or inhumane treatment or punishment. While the principle of having a death penalty is by its essence, a violation of article 3, the moment it is applied, you violate article 5. Death row is understood in international law as torture. Abolitionist jurisdictions routinely find that prisoners cannot be extradited because the resulting torture the prisoner would be facing is inhumane (see e.g. Burns, 2001 Supreme Court of Canada). Time of death row is also torture (see e.g. Morgan v Pratt), yet time is a requirement to have any confidence in the security of the conviction and punishment (i.e., appeals must be held). The only way to ensure any protection of these most basic of human rights, must include abolition of the death penalty.