Testimony Against The Death Penalty
To The New York State Committees On Codes, Judiciary, And Correction
By The Reverend Daniel B. Hahn, Director
Lutheran Statewide Advocacy
February 8th , 2005
Assemblyman. Lentol, Assemblywoman Weinstein, Assemblyman Aubry, and members of the Committees on Codes, Judiciary, and Correction, thank you for this opportunity to speak with you today. I am The Reverend Daniel Hahn, Director of Lutheran Statewide Advocacy, and I speak today on behalf of Religious Leaders Against the Death Penalty throughout New York State. We have an historic opportunity to revisit this issue ten years after its enactment in New York State. Signs of a changed society are clear from a lexicon that is more commonplace today than in 1995:
We are all well aware of what this lexicon implies. Mistakes have been made; alternatives exist. These mistakes are no small matter. In our Interfaith Statement On Capital Punishment, which I have attached to this testimony, we state “our clear and unambiguous position that capital punishment is morally wrong and offensive to our society's common sense of human dignity.” Our Statement speaks strongly to our ethics. We believe in the restoration of persons and communities to wholeness. We all hope that this Statement speaks clearly and persuasively to you.
I am aware that there are proponents of the death penalty who will not be persuaded by our Statement. They would offer ethical arguments of their own. Anticipating this, I offer four core questions anyone should ask in regard to the ethics of government taking human life. I hope to demonstrate thereby the futility, from an ethical point of view, of the death penalty. These core questions are:
· Is there right intention?
· Is there probability of success?
· Is there proportionality?
· Is there an alternative or is this the last resort?
When we look at the death penalty in practice, it becomes clear that the death penalty fails on all these criteria.
Is there right intention? Of the rationales that have been raised supporting the death penalty, few speak to re-establishing safety and justice. Motives are mixed, implicit, and oftentimes must be inferred.
The first involuntarily applied execution after the Furman Decision, that of John Spenkelink in 1979, is particularly instructive. His crime – killing a fellow parolee from prison whom Spenkelink asserted had sexually assaulted and robbed him – did not present those factors usually seen in death penalty cases. His life presented many
mitigating circumstances, although his attorneys did not present them. Why was John Spenkelink executed? In his book Dead Wrong - A Death Row Lawyer Speaks Out Against Capital Punishment, Attorney Michael Mello quotes a member of the Florida legal establishment: "I'll tell you why they wanted to kill him. He was white. No one in the South wants to kill a black man first. They don't want to be labeled racist. I think the next person who gets it will also be white. And then it's watch out blacks." [page 115]
Race is a prime factor in explaining execution. Studies of the relationship between race and the death penalty have now been conducted in every major death penalty state. In 96% of these reviews, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both. What is implicit in all of this is that racism is about control – the dominant race enforcing its dominance by all means. Would New York, if it reinstated executions, reflect race any less? That is doubtful, considering the profile of inmates in New York’s prisons. We New Yorkers incarcerate about one of every five hundred seventy-eight whites, but one of every ninety-eight Latinos and one of every sixty-one African Americans. *
New York's death penalty, although applied sporadically over the past decade, also shows a disturbing geographical trend: upstate prosecutors are four times more likely to seek the death penalty than downstate prosecutors.
Some supporters of the death penalty propose that execution “brings closure” to victim’s families. This is misguided on several levels. On a simple level, executions are much more rare than homicides. Hope for closure through executing criminals is vain in most cases. More deeply, the argument assumes that vengeance has healing properties. We reject that view. Closure indeed relates to healing from loss, but the ground of healing is compassion.
Is there probability of success? Success would mean society would be safer because of executions. Murders would decrease based upon it. Some analysts have attempted to demonstrate this in recent years, but their methodologies are suspect.
A study conducted by Professor Richard Berk of the UCLA Department of Statistics (July, 2004) has identified significant statistical problems with the data analysis used to support recent studies claiming to show that executions deter crime in the United States. “A number of papers have recently appeared claiming to show that in the United States executions deter serious crime. There are many statistical problems with the data analyses reported. The problem is that a very small and atypical fraction of the data dominates the statistical results.”
Less scientific, but nevertheless instructive, is the fact the murder rates increase in death penalty states. According to the FBI's Preliminary Uniform Crime Report for 2002, the murder rate in the South increased by 2.1% while the murder rate in the Northeast decreased by almost 5%. The South accounts for 82% of all executions since 1976; the Northeast accounts for less than 1%. (FBI Preliminary Uniform Crime Report 2002, June 16, 2003).
George Will, formerly a supporter of the death penalty, did an about-face in a column from October 2003. He wrote:
A properly, meaning narrowly, drawn capital punishment statute is necessarily problematic. Restricting that penalty to a few offenses guarantees that it will rarely be inflicted. Furthermore, the thick fabric of procedural protections that courts have woven around capital punishment guarantees the elapse of, on average, more than a decade between a conviction and an execution, and has generated considerable uncertainty about who among those convicted of the few capital offenses will be executed.
Yet a punishment's deterrent power depends not only on the punishment's severity but also on the swiftness and probability of its application… even in Wyoming, which has the nation's highest death-sentencing rate, fewer than 6 percent of homicides result in a death sentence.
In short, the death penalty cannot do what its proponents hope it can do.
Is there proportionality? Proponents have argued that no system is perfect; a few innocents will be executed, but that is outweighed by the benefits of having a death penalty. In saying so, they turn reality on its head. Here are the facts.
Nine hundred and sixty-seven human beings have been executed in the United States since the 1970’s. In that time, one hundred seventeen death row inmates have been exonerated. That is an error rate of more than eleven per cent – vastly disproportionate to justice.
There is also no way to tell how many of the nine hundred and sixty-seven people executed may also have been innocent. Exoneration takes precious time and resources that generally are not invested in the dead. Thus the eleven per cent most likely underestimates the actual error rate. Simple arithmetic tells us that the death penalty process in the United States has been egregious in its indifference to innocence.
Is there an alternative or is this the last resort? The goal of safety and justice is effectively achieved by removing violent and dangerous offenders from the public space. The death penalty adds nothing to imprisonment. Why would the state kill people when it doesn’t have to?
The public is demonstrating evidence of appreciating this. In a poll released by Quinnipiac University in March 2003, 57% percent of New Yorkers favored the death penalty compared with 37% who oppose it. However, when they were asked to choose between the death penalty and life without parole, people in New York favor life without parole 53% to 38%.
Of key significance to the faith community is the simple fact that imprisonment offers time for amendment of life. As we put it in our Statement, “All people are capable of atonement and forgiveness.” This applies even to our notable religious giants. Moses and Milarepa were murderers. Paul of Tarsus was at least an accessory to murder. Although they may be exceptions, we believe that God works in mysterious ways, and has revealed an intention for reconciliation and wholeness.
The New York State Assembly has a unique opportunity to revisit the death penalty in New York State. On behalf of New York Religious Leaders Against The Death Penalty, I express our deepest appreciation for your reconsideration of it.. We hope that you join us in declaring the death penalty a relic of the past. Thank you again for this time with you.
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INTERFAITH STATEMENT ON CAPITAL PUNISHMENT
Rooted in the collective wisdom and moral insights of our respective religious traditions, we, the Steering Committee of New York Religious Leaders Against the Death Penalty, wish to state our clear and unambiguous position that capital punishment is morally wrong and offensive to our society's common sense of human dignity.
We abhor violent crime, and, confronted by it, we share the sense of justifiable outrage, frustration, and vulnerability that is the response of people everywhere. Society has both the right to defend itself against the perpetrators of violent crime and the duty to reach out compassionately to the innocent victims of crime and their loved ones.
However, our nation's continued reliance on the death penalty cannot be justified. There is mounting evidence that the death penalty is extremely costly, ineffective in fighting crime, unequally applied, and handed out with alarming frequency to defendants who are later proven to be innocent. Even most death penalty proponents now agree that there are serious problems with its implementation. We in the religious community now step forward to set the moral tone for the debate on this issue, promote serious and thoughtful reflection, and make known the reasons why we believe executions will not solve the problem of violent crime in the State of New York. We believe that:
· Retribution is proper in society; revenge is not.
· All people are capable of atonement and forgiveness.
· The death penalty is not a deterrent to violent crimes.
· The death penalty is not, and probably cannot be, applied equitably and fairly.
· The death penalty is not the source of healing for the families of murder victims.
To the argument that the death penalty is needed as a means of retributive justice, we say that retribution is justified but never revenge. Revenge is retribution without moral limit. Our legal system ought to seek a higher road even while punishing the guilty. While violent crimes must have severe retributive consequences, we firmly believe that our scriptural traditions require us to oppose the violence of state-sanctioned death as a form of punishment. The antidote to violence is not more violence.
To the argument that forgiveness of capital criminals is not acceptable, we say that execution is an act of absolute non-forgiveness that precludes the ability of human beings to atone and better themselves, which is assumed possible by our religious traditions. It is our belief that no person is beyond either the human community or God's embrace. All human persons, even those who commit the most heinous crimes, are endowed by God with an inviolable dignity, having been created in God's own image and likeness. At the same time, we hasten to emphasize that respect for the inherent dignity of offenders in no way should be interpreted as a defense of their crimes nor a lack of respect and concern for the dignity of crime victims and their loved ones. It is our firm conviction that forgiveness is compatible with justice but never with vengeance. The death penalty is an act of vengeance that is contrary to our religious teachings, detrimental to building a civilized and violence-free society, and demeaning to all of us as citizens. Society has a right to protect itself, but it does not have a right to be vengeful.
To the argument that capital punishment is needed as a deterrent to murder, we say that studies have yet to reveal any objective evidence to justify this conclusion. Indeed, the experience of states with the death penalty clearly demonstrates that capital punishment fails to impede or diminish the incidents of violent crime that it seeks to eliminate.
To the argument that our system of justice can ensure that capital punishment will be applied equitably and fairly, we say that the death penalty system is replete with fatal flaws and constant errors. Too often it is not the crime itself but such factors as race, economics, geography, politics, or the defendant's mental capacity that are ultimately significant in determining the application of the death penalty. Over the past 30 years the imperfections of the death penalty system have been repeatedly exposed by investigative and scientific procedures that have already saved the lives of 113 innocent death row prisoners in 25 states. Even in New York State people have been falsely convicted of murder. Our legal system is a very good one, but it is nonetheless a human institution. There is a misplaced faith in the perfectibility of the death penalty. The system can be improved but not perfected. Even a small percentage of irreversible errors is intolerable. The only way to prevent the execution of the innocent is not to execute anyone.
To the argument that the families of murder victims desire to see capital punishment inflicted on those who have plunged them into their deep pain and grief, we say that it is our pastoral experience that such suffering cannot be healed simply through capital punishment. Often healing takes time and is the outgrowth of personal struggle and community support, as well as faith. We echo victims groups opposed to the death penalty, such as Murder Victims' Families for Reconciliation and September Eleventh Families for Peaceful Tomorrows, who say that it is a mistake to conclude that the way to demonstrate compassion for murder victims' survivors is by endorsing the death penalty. Much more can and must be done by the religious community in particular and by society in general to comfort and care for the grieving families of murder victims without resorting to vengeful and violent solutions.
As religious leaders we commit ourselves to minister to victims of violent crimes and their loved ones. We also commit ourselves to minister as well to offenders and their loved ones. We believe our religious traditions expect no less. We beseech you to join us in these efforts. Let us rise above our feelings of fear and vengeance to seek solutions to violent crime that reflect human dignity and promote justice for all. Therefore, we call on our State's elected leaders to abandon the use of capital punishment.
In the interim, we endorse a moratorium on the death penalty in New York as an attractive, fair, and moral position to assume regarding state executions. It affords an opportunity to examine both the purpose of the penalty and its perceived effectiveness, and can save the lives of the falsely condemned. Because we recognize that people of good will may disagree about the ultimate morality of capital punishment, a moratorium can represent common ground for people on both sides of the issue who care about justice. The time to study New York's death penalty law is now.
May 3, 2004
The Steering Committee of New York Religious Leaders Against the Death Penalty
The Most Rev. Howard J.
Hubbard, co-chair
Bishop of the Roman Catholic Diocese of Albany
Rabbi Peter J. Rubinstein,
co-chair
Senior Rabbi, Central Synagogue, Manhattan
Sr. Camille D'Arienzo,
R.S.M.
Co-Founder, The Cherish Life Circle, Brooklyn
Bishop Violet L. Fisher
Resident Bishop of the New York West Area of the United Methodist Church,
Rochester
Rev. Thomas W. Goodhue
Executive Director, The Long Island Council of Churches, Hempstead
Rev. Daniel B. Hahn
Director, Lutheran Statewide Advocacy, Albany
The Rt. Rev. Jack M.
McKelvey
Bishop of the Episcopal Diocese of Rochester
New York Religious Leaders Against the Death Penalty is a project of New Yorkers Against the Death Penalty. If you are an ordained or lay religious leader and want to be part of our efforts, please contact the project's coordinator, Thomas P. Boland Jr., at 40 N. Main Ave., Albany, NY 12203-1481, (518) 453-6797, info@nyadp.org