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U.S. death penalty is broken, judge says

William A. Fletcher
Jason Koski/University Photography
Judge William A. Fletcher of the U.S. Court of Appeals for the 9th Circuit talks about the flaws of the death penalty at Nov. 4 lecture at the Cornell Law School.

The death penalty may not discourage criminals from committing murder and is very expensive, said William A. Fletcher, a judge of the U.S. Court of Appeals for the 9th Circuit, on Nov. 4 at Cornell Law School.

“It has now been almost 40 years since the court’s decision in Greg v. Georgia,” said Fletcher about the case that struck down mandatory executions for certain types of murders. Despite this, the U.S. remains the “only industrialized Western country that still has the death penalty.”

Fletcher said many European nations abolished capital punishment “even in the face of poll numbers … that favored the death penalty,” leaving only the United States, Japan and China among industrialized nations to retain the death penalty.

Among the issues that shaped his beliefs on the death penalty, Fletcher said, is cost: “The death penalty is extremely expensive. It costs more to execute a person than to keep him in prison for life.” Citing a recent study, Fletcher said, “from 1978 to 2011, California spent $4 billion more in cases imposing the death penalty than it would have spent if, in those same cases, it had merely imposed life in prison without the possibility of parole.”

He also took issue with the “extremely slow” application of the death penalty. In some states, he said, “many more death row prisoners die from natural causes or from suicide than from execution,” and a death sentence amounts to life in prison without parole.

Further, Fletcher said, “numerous studies [show that we] do not know whether the death penalty actually deters homicide.” Different studies have come to differing conclusions, but the bottom line, Fletcher said, is that we still “do not know if there is a deterrent effect” to the death penalty.

Additionally, Fletcher argued, “certain methods of execution are or may be unconstitutional.” He said the electric chair, “once thought more humane than hanging, has now be held unconstitutional” and “there is currently a moratorium in California because of concerns about lethal injection.”

Fletcher also voiced his concern about “non-instrumental arguments both for and against the death penalty.” Recognizing that “for some people, some arguments count more or less than others,” he discussed both sides of the argument’s reasoning. “Opponents of the death penalty emphasize the sanctity of human life and argue on that basis against state-sanctioned killing,” he said. Proponents “also emphasize the sanctity of human life and argue that certain killers, the worst of the worst, having violated the sanctity of human life, have forfeited any claim to their own.”

Drawing on his experience, Fletcher then turned to a number of cases involving errors in the application of the death penalty. These cases involved alleged police mistreatment and planting of evidence, malpractice on the part of attorneys, corporate influence over judges’ behavior and clemency pleas effectively becoming “a useless exercise.”

On “the ladder from the police to the prosecutors to the courts to the governors, at every rung we have seen the problems that I have described.” Such problems “don’t occur in every case, but they occur in enough cases that we have a serious problem.”

Fletcher said his hope is that, if not in his lifetime, then soon after, “perhaps we, as a country, will eventually have seen enough.”

Justin Pascoe ’17 is a writer intern for the Cornell Chronicle.

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