Hasan, Death Penalty & Racism: Why Death Penalty Should be Laid to Rest

Maj. Nidal Malik Hasan was formally charged Thursday with 13 counts of premeditated murder for his rampage at Fort Hood which killed 13 people and wounded 43.  The horrendous act that took place at Fort Hood is a national tragedy and the devastation on the families involved can hardly be comprehended.  Anyone who puts herself in the position of the spouse or parent or sibling of a murdered person can understand the desire for revenge.  My emotions tell me that, if he is found guilty, putting Hasan to death is a good thing.  It is just.  It is a legitimate thing for our society to do.  But graduate study in public policy at Harvard tells me something different.   

My classes at Harvard taught me that the death penalty is not a good policy because it offers no exclusive benefit to society which other forms of punishment cannot, while it violates the individual and democratic right to life, which should be protected over the potential social values that the death penalty offers.  For example, while the death penalty may serve the public value of deterrence, lifetime imprisonment also serves this social value, and lifetime imprisonment does not violate an individual right by ending a human life. 

The social value of cost-effectiveness might be argued for; however, the argument that the death penalty is less expensive than lifetime imprisonment is highly questionable, and certainly not the strongest argument for whether it is a good policy. 

Perhaps the strongest argument that the death penalty serves an important value for society would be its retributive quality, or, the “Principle of Desert”.  However, in order for the policy to fulfill this social value and not violate the weightier individual and democratic right not to be killed by your government when you are innocent of any wrong doing, the policy would need to ensure that only the guilty were put to death, and that equal treatment/application of the punishment was ensured.  It is a fact that the death penalty is consistently unequally administered to minorities in our society.  Due to the racism and prejudice that exist in our society, our criminal justice system disproportionately finds minorities guilty of serious crimes, and also disproportionately administers harsh sentences such as the death penalty on minorities.  According to the Staff Report by the Subcommittee on Civil and Constitutional Rights Committee on the Judiciary One Hundred Third Congress, Second Session, March 1994: “Racial minorities are being prosecuted under federal death penalty law far beyond their proportion in the general population or the population of criminal offenders. Analysis of prosecutions under the federal death penalty provisions of the Anti-Drug Abuse Act of 1988 reveals that 89% of the defendants selected for capital prosecution have been either African-American or Mexican-American. Moreover, the number of prosecutions under this Act has been increasing over the past two years with no decline in the racial disparities. All ten of the recently approved federal capital prosecutions have been against black defendants. This pattern of inequality adds to the mounting evidence that race continues to play an unacceptable part in the application of capital punishment in America today. It confirms Justice Blackmun's recent conclusion that ‘the death penalty experiment has failed’."  The death penalty policy, therefore, does not respect the fundamental individual right to equal protection under the law from being killed by the government.  Since the criteria of equal treatment/application cannot be ensured in our system, this policy cannot be purported to fulfill important social values without violating even weightier individual, social, and democratic values of right to life and not being wrongly killed by the government. 

I would also like to note that in such cases as the death penalty, elected officials should exercise their discretion to protect the minority from a bad, illegitimate majority policy.  Elected officials who support the death penalty are abdicating their responsibility to exercise dissent from popular opinion in a case that particularly warrants informed decision because of its complexity, severity, and irreversibility.  Furthermore, and very importantly, the death penalty is a decision that directly encumbers a small proportion of the population with an onerous weight.  The majority of constituents, in this case, will never personally be involved with the ramifications of the death penalty, while a minority of constituents – those on death row and their families - will bear the cost of that decision.

While I feel so much for the families of the murder victims, I do not think that the death penalty is a sound policy.  Flawed as they are, our legal and justice systems are among the best in the world.  I believe we can continue to evolve and hold ourselves to a higher standard.  If we want to uphold our aspirations to be a civil society, capable of moral justice, I think we owe it to ourselves to ask whether the death penalty is an outdated form of criminal justice.  It was not that long ago that public be-headings and hangings were considered entertainment for the masses.  Are we so different today?    

* This is a revised post.