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The Death Penalty: A Russian Roulette

death penalty russian roulette

Written by Prison Lives, originally published on Forbes.

Last week, Ronald Smith, a 45-year-old murderer, was executed by the state of Alabama. He would not have been put to death if he were housed in any other state.

Whether you are for or against the death penalty, it has become apparent that it has problems. Those against it will cite the risk of killing innocent people, the strong possibility of a botched execution, and the lack of proof of its effectiveness. But even the most staunch supporters of it are forced to acknowledge that the current difficulties in obtaining lethal injection drugs and the ridiculous expenses incurred by the 33 states that still have it pose concerns over its future. 

Another complication that is relatively seldom brought up in debates over the capital punishment scheme, however, is one emphasized by Alabama in its most recent use of the punishment -- the crapshoot of its application, depending on the state a defendant lands in.

Over the course of the death penalty's recent history, the glaring disparities between each state's capital punishment laws have become obvious. Up until 2002, for instance, states were split on whether it was okay to execute someone who did not have the mental capacity to make the decisions that led to their crimes. 

All the way up until 2005, each state had a different take on whether they could execute someone for a crime they committed as a juvenile offender.

Most recently, in January 2016, Florida had their death penalty thrown out due to "non-unanimous jury recommendations of death." In other words, some jury members in 320 cases that resulted in death penalties in their state, after hearing all of the evidence presented during a trial, determined that the defendant did not deserve the death penalty. After finding out that not everyone was in agreement as to whether to sentence the defendant to death, however -- the most serious sentence in our land -- the judge decided to sentenced them to death anyway. According to the Death Penalty Information Center, this is "a practice barred in all states..." except three. Florida, Delaware, and Alabama.

The Supreme Court's ruling essentially threw out Florida's death penalty until it could be fixed. Delaware, confronting the same issue, realized that this effectively un-did the death sentences of those on their death row, and decided that this, combined with the other problems of the death penalty, was best solved by abandoning the law altogether. As a result, this year Delaware became the 18th state to ban capital punishment.

Despite this obvious issue and others, some of which affected their state specifically, Alabama has decided to continue to carry out executions. Earlier this year, for example, the 11th Circuit Court, the highest in their region of the country, interceded in the execution of Vernon Madison, a man that Alabama was trying to kill despite findings of intellectual disability. Last year, they were forced to release Anthony Ray Hinton, a man who had wrongly spent 30 years on death row, 13 of which were spent after Alabama knew of his innocence. And now, Alabama is continuing executions despite knowing that they are the only state in the country that allows the unlawful non-unanimous juries.

Last week's execution should not have happened. But it did, and by all accounts from the observers present, as if icing on a morbid cake, it was botched. (Reports show that Ron Smith had failed two of the tests administered to determine a successful execution and that he had heaved and coughed for his last 34 minutes.)

Alabama is not a lone bad wolf when it comes to enforcing death sentences. No matter where a condemned man is housed, he is subject to the over-zealous nature of those who prosecute and uphold the broken system that is capital punishment. 

As Justice Stephen Breyer just said in his dissenting opinion in a recent 4-4 Supreme Court death penalty ruling, "Individuals who are executed are not the 'worst of the worst' but , rather, are individuals chosen at random on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse, on the basis of race."

Some states are worse than others for those on death row, as Alabama has just proven. It's an unluckiness of the draw.

"The time has come for this court to reconsider the constitutionality of the death penalty," concluded Justice Breyer.

Unfortunately for those on death row, however, is the recent appointment of our next Attorney General of the United States, Senator Jeff Sessions... otherwise known as the former Attorney General of Alabama.

It may already be too late.

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