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Death Penalty Defies Logic

Book details persistence of capital punishment with strong evidence of why it should die

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September 23, 2010 | by Hilary Hurd Anyaso

CHICAGO ---  A new book by a Northwestern University School of Law researcher details huge disparities in the way the death penalty is applied in the United States, offering overwhelming evidence that the application of capital punishment, despite its persistence, is not rational.

The book of essays, “Murder and Its Consequences: Essays on Capital Punishment in America” (Northwestern University Press, September 2010), details the vast disparities in who gets prosecuted and who gets convicted and executed, linked to race, socioeconomic status and geographic region.

Author Leigh Bienen, senior lecturer at Northwestern University School of Law, said her essays primarily are meant to educate. “Whether readers are for or against the death penalty, they ought to know something about how it actually works.”

There are 38 very different state capital punishment systems in the United States, according to the book. The laws and rules governing when and how capital punishment shall be prosecuted and imposed have become extremely convoluted, writes Bienen. “In one state it is a capital crime to rape a child. In another state every felony murder, even for the person who did not commit the homicidal act, is a capital crime.”

Bienen, who has done research on capital punishment for more than 30 years, continues to be surprised by the persistence of capital punishment and the related policy and morality debates. Later this year, she will publish a monograph “Capital Punishment in Illinois in the Aftermath of the Ryan Commutations: Reforms, Economic Realities and a New Saliency for Issues of Costs,” in The Journal of Criminal Law and Criminology.

Extensive resources are used to keep a system going which “has long lost any rational basis,” Bienen said. “Yet no one is willing to dismantle the system, to rock the boat.”

Bienen, who was a defense attorney in New Jersey for 15 years, helped to develop a system to review whether death sentences before that state’s Supreme Court were imposed fairly across jurisdictions. Several essays in the book describe how proportionality review evolved and was implemented in New Jersey.

Capital punishment continues to touch a nerve, Bienen said. “The more people know about capital punishment, the less they are for it. They definitely are swayed the more they learn about the inequities, about the disproportionate number of African Americans and poor people being executed.”

Jurors too become opponents of the death penalty when they get a closer look at how the system works. “When jurors get into the jury box, increasingly they’re not for it -- not just because of the possibility of executing an innocent person," Bienen said. They get a good look at the system and say, ‘This is crazy.’”