Those familiar with the real workings of capital punishment have been known to comment that if you don't have the "capital," you get the "punishment." This biting observation reflects a cruel reality of America's death penalty: It is imposed almost exclusively on very poor people who are without the resources to defend themselves adequately. Stephen Bright, director of the Southern Center for Human Rights, in Atlanta, Georgia, has written that "it is not the facts of the crime, but the quality of legal representation, that distinguishes" between cases where the death penalty is imposed and similar cases where it is not. There are countless stories of defense lawyers who slept though death penalty hearings, were drunk throughout the trial, failed to conduct even a rudimentary investigation into the background of the defendant, and even used racial epithets to describe their own clients during trial. The common denominator in these cases is that the defendant is too poor to hire competent counsel who can mount a fair fight for the defendant's life.

Even though the courts have tried to reduce the arbitrariness of deciding who will be executed, arbitrariness remains pervasive. Some poor people receive wonderful representation from public defenders or lawyers willing to represent them for no fee. Many others, however, never stand a chance because the lawyers who are appointed to represent them are overworked, underfunded, inexperienced, and in some cases simply incompetent. Some states pay only $1,000 or $2,000 to lawyers whose ability to thoroughly investigate a case and a defendant's background often determines whether the defendant lives or dies. This means that a lawyer who chooses to spend the number of hours required to provide adequate representation is often paid less than minimum wage.

In a 1992 survey conducted by the Philadelphia Inquirer, the very officials in charge of the system reported that they would not want to be represented in traffic court by many of the lawyers upon whom capital defendants are forced to depend. Of course, the prosecution is not hampered by any such limitations and generally has unlimited access to investigators, experts, lawyers, and other resources with which to pursue its case. It is unreasonable to expect justice to prevail when there is such a gross disparity of power between the parties to the trial.

Comparing Costs to Benefits

Supporters of capital punishment tend to accept many of these facts about flaws in the death penalty system. They argue that abolishing the death penalty because some innocent people will be killed (or some minorities or poor people will be unfairly sentenced to death) is tantamount to abolishing life-saving vaccines on the grounds that several people die each year of complications from vaccinations. The problem with this analogy is that unlike vaccines, the death penalty does not provide enough value to justify the taking of innocent life. Unlike vaccines, the death penalty does not save lives. There is absolutely no evidence that the death penalty deters murder any better than a sentence of life imprisonment without possibility of parole. The evidence that the death penalty does not deter murder is so clear that hardly any proponent of capital punishment tries to support the death penalty on those grounds. Instead, the primary argument advanced in support of capital punishment tends to be that the death penalty provides society the opportunity to show how much it values innocent human life by invoking the ultimate punishment against those who take innocent life. It is perverse, however, to maintain a system that will inevitably kill innocent people in the name of showing how much we care about innocent life.

Proponents of the death penalty also assert that the injustices associated with the application of capital punishment are not unique to capital cases and that remedying the effects of race, poverty, and error would require dismantling our entire criminal justice system. No one would assert, they argue, that we should get rid of jails because some people are wrongly imprisoned. So why, they ask, should we abolish capital punishment based on the problems discussed above?

The answer to this question is simple. We cannot survive as a society without prisons. Chaos would rein. We, therefore, must tolerate prisons even as we recognize the risks associated with wrongful convictions and arbitrary or racist sentencing schemes. We could, however, easily survive without the death penalty, just as most of our international allies survive quite well (and experience far less violence than we do) without the death penalty. Indeed, the United States remains alone among Western democracies in its continued use of the death penalty.

Ultimately, pragmatic opposition to capital punishment can be boiled down to the three words that the United States Supreme Court sometimes invokes when granting relief to a death row inmate: "Death is different." Knowing what we do about the fallibility of human institutions, and about the pernicious kinds of hatred and discrimination that often drive human judgment, we should not be taking it upon ourselves to make the monumental decision to kill a fellow human being.

About the author: Lawrence C. Marshall is a professor of law at Northwestern University in Evanston, Illinois, where he teaches courses in civil and criminal procedure, constitutional law, and legal ethics. He served as a law clerk in the Supreme Court of the United States to Associate Justice John Paul Stevens. He has represented several death row inmates who were exonerated and is the director of the National Conference on Wrongful Convictions and the Death Penalty.

1. Study the vocabulary:

· to be on death row

· execution [,ɛksıkjuʃən] [eksi'kyo͞oshən] - the carrying out of a sentence of death on a condemned person; the killing of someone as a political act

· to be injected with lethal [li͟θ(ə)l] poison

· to be granted a stay (a temporary suspension of the sentence)

· mental competency

· to justify against somebody

· to be pressured to testify against somebody

· the evidence to clear somebody

· to forfeit their right to life - лишиться в результате конфискации, потерять право на что-л.

· propensity - a natural tendency or disposition

· to be exonerated - (of an official body) absolve (someone) from blame for a fault or wrongdoing; an inquiry exonerated those involved | they should exonerate these men from this crime

· to establish somebody’s innocence

· the infallibility (of the human judgment) – безотказность, надёжность, безошибочность

· to fabricate evidence

· to prove a defendant’s innocence

· to seek the death penalty

· to secure a conviction against a defendant - добиться осуждения

· to be charged with something

· to be condemned to death

· to impose the death penalty

· to conduct a rudimentary investigation - [rudɪ'ment(ə)rɪ] элементарный

· arbitrariness - ['ɑbɪtr(ə)rɪnəs] 1) капризность, своевольность 2) деспотизм, тирания

· a public defendant or lawyer

· tantamount - ['tæntəmaunt] эквивалентный, равносильный, равноценный Is not this tantamount to a disavowal of the first treaty? — Разве это не равносильно отказу от первого договора?