There are ethical, moral, legal, political, and humane objections to the death penalty. Whatever one's objections, few analysts have viewed the death penalty from an analytic point of view.
To secure a conviction, a prosecutor has to convince the jury that the defendant is guilty “beyond a reasonable doubt.” Despite this high standard of proof, juries have in good conscience voted “guilty” in many capital cases. Recently we have seen many documented cases of inmates waiting years on death row until finally, with the help of a few student journalists or dedicated attorneys and with available DNA technology, their insistent claims of innocence were finally vindicated (as shown by a study of appeals of all 1973–95 capital cases). Yet their juries submitted verdicts of guilty. How is this to be explained? The prosecutor has to create for the jury an “illusion of certainty.” I would suggest that this and other psychological factors intruded into the judicial process to such an extent as to seriously distort and subvert that process.
The prosecutor's position — given sufficient professional pressure or emotional imperatives (ambition, personal dynamics, competition) — can and often does become subverted into a “win at any cost” mindset. Erosion and abandonment of ethical and professional principles occurs in lawyers as in other professionals. Many prosecutors who have acted in unethical and unprofessional ways (as determined by appellate courts) nevertheless have been appointed to judgeships and are now charged with insuring that trials proceed fairly and ethically, as an article that appeared last year in the Chicago Tribune points out.
It is useful to understand the psychological framework and motivations of the typical prosecutor. The job conveys enormous discretionary power in determining whom to prosecute, for what charges, and what offers to accept in plea bargaining. The greater the discretion, the greater the power and the greater the potential for abuse and acting out of personal issues.
In addition, many prosecutors have the fantasy that their position is a prerequisite and stepping stone to higher political office. In terms of internal promotion, a prosecutor's conviction rate is regarded much like a batting average that determines career advancement.
Clearly, the prosecutor has a narcissistic interest in securing a conviction, regardless of the merits of the case. This is often augmented by pressure from a public whose anxieties are relieved when a perpetrator is identified, jailed, and found guilty. Consequently prosecutors will sometimes fail to make the defendant's attorney aware of certain evidence or witnesses favorable to the defense. They withhold exculpatory evidence, use illegally obtained evidence, use the perjured testimony of police and paid informers, and plant jailhouse “snitches” who barter supposedly accurate incriminating evidence for reduced sentences on their own crimes.
“In some instances, suicidal impulses are forestalled or replaced by the actual murder. Murder-suicide is not an uncommon phenomenon. More lives could he saved if our mental health system provided for adequate treatment earlier, rather than incarceration and the death penalty later.”
As if to compound these affronts to justice, when confronted with Illinois governor George H. Ryan's moratorium on the death penalty and the thirteen death row inmates proven innocent in that state since the death penalty was re-established in 1977, many prosecutors have had the unfettered narcissistic audacity to say that in their jurisdiction there are no such innocents on death row. President George W. Bush, who as governor of Texas approved the execution of more than 100 inmates, has stated, “I'm confident that every person that has been put to death in Texas, under my watch, has been guilty.”
There have even been occasions when DNA evidence proved innocence, or a person confessed to a crime for which another had been sentenced, and yet the condemned were not released. The judicial system idealizes its infallibility to such an extent that it cannot tolerate the narcissistic mortification of acknowledging a manifest error. It is as though its members fear that acknowledgment of errors will not be used to fix or improve the process, but rather to destroy it.
Comparable ethical and professional lapses occur in defense attorneys who are assigned by the state or who work in the public defender system. Defense lawyers have been known to sleep through the trial of a client, or to assume the client's guilt and fail to make use of even the minimal funds and investigative personnel at their disposal. Defense counsel lack both money and capital case experience, which ensures that their clients are not adequately defended. In other instances an institutional bias grants the prosecutor's office far more funding and support personnel than the defenders receive.
The community's response to a crime exerts a significant and almost palpable pressure on everyone. Particularly with murder, the police are under pressure to jail a perpetrator so the community can feel safe once again. A frightened community not only wants its anxiety relieved but also is angered at feeling endangered while the killer remains at large.
A murder creates a regressive demand for vengeance and blood. Murder, so frequent in our literature, TV, and films, holds a fascination for us. It excites our own aggressive and murderous urges. Yet we welcome the news, almost with relief, that the murderer has been caught and will be punished. However, the murderer within us has escaped to live another day, to read another murder mystery or sensational newspaper account. Vengeance lies just beneath the surface in all of us, ready to be rationalized.
When a convicted murderer is executed, newspapers often quote the victim's family as saying they now have a sense of closure, implying that mourning could not be completed so long as the murderer lived. Psychologically this is not valid. Mourning requires the acceptance of the loss and its working through. Vengeance is not part of mourning; vengeance is part of feuding. The district attorney in the case of Texas convicted murderer Gary Graham has been quoted as equating death with closure.
Moisy Shopper, M.D., is on the faculty of the St. Louis Psychoanalytic Institute. Contact him at 314-361-4646 or for an unabridged version of this article and references.
Does that mean that in all the countries where the death penalty has been abolished, families cannot adequately mourn for their lost loved ones?
As analysts we need to recognize the mass hysteria that typically afflicts small groups of people or may at times envelop entire communities. I experienced this when I was a defense expert in Edenton, N.C.
Our understanding of perception and mis-perception has been enriched by psychological experiments in eyewitness identification. A prosecutors interrogation of an eyewitness may use suggestibility techniques to (mis)identify the person of the prosecutor's choice. Suggestibility plus “enhancement of memory recall” are procedurally so tainted as to make even the near-infallibility of eyewitness identification now open to challenge and question.
Our clinical work familiarizes us with the vagaries of rationalization. Sen. John Ashcroft (R-Mo.), despite all evidence to the contrary, still defends the death penalty as a deterrent. “Capital punishment saves the lives of innocent people by deterring heinous murders,” he wrote in the St. Louis Post-Dispatch in May 2000. Those of us who have examined murderers are aware of their enormous rage and an equally enormous concomitant abject hopelessness and depression. In some instances, suicidal impulses are forestalled or replaced by the actual murder. Murder-suicide is not an uncommon phenomenon. More lives could be saved if our mental health system provided for adequate treatment earlier, rather than incarceration and the death penalty later.
Righteousness about the heinous deeds of others can provide justification for our own version of premeditated, state-sanctioned murder. Yet when TV stations wanted to televise an execution, citing its purported deterrent value, the courts forbade it. Perhaps the states discomfort with midnight executions and a policy of “invitation only” may involve a communal shame for its actions.
An execution follows structural principles that dilute an individual's responsibility for the execution of an inmate. Once the convict enters the prison system, he trades in his name for a number and uniform and is forcibly dehumanized by the system and its inmates. Superego forces restraining homicide not only are diluted but can almost be ignored, since the inmate is regarded as no longer human. By the time of execution, scores of individuals have been involved, each with an assigned role in the process. The actual switch-puller is simply following orders and has no personal animus for the prisoner. Instead of guilt we feel vindication: a life for a life. This is the regressive talion law we are familiar with as analysts.
The American Bar Association has called for a moratorium on the death penalty, not so much on moral grounds but because the process of arriving at the death penalty is sufficiently flawed that justice is not done and innocents may be erroneously executed by the state. Does not the relevance of our knowledge of the psychological complexities and pitfalls of the judicial process allow us as an organization to add our voice to the call for a moratorium? I believe it does.