Editor’s note: Brian Evans is the acting director of the Death Penalty Abolition Campaign for Amnesty International USA.
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“Death is different.”
This has been the mantra of our courts, including our Supreme Court, in explaining why extra care is necessary in dealing with capital cases. And it’s undoubtedly true. Death is irreversible, and a wrongful execution is something we can’t take back.
Execution is currently a possibility for Jodi Arias, who stands accused of brutally murdering her former boyfriend Travis Alexander and could get the death penalty if she is convicted. The case has garnered national headlines and widespread interest due to the nature of the crime and its many lurid details, and to the inherent drama of the trial, the verdict phase of which is coming to a conclusion after more than four months.
Dueling experts have presented the jury with radically conflicting accounts of the defendant’s intent and state of mind. Unlike, say, ballistics, or, to a certain extent, DNA evidence — the kind of hard evidence that seems to always be available in “CSI” and “Law & Order” TV shows — much of the expert testimony at the Arias trial has been concerned with the less exact science of assessing human behavior and human motivations.
In our courts, a defendant’s state of mind is extremely important, sometimes in deciding their guilt or innocence, and always in deciding how responsible they were for their actions. But state of mind is very difficult to quantify or pin down with any degree of certainty.
The “what” and “who” of cases can be solved with things like fingerprints, murder weapons, or biological evidence. The “why,” so important in all death penalty cases, is much harder to discern. Figuring out “why” someone did something requires an understanding of the mysteries of the human brain — an understanding that at this point just doesn’t exist.
As Federal Judge Barbara J. Rothstein remarked at a recent panel discussion on neuroscience and the law, "Unlike DNA, neuroscience is reaching the courts in a premature state.”
The potential for mistakes in the use of capital punishment is one of the main reasons support for executions has dipped to its lowest in 40 years. During those four decades, 142 people have been exonerated from our country’s death rows.
More broadly, the advent and advancement of DNA technology over the past 20 years has increased public awareness about the less-than-perfect accuracy of our criminal justice system as a whole. The Exoneration Registry at the University of Michigan has identified more than 1,100 wrongful convictions just since 1989.
Our scientific understanding of the human brain is incomplete to say the least. If death is different, and it is, then this irreversible punishment has no place in our flawed, human-run system of justice.