Public Defense

A few thoughts on the death penalty

By Gideon

Several occurances in the last week have got me thinking about the death penalty. Miguel Roman should be the new posterchild for abolishing the death penalty. Yes, he wasn’t on death row, but here is a man who spent 20 years in prison for a crime he didn’t commit.

Consider the rush to execution that the pro-death penalty crowd loves to push. Imagine if that was actually the case and Roman was on death row. He’d be dead right now. If my calculations are correct, were Roman on death row, he’d be the longest serving member of that club. And people complain about the length of time the other death row members’ appeals and habeas corpus petitions have taken. Many would have killed them already.

The arbitrariness of the death penalty is also something to ponder. Orin Kerr, over at Volokh, wrote this comment a few days ago:

I suppose I don’t like the idea of living in a world in which our constitutional rights depend entirely on what 9 people think would be a cool thing to do on any particular day: I think our rights should be more grounded and more stable, even if I think I would probably agree with what the 9 people think is cool.

This comment made me pause and reminded me of Justice Berdon’s dissent in Ross II in 1994:

Arbitrariness also inheres in this court’s decision to resolve this appeal before a majority of the justices of this court have had an opportunity to review the constitutionality of the death penalty. Of the seven justices of the Connecticut Supreme Court, only three are qualified to sit on this case because of disqualifications by the remaining four. Of these three, only two are voting to uphold our death penalty statute. The other two judges who constitute the majority are sitting by designation of the chief justice.

In fact, to this day,14 years later, the entire panel of Supreme Court justices in CT has never considered the constitutionality of the death penalty. And yet it continues to be imposed and applied. Consider that in light of the fact that three US Supreme Court justices (former and present) have changed their views on the death penalty.

Justice Blackmun, dissenting from the denial of cert. in Callins v. Collins wrote:

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. 1 Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.

Justice Powell, who voted in the majority in McCleskey, soon regretted his vote:

The biographer of Associate Justice Lewis F. Powell, Jr., recently disclosed that Powell confessed the decision he most regretted was his decisive vote to uphold the imposition of the death penalty on Warren McCleskey, whose appeal attacked the racial bias inherent in the administration of the death penalty. 28 According to his biographer, four years after his retirement from the United States Supreme Court Justice Powell said, “I have come to think that capital punishment should be abolished.” J. Jeffries, “A Change of Mind that Came too Late,” The New York Times (June 23, 1994) p. A23, col. 1.

Berdon, J., dissenting in Ross II. The lack of any deterrent, the racism in the application of the death penalty, the growing number of exonerations all militate toward abolishing the death penalty.

Those in favor of the death penalty have no real argument other than to poke holes in the constitutional arguments of abolitionists. For there is but one reason to support the death penalty: retribution. If I am wrong, correct me. Why is the death penalty necessary? What purpose does it serve other than to exact revenge?

Since Gregg, the number of states that actually execute inmates has reduced. With the exception of CT, all New England states have abolished or stopped using the death penalty. Perhaps the reluctance to impose the death penalty is gaining momentum. 2008 saw only 37 executions, the lowest since 1994. [Read the DPIC's year end report here.]

Because I am not half the jurist that Justices Brennan and Berdon were, I will let them conclude (again quoting from Ross II):

Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity. The contrast with the plight of a person punished by imprisonment is evident. An individual in prison does not lose the right to have rights. A prisoner retains, for example, the constitutional rights to the free exercise of religion, to be free of cruel and unusual punishments, and to treatment as a person for purposes of due process of law and the equal protection of the laws. The destruction of a human being does not become any more humane simply because the state is the executioner. To burn human flesh to death by electrocution or snuff out life through lethal injection, is not less inhumane because it is done in the name of justice.

Full post as published by A Public Defender on December 12, 2008 (boomark / email).