A Failing Grade For A `Broken System'
THE SAME WEEK Americans enjoy the 230th birthday of the Declaration of Independence, they might also consider the meaning of another, less celebratory, anniversary. Thirty years ago, on July 2, 1976, a divided US Supreme Court upheld Georgia, Florida, and Texas laws that promised an end to the arbitrariness and discrimination that had rendered capital punishment unconstitutional four years earlier.
After the Supreme Court's decision, the 38 states using the death penalty have employed different criteria to measure aggravating and mitigating circumstances. However, all empower juries to use such a formula to decide who deserves death and who does not. After 30 years, it is time to evaluate the impact of the laws.
Regardless of whether observers favor or oppose the death penalty, most agree with the conclusion of Columbia Law School's James Liebman , a leading capital punishment scholar, who has labeled the way we enforce death penalty laws a ``broken system."
And no wonder. Execution commonly occurs more than a decade after the crime that gave rise to it, long after the death has meaning for anyone outside the immediate circle of the case. Amazingly, it costs from $2 million to $5 million to take a convicted killer from trial to the death chamber. The justice system devotes enormous, if often dysfunctional, attention to capital cases, shortchanging the law enforcement resources available to the vastly larger number of serious, noncapital, cases.
And then there are the disputes between those who insist that executions effectively deter murder and those who claim they do not. Or between those who see race-based decision-making infecting every stage of the process, and those who say that such claims are not established by statistics. These differences are of long standing and they may never be resolved.
Of considerations that demand a failing grade for the American way of death sentencing, three stand out.
First, the rise of the innocence movement has produced well over 100 exonerations. When the Supreme Court decided to restore the death penalty in 1976, serious innocence claims were limited to rare instances of total criminal justice system collapse. Fueled by infallible DNA evidence but also encompassing defects in eyewitness identification and law enforcement malfeasance, doubts about death sentences are now understood to result from common and virtually ineradicable human failures.
Second, when the Supreme Court tried to rid us of capital punishment in 1972, it focused on arbitrariness. As Justice Potter Stewart famously put it, death sentences were ``cruel and unusual in the same way that being struck by lightning is cruel and unusual" -- only a capriciously selected, random few, not fundamentally different in character than those sent to prison, were actually executed.
Today, despite the new laws, little has changed. Washington State's Green River Killer took at least 48 lives, but because he knew where his victims were buried he plea bargained to save his life. The brutal Kansas serial murderer of 10 known as the BTK (``bind, torture and kill") strangler received only multiple life sentences.
Yet we still make room for the execution of men like Chicano laborer Ruben Cantu who, based on the tireless investigation of Houston Chronicle reporter Lise Olsen, turns out to have been sent to his death because of the perjury of an eyewitness. More fortunate was Ray Krone, who spent four years on Arizona's death row and six more in prison before release because the state stubbornly refused to turn over for testing the evidence that ultimately exonerated him and pointed to a man who should have been the prime suspect. These are not isolated cases; they illustrate how difficult it is to make the tough legal and nuanced moral choices that fair and constitutional death sentencing should require.
Last, what we get instead is a distracting series of courtroom passion plays -- the latest involving convicted terrorist Zacarias Moussaoui -- that stoke the fantasy that we are being protected by executing what is, in reality, a tiny percentage of killers. In 2005, only 60 individuals were executed, despite the fact that perhaps 15,000 murders are committed each year.
It is striking how relatively little we talk about reducing lethal violence and how little energy politicians provide to policies targeted at containing it -- youth employment, family support, drug treatment, handgun suppression -- before it happens.
The policies in question are controversial but debate over whether they can make us more secure is muted while capital punishment is a show that never ends.
By Michael Meltsner | July 2, 2006
Michael Meltsner, a professor of law at Northeastern University, is author of ``The Making of a Civil Rights Lawyer."
http://www.boston.com/news/globe/editorial_opinion/oped/articles/2006/07/02/a_failing_grade_for_a_broken_system/
Globe Newspaper Company.
After the Supreme Court's decision, the 38 states using the death penalty have employed different criteria to measure aggravating and mitigating circumstances. However, all empower juries to use such a formula to decide who deserves death and who does not. After 30 years, it is time to evaluate the impact of the laws.
Regardless of whether observers favor or oppose the death penalty, most agree with the conclusion of Columbia Law School's James Liebman , a leading capital punishment scholar, who has labeled the way we enforce death penalty laws a ``broken system."
And no wonder. Execution commonly occurs more than a decade after the crime that gave rise to it, long after the death has meaning for anyone outside the immediate circle of the case. Amazingly, it costs from $2 million to $5 million to take a convicted killer from trial to the death chamber. The justice system devotes enormous, if often dysfunctional, attention to capital cases, shortchanging the law enforcement resources available to the vastly larger number of serious, noncapital, cases.
And then there are the disputes between those who insist that executions effectively deter murder and those who claim they do not. Or between those who see race-based decision-making infecting every stage of the process, and those who say that such claims are not established by statistics. These differences are of long standing and they may never be resolved.
Of considerations that demand a failing grade for the American way of death sentencing, three stand out.
First, the rise of the innocence movement has produced well over 100 exonerations. When the Supreme Court decided to restore the death penalty in 1976, serious innocence claims were limited to rare instances of total criminal justice system collapse. Fueled by infallible DNA evidence but also encompassing defects in eyewitness identification and law enforcement malfeasance, doubts about death sentences are now understood to result from common and virtually ineradicable human failures.
Second, when the Supreme Court tried to rid us of capital punishment in 1972, it focused on arbitrariness. As Justice Potter Stewart famously put it, death sentences were ``cruel and unusual in the same way that being struck by lightning is cruel and unusual" -- only a capriciously selected, random few, not fundamentally different in character than those sent to prison, were actually executed.
Today, despite the new laws, little has changed. Washington State's Green River Killer took at least 48 lives, but because he knew where his victims were buried he plea bargained to save his life. The brutal Kansas serial murderer of 10 known as the BTK (``bind, torture and kill") strangler received only multiple life sentences.
Yet we still make room for the execution of men like Chicano laborer Ruben Cantu who, based on the tireless investigation of Houston Chronicle reporter Lise Olsen, turns out to have been sent to his death because of the perjury of an eyewitness. More fortunate was Ray Krone, who spent four years on Arizona's death row and six more in prison before release because the state stubbornly refused to turn over for testing the evidence that ultimately exonerated him and pointed to a man who should have been the prime suspect. These are not isolated cases; they illustrate how difficult it is to make the tough legal and nuanced moral choices that fair and constitutional death sentencing should require.
Last, what we get instead is a distracting series of courtroom passion plays -- the latest involving convicted terrorist Zacarias Moussaoui -- that stoke the fantasy that we are being protected by executing what is, in reality, a tiny percentage of killers. In 2005, only 60 individuals were executed, despite the fact that perhaps 15,000 murders are committed each year.
It is striking how relatively little we talk about reducing lethal violence and how little energy politicians provide to policies targeted at containing it -- youth employment, family support, drug treatment, handgun suppression -- before it happens.
The policies in question are controversial but debate over whether they can make us more secure is muted while capital punishment is a show that never ends.
By Michael Meltsner | July 2, 2006
Michael Meltsner, a professor of law at Northeastern University, is author of ``The Making of a Civil Rights Lawyer."
http://www.boston.com/news/globe/editorial_opinion/oped/articles/2006/07/02/a_failing_grade_for_a_broken_system/
Globe Newspaper Company.
posted by R7 at 11:00 AM
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