Thurgood's rejection of the death penalty rested on principles that would be controlling even if error never infected the criminal process. Since his retirement, with the benefit of DNA evidence, we have learned that a substantial number of death sentences have been imposed erroneously. That evidence is profoundly significant - not only because of its relevance to the debate about the wisdom of continuing to administer capital punishment, but also because it indicates that there must be serious flaws in our administration of criminal justice. Many thoughtful people have quickly concluded that inadequate legal representation explains those errors. It is true, as many have pointed out and as our cases reveal, that a significant number of defendants in capital cases have not been provided with fully competent legal representation at trial. That, however, is by no means the only defect in the system. Indeed, some of the best lawyers in the country have spent countless uncompensated hours in capital litigation, not only in post-conviction and appellate work, but also at the trial level. The profession can be justly proud of their work. My review of many trial records during recent years has, however, persuaded me that there are other features of death penalty litigation that create special risks of unfairness.
In many of these cases the outrageously brutal facts cry out for retribution. In close cases it must be extremely difficult for jurors to resolve doubts in favor of permitting a possible perpetrator of a heinous crime to go free. Gruesome facts pose a danger that emotion will play a larger role in the decisional process than dispassionate analysis.
Two aspects of the process of selecting juries in capital cases are troublesome. In case after case many days are spent conducting voir dire examinations in which prosecutors engage in prolonged questioning to determine whether the venire person has moral or religious scruples that would impair her ability to impose the death penalty. Preoccupation with that issue creates an atmosphere in which jurors are likely to assume that their primary task is to determine the penalty for a presumptively guilty defendant. More significantly, because the prosecutor can challenge jurors with qualms about the death penalty, the process creates a risk that a fair cross-section of the community will not be represented on the jury.
Two aspects of the sentencing process tip the scales in favor of death. The fact that most of the judges who preside and often make the final life-or-death decision must stand for re-election creates a subtle bias in favor of death. Moreover, the admissibility of victim impact evidence that sheds absolutely no light on either the issue of guilt or innocence, or the moral culpability of the defendant, serves no purpose other than to encourage jurors to decide in favor of death rather than life on the basis of their emotions rather than their reason.
Monday, August 15, 2005
Stevens on the death penalty
U.S. Supreme Court Justice John Paul Stevens was recently in the news for remarks he made regarding the administration of the death penalty in the U.S. While the Associated Press and other news outlets carried excerpts of his remarks, no one quoted him entirely and in context. Here's what he had to say: