A failing grade for a `broken system'
By Michael Meltsner | July 2, 2006
The Boston Globe
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.
Michael Meltsner, a professor of law at Northeastern University, is
author of ``The Making of a Civil Rights Lawyer."