Wednesday, June 25, 2008


Since my senior year of college, when I wrote about the constitutionality of the death penalty for my senior thesis, I have struggled with a conundrum. It's a struggle that. as a defense attorney and staunch opponent of capital punishment, I hate to admit to. While I desperately want the US Supreme Court to declare the death penalty unconstitutional, I am secretly not convinced that there is a principled, intellectually honest way to reach that blanket prohibition. I'm like a minister who secretly harbors some failure of faith.

I agree wholeheartedly with the result in Kennedy v. Louisiana. I think death is not a fitting punishment for the wide array of crimes that fits under the umbrella of "child rape." (Hardly surprising as I don't think death is a fitting punishment for mass murderers or serial killers.) I share the amici's policy concerns about possibly increasing the risk of death to child rape victims and possibly decreasing reporting of child sex abuse to protect family members from execution. I am well aware of the special concerns about the possibility of false accusations in the emotionally-charged arena of child sex crimes. And I have personally seen how those trials, perhaps because of the intense emotions involved, are more susceptible to error than trials on other charges. In my experience, we should be even more concerned about the possibility of executing an innocent person in this arena than in any murder case. I certainly recognize that of all the thousands of persons sitting on death row in this country, only two are there for child rape. And while many states have been considering death for child rape, only a handful have actually passed it. And only one has actually imposed the sentence on anyone. But I'm still not completely convinced that the majority didn't just create a path to reach the result it wanted.

I rant and rave when court's reach what I feel are result-oriented decisions against my clients. It angers me no end to read legitimate issues being blown-off in such a way that it becomes clear the court is ignoring it because they are convinced the defendant is guilty. And I don't like to be inconsistent. If I dislike result-oriented decisions, I have to dislike them even when the decision is in my favor. But I really want to be free to embrace the Kennedy decision.

While I believe the decision today is morally correct, I desperately need someone to convince me it is legally correct, as well. Anyone?

ADDED: I think it's significant to note how many justices have begun their careers favoring the death penalty but changed their views over time. Most famous for this, of course, is Justice Blackmun. I remember the thrill I had the day I read his opinion in which he declared that he would no longer "tinker with the machinery of death." I agree with his central point, that despite all that we try and all the procedures we come up with, we cannot ever remove human fallibility from the process. There will always be some level of arbitrariness and unequal application. Reasonable people can disagree about which murders are the truly heinous ones. There may always be some level of discrimination involved in the death penalty because it will always be easier to impose death on someone prosecutors and juries don't feel a close connection to, someone who is different from them. (The statistical evidence certainly supports the notion that minority killers of white victims are disproportionately charged capitally.)

I completely agree with those justices who have concluded we can never make the system fair. I think anyone who has any significant experience working in or near capital cases has to see that. But how exactly do we translate that fundamental unfairness into a persuasive argument that the death penalty is therefore unconstitutional? Due process? Equal protection?


Meryl said...

D'ya think maybe that's just part of the legal system? That sometimes judges will be result oriented, but over enough cases and enough judges it will all even out in the end?

I think it's almost a fail safe sometimes. A person that will most probably go on to commit more crimes doesn't go free even though he should based on the law....a man who only raped as opposed to killing doesn't get executed....

It's not the way it is supposed to work, nor the way it should work, but it's not completely without positive side effects.

Anonymous said...

Maybe, because of the nature of the punishment, the death penalty can never be supported by "due process" of law. The process will never be "due" when the stakes are so high. The system is operated by fallible humans- this inherently fallible system can never provide the necessary process to kill a person. When dealing with death, the system has to be perfect; since it cannot, the death penalty violates the due process clause. I believe it was this type of argument that made Justice Blackmun reach the conclusion he did.

S said...

I can buy that as an argument to invalidate each individual death penalty statute that comes before the court. But I have a hard time accepting that argument as a solid basis for invalidating all possible death penalty statutes ever.

It seems to me that the due process argument just can't stretch to say, "States, there is no possible way any of you can ever come up with a system that will be fair enough to satisfy due process, so even trying would violate the constitution."

A Voice of Sanity said...

... I am secretly not convinced that there is a principled, intellectually honest way to reach that blanket prohibition. I'm like a minister who secretly harbors some failure of faith.

When someone, anyone, can demonstrate god like powers of perception and accuracy, that person alone may be in a position to determine guilt to a sufficient certainty to use death as a penalty. Since no one ever has shown such powers, no one, not jurors, judges or the public, have the requisite abilities to make such a decision.

S said...

Make no mistake about it, VoS, I am completely and totally opposed to the death penalty in all cases. I think it should be abolished in all states and would have no problem whatsoever arguing to legislators that they should vote to repeal it. I would also really love, love, love to see an amendment to the US Constitution abolishing capital punishment. In that case, I could get past my very scholarly legal quandary about how to say the constitution implicitly forbids a punishment it very explicitly contemplates being imposed.

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