I previously posted some general remarks about the Mississippi Supreme Court’s decision Thursday in Doss v. State. The most remarkable part is a long opinion by Justice Diaz about the failure of the death penalty. He is joined in full in that opinion by Justice Graves and in part by Justice Dickinson (the opinion has two parts, one about mental retardation and one about the death penalty itself; Justice Dickinson does not explain what parts of the Diaz opinion he joined.
I find it amazing that no one in the Mississippi Press has even hinted at the existence of this opinion.
Part of what Justice Diaz writes makes explicit that part of what weighs on his mind on this issue is his own circumstances (an obvious reference to his acquittals):
But my unique life experiences have shown me – to a greater degree, I submit respectfully, than any other justice voting today – the potentially oppressive power of government prosecution. For nearly two years, see Turner v. State, 953 So. 2d 1063 (Miss. 2007), I have chosen to advocate for stricter adherence to the guidelines that we have established to limit arbitrary or disproportionate sentences. See, e.g., King v. State, 960 So. 2d 413, 447 (Diaz, P.J., dissenting) (arguing for remand to trial court for evidentiary hearing on defendant’s mental retardation).
I have concluded, though, that even this may not be enough to satisfy the demands of our state and federal constitutions that death not be meted out arbitrarily. See Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).
He notes that in the lethal injection case, Justice Stevens had:
suggested that the time had come for a national reexamination of the propriety of capital punishment. Baze v. Rees, 128 S. Ct. 1520, 1548-49, ___ U.S. ___, 170 L. Ed. 420 (2008) (Stevens, J., concurring in the judgment). After more than 37 years of service to the federal judiciary, including more than 32 years at the nation’s high court, Justice Stevens concluded that the imposition of death is “[a] penalty with such negligible returns to the State” that it necessarily is “patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” Baze, 128 S. Ct. at 1551 (Stevens, J., concurring in the judgment).
He notes that in the past, he has voted to affirm death sentences and frequently rejected arguments that the death penalty was cruel and unusual. He then turns to problems of racial discrimination and actual innocence:
But our courts are subject to fallibility no less than any of man’s institutions, and racial discrimination in the courtroom is no mere bit of ancient history. Only a generation ago, the U.S. Supreme Court addressed a case in which the defendant, a black man sentenced to death for murder, produced the most comprehensive, scientific study of its kind ever compiled to date and showed that the race of his white victim made his Georgia trial court 22 times more likely to impose a death sentence. McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987). A five-justice majority at the high court nevertheless found no constitutional violation, apparently for fear that any other outcome would endanger the continued existence of American capital punishment. See Edward Lazarus, Mortal Combat: How the Death Penalty Polarized the Supreme Court, 1985-1986, Washington Monthly (June 1988). The McCleskey Court’s ultimate holding notwithstanding, the study’s findings speak for themselves and echo even today; in a state where roughly one-third of citizens are African Americans, more than half of Mississippi’s death row inmates are black. Death Row Inmates, Mississippi Department of Corrections, http://www.mdoc.state.ms.us/death_row_inmates.htm (last visited Nov. 26, 2008).
But even the specter of racially motivated executions pales in comparison to the most terrifying possibility in a system where the death penalty is dealt arbitrarily: innocent men can be, and have been, sentenced to die for crimes they did not commit. In 2008 alone, two men – both black – convicted of murders in Mississippi in the mid-1990s have been exonerated fully by a non-profit group that investigates such injustices. See Know the Cases, The Innocence Project, http://www.innocenceproject.org/know/Browse-Profiles.php (last visited Nov. 25, 2008). One of these men, Kennedy Brewer, spent an astonishing six years on death row. Id. Just as a cockroach scurrying across a kitchen floor at night invariably proves the presence of thousands unseen, these cases leave little room for doubt that innocent men, at unknown and terrible moments in our history, have gone unexonerated and been sent baselessly to their deaths.
Damn. I worry about how much the cause of justice in Mississippi is going to miss Diaz’s voice and vote on the state supreme court.
While I am not philsophically opposed to the death penalty, and certainly think that death is warranted justice for some of these most heinous criminals, I am leaning more and more toward abolishment of it for several reasons. One reason is embodied in Diaz’s dissent here — the possibility of prosecutorial error and an end game that can’t be undone. The other reasons are more practical. With the required appeals, and seemingly never ending appeals involved in these death cases, it costs our society a lot of money in legal fees to see these cases to the ultimate end. For some smaller MS counties, a death case can almost bankrupt the county. Thus, I am becoming more and more in favor of life imprisonment with no parole for such offenses that would currently trigger the death penalty as an option, and doing away with the death penalty. In some ways, for some of these criminals, death may be too easy a way out. Let them rot in jail for life, while breaking big rocks into little rocks. And as part of such a new process, limit the number of appeals. That might be better justice and serve as a greater deterent, while still preserving the ability to correct a legal error before its too late.
AFOTL, the death penalty cases involving the murder of a family of four in Quitman County did essentially bankrupt that county.
It isn’t often I find myself in agreement with you AFOTL, but we are substantially of one accord regarding life-without-parole.
If the people of Mississippi (or any other death penalty state) ever really knew how much pure money the death sentence costs, perhaps there would be a movement to abolish the sentence.
The costs have to be staggering, not only to the county prosecuting the defendant (ask Quitman County’s board of supervisors), but to the state on appeals up the state pipeline to the Supreme Court of the US, then on the civil side up the federal habeas pipeline, and then whatever other collateral attacks might be mustered. I would like to see an investigative journalist (you listening, DMWriter?) write an analytical, insightful, cost-accounting review of the death penalty’s costs.
I like Ben’s suggestion very much and hope Paul or someone else at a major in-state paper promptly takes him up on the dare.
If he does there are reported cases out there about it, including cases about the cost of defense and the cases about Quitman County’s experience. There’s a lot of material out there about this.
Kudos to Justice Diaz and his parting shot at the death penalty. The good news for moral and pragmatic opponents of capital punishment is a nation-wide trend toward fewer and fewer death sentences and fewer executions. Even in Texas! Prosecutors are more willing to exercise discretion not to pursue capital punishment because of its ever mounting costs and the availability of the LWOP alterntive. This is also in no small measure due to the improved competence,training and performance of defense counsel in those jurisdictions that have been willing to provide adequate financial support for death penalty defense.
As the death penalty falls more and more into disuse throughout the country its actual applications will become and be preceived as extraordinary, arbitrary and capricious. These were the bases upon which the U.S. Supreme Court voided captital punishment in Furman (1972.
Yeah, Ben and NMC, that Quitman county case was the primary one I was thinking about when I made that statement about bankrupting a county. That was a horrible, horrible crime committed in that case. IF ever a case deserved the death penalty, that was one that did. BUT, that type of justice penalized all of the citizens of Quitman County, which was an unintended negative consequence. Nothing will bring back the victims. And if the perpetrators are locked up for life without parole, then they will no longer be a threat to society and will have plenty of time to ponder what they did. As to ultimate forgiveness, that will be between them and God.
I think the pragmatic arguments are well-taken, but I can’t make myself feel morally opposed to the death penalty. Child-killers, terrorists, and suchlike seem excellent candidates.
(Not so much the doofus who knocks over the 7-11, shoots the clerk, and then is slower than his colleague to feel inspired to turn state’s evidence. I do not much pity him, but I don’t think his crime is heinous enough for the death penalty.)
My pet idea is to eliminate the hideously drawn-out habeas process and have all capital appeals (after the state appellate process concludes) go to a federal Court of Capital Appeals, made up of judges drawn from around the country, that would apply the same standards to all appeals and from which appeal to SCOTUS would be available by cert.
This would free up a good bit of work from the district courts and mitigate some of the arbitrary nature of the process.
1. “My pet idea is to eliminate the hideously drawn-out habeas process ….”
Scuse me … few things move faster than federal habeas cases. Granted, the longest part of the process is from the appointment of counsel to the hearing on the merits in district court, but after that … it’s like crap through a goose through the federal appellate courts. I haven’t gone to the trouble of looking this up, but I’m guessing that the median disposition time for habeas appeals in the federal circuit courts of appeals is something like 5 months … that’s from filing the notice of appeal to a decision on the merits. That’s pretty darn fast.
2. “[M]ade up of judges drawn from around the country, that would apply the same standards to all appeals ….”
Guess what? … the federal circuit courts of appeals are made up of judges drawn from around the country” and they “apply the same standards to all appeals” … at least, the same federal standards regarding reviewability, timeliness, and justiciability.
Each state’s capital punishment laws are written differently and there’s a body of state-particular state law that has to be considered by the federal appellate courts, but other than that federal habeas law is extremely well-developed … it has answered many times over just about every conceivable question that can be raised by defendants.
The federal habeas processes are not a sensible point of attack for making revisions to the post-conviction processes. Quite the contrary.
The sensible points of attack all lie, in my view, in the state processes, or lacks thereof, in the areas of speedy trial, professional competency of trial and appellate counsel, adequate compensation of trial and appellate counsel, availability to the defense of experts and investigators, completeness of trial transcript (unlike federal district courts, state court reporters frequently do not record certain phases of trial court proceedings), and completeness of record on habeas review and on appeal.
The real problems with capital punishment lie within the states themselves, and not in the federal review processes or laws.
Consider the Cedric Willis case where DeLaughter as Assistant District Attorney asked Judge Breland Hilburn to keep negative DNA results out of evidence and the guy served 11 years before the Innocence Project got him out of prison. Would’ve been 9 if Judge Hilburn had not sat on the motion for new trial for 2 years. What if the guy had been executed because of the suppression of the DNA evidence. The system is Mississippi is not only subject to human error but human malice. The death penalty should be outlawed here.
I hate to say this as a sweeping generality, but I will: everything in “the Mississippi system,” such as it is, is rigged against the capital defendant. Everything. And it’s that way in every death penalty state … each state system has its own unique hooks and crooks, but everything is rigged against the defendant. Book it.
Granted, the longest part of the process is from the appointment of counsel to the hearing on the merits in district court
That would be the part I’m talking about eliminating.
Guess what? … the federal circuit courts of appeals are made up of judges drawn from around the country” and they “apply the same standards to all appeals”
In theory, yes. In practice? The advantage of having the judges sitting *together* on the *same* court is greater consistency; I don’t see why we couldn’t expect that to be the case.
The real problems with capital punishment lie within the states themselves
You’re probably right, but there’s not a great deal to be done there, unless Congress or the Supreme Court gets a whole lot more interested in the issues you list, and feels like tangling with some very unhappy states and their “rights.” Whereas AFAIK the Court of Capital Appeals that I suggest would be more easily doable, concerning only the disposition of matters within the federal court system.
The real problem in Mississippi has been that the state courts do not want to follow the rules. In the 1980s, the state courts flatly refused to follow the direction of the US Supreme Court about the constitutionality of (overly vague) aggravating circumstances, and allowed prosecutors to literally mislead the juries. The US Supreme Court called the court down over and over again (this was that notoriously liberal court whose chief was Wm. Rehnquist). In a Kennedy opinion at one point, the Fifth Circuit ruled that one position taken by the Ms court was not within the range of opinions a reasonable jurist could hold, and a whole series of death penalties got knocked out.
In the last few years, the Miss. court has steadfastly refused to enforce the Supreme Court precedent about the duty of an effective counsel to investigate. Add to that a state system that has done little to assure competent trial counsel, and you’re just creating a dysfunctional system. And so it the “machinery of death” here works pretty fitfully. I suppose as someone who thinks the death penalty is bad, I should like that, but I’m appalled at the incompetence of the system “we” have set up to select who to execute.
Sorry about the tirade. I totally understand in the abstract the notion that there are people whose crime and history are so appalling that they deserve the maximum punishment. I would not lose a lot of sleep if Ben Laden were captured and executed (actually, I might over the dangerous creation of a martyr. I really think he should just disappear into the supermax to debate insane political theories with Ted Kaczynski). But I have a problem with system I know to be fallible run by decision makers I know to make decisions from their biases (because they are human beings. It’s the human condition) being used to select people to be executed, first. That pretty much answers it for me, although if asked, I also would state that I do not wish to have the state kill people on my behalf.
hey Ben, I think you’ll agree with this given your general point of view:
It’s not rigged in Mississippi like everyone else. It’s worse here. (see my long rant in response to comment #8 )
if you type
the number eight
close parenthesis
you automatically get this
and if you meant this 8 ) it’s very confusing.
Like That Bin Laden Kaczynski thing. Manson and his ilk could show up as well.
NL
A note about a logical fallacy in Diaz’ and others’ arguments about discrimination’s effect on the death sentence. Hopefully I can do this while 1 hour behind in the office.
I am opposed to the death penalty for numerous reasons- all rational since it does appeal to me emotionally. I just get vengeful when I read of some of these horrific cases. Does revenge warrant my and society’s response?
Anyway…
Given that 50% of death row habitants are Afro American and that the state is 33% AA then this does not per se imply discrimination applied at the imposition of the death penalty. One can posit that institutional and social discrimination increases the situations that could lead to punishable behavior therefore increasing the chance of potential death penalty candidates. Similar rates of conviction and imposition could result in the current percentages. Obviously, inequality at any (or all) stage could lead to this situation. It just does not have to have had occurred at the trial and punishment stage to lead to this disparity. An inequality at the arrest,trial and punishment stage,I think is an immediate reason to discontinue this penalty. I am not convinced that differences in situations leading to crimes can be used to justify its abolition. Now the other objections, moral,?able deterrence, inequality of justice at the trial level still make the Death Penalty untenable to me.
Just saying Maybe I am too “careful about getting the facts right” or something
NL
Anderson: the flaw in the idea of a federal court of capital appeals is the same flaw with the process. Like every jury that has ever sat on a capital case, every member of the proposed court would have to be death qualified before they could be seated. The requirement of death qualification of every juror predisposes the jury to sentence death at the beginning of every case PRIOR to the presentation of evidence as you probably already know.
It’s an emoticon conspiracy to take over computers. Be advised.
Odd that I find myself agreeing with you. Nevertheless, you’re right. My reasoning is similar to yours, with the exception that I think that it’s wrong to cold-bloodedly decide to kill someone, regardless of what he’s done. If you’re not personally affected by a person’s crime, your judgment shouldn’t be based solely on anger or fear. Individuals will aspire to revenge in such circumstances, but societies should aspire to justice. There are certainly people who deserve to die for the crimes they’ve committed, but bringing about that state of affairs is an entirely different thing from feeling that way.
Someone did a study a number of years ago contrasting the costs of capital trials and the resulting imprisonment and execution, versus trials for the same types of crimes that didn’t have a death penalty. You probably won’t be surprised to learn their conclusion, which is that the former cost more than the latter, even though prisoners usually live longer if they aren’t going to be executed. Unfortunately, that study pre-dates wide use of the Internet, so I doubt it’s online anywhere.
NMC, I can’t imagine anyone with a functioning mind who’d like that system, regardless of his opinions on capital punishment. The idea of a court system is that the government must prove its case, and the defendant can, through competent counsel, make the government prove its case. That should be particularly true in a capital case. If your description is an accurate one, that’s not what’s happening in at least some parts of Mississippi.
Cujo, thanks for speaking for me so well.
Given that 50% of death row habitants are Afro American and that the state is 33% AA then this does not per se imply discrimination applied at the imposition of the death penalty.
Neither does the fact that Warren McCleskey was 22 times more likely to die for killing a white man.
There are SOME INNOCENT people such as Devin Bennett and Jeffrey Havard on Mississippi’s death row. The now defunct Dr. Steven Hayne was involved in BOTH cases as well as many others. SAD!
The death penalty is arbitrarily dealt out. Therefore it should not exist. It does not ensure justice since the wrong person may be executed, it does not give closure to anyone, it’s just another dead body and it certainly will not bring the victim back from the dead.
The death penalty is the victim’s family or friend’s way of MURDERING vicariously through the STATE. End of story.
That ‘eye for an eye’ quote doesn’t justify a thing. God also says THOU SHALT NOT KILL. Execution IS KILLING no matter how you decorate, fluff it up or cut it.
As Mahatma Ghandi once said, “An eye for an eye makes the WHOLE world go BLIND!”
Simple logic…
By the way, DIAZ has GONADS the size of CHURCH BELLS for taking a stand in what he believes in. He deserves to be applauded for his honesty, sincerity, and humanity.
I wish him well and would vote for him for PREZ if he ever ran!
Now I do not understand the implication of this drive by comment. Are you saying I am not sensitive enuff, that you agree or what??
My point in a nutshell is that although there are many reasons to be anti Death Penalty, and that discrimination in arrests, trial and sentencing may be some of them and potentially demonstrable, the mere presence of a disparity in this end result can have many causes, and cannot be used as a logical justification for a decision. I hate post hoc ergo propter hoc arguments. Just fussn’ about the judge’s example.
Anyone who knows me round these parts realizes I am a frustrated philosopher/logician/lawyer and hate these jumps to confusion.
NL
what ever happened to 7 years and forgiveness? Most other civilized countries consider 7 to 10 years life. What’s wrong with us?