In the interim, several mentally retarded and judicially sentenced people were executed. Had their legal process taken longer to complete, their lives may well have been spared.
The Court's decisions in Atkins v. Virginia and Ring v. Arizona reveal a critical problem: while the death penalty is irreversible, the constitutional law that governs the use of the death penalty is not. This unsettling realization, raised so vividly in these cases, brings to the fore another argument for a moratorium on the death penalty.
Some moratorium advocates begin not from moral opposition to retaliatory killing by government, but from well-founded concerns about how our system is administered. They have qualms about revelations that geography, politics, and the race of the victim figure so strongly into who is selected for death. They have fears that the shoddiness of the process has sometimes risked visiting the agony of the death penalty on some who are innocent. The mountain of evidence that gives basis for these reservations leads many, liberal and conservative alike, to suggest that we need to suspend executions in order to evaluate whether it is possible to construct a less arbitrary, discriminatory, and unfair process by which death is meted out as punishment.
If a deterrence rationale for the death penalty had been demonstrated, that is, if there were a strong likelihood that murders were prevented by inflicting death rather than long-term incarceration as a penalty, moratorium advocates would have to search their consciences. But the deterrent effect is unproved and unprovable under any known methodology. Murder rates are responsive to so many social conditions that the effect of the presence or absence of the death penalty cannot be teased out. In other words, we currently impose death as a penalty without really knowing whether the harm it inflicts outstrips whatever good it is thought to accomplish.
While we cannot prove that innocent lives are saved through use of the death penalty, we have abundant evidence that the death penalty risks taking innocent lives. With the recent advent of sophisticated DNA technology and the conscientious legwork of a committed band of students and professors in law and journalism schools, more than 100 people have been exonerated and released from death row. Although there is no proof that an innocent person has been executed already, the probability inherent in these numbers is too great for comfort...
Those who have seen death penalty litigation up close cannot be sanguine that only the guilty are being executed. Virtually all capital defendants are indigent and receive court-appointed counsel, some of whom provide representation that matches their woefully inadequate compensation. Some appointed attorneys lack both the experience to try a capital case and the desire to devote considerable energy to the unprofitable representation of an unpopular defendant...
The unavoidable conclusion is that our system frequently imposes death in the face of considerable uncertainty as to guilt. In the vast run of cases, super due-process is a myth. Even Justice Sandra Day O'Connor publicly acknowledged that executions have gone forward though guilt was in question.
This is a scandalous state of affairs genuinely worthy of a time out for a sober second look...All of us must face it as well, because the death penalty's legal machinery - fickle as we now know it to be - operates in our names. With this knowledge, we can fulfill our obligations as responsible citizens by withdrawing our support for the system as it is and lending our support to the call for a death penalty moratorium.
-Phyllis Goldfarb is a professor in the Boston College Law School
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