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On and Off Executions Are Unconstitutional

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Federal Judge Cormac J. Carney has ruled that "California's death penalty system is so arbitrary and plagued with delay that it is unconstitutional."

Although the decision relates to California only, it is an accurate description of the imposition of the death penalty in virtually every state in the nation. Death penalty cases take decades. As the judge concedes, although the prosecution is often at fault, most of the delays are engendered by the defendants. Who can fault the endless appeals and petitions? The guilty want to postpone the day of reckoning as long as possible, and the innocent understandably want to exhaust every opportunity for exoneration. The answer certainly cannot be faster process at the cost of due process. There are no second chances once the penalty is imposed.

Can there be any doubt that having one's execution scheduled, then postponed, then scheduled again and postponed again over and over is "cruel and unusual punishment"? There may be those who believe that someone deserving the death penalty may well deserve this additional punishment and have little sympathy for those who continually avoid their ultimate punishment, but it is difficult to dispute its cruelty. Although Judge Carney is to be praised for his focus on delays, he recognizes, as we all finally should, that the death penalty has too many other flaws to continue.

Race infuses the decisions to seek, convict and impose the ultimate penalty. There is no conclusive evidence that the death penalty deters anyone and no way of knowing that it does. We are in undistinguished company in the world when it comes to its retention and imposition. Most civilized countries, and certainly those whom we respect, have abandoned it. The system brings no closure to the families of the victims. To the contrary, it revives their grief with each new step along this endless corridor of appeals. And there can be no stronger argument against its continuance than the growing number of exonerations -- a number of which faced the death penalty. Finally, we must ask: How many innocent persons have we already executed?

If the arbitrary nature or the immorality of the state executing persons does not move us, then possibly the economics will. In a study conducted about California, the authors concluded that the cost of the death penalty in California has totaled over $4 billion since 1978:

• $1.94 billion: Pre-Trial and Trial Costs
• $925 million: Automatic Appeals and State Habeas Corpus Petitions
• $775 million: Federal Habeas Corpus Appeals
• $1 billion: Costs of Incarceration

The authors calculated that, if the governor commuted the sentences of those remaining on death row to life without parole, it would result in an immediate savings of $170 million per year, with a savings of $5 billion over the next 20 years.

As Judge Carney points out, despite this incredible cost, the penalty is rarely carried out, although numerous juries have endured the agony of imposing it. Yes, the death penalty satisfies our need for revenge and retribution. I concede that because of some extremely heinous and brutal murders, I sometimes wish that the perpetrator or perpetrators be executed.

But somehow I don't think my personal feelings, my anger, my desire for revenge and retribution should become state policy. With all of the problems outlined by Judge Carney in his detailed and thoughtful opinion, it is time to follow Justice Blackman's admonition to "no longer tinker with the machinery of death" and end the death penalty.