There is one rarely heard argument against the death penalty that deserves a place in the debate: Executions are the coward's way out.
We know that capital cases are exorbitantly expensive, a single case often costing taxpayers millions. Trials, motions, appeals, retrials can take decades, thus delaying or denying "closure" to loved ones and other survivors of homicide. Race and class discrimination guarantee that lopsided numbers of poor people and people of color will wind up on death row while their rich, white counterparts are rarely executed (almost half of all inmates awaiting execution today are black). The underfunded, overloaded public system of indigent defense cannot compete fairly against the resources of a well-financed "dream team." Mistakes (or worse) in crime scene processing, evidence gathering, witness interviews, suspect interrogations, in-the-flesh and photo lineups are all too common. As are the motives and reliability of jailhouse informants, and the inept if not unlawful performance of some prosecutors.
These and other failings of the criminal justice system have resulted in the convictions of innocent people.
Is there anyone who really believes we have not put to death someone in this country who, simply put, did not do it?
This reality, the prospect of executing an innocent person, is enough to cause many who would otherwise support the death penalty to oppose it. (One notable exception is Supreme Court justice Antonin Scalia who famously stated, two years ago, in the context of the Troy Davis case, "This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a court that he is 'actually' innocent." Parse that. Please. It's important.)
Other death penalty abolitionists hold that capital punishment is wrong on religious and/or moral grounds, that it is not a deterrent, that it can cause even more anguish to some families of murder victims, that it is a fundamentally barbaric sentence that should be barred under the Eighth Amendment.
All these arguments carry great weight. They account, severally and in sum, for my opposition to capital punishment.
But that other argument against the death penalty springs to mind after every heart-wrenching, stomach-turning execution of a fellow human being.
I've acknowledged my profound pain when a police officer is killed. I've admitted the special wrath I feel toward cop killers. I've confessed a primeval desire that, on a particular occasion in the mid-eighties, I wanted the at-large murderer of two San Diego police officers to give us reason to take him out.
But it is a coward who takes the life of someone whose threat to society has been contained. Once that killer in San Diego was in cuffs, all weapons were holstered.
I believe that one who commits first-degree murder has forfeited his right to freedom. Putting that individual behind bars for the rest of his life, without possibility of parole, is fitting punishment. Whereas executions foreclose on any possibility of correcting grievous errors.
Errors of the type that were surely at play in the controversial conviction and sentencing of Troy Davis, and which led to his killing at 11:08 Wednesday night.
The list of potential cowards in Mr. Davis's execution is long: the prosecutor who tried the case; the federal judge who in 2010 rejected an appeal by Davis's defense team; the majority of the Georgia State Board of Pardons and Paroles; the Georgia Supreme Court; the Governor of the state of Georgia; the majority of United States Supreme Court Justices, the President of the United States.
Whether possessed of sanctioned authority or a powerful bully pulpit, the exercise of conscience and courage by any one of these principals--those with qualms about the death penalty in general, or the application of it in this particular case--could have made a difference.
Of course, ultimately, it is a collective cowardice that maintains the death penalty.
Sixteen states (one, Michigan, as early as 1846) and the District of Columbia have abolished capital punishment. With polls showing 62 percent support for the death penalty (and a leading candidate for the Republican Party's presidential nomination boasting of his state's topping the nation in executions) don't look for spineless politicians to put an end to the cowardly act of capital punishment.
Follow Norm Stamper on Twitter: www.twitter.com/CopsSayLegalize
Geoffrey R. Stone: Justice Scalia, Originalism and the First Amendment
Greg Mitchell: Wardens Protest Execution of Troy Davis -- a Rare Move in America
Ty Alper: Why the Execution of a White Supremacist Murderer Matters Too
Justice Scalia, as usual, is completely correct. There is no constitutional basis for raising a habeus corpus claim in a death penalty case based on actual innocence alone. The Constitution is not meant as a religious document where one can go to get answers to all questions. Rather, it is strictly a framework for what government can and can't do. There are only two conceivable violations of the Constitution by executing an innocent man who otherwise had a fair trial-it violates the 8th amendment band on cruel and unusual punishment or the 14th Amendment. An 8th amendment claim would mean that an otherwise permissible punishment (the death penalty) violates the 8th Amendment in a particular application (when applied to the innocent). But this would open the federal courts to challenges of actual innocence throught the system e.g why wouldn't a person raising an actual innocence claim to selling drugs not be able to claim an 8th amendment violation. As to the latter, the Court could always add this to their made up list of "substantive due process rights" but this would be totally arbitrary.
Truly innocent people have numerous avenues to press their claims-as Davis did- a Constitutional violation just shouldn't be one of them
When many involved in the apprehension, prosecution, and others connected with the system have a vested interest (Promotions, advancement, reputation, etc) in conviction and incarceration or execution of people accused, it seems that our system of criminal justice is not always impartial. All those who benefit in one way or another from a "closed case" will often, it seems to me, deny a full and thorough review of ALL the facts, or see to it that any new info, forensic evidence, or changes in witness testimony gets an equal full new look; the interests of those who benefit from a partial process make a mockery of notions of justice; when the potential innocent person is executed any doubt and questions, or potential embarrassment for incomplete investigation, or a remedy, become moot, to our shame.