EDITORIALS: ​“Death Penalty System ​‘Irretrievably Broken’ ”

A recent editorial in the Charlotte Observer in North Carolina cited the American Law Institute’s decision in 2009 to separate itself from the death penalty system as another reason for the state to abolish the practice. The ALI, whose model death penatly standards were instrumental in the U.S. Supreme Court’s decision to allow the reinstatement of capital punishment in 1976, has recently disavowed its own recommendations because the many problems of the system had rendered it unworkable. The editorial also cited a recently published study by Duke University Professor Philip Cook that concluded North Carolina could save $11 million annually over the costs of life imprisonment if it abolished the death penalty. In concluding that the time had come to end the death penalty, the paper stated, “We now know more about human fallibility and the justice system’s ability to charge, try and convict the wrong person while allowing the real criminal to go free. The number of inmates convicted of murder but later exonerated increases every year, revealing capital punishment as a system incapable of being administered in accord with the U.S. Constitution.” Read full editorial below.

Death penalty system ‘irretrievably broken’
North Carolina should abandon a permanently flawed process.

Here’s further reason North Carolina should abolish the death penalty: The prestigious American Law Institute, which provided the intellectual foundation for the restoration of the death penalty in a 1976 Supreme Court case, has abandoned the argument that executions can be carried out in a constitutional way.

While the institute did not take a position opposing capital punishment, it concluded there were so many problems with the death penalty that it could no longer be justified. The institute disavowed the process “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment,” The New York Times reported.

The system doesn’t work because it cannot be reconciled with competing goals - the ability of juries to make independent decisions about who is sentenced to death, and fairness in a system that executes some and spares others who have committed similar crimes, the Times’ Adam Liptak observed.

The institute’s decision to divorce itself from a death penalty system it played a major role in creating is telling. The institute’s standards for the death penalty were at the heart of the U.S. Supreme Court’s 1976 decision reinstituting capital punishment for murder. The court endorsed a system that required a separate trial to determine guilt for 1st-degree murder, and another process for determining whether an inmate would be sentenced to death.

The resulting system was riddled with problems. Death sentences depended upon a host of variables, including the race of the victim, the judicial district where a murder was committed, the quality of defense attorneys and the economic status of the defendant. The N.C. legislature has adopted a number of changes meant to rid the system of disparities that worked against poor defendants with mediocre lawyers. But there was no way to ensure essential fairness and consistency of a system because it produces such widely varying results.

The death penalty has also come under recent scrutiny because of its costs. Duke University Professor Philip Cook in the Sanford School of Public Policy concluded that the state could save nearly $11 million each year in extra costs if it dropped the death penalty. His study found the state spent $21.6 million extra in taxpayer money on death penalty trials from 2005-06, including added juror costs, extra legal fees and appeals in state and federal courts.

We have long had our doubts about capital punishment, though we have supported efforts to find ways to make the system operate fairly and consistently. But at the heart of the capital punishment system is this: To deal with violent crimes, the state commits a violent act in the name of the people. It does so by trying to assure the public that the system makes no mistakes in selecting which defendants to execute.

We now know more about human fallibility and the justice system’s ability to charge, try and convict the wrong person while allowing the real criminal to go free. The number of inmates convicted of murder but later exonerated increases every year, revealing capital punishment as a system incapable of being administered in accord with the U.S. Constitution. It is, as Liptak noted, irretrievably broken - and as Michigan Law School Prof. Samuel Gross put it, “a moral and practical failure.”

It should be abolished.

(“Death penalty system ‘irretrievably broken’,” Charlotte Observer, January 10, 2010). Read more about the American Law Institute decision. Read more about Professor Cook’s cost study.