The Presiding Justice of the Mississippi Supreme Court, Oliver Diaz, dissented in a recent capital case, Doss v. Mississippi, stating he had come to the conclusion that the death penalty is unconstitutional:

[A]ll that remains to justify our system of capital punishment is the quest for revenge, and I cannot find, as a matter of law, that the thirst for vengeance is a legitimate state interest. Even if it is, capital punishment’s benefit over life imprisonment in society’s quest for revenge is so minimal that it cannot possibly justify the burden that it imposes in outright heinousness. The death penalty is, therefore, reduced to “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” (quoting Justice White in Furman v. Georgia).

In his December 11 dissent, which was joined by Justice Graves, Justice Diaz reviewed incapacitation and deterrence as goals of the death penalty and found them unsupported. He also noted the relatively small number of death sentences returned in capital trials in recent years and the deplorable funding for indigent defense.

Further excerpts from Justice Diaz’s opinion follow:

Referring to the recurring exonerations of people on death row and in prison, Justice Diaz wrote, “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.”

Justice Diaz concluded: “I cast no illusions for myself that my conclusion will persuade a majority of this Court’s members, whose sober judgments in capital cases I deeply respect, even as I disagree just as deeply. Neither do I doubt that, for the time being, Justice Stevens’ decision to ‘no longer … tinker with the machinery of death,’ will fall upon unconvinced colleagues at the high court (quoting Justice Blackmun). But I am convinced that the progress of our maturing society is pointed toward a day when our nation and state recognize that, even as murderers commit the most cruel and unusual crime, so too do executioners render cruel and unusual punishment.”

(Doss v. Mississippi, No. 2007-CA-00429-SCT, Dec. 11, 2208) (Diaz, P.J., dissenting) (internal citations omitted). See New Voices and Arbitrariness.

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