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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