OP-ED: America’s Death Penalty ​“Broken Beyond Repair”

An op-ed by Bob Herbert of the New York Times high­lights issues raised by for­mer Supreme Court Justice John Paul Stevens that changed his mind on the death penal­ty in the U.S. Herbert cites infor­ma­tion col­lect­ed by the Death Penalty Information Center and points to shod­dy defense and state mis­con­duct in the delib­er­ate with­hold­ing of evi­dence as promi­nent abus­es in the sys­tem. ​“Executions have been upheld in cas­es in which defense lawyers slept through cru­cial pro­ceed­ings. Alcoholic, drug-addict­ed and incom­pe­tent lawyers — as well as lawyers who had been sus­pend­ed or oth­er­wise dis­ci­plined for mis­con­duct — have been assigned to indi­gent defen­dants.” According to Herbert, ​“The egre­gious prob­lems iden­ti­fied by Justice Stevens (and oth­er promi­nent Americans who have changed their minds in recent years about cap­i­tal pun­ish­ment) have always been the case. The awful evi­dence has always been right there for all to see, but most­ly it has been ignored. The death penal­ty in the United States has nev­er been any­thing but an abom­i­na­tion — a grotesque, unciv­i­lized, over­whelm­ing­ly racist affront to the very idea of jus­tice.” Read full op-ed below.

Broken Beyond Repair
By BOB HERBERT

You can only hope that you will be as sharp and intel­lec­tu­al­ly focused as for­mer Supreme Court Justice John Paul Stevens when you’re 90 years old.

In a provoca­tive essay in The New York Review of Books, the for­mer jus­tice, who once sup­port­ed the death penal­ty, offers some wel­come insight into why he now oppos­es this ulti­mate crim­i­nal sanc­tion and believes it to be unconstitutional.

As Adam Liptak not­ed in The Times on Sunday, Justice Stevens had once thought the death penal­ty could be admin­is­tered ratio­nal­ly and fair­ly but has come to the con­clu­sion ​“that per­son­nel changes on the court, cou­pled with ​‘regret­table judi­cial activism,’ had cre­at­ed a sys­tem of cap­i­tal pun­ish­ment that is shot through with racism, skewed toward con­vic­tion, infect­ed with pol­i­tics and tinged with hysteria.”

The egre­gious prob­lems iden­ti­fied by Justice Stevens (and oth­er promi­nent Americans who have changed their minds in recent years about cap­i­tal pun­ish­ment) have always been the case. The awful evi­dence has always been right there for all to see, but most­ly it has been ignored. The death penal­ty in the United States has nev­er been any­thing but an abom­i­na­tion — a grotesque, unciv­i­lized, over­whelm­ing­ly racist affront to the very idea of justice.

Police and pros­e­cu­to­r­i­al mis­con­duct have been ram­pant, with evi­dence of inno­cence delib­er­ate­ly with­held from defen­dants being promi­nent among the abus­es. Juries have sys­tem­at­i­cal­ly been shaped — rigged — to height­en the chances of con­vic­tion, and thus impo­si­tion of the ultimate punishment.

Prosecutors and judges in death penal­ty cas­es have been over­whelm­ing­ly white and male and their behav­ior has often — not always, but shock­ing­ly often — been unfair, big­ot­ed and cru­el. The Death Penalty Information Center has reams of metic­u­lous­ly doc­u­ment­ed horror stories.

Innocents have undoubt­ed­ly been exe­cut­ed. Executions have been upheld in cas­es in which defense lawyers slept through cru­cial pro­ceed­ings. Alcoholic, drug-addict­ed and incom­pe­tent lawyers — as well as lawyers who had been sus­pend­ed or oth­er­wise dis­ci­plined for mis­con­duct — have been assigned to indi­gent defen­dants. And it has always been the case that the death penal­ty machin­ery is fired up far more often when the vic­tims are white.

I remem­ber report­ing on a study sev­er­al years ago by the Texas Defender Service, which rep­re­sent­ed indi­gent death row inmates. It men­tioned a Dallas defense lawyer, who, rem­i­nisc­ing in 2000, said: ​“At one point, with a black-on-black mur­der, you could get it dis­missed if the defen­dant would pay funer­al expens­es.” A judge, look­ing back on his days as a pros­e­cu­tor in the 1950s, recalled being told by an angry boss: ​“If you ever put anoth­er nig­ger on a jury, you’re fired.”

Prosecutors cleaned up their lan­guage some­what over the years, but the dis­crim­i­na­tion has per­sist­ed, along with the per­ni­cious idea that white lives are inher­ent­ly more valu­able than black ones. Patricia Lemay, a white juror in a Georgia death penal­ty case that result­ed in an exe­cu­tion, told me in an inter­view in 2002 that she had been nau­se­at­ed by the vile racial com­ments made by oth­er jurors dur­ing the deliberations.

Justice Harry Blackmun was 85 years old and near the end of his tenure on the Supreme Court when he declared in 1994 that he could no longer sup­port the impo­si­tion of the death penal­ty. ​“The prob­lem,” he said, ​“is that the inevitabil­i­ty of fac­tu­al, legal and moral error gives us a sys­tem that we know must wrong­ly kill some defen­dants, a sys­tem that fails to deliv­er the fair, con­sis­tent and reli­able sen­tences of death required by the Constitution.”

Justice Blackmun vowed that he would no longer par­tic­i­pate in a sys­tem ​“fraught with arbi­trari­ness, dis­crim­i­na­tion, caprice and mistake.”

In 1990, Justice Thurgood Marshall assert­ed: ​“When in Gregg v. Georgia the Supreme Court gave its seal of approval to cap­i­tal pun­ish­ment, this endorse­ment was premised on the promise that cap­i­tal pun­ish­ment would be admin­is­tered with fair­ness and jus­tice. Instead, the promise has become a cru­el and empty mockery.”

Justices Blackmun and Marshall are gone, but the death penal­ty is still with us. It is still an abom­i­na­tion. Illinois has tried might­i­ly to deal with a sys­tem of cap­i­tal pun­ish­ment that had, as The Chicago Tribune described it, ​“one of the worst records of wrong­ful cap­i­tal con­vic­tions in the country.”

The sen­tences of 167 con­demned inmates were com­mut­ed in 2003. Four oth­ers were par­doned and a mora­to­ri­um on the death penal­ty has been in effect since 2000. But pros­e­cu­tors con­tin­ue mind­less­ly to seek the death penal­ty. And the sys­tem for try­ing mur­der cas­es remains a mess. As The Tribune wrote in an edi­to­r­i­al just last week:

“Lawmakers still haven’t tak­en ade­quate steps to ensure that the death penal­ty is applied even­ly across the state, or to guard against wrong­ful con­vic­tions based on errant iden­ti­fi­ca­tions of wit­ness­es or mis­takes at foren­sic labs. False con­fes­sions and pros­e­cu­to­r­i­al mis­steps are still alarmingly common.”

In the paper’s view, ​“Illinois must abol­ish the death penalty.”

And so must the United States.

(B. Herbert, ​“Broken Beyond Repair,” New York Times (op-ed), November 29, 2010). See also Editorials on the death penalty.