By, Hank Kalet, Managing Editor
The American Bar Association says that the death penalty is administered in an unfair manner.
The ABA issued a report Monday that outlined a set of common problems that it found in eight states it studied over a three-year period, including “major racial disparities, inadequate indigent defense services and irregular clemency review processes — making their death penalty systems operate unfairly.”
”After carefully studying the way states across the spectrum handle executions, it has become crystal clear that the process is deeply flawed,” Stephen F. Hanlon, chairman of the ABA Death Penalty Moratorium Implementation Project, said in a press release. “The death penalty system is rife with irregularity — supporting the need for a moratorium until states can ensure fairness and accuracy.”
Ensuring fairness and accuracy seems unlikely. As former U.S. Supreme Court Justice Harry Blackmun wrote in 1994 in his dissent in Callins v. Collins, the Texas death penalty case in which he finally renounced his acceptance of capital punishment, the attempt to balance the goals of “individual fairness, reasonable consistency, and absence of error” is “a futile effort.”
The court, he wrote, has “virtually conceded that both fairness and rationality cannot be achieved in the administration of the death penalty” and has, instead, “chosen to deregulate the entire enterprise, replacing, it would seem, substantive constitutional requirements with mere aesthetics.” The court, he wrote, has “abdicat(ed) its statutorily and constitutionally imposed duty to provide meaningful judicial oversight to the administration of death by the States.”
Justice Blackmun had long been a supporter of the death penalty, working with the majority to “develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.” That, however, proved to be impossible, he wrote.
”It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies,” he wrote. “The basic question — does the system accurately and consistently determine which defendants ‘deserve’ to die? — cannot be answered in the affirmative.”
This brings me back to the ABA study. The ABA is calling for an official national moratorium (an unofficial moratorium appears to be in place while the Supreme Court reviews a Kentucky death penalty statute), but not abolition — a position I find curious given that the group found “significant racial disparities in imposing the death penalty” and array of procedural flaws and failed safeguards, flaws with the potential to result in false convictions.
And make no mistake, the innocent are found guilty and sentenced to death. The Death Penalty Information Center lists eight men that it says were executed despite serous doubts about their guilt.
Admittedly, this is a small number. But eight men are still dead at the hands of the state, eight men who may or may not have been guilty (the definition of reasonable doubt), which should raise questions about whether capital punishment can be defended on moral or ethical grounds.
”The jurist Olivecroix, applying the law of probability to the chance of judicial error, around 1860, concluded that perhaps one innocent man was condemned in every two hundred and fifty-seven cases,” the French philosopher Albert Camus wrote in “Reflections on the Guillotine.” “The proportion is small? It is small in relation to average penalties. It is infinite in relation to capital punishment.”
The issue here is fallibility and permanence. How can we impose a punishment that is final, that cannot be reversed, if there is even the smallest of chances that the men and women we condemn to that most extreme of penalties might be innocent of the charges brought against them?
Much of society seems to still believe that an elaborate “machinery of death,” to use Justice Blackmun’s words, can be erected to ensure that the death penalty can be equitably and coldly administered. It can’t. There are too many factors — not the least of which are political considerations and public opinion — that have the potential to strip the safeguards of their reliability making the matter of who lives and dies under the law all too arbitrary.
Because of this, I don’t see how we, as a society, can continue to justify state executions.
The reality is that government, as Sister Helen Prejean wrote in her memoir “Dead Man Walking,” “can’t be trusted to control its own bureaucrats or collect taxes equitably or fill a pothole, much less decide which of its citizens to kill.”
Hank Kalet is managing editor of the South Brunswick Post and The Cranbury Press. His e-mail is [email protected] and his blog, Channel Surfing, can be found at www.kaletblog.com.
