Restoring fairness to the death penalty

Daniel Ruth St Petersburg Times Correspondent
Restoring fairness to the death penalty,
In Print: Tuesday, November 30, 2010
Imagine lying on a gurney, a needle inserted in your arm. The clock ticks toward the appointed hour. In minutes you’ll be — dead.
The only thing standing between your last breath and a reprieve is the U.S. Supreme Court. Maybe you are guilty of your crimes. Then again, maybe you’re not. And maybe nobody cares.
At a moment like this, that person facing society’s ultimate sanction should have at the very least an expectation he will get a fair shake from the judicial system. After all, once the switch gets thrown, there are no mulligans on death row.
But as recently retired Justice John Paul Stevens has noted, the process of determining who lives, who dies, hasn’t always been fair. Or just. That is not only terrifying; it is a horrific indictment of judicial malfeasance on the high court.
Since the death penalty was reinstated in 1976 after a four-year moratorium, more than 1,100 people have been executed across the country, including 69 inmates in Florida. But Stevens, in an essay for the New York Review of Books, has argued he now believes the death penalty to be unconstitutional based on a pattern of “judicial activism” on the nation’s highest court grounded in racism, a deck stacked toward convictions and political motivations grounded in hysteria.
So much for blind justice.
Stevens, who once supported the imposition of the death penalty if stringent safeguards were in place to protect the judicial integrity of the process, has reversed himself in the face of what he has come to view as a capital punishment protocol rife with inequities.
The statistics would seem to support him.
The General Accounting Office has reported that in 82 percent of the nation’s death row inmates, race played a role in their conviction and sentencing, noting those convicted of murdering a white person are more likely to receive the death penalty than if the victim is a not white.
At the same time, while black residents make up roughly 10 percent of the population, blacks represent 41 percent of all death row inmates.
The 90-year-old jurist has raised concerns over court rulings determining how juries are chosen and what evidence can and cannot be admitted in capital cases. He also cites a pivotal 1991 decision that struck down the ban on permitting victims’ statements at sentencing hearings. Such statements obviously can inflame jury emotions.
Stevens was particularly angry over a 1987 case in which the court ruled that even proven statistical racial disparities in the administration of the death penalty did not violate the Constitution. He maintains that allows for race-based prosecutorial decisions.
How many? How many of those more than 1,100 inmates put to death since 1976 might have been innocent? We know in Florida and elsewhere that condemned prisoners have had their sentences commuted because new evidence emerged proving their innocence.
There are many arguments against the death penalty, and Stevens, with the weight of his long service on the Supreme Court, has certainly contributed a significant rationale to revisit the power of the state to take a life.
There are those who often bemoan the extraordinary length of time between conviction and sentencing and the actual imposition of the death penalty because of the seemingly endless appeals. Stevens has just offered sound reasoning for the protracted appeals process.
For as long capital punishment remains on the books, shouldn’t it be imposed with the utmost discretion, after every argument, every piece of evidence, every appeal has been soberly reviewed?
It is a little difficult, not to mention hypocritical, for the United States to flit around the world lecturing other countries on social justice and human rights when right here at home the country’s highest legal authority has engaged in a systemic abuse of its most profound legal sanction.
We decry the stoning of women in places like Pakistan and Iran, while at the same time blithely allowing suspect racial disparities to continue in the administration of the death penalty in our own courts.
Stevens has performed a noble public service by pulling back the curtain on the often mysterious ways and prejudices of the Supreme Court.
We need to know, Lady Justice needs to know, that when the state executes a condemned prisoner, the judicial system has worked equally — for everyone.
This isn’t about abolishing the death penalty. It’s about restoring common sense to society’s most vexing administration of justice.
Who would have ever imagined that in the United States, basic fundamental fairness would be so cloaked in elusiveness?