One point which has not been sufficiently addressed about the death penalty is the likelihood of some error in the process leading to executions. In a recent case, below, a man may well be sentenced to death despite overwhelming evidence that the police, the prosecution and the trial court all severely bungled the case, at best, and intentionally framed the defendant, at worst.
“William A. Fletcher of the United States Court of Appeals . . . argued that the police and prosecutors had withheld and tampered with evidence in the case for decades; Judge Fletcher even accused the district court of having sabotaged the case.”
Read the opinion (and the dissent) here:
Today, Judge Fletcher spoke at my law school. His point about the death penalty was not that it was per se wrong, but that the process leading to the death penalty is in such a bad state that we cannot continue executions.
Among the problems Judge Fletcher discussed today:
-Misconduct by the investigating police department. Murder cases often involve a great deal of political pressure, and there are many examples where police have fabricated evidence, mishandled or destroyed exculpatory evidence, forced confessions, struck plea bargains with other witnesses to fabricate or exaggerate stories, etc.
-Misconduct by the prosecutor. Prosecutors in several recent capital cases have neglected to turn important evidence over to the defense (in violation of both law and ethical duties).
-Misconduct by the trial judge. All kinds of rulings can be made incorrectly. One example was where jury instructions gave the jury the option of either sentencing the defendant to “life WITH the possibility of parole, or death” where the instruction should have given the option of life WITHOUT parole or death. Incredibly, the state supreme court held that that was a harmless (nonreversible) error.
-Misconduct by state appeals judges. Many state supreme court justices are elected, and bow to political pressure to uphold wrongful (or at least problematic) convictions.
These are problems that exist with the whole of the justice system; but unlike most criminal cases, mistakes made in dealing death cannot be fixed. And whether the death penalty, if perfectly administered, is justified is really not the issue in front of us; the issue is whether we should support the death penalty as it exists today.