Comment & Debate
Hugo Adam Bedau. “The Case Against The Death Penalty”. American Civil Liberties Union. 1992 – The death penalty violates the constitutional guarantee of the equal protection of the laws. It is applied randomly at best and discriminatorily at worst. It is imposed disproportionately upon those whose victims are white, on offenders who are people of color, and on those who are themselves poor and uneducated.
The defects in death-penalty laws, conceded by the Supreme Court in the early 1970s, have not been appreciably altered by the shift from unfettered discretion to “guided discretion.” These changes in death sentencing have proved to be largely cosmetic. They merely mask the impermissible arbitrariness of a process that results in an execution.
Justice William J. Brennan, Furman v Georgia, 1972 – When a country of over 200 million people inflicts an unusually severe punishment no more than 50 times a year, the inference is strong that the punishment is not being regularly and fairly applied.’
Boyce Martin, judge of the U.S. Court of Appeals for the Sixth Circuit, Moore v. Parker – But lest there be any doubt, the idea that the death penalty is fairly and rationally imposed in this country is a farce.
Harry A. Blackmun, former U.S. Supreme Court Judge. – I am more optimistic though, that this court will eventually conclude that the effort to eliminate arbitrariness while preserving fairness in the infliction of [death] is so plainly doomed to failure that is — and the death penalty — must be abandoned altogether. I may not live to see that day, but I have faith that eventually it will arrive.[1]
Rudolph J. Gerber, Judge of the Arizona State Court of Appeals. – My experience, not atypical by any means, revealed some intractable trial court problems surrounding the death penalty. For one thing, prosecutorial discretion to seek death remained exactly what it had been when I was a prosecutor — unstructured and capricious, with elected county attorneys usually deciding to pursue it at their whim in a high-profile case offering the prospect of political advantage. For another, capital codefendants were offered widely disparate plea bargains that, though intended to secure testimony against the supposedly more culpable offender, sometimes punished the less culpable and rewarded the more culpable.[2]
Thurgood Marshall, former U.S. Supreme Court Justice. Furman v. Georgia 408 US 238 (1972). – 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. If not remedied, the scandalous state of our present system of capital punishment will cast a pall of shame over our society for years to come. We cannot let it continue.[3]
Boyce Martin, judge of the U.S. Court of Appeals for the Sixth Circuit, Moore v. Parker. – “I have no delusions of grandeur and I know my place in the judiciary. My oath requires me to apply the law as interpreted by the Supreme Court of the United States. I will continue to do as I am told until the Supreme Court concludes that the death penalty cannot be administered in a constitutional manner or our legislatures abolish the penalty. But lest there be any doubt, the idea that the death penalty is fairly and rationally imposed in this country is a farce.”[4]
Donald A. McCartin, former Orange County Superior Court Judge and former death penalty supporter. Orange County Register. 24 June 2005 – “Human error, inequities, biases and personal ideologies create the problems that have caused my rejection of the death penalty. Because these frailties will not magically vanish, capital punishment cannot be implemented with any sense of balance or fairness, thus it must be abolished.”[5]
David A. Nichols, Washington State Superior Court Judge. (2003). – [The] death penalty as a response to any criminal behavior no longer has validity and should be repealed, because it is impossible to administer with justice and fairness.[6]
William Broaddus, former Virginia Attorney General. – There’s just no way I could conclude that the way we do this makes any sense. I have come to conclude that, in fact, we apply the death penalty in a very arbitrary manner.[7]
Brendan Byrne, former prosecutor of Essex County, New Jersey Superior Court Judge, Governor of New Jersey, in a speech, December 2000. – One thing that I want to bring your attention to is that in the nine years that I was prosecutor – sworn to uphold the constitution – it was me who decided which cases would be exposed to the death penalty. And I think that that’s shocking. It was me. And I remember one case where I withdrew a recommendation for the death penalty because the attorney for the defendant was having a nervous breakdown. And that man did not go, was not sentenced to the electric chair, and not because of the evaluation of the case, but because his lawyer was having a nervous breakdown. That’s how arbitrary it can be.[8]
Thomas Lunken, former Federal Prosecutor. Cincinnati Enquirer. 28 Nov. 1998. – I am acutely aware of the motivations of prosecutors to build a record of convictions for campaign purposes regardless of the ends of justice … No one can deny that the death penalty is meted out randomly and discriminatorily in this country.[9]
Burke Marshall, former Assistant Attorney General, lawyer, civil rights leader. – The death penalty, I think, is a terrible scar on American justice, especially the concept of equal justice under law, but also of due process. And it goes state by state, and it’s different in different states.[10]
Ray Marky, former Florida Assistant Attorney General for prosecuting death penalty appeals, in: D. Von Drehle, Among the Lowest of the Dead: The Culture of Death Row 409 (1995) (quoting conversation with Marky). – If we had deliberately set out to create a chaotic system, we couldn’t have come up with anything worse. It’s a merry-go-round, it’s ridiculous; it’s so clogged up only an arbitrary few ever get it. I don’t get any damn pleasure out of the death penalty and I never have. And frankly, if they abolished it tomorrow, I’d go get drunk in celebration.[11]
Thomas J. Miller, Iowa Attorney General, in a letter to the members of the General Assembly, 2 Feb. 1998. – It is highly doubtful that the death penalty can ever be administered fairly and impartially.[12]
Dan Morales, Texas Attorney General. Houston Chronicle. 20 Dec. 1998. – There is no question, in certain cases that the process does not appear to be an absolutely fair and equitable system.[13]
Kurt Schmoke, former Mayor of Baltimore, former Maryland State Attorney. – What I have learned is that the disparities are enormous in who gets put to death in this country …There is no common standard from one jurisdiction to the next.[14]