Currently reading

Now that I’ve taken on the topic of Florida’s death row system and now that capital punishment is making headlines across the nation all of a sudden, I wake up each day to a slew of new articles to read so I can stay on top of things. This one made its way to me yesterday and I didn’t get around to reading it until late last night. In it, Andrew Cohen takes a look at  where the nation stands currently on the death penalty. While Cohen is opinionated and not afraid to express it, he is looking at cold, hard facts that have been well documented. And he is not in the pro or anti death penalty camp, but somewhere in the middle. I’ve pulled some of the most interesting parts below.

In the modern era of capital punishment — since the Supreme Court’s decision in Gregg v. Georgia — three main camps have emerged. First, there are those who are for the death penalty all the way; the ones who lament the time and money it takes from trial to execution. Then, there are those who are against capital punishment all the way; the ones who believe that the state should never be in the business of killing its own citizens. And between the two solitudes, there is a vast middle; those who believe that there is a place for the death penalty, but only if it can be administered fairly and accurately, free from the sort of arbitrary and capricious decision-making that pushed the justices to do away with it in the first place in 1972 in Furman v. Georgia.

The Pollyanna-ish idea behind Gregg v. Georgia was that: 1) juries would be judicious and free from the heat of prejudice and bias; 2) state court judges would be free from the pressures of majoritarian influence; 3) prosecutors would put law over politics and reasonably control the agenda of victims’ rights groups, and; 4) legislators would courageously protect the rights of capital defendants by ensuring meaningful access to procedural guarantees in appellate court. None of these assumptions were practical.

Of course, defendants like Duane Buck get more justice than their victims. That’s the whole point of our criminal justice system — and of the rule of law. That’s why we outlaw lynching, why angry mobs can’t storm jailhouses, and why we have judges. It’s why we have a Constitution. In America, we aim to give the guilty more justice than they deserve. We do so because of how that reflects upon us, not upon how it reflects upon the guilty. And when we fail to do so it says more about us than it does about the condemned.

Here we have a fundamental disconnect between the pro- and anti-death penalty sides. Contrary to what you might otherwise hear, it is both possible and intellectually consistent to be glad that a court has stayed the execution of a condemned man without necessarily being sympathetic to the man himself or disrespectful to his victims…It is possible to separate the sins of the condemned from the subsequent sins of the justice system, and to demand more of the latter than of the former. Indeed, this goes to the very heart of the age-old notion of bringing a measure of dispassionate justice to high and low alike.

I don’t want to meet Duane Buck. I don’t consider him any sort of a victim on a par with the victims whose lives he took and altered in 1995. And I certainly don’t want him released from prison. But that doesn’t mean I have to happily accept the fact that Texas now has screwed him over, not once, but twice.

Each of these legal stories begs the same essential question: What are members of the criminal justice system so afraid of when they go so far out of their way to deprive condemned prisoners of their rights? For example, what does Texas think is going to happen if it relents, makes good on John Cornyn’s old promise, and gives Duane Buck a new trial? The worst that could happen, from the state’s perspective, is that Buck’s new sentencing jurors would recommend a sentence of life in prison without parole.

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