The ultimate outrage

Death Penalty rope, via uvsc site.A few weeks ago, The Economist published a Special Report on Capital Punishment in America entitled Revenge begins to seem less sweet. The theme was that Americans – except in Texas – are losing their appetite for the death penalty. One of the many points in a typically well-written, balanced and informative piece was that

It is now far more expensive to execute someone than to jail him for life; in North Carolina, for instance, each capital case costs $2m more. Ordinary inmates need only to be fed and guarded. Those on death row must have lawyers arguing expensively about their fate, sometimes for a decade or more … The system of appeals has grown more protracted because of fears that innocent people may be executed. Few would argue that such safeguards are not needed, but their steep cost gives abolitionists a new line of attack.

This was graphically illustrated by a story in the New York Times last week, headlined: Capital Cases Stall as Costs Grow Daunting:

Even as an examination of lethal injection by the Supreme Court has seemingly suspended the practice across the country, many experts predict that the cost issue will have far broader implications for the future of the death penalty. States unwilling to pay the huge costs of defending people charged in capital cases may be unable to conduct executions.

For Brian Nichols, accused of killing four in … [a] courthouse shooting in [Georgia, in] March 2005, the costs have already reached $1.2 million. That, together with legislative cuts, has left the state public defender system with no money. Until the bills are paid, the judge [Hilton M Fuller Jr] has delayed the trial, saying that it is unconstitutional not to pay the defense and thus pointless to proceed. …

In an excellent post on this issue by Dave Hoffmann on Concurring Opinions, he concludes

Increasing costs is good strategy if your only goal is to prevent executions. But it is a bad strategy – as least when compared to the innocence project – at increasing public support for abolition. And it is a worse strategy if your concerns are more broadly directed. Legislatures will resent being bootstrapped out of their preferred sentencing means. And it is unlikely that the death penalty funds taken from indigent defense organizations by spiteful legislatures will ever be restored.

The Death Penalty Information Center reports on a similar New Mexico case in which that state’s Supreme Court halted a death penalty case because the defense has received insufficient funding to proceed (the opinion will be available here in due course). The American Bar Association the previous week, after a three-year study on state capital punishment systems (funded in part by the EU, through the European Instrument for Democracy and Human Rights, on foot of the EU policy on the universal abolition of the death penalty), had called once again for a full moratorium on executions until an unfair and sometimes inaccurate application of the death penalty is corrected (for a good summary, see the article in the ABA Journal; for the full report, see the Death Penalty Moratorium Implementation Project homepage). Specific problems identified by the ABA study include significant racial disparities in how the death penalty is imposed, and serious incidents of mistake or worse in often-underfunded crime laboratories.

Although the study is compelling, a full moratorium is unlikely at present. But the Supreme Court has in effect imposed a partial moratorium pending the outcome in Baze v Rees, concerning the constitutionality of the current contents of the lethal injection (see earlier post | RTE story | The Economist). Last week, the Court granted a last-minute stay to a Mississippi prisoner, and Linda Greenhouse explains that state and lower federal courts are likely to interpret this as a signal to postpone executions in their jurisdictions until after the Court has decided Baze. Indeed, the chief prosecutor of Harris County, Texas (Texas!) soon thereafter announced that his office will withdraw all execution dates and seek no more until the Supreme Court rules in Baze v Rees.

On the other hand, on the same day that the US Supreme Court granted the stay in this case, and despite international trends against capital punishment, the Constitutional Court of Indonesia upheld the death penalty for serious drug offenses (New York Times | International Herald Tribune), rejecting the applicants’ arguments that the relevant Indonesian law violated international norms, and drawing widespread international condemnation (Amnesty International USA and UK) as a consequence. That Court seems to believe, with Bob Grant (in another quote from The Economist article with which this post began):

For many, the death penalty holds a deep emotional appeal. It is “an expression of society’s ultimate outrageâ€?, says Bob Grant, a former prosecutor and now a professor at the University of Denver, Colorado. Some acts, he argues, are so heinous that no other punishment is appropriate.

Are there? Or is the death penalty itself the ultimate outrage?

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