Capital Punishment

A majority of Americans thinks killing criminals is a good idea, but despite popular support, it is becoming harder and harder to execute people in America. This is because our justice system is riddled with problems of every sort that make it too easy to convict the innocent. Because the basic trial system is so deeply flawed, insuring that the innocent are not executed requires several layers of additional review, and even so the results are unimpressive. The racial disparities -- a black man who kills a white woman is several times more likely to face the death penalty than a black man who kills another black man, or a white man who kills a black woman -- geographical disparities, and other red flags make it hard to believe that justice is really being done. Now the American Law Institute, which back in the 1960s developed the guidelines by which most states have used the death penalty ever since, has abandoned its work on the issue.

The institute’s recent decision to abandon the field was a compromise. Some members had asked the institute to take a stand against the death penalty as such. That effort failed.

Instead, the institute voted in October to disavow the structure it had created “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”

That last sentence contains some pretty dense lawyer talk, but it can be untangled. What the institute was saying is that the capital justice system in the United States is irretrievably broken.

A study commissioned by the institute said that decades of experience had proved that the system could not reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment was plagued by racial disparities; was enormously expensive even as many defense lawyers were underpaid and some were incompetent; risked executing innocent people; and was undermined by the politics that come with judicial elections.

This is not really a probem with the death penalty as such, but with the American justice system as a whole. We simply don't take the question of determining the guilt or innocence of accused criminals seriously enough. We allow junk science in the courtroom, do nothing to punish prosecutors no matter how flagrantly they break the rules, let lawyers throw out prospective jurors because they look too hard to fool, and so on. Until we make the courts work a lot better, there is no point debating whether capital punishment might be a good idea in a system that really determines guilt or innocence.