dp13fairdp

WHAT WOULD A �FAIR DEATH PENALTY� LOOK LIKE?

Critics of the DP point out many of the inequities and mistakes of the capital punishment process while proponents defend the process as basically fair. But often the critics and proponents are simply "talking past each other." Proponents emphasize that defendants get the "justice" that they are entitled to under the Constitution, and this is what our legal system defines as fair. Critics point out, though, that while the process might meet minimal Constitutional standards, it is a "broken system" when it comes to producing even a minimal pretense of justice and fairness.

Neither the critics nor proponents have tried to specify just what a "fair death penalty" would be like. Critics are usually not interested in making the death penalty fair - they are opposed to capital punishment and want to abolish it. Proponents are usually not interested in making the death penalty fair because acknowledging that the system is "broken" would undermine their contention that the whole legal system is already basically fair and thus represents the appropriate set of principles for judging fairness.

The following is a piece that I wrote several years ago to explore this issue. It lays out four aspects that raise issues of fairness and explores possible solutions to each.

1.    FAIR SELECTION PROCESS

PROBLEM:   Massive systematic discrimination against poor defendants and minorities accused of crimes against whites.

SOLUTION: Improve indigent representation to match the pay and resources of the prosecution
                      Reduce and monitor prosecutor discretion in charging decisions.
                     Raise the threshold for capital offenses (eliminate medium culpability cases).
                     Use statistical evidence as a guide to fairness (appoint special courts to manage statistics).

2.    FAIR TRIALS

PROBLEM:   Unequal resources = sham trials

SOLUTION:   Equalize resources: start with American Bar Assoc recommendations: 2 attorneys, one
                      experienced in capital trials, the other experienced in felony trials, mandate special training).
                      Pay appropriately + independent budget for trial preparation, investigation, experts, etc.
                      Abolish "death qualification" of juries.

Note:   these would entail huge additional system costs.

3.    FAIR & EFFECTIVE APPEALS PROCESS

PROBLEMS:   Unequal resources, procedural focus of appeals, the waiver problem

SOLUTION:    Equal resources, pay, budget for defense appeal preparation.
                       Expand the appeals process into substantive review.
                       Abolish waiver system.
                       No time limits for new evidence.

4.    NON-POLITICAL FINAL REVIEW PROCESS

PROBLEMS:   Restricted legal review, political nature of commute review (�passing the buck�)

SOLUTION:    Non-political, non-legal professional final review with no restrictions.
                       Review agency must be insulated from political/public influence.
                       Standard should be �beyond any doubt.�
                       Commute all questionable sentences to prison terms.

SOME COMPLICATIONS (why none of the above will likely happen)

   Jurisdiction problem: this could only be done at the federal level (Constitutional issue).
   Cost: if federal government mandated it, should federal government pay for it?
   Political problem: no incentive for changing system.
   Consistency vs. �individualized� justice.
   Mistakes that slip through even the best and fairest process.
   Would executions still increase homicide rates (brutalization effect)?

Copyright � 2009 Ernie Thomson. All rights reserved.
   email: [email protected]