News and Developments 2012: Editorials

OP-ED: "Time to Kill the Death Penalty?"

John J. Donohue (pictured), a research associate for the National Bureau of Economic Research and a professor at Stanford Law School, recently highlighted continuing problems with the death penalty system, forty years after it was struck down for being applied in an arbitrary manner. Professor Donohue wrote that despite “new and improved” statutes accepted by the Court when it reinstated the death penalty in 1976, “four decades later, there is plenty of evidence that the death penalty continues to be applied in an unfair manner and not a shred of evidence that the death penalty deters.” Professor Donohue cited a recent finding by the National Research Council, which examined all deterrence studies over the past 35 years and concluded that the studies are “not informative about whether capital punishment decreases, increases, or has no effect on homicide rates” and “should not influence policy judgments about capital punishment.”  Professor Donohue also encouraged voters in California to replace the death penalty in November’s ballot. He said, “[D]espite the supposed improvements endorsed in 1976, the death penalty remains hopelessly broken… We have the chance to prevent innocent people from being executed, end the unfairness that pervades the current system, and save millions in tax revenues, all while improving public safety.”

EDITORIALS: Intellectual Disabilities and Death Sentences

The editors of the Birmingham News in Alabama recenlty called upon a trial court to overrule a jury's 10-2 recommendation for death in the case of Esaw Jackson because of his mental disabilities.  While noting that in many states Jackson would not even be eligible for the death penalty following a non-unanimous vote, the News added that an IQ test, conducted by a state expert on Jackson, showed an IQ of 56, well below the level that generally indicates an intellectual disability.  In 2002, the U.S. Supreme Court held that those with intellectual disabilities (mental retardation), cannot be sentenced to death.  The editors pointed out, “There are a number of reasons why intellectual disabilities are a reason for leniency: It stands to reason that someone without adequate intellectual capacity should not bear full legal responsibility for their actions. A strong case also can be made that people with diminished mental capabilities are at a disadvantage when it comes to defending themselves. Some intellectually disabled defendants, for instance, have confessed to crimes they didn't commit.” The editorial concluded, “If Jackson is intellectually incapable of bearing full responsibility for his actions, he not only should not be put to death - he cannot be under the law. Staging not just one but two capital trials was a colossal waste of time and money. [The judge] can avoid throwing more money down the drain by simply sentencing Jackson to life in prison with no chance for parole.”

EDITORIALS: Death Penalty's 'Failure to Account for Severe Mental Illness'

A recent editorial in the New York Times called for greater attention to be paid by courts to inmates on death row with severe mental illness: "The death penalty system fails to take adequate account of severe mental illness, whether at trial, at sentencing or in postconviction proceedings," the paper wrote.  The editorial praised Governor John Kasich of Ohio for granting a two-week reprieve to Abdul Awkal on June 5 just prior to his scheduled execution.   However, the Times said the the Ohio courts should have assumed the responsibility to review Awkal's mental competency before his execution.  An Ohio trial judge recently found there was enough evidence to justify a review of Awkal's sanity, but said he could not hold a hearing immediately because witnesses were not available and he did not have the power to stay the execution.  The Times concluded, "This is yet another reason the penalty should be abolished and further evidence of the grave injustices committed in this system.”

EDITORIALS: The Fallibility of Forensic Evidence Argues Against the Death Penalty

A recent editorial in the Lincoln Journal Star of Nebraska concluded that experience with inaccurate evidence from crime labs shows that the death penalty cannot be trusted in the taking of life.  The paper called for the repeal of the death penalty based on a case in which the state's CSI director tampered with evidence in a murder case. Recently, the Nebraska Supreme Court upheld the conviction of former CSI chief David Kofoed for planting evidence in a double murder. Kofoed placed a speck of blood in a car belonging to a suspect, which resulted in two innocent men being held in jail for several months. The editorial said such crime-lab error has also been found elsewhere: “You will be - or should be - appalled at the number of times that crime labs turn out to be providing inaccurate and phony evidence. The problems crop up in New York, San Francisco, Houston and many points in between. Sometimes the problem is sloppiness. Sometimes technicians are manufacturing evidence deliberately. Sometimes the science itself turns out to be untrustworthy.” The editorial cited a 2009 report by the National Academy of Sciences that criticized some of the science behind crime lab testimony. The report found that, other than DNA technology, “no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source,” and that, “Substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people.”  The editorial concluded, "The fallibility of the criminal justice system has been demonstrated again and again. Innocent people have been executed in the past and will be in the future," and thus people should "support repeal of the death penalty."  Read full editorial below.

NEW VOICES: Texas's Baptist Standard Advocates Ending Death Penalty

An editorial in the Baptist Standard, published in Texas, recently called for repealing the death penalty in the next legislative session. Among the reasons cited by the paper for ending capital punishment were principles of religious faith, the risk of executing innocent defendants, its ineffectiveness in deterring crime, the high costs of prosecution, and its unfairness in affecting the poor and people of color. The editorial quoted the recent report from the National Research Council criticizing the "fundamental flaws in the research" about deterrence and discouraging reliance on such studies to support the death penalty. The paper concluded, “[T]he possibility—and almost certain likelihood—the state periodically executes innocent people should propel capital punishment beyond the pale of possibility. . . . Since we know the courts can make grievous mistakes, how can we say we value life and perpetuate a program that sometimes kills innocent people?”  Read full editorial below.

EDITORIALS: "Shortage of Key Drugs May Suspend Death Penalty in Missouri"

The St. Louis Post-Dispatch urged Missouri to end its death penalty as the system has ground to a halt because of controversies involving its method of execution. On May 8, a federal appeals court declined to rule on a challenge to the state’s lethal injection protocol because the Department of Corrections could no longer obtain one of the three drugs specified in the protocol. The U.S. Court of Appeals for the Eighth Circuit said, “The DOC is unable to carry out the challenged protocol as written, and it appears unlikely it ever will.” A new protocol will be needed.  The drug shortage will almost surely halt executions in the state. The editorial called this recent turn of events “an ideal time for Missouri to follow the lead of 17 other states and forego capital punishment. It's expensive and serves no deterrent effect. Its administration is always arbitrary and capricious. Missouri so botched its procedures in the mid-2000s that a federal judge suspended executions until the state fixed the problems. Only two men have been executed since 2005.” Read full editorial below.

COMMENTARY: Death Penalty Climate Changing

Commentary from nationally syndicated columnist E.J. Dionne (pictured) and the New York Times reflected on the changing state of the death penalty in the U.S. in light of recent developments. Dionne cited the repeal of the death penalty in Connecticut as an example of a "remarkable pivot in the politics of the death penalty, the premier issue on which an overwhelming consensus favoring what’s taken to be the conservative side has begun to crumble."  He observed that "significant groups of libertarian Republicans and opponents of abortion have crossed to the repeal side." In an editorial titled "The Myth of Deterrence," the New York Times noted that "a distinguished committee of scholars working for the National Research Council has now reached the striking and convincing conclusion that all of the research about deterrence and the death penalty done in the past generation . . . should be ignored."  The Times concluded that other states should follow Connecticut’s lead in repealing the death penalty.  Read full texts below.

EDITORIALS: New York Times Recommends All States to Follow Connecticut's Lead

A recent editorial in the New York Times called Connecticut's decision to repeal the death penalty part of "a growing movement against capital punishment." The editorial attributed the trend away from the death penalty to new research that shows "gross injustice in its application and enormous costs in continuing to impose it." The problem of arbitrariness recently came to light in Connecticut, where "a powerful, comprehensive study provided evidence that state death sentences are haphazardly meted out, with virtually no connection to the heinousness of the crime." The Times also cited racial bias, inadequate representation, and wrongful convictions as problems inherent to the death penalty, saying that "the system cannot be fixed. It is practically impossible to rid the legal process of biases driven by race, class and politics." Ultimately, the paper concluded, it would be better to abolish the death penalty entirely.  Read the full editorial below.