No moratorium on the death penalty's flaws

The column below appeared in the August 27, 2008 edition of UT-Austin's Daily Texan newspaper.

In 2007, the Supreme Court accepted a case from a Kentucky inmate challenging the constitutionality of lethal injections. This created a national moratorium on executions that lasted for more than seven months. Now, after the longest death penalty moratorium in 25 years, executions have resumed in the U.S. Georgia executed the first inmate, and Texas followed, executing eight more people. The next execution in Texas is scheduled for Sept. 9. Litigation that caused the moratorium did not question the death penalty itself but rather the manner in which it is carried out. This forest-for-the-trees approach, however, avoids a fundamental question: What did we learn during the seven-month-plus postponement? And how should what we learned influence us as we go forward?

Arizona Judge Rudolph Gerber, who came to oppose the death penalty after serving on the state's appeals court, recently noted that the moratorium has had several ripple effects. "Around the country, no judges are staying up late awaiting the final appeals from the condemned," he wrote in an op-ed for The Sacramento Bee. "Governors and justices of the Supreme Court are not worrying that the person about to be executed may be the exceptional one who is innocent. Prison guards, family members of victims and of death row inmates, and even the media are relieved of the tension and uncertainty that each pending execution brings."

"But much of the death penalty system remains unaffected by this hold on executions," Gerber continued. "Prosecutions, trials, appeals and the rituals of death row continue to absorb an enormous share of the judicial system's time and resources. Justices from some of the states' highest courts have complained about the extraordinary strain this one issue places on the bench. In many states, there are not enough qualified lawyers willing to handle the appeals."

Gerber brought a real-world analysis to the issue of capital punishment. But he could have gone even further. The fact is, our 30-year experiment with capital punishment has failed. The death penalty system remains flawed and fraught with blunders, biases and bureaucracies. Blunders, because too often it convicts innocent people and sends them away to await execution. Biases, because no matter how much we tinker, we can't get around the fact that race and class influence who receives the ultimate penalty. Bureaucracies, because appeals can take decades - and it is the murder victim's family members who suffer as the appeals of the perpetrator who took their loved one away wend interminably through the courts.

During the recent moratorium on executions, several notable things happened. Three states - California, North Carolina and Tennessee - launched studies of their death penalty systems. Two states, Maryland and Nebraska, debated abolishing the death penalty in their state legislatures. A third state, New Jersey, did away with capital punishment altogether. For the first time in Texas, Rick Reed, a candidate for the Travis County district attorney's office, ran on a platform opposing capital punishment.

What happened when states paused and contemplated the pros and cons of this public policy? If anything, more Americans came to question whether the death penalty is really necessary. And more Texans learned that without the death penalty, the word doesn't turn upside down, murder rates don't skyrocket and death-row inmates don't run away from prisons murdering more people. During this period, more people questioned what we are accomplishing and if the significant costs of conducting trials and appeals could be put to better use.

One American who thought so was Supreme Court Justice John Paul Stevens. "The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived," Stevens wrote in the latest court case. Stevens - voting to uphold the constitutionality of a specific lethal injection protocol but expressing his view that the death penalty itself now violates the Eighth Amendment - saw the forest for the trees. As Texas rushes to execute more inmates, we all could use Stevens' clarity and vision.

Hedayati, a government senior, is president of Students Against the Death Penalty, member of Campaign to End the Death Penalty and Campus Progress at the Center for American Progress advisory board member.