The Death Penalty Is Indefensible in an Imperfect System Capable of Error

Any system, regardless of the intentions of individuals or the design of the system, is vulnerable to error. Errors happen not only because of venal and dishonest people, but because we are imperfect beings. Well-intentioned people make mistakes.

Any fair system includes procedures to rectify those mistakes, reverse those inevitable errors, and provide some remedy to those who ave been harmed.

While these errors might upend lives and unfairly stigmatize individuals, they can be reversed. Unjust decisions and sanctions can to some extent be undone.

Only one grievous error in a criminal justice system — the execution of an innocent person — is completely irreversible under any circumstances.

No subsequent discovery of  a mistake or an error can be reversed after a person is dead.

Of course, a perfect system incapable of error could — at least theoretically —  include an irreversible sanction. But such perfection is impossible. Perfect systems do not exist.

Thus, it is impossible to have a death penalty in any  imperfect  system that sincerely aspires to fairness.

“I no longer shall tinker with the machinery of death”

death penalty

The Lede, the main New York Times news blog, is reporting that Ohio officials were forced to halt an execution by lethal injection when — 90 minutes after it started — technicians were  unable to find a usable vein. The description of the episode is horrifying, with the condemned reported to have tried to help the executioners find a vein.

As a death penalty opponent in Ohio said today:“The sentence is death, not torture plus death.”

This will almost certainly reignite the question of whether lethal injection does or does not constitute cruel and unusual punishment.

My objections go deeper, and relate to whether there is any way a death penalty can be fairly applied.  I think it cannot, and I would share with you one of the most eloquent paragraphs I have ever read,   an excerpt from Harry Blackmun’s dissent in Callin v. James (1994) . Blackmun argues that a fair death penalty is not possible:

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored…to develop…rules that would lend more than the mere appearance of fairness to the death penalty endeavor…Rather than continue to coddle the court’s delusion that the desired level of fairness has been achieved…I feel…obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies… Perhaps one day this court will develop procedural rules or verbal formulas that actually will provide consistency, fairness and reliability in a capital-sentencing scheme. I am not optimistic that such a day will come. I am more optimistic, though, that this court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness ‘in the infliction of [death] is so plainly doomed to failure that it and the death penalty must be abandoned altogether.’ (Godfrey v. Georgia, 1980) I may not live to see that day, but I have faith that eventually it will arrive. The path the court has chosen lessen us all.”