Death penalty, in practice, just isn't working

Copyright 2011 (all rights reserved)

By Rudy Apodaca

(published as a guest column on July 2, 2011 in the Austin American-Statesman)

    Today marks the 35th anniversary of Gregg v. Georgia, the U.S. Supreme Court’s decision that upheld newly crafted death penalty statutes of several states, including Texas. That case paved the way for the resumption of executions. Just four years earlier, the Court ruled in Furman v. Georgia that the death penalty system, as administered at that time, was arbitrary, capricious, and discriminatory. It was as random “as being struck by lightning”, the Court said. In Gregg, decided in 1976, the justices reversed course and held that the death penalty did not offend “the evolving standards of decency [that] mark the progress of a maturing society.”

    In reality, the death penalty is no less arbitrary or any fairer today than it was in 1972 when our highest court struck it down. As a practicing criminal attorney for 22 years and a former judge on the New Mexico Court of Appeals for almost 14 years, I’ve witnessed firsthand instances of flaws in our judicial system. Time and again, I’ve reviewed cases in which innocent individuals were convicted. There are numerous cases in which persons were put to death or were on death row for many years and later, serious doubts about their guilt surfaced. Several names come to mind: Anthony Graves, Cameron Todd Willingham, Harold Hall, and Ruben Cantu.

    The truth is that the wrong person can be convicted of any crime under our system. But when a conviction carries the death penalty, the ultimate sanction, we should have the ultimate certainty that our system is without flaw. Sadly, that isn’t the case. Since 1973, at least 138 people from 26 states have been released from death row based on evidence of their wrongful convictions. DNA testing can’t solve these problems alone, for DNA evidence exists in only ten percent of criminal cases.

    Many oppose the death penalty because they consider it barbaric or immoral. Others oppose it because they have come to realize that our system is flawed. This last group includes many former prosecutors and judges who believe that we shouldn’t be putting persons to death when we can’t be sure that we are getting it right. Even with advances in forensic evidence, we can never be 100% certain that only the guilty are convicted and the innocent are protected. Compounding the problem is that our system doesn’t always provide competent defense counsel for the accused.

    According to a new report issued this month by Richard C. Dieter, Executive Director of the Death Penalty Information Center, race, geography, and the size of a county’s budget continue to play a major role in determining who receives the ultimate punishment. When the U.S. Supreme Court reinstated the death penalty, the Court deferred to the states’ judgment in determining how to make the death penalty less like “being struck by lightning” and rather a fairer approach to punishing the “worst of the worst”. The report concludes:

    “After three and a half decades of experience under [the states’] revised statutes, the randomness of the system continues. Many of the country’s constitutional experts and prominent legal organizations have concluded that effective reform is impossible and the practice should be halted . . . . A majority of the nine Justices who served on the Supreme Court in 1976 when the death penalty was approved eventually concluded the experiment had failed.

    “ . . . [The death penalty] has proved unworkable in practice. Keeping it in place, or attempting still more reform, would be enormously expensive, with little chance of improvement. The constitution requires fairness not just in lofty words, but also in daily practice. On that score, the death penalty has missed the mark.”

    The full report can be found at:

    It’s time to repeal the death penalty. For those who fear that doing so would permit criminals to be set free to commit another capital offense, it is important to note that alternative sentencing options already exist, including life imprisonment without the possibility of parole.

    Long ago, in the mid-60s, when I began my law practice as a 24-year old, I read a saying by an author unknown that to me became a sacred truth I tried to follow in the ensuing years – Justice in a society is measured not by how it treats its best citizens but by how it treats its worst. The death penalty must be measured by that standard. If we do so, it has indeed proven to be a fatally flawed system that must be discarded.