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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Louisiana: Death penalty costs taxpayers a bundle

When it comes to the death penalty, Louisiana can't seem to keep up.

Michael Wearry just became our 58th death row inmate to have his conviction overturned since 2000. Over the same period, Louisiana juries handed down just 54 new death sentences. Death row will become depopulated if this goes on.

Not, however, for quite some time, because we still have 79 under sentence of death at the Louisiana State Penitentiary at Angola and two at the Louisiana Correctional Institute for Women.

One way we hardly ever reduce the numbers is by carrying out an execution. We have managed only three since 2000, and it might have been two if Gerald Bordelon had not declined to appeal in 2010.

Meanwhile, 4 condemned men have died of natural causes. The condemned know that old age will probably get them first; they wouldn't give a hoot about air conditioning on death row if they expected to be dispatched any time soon.

Wearry will get a retrial now that the U.S. Supreme Court has ruled that Louisiana prosecutors worked the old dipsy doodle at his trial by hiding exculpatory evidence. That's the usual story in Louisiana, but, of the preceding 57 who had their convictions reversed since 2000, 7 were flat-out exonerated, either having charges dismissed or winning acquittal the 2nd time around.

Louisiana's largely pointless pursuit of the death penalty costs taxpayers dear, since they must pick up the tab not only for the prosecution but also for the defense when defendants cannot afford to hire lawyers, which most of them can't.

Since prisoners sentenced to death also cost much more to maintain than lifers, thanks to extra security and legal costs, the state loses out at every turn. How much money has gone down the drain is impossible to say, but it would make a dent in the state's budget deficit.

That deficit is so severe that the states' indigent defender boards, many of which are already in such dire straits that they are refusing cases, face further drastic cuts in state aid. As State Supreme Court Chief Justice Bernette Johnson warned legislators the other day, the miscarriages of justice that will inevitably result will drain the treasury even further as convictions are overturned and fresh trials ordered.

Every capital case costs a fortune, even if prosecutors don't pull any dirty tricks and the verdict holds up. But since we lack the will to execute the guilty, anyway, and since experience shows that death row inmates might well be innocent, the case for abolishing the death penalty is overwhelming.

It won't happen any time soon. The death penalty may be regarded as a barbarous anachronism in the rest of the civilized world, but America is always happy to be exceptional. And although capital punishment represents a colossal waste of money we don't have, the evidence is no match for the myth that it is cheaper than life imprisonment.

Any legislator will oppose capital punishment only if he is ready to retire from politics.

Louisiana is hardly alone in botching capital punishment. Nationwide last year, 5 death row prisoners were exonerated. Now, under the aegis of the Constitution Project in Washington, a group of prosecutors, prison officials and cops hopes to improve "the administration of the death penalty in America and to help policymakers explore alternatives to it."

The group cites such familiar problems as "disparities in the application of capital punishment along racial, gender and geographic lines," and the "impact of protracted appeals on victims' families." Its members' main cause of "apprehension," however, is "the prospect of executing an innocent person."

As veterans of the criminal justice system, they can vouch for its fallibility.

Chances of "executing an innocent person" can only grow stronger as Louisiana's indigent defender offices are stretched even thinner. But wherever capital punishment is in force, the wrong guy is bound to get it from time to time.

The only sure way of preventing that is obvious, but the death penalty is here to stay. We're just never going to get it right.

Source: The New Orleans Advocate, James Gill, March 20, 2016

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