That's the title of a must-read post by Texas Innocence Network founder David Dow at Beacon Broadside. LINK Here's a snippet:
In 1976, when the death penalty resumed, the Supreme Court gave its approval to the laws from three states (Texas, Florida, and Georgia), while disapproving of two (Louisiana and North Carolina). The message was that perfection is possible. North Carolina and Louisiana rewrote their laws, copying the statutes that the Justices had upheld. Since that time, the theme that runs through nearly every death penalty case is perfectability. When the Court ruled that the Constitution forbids the execution of the mentally retarded, that states cannot execute offenders who were younger than eighteen-years-old when they committed murder, that defense lawyers must conduct adequate investigations into their clients’ backgrounds, that prosecutors cannot strike potential jurors on the basis of race, it was perfecting. It was saying that it is okay to execute, so long as you do it the right way.
Pursuing perfection can be a good thing, but it can seem perverse when the objective is homicide. On the first Monday of the new year, the Supreme Court heard arguments in a Kentucky case that involves a challenge to the lethal injection protocol, the essential details of which are the same in all 36 states that use it as a method of execution. First we perfect the process of selecting who will be put on trial for his life, then we perfect the process of that trial, and finally we perfect the method of killing him. During the first half of his career, Justice Harry Blackmun, appointed to the Court by Richard Nixon, voted to uphold most death penalty cases that he reviewed. When he finally threw up his hands – in a case, ironically, from Texas – he did so because he believed that the decades of experimenting had not gotten us significantly closer to perfection. I keep a copy of Justice Blackmun’s hand-written draft opinion hanging on my wall. “From this day on,” it says, “I no longer shall tinker with the machinery of death.”
Everywhere in America, except Texas that is, the states have come around to Justice Blackmun’s view. They’ve decided that perfection is not worth the price. The death-by-a-thousand-cuts strategy has worked to make the price of executions intolerable. But at the core of this strategy lies an inherent and fatal limitation – a limitation that officials in Texas understand and exploit. If perfection is your goal, the premise is that perfection is possible. New Jersey had eight people on death row, and had not executed anyone since 1963, when lawmakers essentially said that, given a choice between laptop computers in every classroom or a perfect death penalty, they’d go with the former. Texas, on the other hand, has carried out more than four hundred executions since 1980 and has nearly four hundred others still on death row. Texas has spent so much that legislators can’t stop now. For Texas to follow New Jersey – or even California, which has 700 people on death row but hardly executes anyone – is to acknowledge that it has squandered half a billion dollars, with literally nothing to show for it. When was the last time you heard an elected official confess an error of that magnitude?
As always, however, the ultimate decision lies with the people, and the people in Texas turn out to be not so different from the people everywhere else. Though Texas officials continue to execute apace, Texas juries are giving them fewer opportunities. As the Liptak article reported, the death row population nationwide increased by 300 in 1998, but by only 110 in 2007, and the decline in Texas mirrors the national figure. From the mid 1990s through 2004, Texas juries sent 34 men a year to death row (about 15 percent of the national total). In 2007, Texas’ death row increased by only 13 new faces (around 12 percent of the national total). The Justices on the Supreme Court may believe that, if they just keep tinkering, perfection is possible, and elected officials in Texas may believe that their state has already arrived, but the twelve women and men who must make the decision, in Texas and everywhere else, seem to be a bit more humble.
Beacon Broadside is a project of Beacon Press, publisher of Dow's Executed on a Technicality, available under books in the right column.
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