Is justice system reliable enough for the death penalty?

THE ISSUE: Given a fallible justice system, the issue is not whether some criminals deserve to die. The question is whether our system can be trusted with the responsibility of deciding who should die.

The fact that some people deserve the death penalty is not a compelling argument for executions.

The debate over the death penalty often gets muddled. Many people believe the state should never take a life, regardless of the criminal’s misdeeds. Some base this on scripture, and some base it on a philosophical view that the state should not have that much power. Some point to the fact that people change; they may give up drugs, or they may receive treatment for a mental illness. They may find faith and repent for their crimes.

But most people in Alabama feel death is appropriate for some criminals. When we read accounts of savage behavior — of evil — most are comfortable with the concept of death, whether as a penalty or simply to rid society of a threat.

Unfortunately, the debate over the death penalty is not so clear-cut.

A reminder of the complexity came last week, when a man on Alabama’s death row was released after three decades.

The only evidence tying Ray Hinton, now 58, to the murder of two Birmingham fast-food managers was bullets at the crime scene. Hinton’s court-appointed trial lawyer made mistakes that resulted in the jury hearing testimony from a ballistics expert so unprepared that the jury laughed at him. Sixteen years ago, a second lawyer hired a ballistics expert who quickly found the crime-scene bullets did not come from a gun owned by Hinton’s mother.

For 16 years, Hinton’s second lawyer has been trying to get the state to re-examine the evidence. Prosecutors declined until preparing for a retrial, which is when they were forced to acknowledge there was no evidence tying Hinton to the crime.

The cards are stacked against most criminal defendants, and especially those who are poor. They are pitted against taxpayer-funded police departments. They must rely on court-appointed lawyers who are paid far less by the state than private clients pay, and who wait for months to get any payment at all. Juries are subject to society’s biases.

On top of all this, the criminal justice system is adversarial. Police and prosecutors — whose resources place them in the best position to prevent miscarriages of justice — want convictions. It is no surprise, in an adversarial system, that Hinton had to wait 16 years for prosecutors to test the bullets.

Even people who agree that some people deserve to die must conclude that Hinton did not. Yet he would have, but for unusual persistence by a lawyer with the Alabama-based Equal Justice Initiative.

The system broke down for Hinton. It has broken down for others. Since 1973, 151 people have been released from death rows in the United States, about 12 percent of the number that have been executed in the same time period.

If some people deserve to die and if we had a perfect system of justice, the issue would be easy. But we know our system of justice is imperfect, just as we know that a wrongful execution cannot be corrected.

What degree of error can we accept in a system that ends with execution? As a state, are we willing to spend the money to improve the system? If not, does morality dictate that we refrain from killing people whose guilt is determined by that imperfect system?

Popular agreement that some people deserve death does not resolve the debate over the death penalty. The ultimate question is whether the state’s justice system is up to the task.

(Published April 6, 2015)

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