Honest Proponents of the Death Penalty (and Judges): Please Read this Book

Brian Tamanaha

Despite the life and death stakes, one gets the impression that our society is suffering from "death penalty fatigue." Polls show that the majority of the public is for the death penalty, and proponents are sick and tired of the obstructionist efforts of opponents.

Set aside the debate between advocates and opponents of the death penalty and consider instead a different proposition: assuming our society approves of the death penalty, it should be fairly administered.

It's hard to imagine that many people, including supporters of the death penalty, would disagree with this proposition. The problem with the public debate is that proponents of the death penalty tend to dismiss questions about fairness as merely another tactic raised by opponents, rather than a legitimate issue that everyone should be concerned about.

Of course it's fair, proponents (and judges) assume, and they point to the various procedural protections and years of appeals as conclusive evidence. They admit that a few mistakes have been made in the past (as DNA evidence has shown), but rarely any more; and a few will even acknowledge that there are persistent racial disparities in the imposition of the death penalty, but deny that this makes the system unfair with respect to any particular individual. And, anyway, they are sick and tired of these issues, which have been raised many times and settled by courts in favor of the death penalty.

But every judge and every fair-minded proponent of the death penalty should read a recent book by Craig Haney, Death by Design (Oxford 2005), which is a detailed exploration based on 25 years of studies of the legal processes that lead to the imposition of the death penalty.

Did you know that many people who vote to impose the death penalty would have voted instead to impose life imprisonment without parole if they had been informed that this was an option (that "life" really means the prisoner won't be let go)?

Did you know that many jurors misunderstand the jury instructions (specifically, the meaning of "mitigation"), and erroneously believe at the sentencing stage that the law in some sense requires the imposition of the death penalty?

These and many other serious issues surrounding the fairness of the imposition of the death penalty are explored in Haney's book. Anyone who claims to be informed about the reality of the death penalty, and any judge who participates in its imposition, has no excuse for not reading it.

This book does not challenge those who are convinced that the death penalty is a legitimate form of punishment. It does, however, point out (with a great deal of convincing empirical support) specific ways in which current procedures surrounding the imposition of the death penalty operate unfairly, and it proposes concrete and simple reforms to ameliorate the problems identified.

This book is not against the death penalty--it just wants the death penalty to be imposed fairly. And who can disagree with that?
Posted 5:45 PM by Brian Tamanaha [link]