Judges' views on capital punishment

SentLaw has a good post this morning titled, "Sixth Circuit concurrence talks about capital punishment's economic costs." They excerpt an Ohio judge's concurrence in a case that deals with capital punishment; his decision gives insight and analysis of the issue from a judge's perspective. It's a tad bit long for an excerpt to post here, but an extremely interesting and important read:

Now in my thirtieth year as a judge on this Court, I have had an inside view of our system of capital punishment almost since the death penalty was reintroduced in the wake of Furman v. Georgia, 408 U.S. 238 (1972). During that time, judges, lawyers, and elected officials have expended great time and resources attempting to ensure the fairness, proportionality, and accuracy that the Constitution demands of our system. But those efforts have utterly failed. Capital punishment in this country remains “arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair.” Moore v. Parker, 425 F.3d 250, 268 (6th Cir. 2005) (Martin, J., dissenting). At the same time, the system’s necessary emphasis on competent representation, sound trial procedure, and searching post-conviction review has made it exceedingly expensive to maintain.

The system’s deep flaws and high costs raise a simple but important question: is the death penalty worth what it costs us? In my view, this broken system would not justify its costs even if it saved money, but those who do not agree may want to consider just how expensive the death penalty really is. Accordingly, I join Justice Stevens in calling for “a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces.” Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520, 1548-49 (2007) (Stevens, J., concurring). Such an evaluation, I believe, is particularly appropriate at a time when public funds are scarce and our state and federal governments are having to re-evaluate their fiscal priorities. Make no mistake: the choice to pay for the death penalty is a choice not to pay for other public goods like roads, schools, parks, public works, emergency services, public transportation, and law enforcement. So we need to ask whether the death penalty is worth what we are sacrificing to maintain it.

An article today in the Cleburne Times-Review out of Texas interviews district judge "Kit" Cookie about his views on the death penalty. They square with the rest of what we have been saying previously, but it's good to hear it repeated by a judge, a person who has sat on capital cases, and had his honest doubts.

“I was very pro capital punishment at the time,” he said. “I wouldn’t take it off the books now. There are cases that probably deserve it. But generally speaking, life without parole is more palatable.”

Cooke has said as much at legal gatherings.

“I did a lecture for an advanced criminal law course where all the top lawyers in Texas come together every year,” Cooke said. “They had me talk on the death penalty, and I raised some strong objections to it. That was the first time I know of that a judge had spoken out about it. I look at it with a little more critical eye than when I started.”

You might also be interested in this article from CNN from early March on states looking to cut back the death penalty because of its costs. As well, see this editorial in the Boston Globe today about the costs of capital punishment.