Last week, Mississippi Supreme Court Justice Oliver Diaz, Jr. wrote what likely will be his last death penalty opinion. Diaz, you may recall, is one of just two justices on that court to specifically say that the state should no longer certify former medical examiner Dr. Steven Hayne as an expert witness.
Diaz has also seen the criminal justice system from the other side. During his term he was twice tried—and twice acquitted—in federal court of taking bribes, charges critics have said were politically motivated, and part of the Bush administration's politicization of the Justice Department. He lost his bid for reelection last November.
Mississippi actually has been surprisingly slow in executing people off Parchman Penitentiary's death row. But it's not for a lack of trying. The state has been repeatedly rebuked by the federal courts for adopting illegal jury instructions, providing insufficient and underpaid public defenders (by state law, they can receive no more than $1,000 per case), and other inadequate protections in death penalty cases. I suspect (and hope) we'll also soon see the federal courts sending scores more cases back for a new trial because of the improper testimony Dr. Hayne and Dr. Michael West.
In his dissent in this last case, Diaz lays out his case against the death penalty, drawing on his own experience as a criminal defendant, and on the cases he has seen cross his desk as a justice with the state's supreme court.
But my unique life experiences have shown me – to a greater degree, I submit respectfully, than any other justice voting today – the potentially oppressive power of government prosecution. For nearly two years . . . I have chosen to advocate for stricter adherence to the guidelines that we have established to limit arbitrary or disproportionate sentences.
I have concluded, though, that even this may not be enough to satisfy the demands of our state and federal constitutions that death not be meted out arbitrarily.
our courts are subject to fallibility no less than any of man's institutions, and racial discrimination in the courtroom is no mere bit of ancient history. Only a generation ago, the U.S. Supreme Court addressed a case in which the defendant, a black man sentenced to death for murder, produced the most comprehensive, scientific study of its kind ever compiled to date and showed that the race of his white victim made his Georgia trial court 22 times more likely to impose a death sentence.
But even the specter of racially motivated executions pales in comparison to the most terrifying possibility in a system where the death penalty is dealt arbitrarily: innocent men can be, and have been, sentenced to die for crimes they did not commit. In 2008 alone, two men – both black – convicted of murders in Mississippi in the mid-1990s have been exonerated fully by a non-profit group that investigates such injustices.
One of these men, Kennedy Brewer, spent an astonishing six years on death row. Just as a cockroach scurrying across a kitchen floor at night invariably proves the presence of thousands unseen, these cases leave little room for doubt that innocent men, at unknown and terrible moments in our history, have gone unexonerated and been sent baselessly to their deaths.
I'm opposed to the death penalty not because I don't think there are some crimes so heinous that they merit death as a punishment. I'm opposed to it because I don't think the government is capable of administering it fairly, competently, and with adequate protections to prevent the execution of an innocent person.
Three years of reporting on various aspects of Mississippi's criminal justice system have confirmed those concerns dozens of times over.