Last Sunday’s piece in the Plain Dealer about the three — or four or five or six or seven — men who may have been wrongfully put on death row in Ohio because of the misconduct of a former county prosecutor came as an interesting juxtaposition with the US Supreme Court’s latest foray into death penalty jurisprudence.  A few weeks back, in Kansas v. Marsh, the Court upheld a Kansas statute which allowed the defendant to be executed if the evidence of mitigating and aggravating factors was equal. 

The decision wasn’t wholly unexpected; after all, the Court has previously held that there’s nothing wrong with imposing upon the defendant the burden of proving that the mitigating factors outweigh the aggravating circumstances, creating the interesting situation where I can’t recover for a fender-bender in small claims court if I can’t prove my case, but the state can kill someone unless he proves that it shouldn’t.  What was more interesting than the result was the dueling opinions, Souter dissenting and Scalia concurring.  Souter argued that the “repeated exonerations of convicts under death sentences” should force a re-examination of what the 8th Amendment could tolerate in terms of capital punishment.  Scalia was having none of it; those exonerations, rather than being an indictment of the system, proved instead that it worked:  the system does eventually weed out the innocent from the guilty, however belatedly. 

This is a popular litany among supporters of capital punishment, a rejoinder to be expected in the face of evidence that scores of people have been wrongfully sentenced to death: the Death Penalty Innocence Project now lists 123 people who were convicted of capital crimes and subsequently exonerated.  This argument has more than a tinge of hypocrisy to it, because those same supporters regularly bemoan the lengthy appeals process available to those on death row.  In this case, though, the delay of “justice” is its saving grace:  of the 39 people freed from death row because they’d been wrongfully convicted, 29 had been there more than ten years.

In this light, what was more interesting about the Plain Dealer article than its discussion of the individual cases was its brief history of capital punishment in Ohio since its restoration in 1980, especially in Cuyahoga County.  The article noted that former Cuyahoga County Prosecutor John T. Corrigan was a strong advocate of capital punishment, and his enthusiasm for it resulted in one out of six residents of the state’s death row coming out of this County.

But that was then, this is now:  the article went on to note that although the number of capital prosecutions has remained steady, the number of death sentences has plummeted in this county.  That is hardly a phenomenon confined to this area; the number of death penalties handed down by American juries has declined to its lowest level since capital punishment was reinstated thirty years ago, and has dropped by almost two-thirds in the past decade.

There are a number of reasons for this, like the availability of alternative sentences like life imprisonment without parole, but a major one appears to be a public increasingly sharing Souter’s concerns about a system “that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.”

Those words are not from Souter, though, but from Justice Harry Blackmun in 1994.  Having tried for two decades “to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor,” Blackmun concluded that those endeavors were in vain, and announced that “from this day forward, I no longer shall tinker with the machinery of death.”  It may be that the American people are coming around to the same view.