The Death Penalty: Dissents on the Rise

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The Death Penalty: Dissents on the Rise

Post  Yoke on Fri Aug 28, 2009 4:23 pm

The New York Times recently published a fascinating review of judicial dissents in death penalty cases across the country, finding (through anecdotal evidence, it seems) a noticeable increase in written opinions from judges challenging a death sentence or finding misconduct or questionable evidence in a capital conviction.

The Times story singled out the case of Kevin Cooper in California. While it took just 80 words for the federal Ninth Circuit court to dismiss Cooper's most recent appeal, one judge - William A. Fletcher - couldn't stand by quietly. He wrote a 101-page dissent, questioning Cooper's guilt and accusing police and prosecutors of misconduct.

“Judges are likely to have less and less patience for being hogtied by legalistic mumbo-jumbo,” said Hofstra Professor Eric Freedman, “which prevents them from reaching fair results.”

I wrote yesterday that a central contention of advocates for Georgia death row prisoner Troy Davis is AEDPA - a 1996 law that prevents critical appeals in an attempt to streamline executions. This - along with DNA exonerations and other factors - is seen as a cause of judicial discontent with the death penalty in the U.S. - leading to more dissents, and stronger words.

If this dissent continues to rise, it could mean more death sentences overturned and an increase in successful challenges to the unequal and unjust punishment of death.

Despite some apparent progress in recent years in the willingness of judges to speak up, however, executions will very likely rise this year over the last two years (A de facto moratorium was in place for the first half of 2008 while the Supreme Court considered the constitutionality of lethal injection). So far this year, 37 people have been executed in the U.S. That's exactly the same number as all of 2008. In 2007, we executed 42 people. Twenty executions are currently scheduled for the rest of 2009 - 11 of them in Texas.

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