'Ken Williams shines light into the dark corners of the capital punishment debate by focusing on the procedural nightmare. He takes readers on a whirlwind tour of the system's failures, showing starkly how bad lawyering, racial discrimination, and shoddy science, for example, can mean the difference between life and death.'
Susan D. Rozelle, Stetson University College of Law, USA
'Thirty-five years after the Supreme Court reinstated capital punishment, the death penalty is more dysfunctional than ever. From racial discrimination, to incompetent lawyers, to wrongful convictions, Williams offers a guided tour of the Supreme Court's failure to ensure a just system that executes only the most deserving.'
Adam Gershowitz, University of Houston Law Center, USA
'Williams has given us a powerful call to arms aimed at the judiciary. His book is brilliantly written, thorough, and a powerful normative appeal to reform the death penalty process.'
Andrew E. Taslitz, Howard University School of Law, USA/Co-Reporter, The Death Penalty Initiative of the Constitution Project
Introduction, minus references
The death penalty continues to be one of the most divisive issues in the United States. Past disputes, such as slavery and racial segregation, have been largely resolved. Yet, the debate over capital punishment persists. Proponents and opponents of capital punishment disagree over whether it is just, whether it deters, whether it is racist, and just about every other issue associated with the death penalty. Even the Bible is inconclusive on the question of capital punishment; both sides regularly cite its passages in making their cases. Both sides, however, seem to have reached a consensus about one thing: the system is broken.
Opponents have argued for years that the arbitrariness and unfairness of the death penalty alone are reasons why it should be abolished. They have been joined in their criticisms more recently by proponents of the death penalty. New Mexico Governor Bill Richardson, a supporter of capital punishment, decided to sign a bill repealing the death penalty in his state. According to Richardson, he did so because he came to the conclusion that “regardless of my personal opinion about the death penalty, I do not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crimes.”1 Another proponent, Governor Pat Quinn of Illinois, signed into law his state's repeal of capital punishment. During most of Justice Harry Blackmun's tenure on the United States Supreme Court, he consistently voted to uphold the death penalty because he believed that “on their face, [the] goals of fairness, reasonable consistency, and absence of error appear to be attainable.” Prior to leaving the Court, however, Justice Blackmun announced that he felt “morally and intellectually obligated simply to concede that the death penalty experiment has failed.” Justice Blackmun found that despite efforts to make the system work, the death penalty “remains fraught with arbitrariness, discrimination and caprice, and mistake” and that “the basic question - does the system accurately and consistently determine which defendants 'deserve' to die cannot be answered in the affirmative.” Former Illinois Governor George Ryan, also a supporter of capital punishment, commuted the death sentences of every death row inmate while he was governor and also imposed a moratorium on executions. He did so as a result of the fact that his state had wrongly convicted and sentenced to death more inmates than it had executed. Conservative activist Richard Viguerie believes that his fellow conservatives should oppose capital punishment because “conservatives have every reason to believe that the death penalty system is no different from any politicized, costly, inefficient, bureaucratic, government run operation, which we conservatives know are rife with injustice.” Other prominent conservatives, such as George Will and Pat Robertson, have also been critical of the system. Because of the flaws in the administration of the death penalty - the mistakes that can lead to the execution of innocent people - George Will has concluded that “the ultimate punishment makes reason … ultimately turn away.” Pat Robertson indicated that he favored a moratorium on executions because “we cannot have a culture that discriminates against African-Americans and the poor, and that's what's happening.”
The American criminal justice system is acknowledged as a model for criminal procedure worldwide. The death penalty, however, is one of the system's biggest flaws. How did we end up with a system that both supporters and opponents of the death penalty would agree has become dysfunctional? It is the thesis of this book that the United States Supreme Court, through its inconsistent and often incoherent jurisprudence, bears primary responsibility. This may seem to be an unfair accusation in light of the fact that the Court has spent an enormous amount of time on the death penalty over the past four decades. The Court began to regulate the death penalty in 1972 with its decision in Furman v. Georgia. Although the Court later upheld the death penalty against constitutional attack in its 1976 Gregg v. Georgia decision, the Court signaled that it would continue to regulate the process. Thus began the modern era of attempting to identify those offenders “most deserving of death.”
In its endeavor to limit the death penalty to the worst offenders, the Court began by limiting the crimes punishable by death. The Court immediately outlawed the death penalty for rapists and in doing so signaled that it would allow only murderers to be executed. The Court later indicated that even someone who rapes a child does not deserve to die. The Court also limited the class of individuals who can be executed. The Court has held that the deterrent and retributive functions of the death penalty are not properly served by the execution of juveniles, individuals who are mentally retarded, and those who become insane as a result of their long, solitary confinement. Because “death is different” the Court has also adopted procedures unique to capital cases. For instance, defendants in capital cases are allowed to seek mercy from the sentencer and, as a result, have the right to present “as a mitigating factor, any aspect of a defendant's character or record or any circumstances of the offense that the defendant proffers as a basis for a sentence less than death.
The purpose of this book is not to make the case for or against abolition. Rather, the book is written to provide the reader with a better understanding of the death penalty: when it is sought, why it is sought, and to understand some of the problems that have been encountered in carrying it out. A further goal of the book is to outline and critique the Supreme Court's role in the system: how it has alleviated some problems but exacerbated others. The foremost goal of the book is to determine whether the Supreme Court has achieved its goal of reserving the death penalty for the worse offenders - those who are “most deserving of death.”
More Details on The Ashgate Website for "Most Deserving of Death"