We already know that prosecutors have
evidence from the defense in death penalty cases in order to gain
convictions of innocent defendants. Sometimes, at least, such
wrongdoing is discovered before the innocent defendant can be executed.
Since 1973, when the death penalty was
reinstated in the United States, at
least 96 death row inmates have been exonerated and released after the
wrongful nature of their convictions was established.
Apparently prosecutors in two states,
South Carolina and Pennsylvania, have another trick up their sleeves.
These are the only two states which don't require
that a sentencing phase jury, deciding between the death penalty and life
imprisonment, be told that the life imprisonment option is without the
possibility of parole, if such is the case.
Juries given the option of imposing
life imprisonment without the possibility of parole, studies show, are less
likely to impose the death sentence. That is not true when life
imprisonment does carry the possibility of parole.
So in a series of South Carolina
cases, the prosecutors, with the support of the judges in those proceedings,
withhold the fact from the juries that the life sentences they were
considering were of the "without the possibility of parole"
type. In each case there was a death sentence imposed, and on appeal
each time, the Supreme Court reversed because of the failure to so inform
Two things are incredible here.
First, what kind of a prosecutor is it that is so hell-bent on executing the
defendant that he would deliberately by omission mislead the jury as to the
nature of the penalty they are considering imposing?! Aren't
prosecutors charged with seeking justice? And what of the judges in
these cases? They, too, must share a prosecutorial-type blood lust in
order to acquiesce in such blatant jury deception.
Second, the basis of the Supreme
Court's decisions in these cases is NOT that, as a matter of elemental
fairness, a jury considering a penalty of life imprisonment must understand
that -- if such is the case -- "life imprisonment" means
life imprisonment without the possibility of parole. Rather, the Court
found such a necessity of disclosure exists only when the prosecution makes
an argument -- either explicitly or by "clear inference" -- that
the defendant would be dangerous if not executed.
As you might expect, those paragons of
fairness, Justices Thomas and Scalia, dissented in the Supreme Court
decision which required disclosure of the "without the possibility of
parole" element when the prosecutor explicitly makes the
"dangerous if not executed" argument. Thomas and Scalia
apparently feel that it's okay to not tell the jury the most basic things
about the nature of the severe penalty they are considering imposing.
What's frightening is what happened in
the subsequent South Carolina case. The Supreme Court ruled that the
disclosure must be made even when it's just the "clear inference"
of the prosecutor's argument that the defendant will be "dangerous if
released." Here, two more justices -- Chief Justice William
Rehnquist and Justice Anthony Kennedy -- joined Thomas and Scalia in
So what this means is, four out of
nine justices of the United States Supreme Court -- unlike not only their
five colleagues, but also unlike 48 out of 50 states -- find it just
wonderful to withhold critical information from a sentencing jury in a death
On a related note, as I'm typing this
I'm thinking that the regulations for the upcoming military tribunals better be
air-tight fair as finally laid down, because if they're not, we can't be
confident at all that the narrowly divided Supreme Court will make things
right if an unjustly administered case were to reach them.
Of course, as of now, there may well
be no right to even appeal decisions of military tribunals to the courts, if
the recently leaked draft regulations
are any indication -- yet another "imperfection" in our system of
Our system may well be better than
those in many, if not most other countries, but that doesn't mean it can't
stand a whole lot of improvement.