DEATH PENALTY

We already know that prosecutors have illegally withheld 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 the jury.

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 dissent.

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 penalty case.

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 justice.