PENALTY

As an empirical matter, we must acknowledge that mistakes happen
in an imperfect criminal justice system run by fallible human beings.
Those mistakes include wrongful convictions imposing the death
penalty. For example, the work of the Innocence Project demonstrates
that 18 of the first 300 prisoners exonerated after wrongful
convictions on the basis of scientifically unimpeachable DNA evidence
had been on death row. Eighteen people might have been
executed even though they were demonstrably innocent. The case of
Damien Echols is yet another instance.
The best judicial system in the world cannot guarantee 100 per cent
accuracy. The risk of inaccuracy creates the very real possibility that
an innocent man or woman might be executed. No civilized society,
operating under any modern notion of the rule of law, can condone
such a possibility. We likewise cannot ignore it. The only sensible and
just approach in the face of such facts is a worldwide moratorium on
the death penalty.
IMPOSITION OF THE DEATH
PENALTY UPON THE POOR,
RACIAL MINORITIES, THE
INTELLECTUALLY DISABLED
AND THE MENTALLY ILL
Stephen B. Bright 1
The death penalty is imposed in the United States upon the poorest,
most powerless, most marginalized people in the society. Virtually all
of the people selected for execution are poor, about half are members
of racial minorities, and the overwhelming majority were sentenced
to death for crimes against white victims. Many have a significant
intellectual disability or suffer from a severe mental illness. Many
others were the victims of brutal physical, sexual and psychological
abuse during childhood and lived on the margins of society before
their arrests. Some are innocent. They are subject to discretionary
decisions by law enforcement officers, prosecutors, judges and jurors
that are often influenced by racial prejudice. Because of their poverty,
they are often assigned lawyers who lack the skills, resources and
inclination to represent them capably in capital cases.
One does not need to look far for illustrative examples. As of this
writing, the state of Georgia plans to execute Warren Hill, an African
American man, despite the fact that he is intellectually disabled. 2
The United States Supreme Court has held that the Constitution
does not allow the execution of a person who is intellectually disabled
(once called “mentally retarded”), 3 but Georgia requires that a
person facing death prove intellectual disability beyond a reasonable
doubt. Although four experts testified at the hearing on the issue
that Hill was not intellectually disabled, they all later changed their
1 Stephen Bright is president and senior counsel of the Southern Center for Human Rights in
Atlanta, Georgia, and Harvey Karp visiting lecturer at Yale Law School.
2 It has been delayed in doing so while the state’s supreme court considered and rejected his
challenge to the secrecy of its lethal injection procedures. Owens v. Hall, 758 S.E.2d 794
(Ga. 2014).
3 Atkins v. Virginia, 536 U.S. 304 (2002) (using the term “mental retardation”).
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