An Emphasis on Process Over Substance: Another Reason to Abolish the Death Penalty

By Mark Wilson

What has Justice John Paul Stevens been up to in retirement? An interview on The Colbert Report, for one. And finding time to write reviews for The New York Review of Books, for another.

Last year, the recently-retired Justice penned a review of Professor William Stuntz’s book, The Collapse of American Criminal Justice. Earlier this month, Justice Stevens returned to reviewing books on criminal justice with The Rape Case: A Young Lawyer’s Struggle for Justice in the 1950s.

Justice Stevens’ review of Professor Stuntz’s book is especially enlightening. It highlights the problems with American criminal justice that come from two vectors: collusion between the executive, judiciary, and legislative branches to be “tough on crime,” and the Constitution’s emphasis on procedural rights over substantive rights. This latter vector leads us to the most undesirable outcomes.

In 2009, Justice Scalia received a fair bit of criticism for his statement that the Constitution does not prohibit executing an innocent person. As much as I am not a cheerleader for Justice Scalia, the media focused too much on his statement as indicating what he personally thought. The unfortunate truth is that Justice Scalia’s statement was, in fact, correct. This bizarre proposition seemed to be lost on Scalia critics, which is a shame, because the conversation could have been about so much more than Justice Scalia.

Due to the Constitution’s emphasis on procedural rights, a person who is innocent may nevertheless be convicted and even sentenced to death, so long as the procedure was not defective. Is it unlikely? Indeed it is. There are many safeguards built into the American justice system to prevent this very sort of thing from happening, and most of the time, a person’s innocence will coincide with a procedural deficiency (to include overt or covert prejudice, like racism in jury selection). It’s not probable that the two will be incongruous, but it is possible.

All that the Constitution guarantees is due process. Once you’ve been afforded the process which you are due, the procedural rights of the Constitution wipe their hands and walk away from the table. The procedural emphasis is observable even in the language that we use; a person not convicted of a crime is notinnocent, but rather is not guilty. All this means is that the process failed to prove that the person committed the crime, which is sort of the reverse of an innocent person being convicted in the sense that there’s also no obligation that a guilty person be convicted. (At least it’s consistent?)

Certainly this problem is one reason why the death penalty must go. State-mandated termination of human lives should not be dependent upon “reasonable doubt,” or any one of the other nebulous, circular phrases used throughout criminal procedure (e.g., what’s a custodial interrogation? It’s when you’re in custody, obviously!). Putting the morality of the whole thing out of the way, execution would require 100% certainty of guilt, and while our system is pretty good, “pretty good” just isn’t enough to kill someone.

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