THE DEATH PENALTY APPARATUS IS BROKEN, says Judge Gilbert S. Merritt of the U.S. Court of Appeals for the Sixth Circuit. (Disclosure: He’s the judge I clerked for). In a speech to lawyers, he noted:

Of the 12 cases completely reviewed on habeas in the 6th Circuit in the last 15 years, the writ has issued in eight, reversing the death sentence. Of the five cases I have had occasion to review from Tennessee, there was just one where we upheld the sentence. I have serious doubts in two of them about whether the defendant even committed the underlying murder or was simply the victim of a mistake. In one of these cases subsequent DNA evidence showed that he did not commit the rape that was supposed to be the basis for his murder of the victim. In two of the remaining three cases there were other serious constitutional problems with the jury instructions.

This is quite a strong statement from a sitting federal judge. He’s also pretty hard on defense attorneys’ competence in these cases.

I think that the anti-death-penalty crowd (like the anti-war crowd) made a serious mistake by lapsing into moral posturing on this issue and thus destroying its credibility. The notion that it’s per se immoral for the state to kill peple is absurd — or at least, proves too much, as killing people is the core function of nation-states, and always has been. Government power is based ultimately on violence; all else is superstructure.

The problem with the death penalty is that it’s just another big government program that doesn’t work. If death penalty opponents had been clearer on that point all along, they would have done better. I think they’re finally catching on.