In the abstract most people favor the death penalty. Everyone can remember or imagine a homicide where the perpetrator deserved or deserves to die. The issue is not, however, abstract; the issue is the practice.

The problem with the death penalty is the criminal justice system. At the two ends of the problem are the judicial system and the law enforcement system.

For the judicial system to function properly, one must have an intelligent and fair minded judge, a fair prosecutor, and a good, diligent defense attorney. Rarely do these three stars line up. For the most part judges are elected and do not want to appear soft on crime. When it comes to alleged criminals, if a question about evidence or procedure is raised, the decision is going to go against the criminal. That is what is called “judicial discretion” which is almost never overturned on appeal.

Turning to the prosecutor, in death penalty cases the goal is to have a prosecutor who has a success record – that is — success in convictions. A prosecutor’s job is to do justice, not obtain a conviction at any cost, but at times this duty gets pushed aside for a “win.” Some exculpatory evidence, for example, may not be disclosed. The prosecutor wants a good relationship with law enforcement, so weak points in a case are ignored and not probed.

Then there is the defense attorney. One reads about cases in Texas where the defense attorney has slept through part of the trial. The compensation for defense attorneys is miserable even in death penalty cases. So one can guess who takes the low paying cases.

Having maligned judges, prosecutors, and defense attorneys, examples of excellence for all three are abundant, but in my opinion rarely do all three to line up for a particular defendant. To use a tautology – a conviction is only as good as the weakest link.

Then there is law enforcement. Once an alleged perpetrator is identified, law enforcement can develop tunnel vision. Facts which favor innocence are ignored and not disclosed to the prosecution. Doubts are pushed aside to clear a case.

A few times each year we read about some person who has been on death row, who has been determined to be innocent. That ices the cake for me. The killing of an innocent person by the justice system should be a “never event.” The only way to make it a never event is to eliminate it.