That is quite correct. Capital litigation is exorbitant. And, sadly, it is exorbitant for all the wrong reasons. Let me be clear here: capital trials, appeals, and collateral attacks (e.g., state and federal postconviction proceedings) should never be “cheap,” but neither do they need to be interminable. To be sure, capital cases are serious matters that require careful attention and scrutiny. If the cost and delay were primarily attributable to legitimate efforts to uncover instances of wrongful conviction, I think there would be precious little complaining from the so-called “pro-death penalty” forces. But the reality of the situation is quite different.
Persons convicted of capital offenses, like the attorneys appointed at considerable state expense to represent them, are committed to generating delay as an end in itself. The courts, often staffed (especially at the federal level) to no small extent by intellectual elitists who share, or are at least enormously receptive to, that objective. These same judges are often complicit in the orchestrated sabotage of the death penalty’s operation throughout substantial areas of the nation. Ironically, it is this state of affairs that, in my view, perhaps supplies the best argument FOR abolishing the death penalty.
Judges have far more raw power than most of the citizenry realizes. There is, for example, no provision of state law that a lone federal district court judge cannot – literally, with the stroke of a pen – effectively nullify. The death penalty is a favorite target of this elitist faction. Unless we are prepared to radically re-alter the structure of our government, there is little we can do to combat this widespread abuse of judicial authority. By failing to abolish the the death penalty we provide tyrannical judges with a continuing source of temptation to undermine the considered policy judgments of the People themselves. By following this course and affording arrogant judges repeated opportunities to work their mischief, we unwittingly provoke systematic erosion of the rule of law and destruction of our social fabric. Indeed, we invite an attack on the very foundation of our democracy.
In sum, there are currently too many institutional obstacles to the effective enforcement of the death penalty. Legislative reform of the system has proved largely proved futile because the very judges who are determined to obstruct the death penalty are the ones entrusted to construe and implement those reforms; not surprisingly, these same judges will (and have already) sabotaged those reforms in precisely the same manner that they have sabotaged the death penalty itself.
Whether we like it or not – and whether we fully know it or not – we have put ourselves at the mercy of the judiciary. And when it comes to the death penalty in particular, majority rule and representative democracy too often count for almost nothing. The elitists applaud this result. But I – no great fan of the death penalty, but a huge fan of democracy – find it profoundly disturbing.