Diaz Leaves With an Anti-Death Penalty Flourish

Thursday, December 18th, 2008

Last week, Mississippi Supreme Court Justice Oliver Diaz, Jr. wrote what likely will be his last death penalty opinion.  Diaz, you may recall, is one of just two justices on that court to specifically say that the state should no longer certify former medical examiner Dr. Steven Hayne as an expert witness.

Diaz has also seen the criminal justice system from the other side. During his term he was twice tried—and twice acquitted—in federal court of taking bribes, charges critics have said were politically motivated, and part of the Bush administration’s politicization of the Justice Department.  He lost his bid for reelection last November.

Mississippi actually has been surprisingly slow in executing people off Parchman Penitentiary’s death row.  But it’s not for a lack of trying.  The state has been repeatedly rebuked by the federal courts for adopting illegal jury instructions, providing insufficient and underpaid public defenders (by state law, they can receive no more than $1,000 per case), and other inadequate protections in death penalty cases. I suspect (and hope) we’ll also soon see the federal courts sending scores more cases back for a new trial because of the improper testimony Dr. Hayne and Dr. Michael West.

In his dissent in this last case, Diaz lays out his case against the death penalty, drawing on his own experience as a criminal defendant, and on the cases he has seen cross his desk as a justice with the state’s supreme court.

But my unique life experiences have shown me – to a greater degree, I submit respectfully, than any other justice voting today – the potentially oppressive power of government prosecution. For nearly two years . . . I have chosen to advocate for stricter adherence to the guidelines that we have established to limit arbitrary or disproportionate sentences.

I have concluded, though, that even this may not be enough to satisfy the demands of our state and federal constitutions that death not be meted out arbitrarily.


our courts are subject to fallibility no less than any of man’s institutions, and racial discrimination in the courtroom is no mere bit of ancient history. Only a generation ago, the U.S. Supreme Court addressed a case in which the defendant, a black man sentenced to death for murder, produced the most comprehensive, scientific study of its kind ever compiled to date and showed that the race of his white victim made his Georgia trial court 22 times more likely to impose a death sentence.


But even the specter of racially motivated executions pales in comparison to the most terrifying possibility in a system where the death penalty is dealt arbitrarily: innocent men can be, and have been, sentenced to die for crimes they did not commit. In 2008 alone, two men – both black – convicted of murders in Mississippi in the mid-1990s have been exonerated fully by a non-profit group that investigates such injustices.

One of these men, Kennedy Brewer, spent an astonishing six years on death row. Just as a cockroach scurrying across a kitchen floor at night invariably proves the presence of thousands unseen, these cases leave little room for doubt that innocent men, at unknown and terrible moments in our history, have gone unexonerated and been sent baselessly to their deaths.

I’m opposed to the death penalty not because I don’t think there are some crimes so heinous that they merit death as a punishment.  I’m opposed to it because I don’t think the government is capable of administering it fairly, competently, and with adequate protections to prevent the execution of an innocent person.

Three years of reporting on various aspects of Mississippi’s criminal justice system have confirmed those concerns dozens of times over.

(Via Folo)

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14 Responses to “Diaz Leaves With an Anti-Death Penalty Flourish”

  1. #1 |  Mattocracy | 

    I oppose the death penalty for the same reason.

  2. #2 |  Alaska | 

    When I was younger, I never questioned the death penalty. It was appropriate for ending another person’s life, or so I thought.

    But I have spent more than 15 years in the trenches, fighting against prosecutors, law enforcement, judges and juries. After such experience, I can understand why some still argue for death. Some crimes are so heinous, so godawful, so gut-wrenching that we instinctively want blood. But that experience has shown time and again that emotional reaction can blind us. It can blind us to innocence. It can blind us to mitigation. It can blind us to everything except our blood thirsty demand for revenge.

    The death penalty is not administered fairly or properly in this country. I sympathize and weep for those whose loved ones have been the victims of violent crime, but death is not the answer. It does not provide what we seek – solace, justice, or finality. I join Justice Diaz in looking forward to the day when we no longer are blinded by our hate and the death penalty is abolished in this country.

  3. #3 |  Don Lloyd | 

    I fail to see how opposition to the death penalty is anything more than an arbitary, and possibly counterproductive, selection process for choosing which victims of the justice system(?) are to be intervened for. Death penalty prisoners are likely to be objectively better treated than most other prisoners not held in low or medium security Federal correctional facilities (country clubs), or even many civilians on the street who have the misfortune to attract the attention of the police, for whatever reason. This may well be true even for prisoners that are actually executed.

    Regards, Don

  4. #4 |  Cynical in CA | 

    “I’m opposed to the death penalty not because I don’t think there are some crimes so heinous that they merit death as a punishment. I’m opposed to it because I don’t think the government is capable of administering it fairly, competently, and with adequate protections to prevent the execution of an innocent person.”

    I’m opposed to the death penalty because it is murder. Selective opposition to the death penalty is tacit approval of murder.

    Is murder permissible in self-defense? Perhaps.

    As for crimes so heinous that murder is justified, I believe that abuse of State power is one of those. How so?

    Self-defense? I wonder….

  5. #5 |  Jason | 

    If the government is too incompetent to administer the death penalty, it’s too incompetent to administer any penalty. Government needs to be reformed. Appropriate punishment should not be abolished.

  6. #6 |  supercat | 

    The death penalty would be fine, if government agents who commit felony murder would be first in line for it.

  7. #7 |  Helmut O' Hooligan | 

    “I’m opposed to it because I don’t think the government is capable of administering it fairly, competently, and with adequate protections to prevent the execution of an innocent person.”

    A perfectly sensible approach. I feel the same way. One need not attend candle light vigils on behalf of condemned prisoners in order to drive home this point. I don’t feel much pity for a truly guilty murderer, terrorist, etc.. I just don’t feel comfortable giving this power to the state. Besides, it would be different if the criminal was taken out while on the run. To wait for years and then administer an injection just isn’t the same.

  8. #8 |  Judi | 

    Sorry to smash your disillusionment, but death row inmates are NOT treated better by any stretch of the imagination. I know because I visit them every month in Mississippi. And you have to remember there are SOME INNOCENT people such as Devin Bennett and Jeffrey Havard, in there as well.

    The death penalty is arbitrarily dealt out. Therefore it should not exist. It does not ensure justice since the wrong person may be executed, it does not give closure to anyone, it’s just another dead body and it certainly will not bring the victim back from the dead.

    The death penalty is the victim’s family or friend’s way of MURDERING vicariously through the STATE. End of story.

    That ‘eye for an eye’ quote doesn’t justify a thing. God also says THOU SHALT NOT KILL. Execution IS KILLING no matter how you decorate, fluff it up or cut it.

    As Mahatma Ghandi once said, “An eye for an eye makes the WHOLE world go BLIND!”

    Simple logic…

  9. #9 |  Judi | 

    By the way, DIAZ has GONADS the size of CHURCH BELLS for taking a stand in what he believes in. He deserves to be applauded for his honesty, sincerity, and humanity.

    I wish him well and would vote for him for PREZ if he ever ran!

  10. #10 |  Marc Etienne | 

    OK, I’m going to go out on a limb here, as I am first a Yankee, and second an expatriate who has been living in Germany for 20 years, but this is what I think.

    I agree, the biggest problem with the death penalty is that it’s all too often misapplied. The large number of potential innocents were why some states stopped it, as there are no ways to recompense for executing the wrong person.

    The justice system in the USA has been stuck on a course of one-upmanship, driven by conservative politicians and advocates all trying to prove how tough they are on crime. Lettings prisons be run by private companies actually caused the prisoner population to jump, as those companies lobby for more “clients”.

    I think the concept of protection and rehabilitation need to be restated in the guiding principles of justice. Punishment really doesn’t help to lower crime, and never did. England used to hang pickpockets, yet even at the public hangings, other pickpockets would be at work stealing from the onlookers whilst their “colleagues” were strung up. I think instead of just adding years on to drug sentences and other minor crimes, sentencing and penalties should be geared more towards treatment. This is cheaper in the long run for both society and for the government budget.

    A full 1% of the US population is now in prison. Can we really afford to maintain this?


    Sorry for drifting off topic. Ahem.

  11. #11 |  LOUNGE DADDY » A Good Reason To Be Against The Death Penalty | 

    […] Radley Balko points out another reason to oppose the death penalty in the United States: Government incompetence. I’m opposed to the death penalty not because I don’t think there are […]

  12. #12 |  sullivan | 

    I am for Diaz all the way.He has what none of the ohter judges have there and that is Honesty.I am so happy to see one out of them all to stand up for what is right.I two would vote for this man as president.We need honest people in our system.That is something we really don’t have.And if we do have it.it’s very hard to find.

  13. #13 |  Nancy Rhodes | 

    I ACCIDENTIALLY hit the NEGATIVE button on #8’s response/comment. I am dreadfully sorry, as I could not AGREE more.

    The insanity must stop. The myths are more ridiculous than fairly tails, Fed prison is a country club and all of that.

    J. Diaz is courageous.

  14. #14 |  More on Liegh Stubbs | The Agitator | 

    […] viewed the criminal justice system. He became a strong defender of the rights of the accused, and a vocal opponent of the death penalty. It was Diaz who wrote the strongest opinion denouncing Hayne in the Tyler Edmunds case, and who in […]