Mississippi Supreme Court Presiding Justice Hon. Oliver E. Diaz Jr. last week in a dissenting opinion joined by Justice Graves held that the death penalty is unconstitutional.
Like United States Supreme Court Justice John Paul Stevens's opinion finding capital punishment unconstitutional in Baze v. Rees earlier this year, Justice Diaz reasoned that none of the justifications for capital punishment is a sufficient reason to continue to use the death penalty today.
Incapacitation is not a rational basis for capital punishment in a state, like Mississippi and Alabama, where the other sentencing option is life imprisonment without parole. Justice Diaz also found that the death penalty has not been shown to deter would-be murderers.
The only remaining justification for capital punishment -- retribution -- is neither a legitimate state interest nor a benefit that outweighs the huge costs to society of imposing the death penalty.
Among those costs Justice Diaz counts the "specter of racially motivated executions," and the "terrifying possibility" that "innocent men can be, and have been, sentenced to die for crimes they did not commit."
Pointing to the 2008 exonerations of two men in Mississippi, Justice Diaz wrote, "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."
The dissent points out a number of indicators that society's moral standards have evolved to reject the death penalty, including national polls that reveal a clear trend of disfavor toward capital punishment.
Justice Diaz discussed the unworkability of the capital punishment system, due in part to the "State's utter inattention to publicly funded defense." Like in Alabama, "[t]he Mississippi indigent defense system is wholly inadequate to provide meaningful representation to the poorest criminal defendants."
Alabama is the only state in the country with a significant death row population that has no state-funded mechanism to timely provide legal counsel to condemned inmates.
Although judges, law enforcement officials, prosecutors, and even former executioners have come to agree that the death penalty is ineffective and not worth its costs, Justice Diaz concluded that his colleagues on the Mississippi Supreme Court will not join him in ruling immediately that capital punishment is unconstitutional.
"But," he wrote, "I am convinced that the progress of our maturing society is pointed toward a day when our nation and state recognize that, even as murderers commit the most cruel and unusual crime, so too do executioners render cruel and unusual punishment."