In the case of Wiles v. Bagley, Boyce F. Martin, Jr., a judge on the United States Court of Appeals for the Sixth Circuit, stated that "[c]apital punishment in this country remains ‘arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair."

In this particular case, Mark Wiles was convicted of first-degree murder and sentenced to death. After his appeals in state court in Ohio were denied, he filed a writ of habeas corpus in federal court in which he argued that his trial lawyer provided him with ineffective assistance of counsel. A panel of judges on the Sixth Circuit Court of Appeals disagreed and affirmed Wiles’s conviction.

However, one of those judges, Boyce F. Martin, Jr., wrote a concurring opinion in which he expressed the opinion that the death penalty is not worth what it costs society to maintain it. Judge Martin wrote that an evaluation of the capital punishment system that currently exists in the U.S. "is particularly appropriate at a time when public funds are scarce and our state and federal governments are having to re-evaluate their fiscal priorities."

Judge Martin is undoubtedly correct when he highlights the issue of the scarcity of public funding. To cite just one example, the Florida Bar published an article on its website earlier this month entitled Funding Florida Courts which begins with the sobering words: "Florida state courts are in crisis. Two years of budget cuts have undermined adequate and equitable funding of the court system, forcing layoffs and hiring freezes."

Judge Martin continues, "Make no mistake: the choice to pay for the death penalty is a choice not to pay for other public goods like roads, schools, parks, public works, emergency services, public transportation, and law enforcement. . . . [T]he evidence indicates that, on average, every phase of a capital case is more expensive than in a non-capital case, and that the lifetime cost of a capital case is substantially more than the cost of incarcerating an inmate for life without parole. Surprising as that may seem, the reason for it is simple: ‘lawyers are more expensive than prison guards.’ "

Some, such as Ohio’s Attorney General Richard Cordray, believe that the appeals process in capital cases is sometimes too long. Not so, says Judge Martin. "[E]xperience has shown that every stage of review is needed to guard against wrongful convictions and correct the unusually high rate of error that plagues capital cases." In support of his contention, Martin cites to a study which demonstrates that between 1973 and 1995 the error rate in capital cases was 68% compared just 15% in non-capital cases.

Citing the fact that in 2008 only nine of the thirty-six states which have capital punishment actually executed anyone, Martin observes that "given the death penalty’s exorbitant costs and many basic flaws, it is clear to me that our scarce public resources can be put to better use. This is especially so given what the public is getting for its money–little more than the time of lawyers and judges and the ‘illusion’ of capital punishment. Moral objections aside, the death penalty simply does not justify its expense."

When individuals such as college professors and journalists speak out against the death penalty, their opinions are frequently dismissed as being those of bleeding-heart liberals. But when a judge who has carefully examined numerous death penalty cases over the last thirty years–a judge such as Judge Martin–speaks out against the existing system of capital punishment in the United States, we would be wise to listen carefully to what he says.