Richard C. Dieter [Executive Director, Death Penalty Information Center]: "Death penalty cases are taking longer to resolve. In 2007, the average time between sentencing and execution was 12.7 years, the third year in a row in which the time was over 12 years. Many cases, like Cone v. Bell, which was recently argued before the U.S. Supreme Court, take much longer to resolve. Cone is facing execution for a crime committed 28 years ago. This case illustrates not only the cumbersome nature of capital cases, but also the primary reason for the delay: far too many cases were not conducted fairly at their original trial.

Cone v. Bell was argued and decided by the Supreme Court on two previous occasions. In those earlier cases, the Court upheld Gary Cone's original conviction and death sentence and reversed lower court decisions that would have given him a new trial. But now the issue before the Court concerns the very integrity of our justice system, and raises the nagging question of whether a person can be executed even though the state withheld important evidence at trial. The crucial issue at Mr. Cone's trial was not his guilt, but whether he was affected by his drug use at the time of the crime, and whether that should be a mitigating factor for the jury considering his sentence.

The prosecution argued that Mr. Cone was a drug dealer, not a drug user, and hence there was no reason to spare his life. Yet the state's files contained convincing evidence of Cone's drug use. State courts dismissed Cone's claim of prosecutorial misconduct largely on procedural grounds. Cone had claimed prosecutorial misconduct earlier, before the withheld mitigating evidence was discovered. Since the earlier claim lost on the merits, his new claim was dismissed as repetitive, even though there was new evidence.

Even assuming Mr. Cone filed his motions after the deadline, or that the matter had been resolved by state courts, should the federal courts allow a person to be executed where the state itself misled the sentencing jury? Many cases are lost in our justice system because of procedural problems in the way they were brought. But when the punishment is death, it seems that substance must triumph over procedure. And that is why the death penalty will always be cumbersome, expensive, and frustrating to all involved."