By Jin Hee Lee, Vincent Southerland and Christina Swarns

“Kevin Cooper has been on death row for nearly half his life. In my opinion, he is probably innocent of the crimes for which the State of California is about to execute him.”

This blunt description of Kevin Cooper’s abominable predicament was not offered by his friends, family members or lawyers.

Instead, these are the words of Judge William Fletcher of the Ninth Circuit Court of Appeals, a federal appellate judge who has never met Mr. Cooper and, prior to his review of this case, probably did not even know of his existence. Judge Fletcher was so outraged by the decision to uphold Mr. Cooper’s death sentence that he issued a 101-page opinion detailing the evidence of police corruption, prosecutorial misdeeds and judicial malfeasance that may ultimately lead to the execution of an innocent man by the State of California.

A recent New York Times article discussed this extraordinary dissent in Cooper v. Brown, and remarked upon the growing number of federal judges who are disagreeing with decisions to uphold death sentences because of evidence of serious constitutional error. These dissenting opinions — offered not by liberal advocates but by moderate, if not conservative, law-and-order judges — stand as a strong rebuke to the presumed effectiveness of the death penalty system. And they also confirm longstanding concerns about how abuses of power, under-resourced defense counsel, and racial bias undermine both the accuracy and judiciousness of death penalty convictions.

This recent flurry of dissents in capital cases is as noteworthy as it is long overdue. Public opinion already reflects an increasingly skeptical view of the death penalty system: nationwide support for capital punishment has dropped to 64 percent from an all-time high of 80 percent in 1994.

In California, home to the nation’s largest death row (and the state from which the Kevin Cooper case originates), only 26 percent support the death penalty if life without parole and victim family restitution are available options. New Jersey and New Mexico have legislatively abolished the death penalty, and similar legislation has been passed by at least one legislative body in numerous other states.

The growth in the chorus of voices opposing the death penalty can also be attributed to the fact that 135 individuals have been exonerated from death row since 1973 — 51 within the last 9 years and five this past year.

Just last month, the U.S. Supreme Court took the extraordinary step of issuing an original writ of habeas corpus — the first in nearly 50 years — to allow death-sentenced prisoner, Troy Davis, to present his evidence of innocence.  And a recently revealed scientific report indicates that in 2004, Texas executed Cameron Todd Willingham for a crime he did not commit.

What these innocence cases tell us is just as alarming as the questions they raise: how many innocent people have been executed? How many men and women are currently sitting on death row because of deliberate misconduct or inadvertent mistakes by police, prosecutors, defense attorneys, judges, witnesses, experts, and juries?

Although incontrovertible evidence demonstrates that innocent men and women have been, and will continue to be, sentenced to death and executed, the hands of even the most well-intentioned judges are often tied by restrictive and Byzantine laws, like the Antiterrorism and Effective Death Penalty Act (AEDPA), that exalt expediency above accuracy and prevent review of serious constitutional errors, such as incompetent defense representation, prosecutorial misconduct, jury discrimination, and police abuse.

Without appropriate safeguards, the criminal justice system dispenses arbitrary punishments that are the product of numerous irrelevant factors including, most notably, racial discrimination. Race, in all its permutations, has become a disturbingly significant predictor of a death sentence: while African Americans are only 12 percent of the U.S. population, they make up 41 percent of today’s death row; although the number of African-American murder victims is comparable to the number of white murder victims, approximately 80 percent of all executions since 1976 have involved the murders of white victims; almost three-quarters of all approved federal capital prosecutions have been against defendants of color; and white federal capital defendants are approximately twice as likely as defendants of color to have the death penalty reduced to life sentences through plea bargains.

These and other facts make it abundantly clear that race has a pernicious influence on the administration of the death penalty that further undermines its credibility as a just form of punishment.

Additionally, the profound financial disadvantages of the vast majority of capitally-charged and death-sentenced prisoners combine with the shortfalls of the nation’s indigent defense system to render the death penalty system unreliable. The scarce resources available to defense lawyers make it extremely difficult to investigate facts, hire appropriate experts, marshal a full defense to capital charges, or uncover the errors, mistakes or outright misconduct that are often lurking in capital convictions. For example, a study of Texas’s death penalty found that its death row prisoners have a one-in-three chance of execution without having had a proper investigation by a competent attorney and without having presented claims of innocence or unfairness before any court.

It is exactly these types of injustices that led two of the U.S. Supreme Court’s greatest jurists, Justice Thurgood Marshall and Justice William Brennan, to become champions of dissents on behalf of the condemned since the day executions were reinstated in 1976. In over 2100 cases, they denounced the death penalty as a cruel and unusual punishment that violates the U.S. Constitution. The force of their persuasive voices can be felt in the transformation of Supreme Court Justice Harry Blackmun’s views on capital punishment. Blackmun was a staunch supporter of the death penalty until 1994, when he announced in a dissenting opinion that because the death penalty “remains fraught with arbitrariness, discrimination, caprice, and mistake,” he could no longer “tinker with the machinery of death.”

The latest trend of dissents against the death penalty echoes Justice Blackmun’s conclusion that capital punishment is fraught with irreparable dysfunctions and incalculable costs. While a dissenting opinion may not possess the precedential authority of a majority opinion, it can serve as a “canary in the coal mine” for litigants, institutional actors, fellow judges and the public at large by highlighting the serious flaws of our death penalty system.

Indeed, the decision to publicly disagree with a death penalty conviction or sentence represents one of the best traditions of American jurisprudence. By speaking out against injustice, the dissenting judges demonstrate their commitment to a legal system founded upon individual liberty and equality under the law and their recognition that this grave responsibility is, and should be, most acute in death penalty cases. A life or death decision truly demands nothing less.

The authors are attorneys in the Criminal Justice Project of the NAACP Legal Defense and Educational Fund, Inc.