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LEGAL AFFAIRS - The Death Penalty: To Err Is Human LEGAL AFFAIRS - The Death Penalty: To Err Is Human

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Magazine

LEGAL AFFAIRS - The Death Penalty: To Err Is Human

February 12, 2000

The death penalty is so politically correct these days that Hillary Rodham Clinton supports it. Her husband, the Democratic President, has championed curbs on death row appeals. So Illinois Gov. George Ryan's Jan. 31 moratorium on all executions is an extraordinary event. Maybe even a turning point.

Ryan is, after all, a (moderate) Republican. He supports the death penalty in principle. He initially resisted calls for a moratorium. And he is Illinois' chairman of the presidential campaign of Texas Gov. George W. Bush, whose state leads the nation in executions, including more than 100 on Bush's watch.

What prompted Ryan to call the halt, pending a study of the death penalty process, was mounting evidence that Illinois has a "shameful record of convicting innocent people and putting them on death row," in the governor's words. Most striking was his point that 13 of the men condemned in Illinois since 1977 have ultimately been exonerated of murder and set free-one more than the 12 who have been executed. Said Ryan: "I cannot support a system which, in its administration, has proven so fraught with error, and has come so close to the ultimate nightmare, the state's taking of innocent life."

Nationally, some 85 people (including the Illinois 13), in more than 20 states, have been released from death row since 1976, based not on technicalities but on determinations by courts or prosecutors that they were innocent-or, at least, not proven guilty-of capital murder. Their cases are documented in detail by the Death Penalty Information Center, which opposes the death penalty.

Sen. Patrick Leahy, D-Vt., claiming that even death penalty supporters should not tolerate such grave risks of executing innocent people, is drafting legislation to require better lawyers and more resources (including DNA tests) for the defense in capital trials and appeals.

On the other hand, as death penalty supporters stress, nobody has clearly proven the innocence of any of the 610 convicted killers who have been put to death since the Supreme Court reinstated capital punishment in 1976. And many of the 85 pronounced innocent by the media were spared not because of clear proof of innocence, but because proof of guilt was lacking. Many of them also had prior records of serious violent crime.

So was Gov. Ryan overreacting to evidence that (some might say) shows the system working well at correcting its own errors? And are the problems that spurred Ryan to act unique to Illinois?

No, and no. The record in Illinois and elsewhere suggests that it is almost inevitable that innocent people will be put to death, given the quickening pace of executions-which reached a 48-year high of 98 in 1999-and the tightening curbs on death row appeals. Indeed, it seems chillingly possible that one or more innocents have already been put to death.

In case after case, death row prisoners in Illinois have been cleared by DNA or other new evidence amid revelations of gross prosecutorial misconduct, shockingly incompetent defense-lawyering, egregious judicial errors, and even use of torture by police to force confessions.

To pick one example, Anthony Porter spent 16 years on death row for a double murder and came within 48 hours of being executed, only to be cleared last year. The evidence of innocence in his and two other death row cases was discovered not by a lawyer but by Northwestern University journalism students led by Professor David Protess. They (and their private investigator) obtained a videotaped confession from the real killer, who recently pleaded guilty. But for this rare good fortune, Porter would probably be dead.

Such abuses and errors are more the rule than the exception in Illinois, according to a five-part series in November's Chicago Tribune, which reviewed the 285 death penalty cases in the past 22 years. The reporters concluded that many defendants "have been represented by the legal profession's worst," including 33 lawyers who have been disbarred or suspended; have been condemned based on inconclusive evidence; have had trials riddled with judicial errors; and have been convicted by juries purged of all members of their race.

Illinois appears to be unusual only in the extent to which the errors and flaws in the death penalty process have been exposed to public view by aggressive reinvestigations of old cases that revealed patterns of abuse, spurring more investigations.

The federal government and some death penalty states appear to have higher standards than Illinois-at least in screening the lawyers who are appointed to represent (mostly indigent) capital defendants- but many states have lower standards.

The quality of the lawyering that indigent capital defendants receive at their trials in many states has long been a scandal. Some defendants go on trial for their lives represented by lawyers who are inexperienced, unprepared, overburdened, or even drunk. Some competent lawyers are paid so little that they are precluded from investigating the facts independently, calling expert witnesses, or using scientific tests that could produce evidence of innocence. Three defense lawyers in Texas slept through major portions of their clients' capital trials-but the state's highest criminal court found that this was not bad enough to constitute ineffective assistance of counsel!

And in at least a handful of cases, nagging doubts remain as to the guilt of people who have been executed. One was Roger Keith Coleman, a coal miner who was electrocuted by Virginia in 1992 for the 1981 rape and murder of his sister-in-law. The Supreme Court refused to hear Coleman's last appeal, because his lawyers had missed a state court filing deadline by one day in 1986. Then the state allowed his execution to proceed in the face of evidence-since detailed in John Tucker's compelling 1997 book, May God Have Mercy-that left me with the view that Coleman was more likely innocent than guilty.

"There are several cases where I had grave doubts as to the guilt of a particular person" who was executed, former Florida Chief Justice Gerald Kogan has said. He is a former prosecutor and trial judge.

To be sure, the vast majority of the more than 3,600 death row prisoners are murderers. The percentage of cases in which serious evidence of innocence has come to light is small. But only a small percentage of all death row prisoners ever get the first-rate legal and investigative help-either at trial or on appeal-that is necessary to unearth evidence of innocence. How many others might be exonerated if they had such resources? Nobody knows.

We do know that the chance of correcting errors before it's too late has steadily diminished. The Supreme Court has created a daunting array of technical obstacles to federal habeas corpus review of state convictions and death sentences. For example, the Justices have held that federal courts may not hear death row appeals based on newly discovered evidence unless the "new facts unquestionably establish [the prisoner's] innocence." If all the prisoner has is proof that he is probably innocent, it seems, the federal courts can't help him.

At President Clinton's urging, Congress added still more restrictions on federal habeas review in 1996. It also defunded some 20 death penalty resource centers, which provided expert lawyers to help with death row appeals.

Meanwhile, states are speeding up their own appeal processes. Gov. Jeb Bush of Florida, emulating his brother George of Texas, wants to restrict defendants' appeal rights as much as necessary to get from sentence to execution within five years. This compares with the more than seven years (on average) that the 85 prisoners who have been freed had spent on death rows around the country before being exonerated. Had the proposed rules been in effect, they might have been executed first.

Some death penalty boosters, like Rep. Bill McCollum, R-Fla., candidly admit that a tiny percentage of those who are executed might be innocent, while arguing that this is a price worth paying for an effective death penalty.

That might be more persuasive if the death penalty saved innocent lives by deterring murders. But there is no convincing evidence that it does-at least, not at the current pace of executions (98 in 1999). One might speculate that picking up the pace might produce more deterrence. China put at least 1,769 people to death last year. Maybe that would be enough to prevent some murders.

Do we want to become more like China-knowing that the more people we execute, the more mistakes we will make? Or more like our Western European allies, most of which no longer use the death penalty at all?

For now, Gov. Ryan's answer sounds right to me: "Until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one will meet that fate."

Stuart Taylor Jr. National Journal

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