Apr 99

Views expressed are those of the authors, not necessarily of the AFSC.

"Innocence is Irrelevant"

Charles Wilton, a volunteer with Amnesty International, works at the Center for Astrophysics in Cambridge, MA and attends Friends Meeting at Cambridge.

"For all have sinned and come short of the glory of God" Romans 3:23

As with all human endeavors, criminal justice systems are vulnerable to error. And whenever the death penalty is included as part of a criminal justice system, the execution of factually innocent people is a possibility. Concern over mistaken judicial executions is not new. In Exodus, we are enjoined to "avoid all lies and do not cause the death of the innocent and the guiltless." Unfortunately, Exodus does not inform us how to make our system of justice invulnerable to lies, prejudice, and mistaken judgement.

The obvious and simple solution is to excise the death penalty altogether. The best-known articulation of this point-of-view was spoken by the Marquis de Lafayette in the French Legislative Assembly, c. 1831: "Till the infallibility of human judgement shall have been proved to me, I shall demand the abolition of the penalty of death."

It would be well over a century before nations would in fact begin to shut down their gallows and guillotines, and often it would be because of these very concerns over the execution of the factually innocent. In the United Kingdom, the hanging of Timothy Evans in 1950-ultimately awarded posthumous pardon in 1966-roused British lawmakers to eliminate the death penalty for ordinary crimes (five military wartime offenses remain on the books) in 1965.

When the death penalty was suspended in the United States in the 1972 Supreme Court ruling of Furman v Georgia, innocence was a primary consideration. In a concurring opinion to that ruling, Justice Thurgood Marshall wrote, "No matter how careful courts are, the possibility of perjured testimony, mistaken honest testimony, and human error remain all too real. We have no way of judging how many innocent persons have been executed, but we can be certain that there were some."

The Supreme Court lifted its suspension in 1976, declaring that states had appropriately revised their death statutes to be in compliance with constitutional due process requirements. The era of America's new and improved death penalty had begun.

America's new and improved death penalty

In November 1987, the Stanford Law Review published the landmark article "Miscarriages of Justice in Potentially Capital Cases" by Hugo Bedau and Michael Radelet. The article reports on 350 cases of defendants erroneously convicted of capital-or potentially capital-crimes in the United States in the interval 1900-1985. Of those convictions, 139 resulted in actual death sentences and ultimately, 23 executions. An additional 8 died in prison and 22 were reprieved within 72 hours of execution. Of those cases in which the inmate was ultimately released, 40% of releases came more than 5 years after conviction; 20% of releases arrived after more than 10 years.

In addition to presenting and tabulating the cases, Bedau and Radelet analyzed both the causes of the erroneous convictions and the mechanisms by which the errors were discovered. The disturbing results reveal that while the police and prosecutors are frequently the causes of the error (by way of coerced confessions, suppression of exculpatory evidence, suborning perjury, etc.), they are rarely responsible for uncovering errors. Indeed, investigative journalists and authors accounted for more exonerations than police, prosecutors and judges, combined. People who live to see reversal of a mistaken conviction, do so in spite of the criminal justice system, not because of it.

Cases of wrongful conviction since 1987 have continued to accumulate. Joined by co-author Constance Putnam, Bedau and Radelet published the book In Spite of Innocence in 1992, extending their research to mid-1991 and adding 66 new cases to their list.

In 1993, a report of the US House Subcommittee on Civil and Constitutional Rights, prepared by the Death Penalty Information Center, addressed the cases of the 48 defendants who were released from death row since 1973 because of faulty convictions. Establishing conclusively that error in capital cases did not end with Furman, the report concludes that "a substantial number of death row inmates are indeed innocent and there is a high risk that some of them will be executed."

And the count continues to grow. Since the House Subcommittee report, 29 more death row inmates have been released (for a total of 77) as the evidence that convicted them fell apart. The most recent release, Anthony Porter in Illinois on March 5 of this year, demonstrates everything that is wrong with the present system. Porter was on death row for seventeen years, and came within two days of execution last fall. The error, a key witness who was pressured by police into giving false testimony against Porter, was uncovered by journalism students.

Aggravating the predicament of the falsely convicted are developments that make it increasingly difficult to have an erroneous capital conviction overturned.

The 1993 Supreme Court ruling in the Texas case of Herrera v Collins made clear that a conviction reached without blemish of Constitutional error is not subject to federal review, even if exculpatory evidence were uncovered after conviction, unless that evidence is so overwhelming that "no reasonable juror would have found the defendant eligible for the death penalty." In short, the federal courts will not interfere in an execution on the basis of new evidence of innocence.

In Texas, any new evidence must be presented to an appeals court within 30 days of conviction, or it will not be considered admissible. This was the situation of Leonel Herrera, whose exonerating evidence consisted of witness affidavits, complete with polygraph results (indicating truthfulness), from credible witnesses including an eyewitness and a former Texas judge who heard another man confess to the crime for which Herrera was condemned. But the evidence came long after the 30-day limit, and Herrera was executed. In Virginia, which has a 21-day limit on new evidence, the attitude to post-conviction relief was enunciated in a succinct statement by Attorney General Mary Sue Terry. Explaining why death row inmate Joseph O'Dell should not be allowed to have DNA tests performed-tests not available at the time of his conviction-she stated, "Evidence of innocence is irrelevant." O'Dell was executed in 1997.

In the wake of the bombing of the Oklahoma City federal building in April 1995, Congress passed and President Clinton signed into law the Anti-Terrorism and Effective Death Penalty Act (AEDPA), which took effect on the first anniversary of the bombing. This law severely restricts the writ of habeas corpus, both in the number of appeals that can be made and by requiring that any federal habeas petition must be filed within six months of state court proceedings. The Supreme Court case of Felker v Turpin (Georgia) has upheld the AEDPA habeas restrictions.

Why the support for execution?

In the face of overwhelming evidence of judicial error in capital cases, why are so many people, including politicians from across the American political spectrum, willing to let executions continue, and even eager to accelerate the process?

Death penalty proponents make two types of responses to this question:

First, that there are no mistaken executions, and that the several cases of people released from death row is simply evidence that the system functions properly. Innocence is merely a red herring.

The fact that people are wrongly convicted and sentenced to death is indisputable. And we know that mistakes are typically uncovered after many years of combating the system, frequently after many appeals have failed. The work is often by defense lawyers working pro bono or journalists or other concerned citizens with no formal role within the system. The notion that these haphazard mechanisms have exonerated and will continue to exonerate all of the wrongly convicted is naive.

The second type of response is that it is unreasonable to halt executions because of the possibility of mistakes. We take precautions to minimize the risk, but all human endeavors involve taking risks. We do not contemplate the abolition of motor vehicles because of accidental traffic fatalities-even large numbers of them. In the same way, we should not abandon an important part of our criminal justice system because of the possibility of unjust executions.

This response raises an important question: are the risks of executing an innocent person outweighed by the benefits of having capital punishment as part of the criminal justice system? That depends on what you think those benefits are. Death penalty proponents frequently argue that if the existence of a death penalty could prevent just a handful of horrific crimes, then it would be worth taking some small risk of error. As posed, most Americans would agree with this, but is the antecedent true? Does the death penalty deter horrific crimes, or any crimes at all, more effectively than incarceration? Despite numerous studies, no such deterrent effect has ever been demonstrated.

Additional benefits cited are often in terms of doing what justice requires and concern for innocent victims.

Yet it boggles the mind what perverse sort of justice requires that the state be willing to sacrifice innocent victims, in order to protect innocent victims. And unlike traffic accidents, the risk of mistaken execution is not evenly distributed throughout society. Rather, it is those who have the least access to high quality investigation and legal representation who shoulder the burden of wrongful death sentences and executions.

Why is the question of factual innocence so compelling? For those opposed to capital punishment on principle, it does not matter if the condemned prisoner is guilty or not. No member of society is disposable, regardless of who they are or what they have done. The issue is important because Americans overwhelmingly support the death penalty, but become apprehensive when confronted with the harsh realities of how it is applied. And for those people that do support the death penalty, the possibility of judicial error is the most distressing aspect of its application. The execution of innocent people is such a gripping fact because it belies the claim that capital punishment exists to protect innocent victims from random violence. On the contrary, the death penalty imposes a tremendous risk of creating innocent victims with no real benefits to society.