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Criminal Injustice: Wounds from incarceration

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Criminal Injustice: Wounds from incarceration

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Mass incarceration (http://www.prisonpolicy.org/reports/overtime.html?gclid=COLT79vLnM0CFUQbgQod76YJHw) damages individuals and communities in ways that scholars are just starting to explore.

New research (http://hsb.sagepub.com/content/57/2/240.abstract) that we've published with our colleague Mary Laske Bell shows that African American men who are former inmates are irrevocably harmed by time they spent behind bars.

This finding is troubling because incarceration has increased (http://www.sentencingproject.org/criminal-justice-facts/) over the last four decades due to mandatory minimums and the war on drugs. Specifically, there has been a 500 percent increase in the number of inmates over the last 40 years. Despite decreasing crime rates (https://www.brennancenter.org/publication/what-caused-crime-decline), the United States locks up more people than any other nation (http://www.prisonstudies.org/highest-to-lowest/prison-population-total?field_region_taxonomy_tid=All). Although home to only 5 percent of the world's population, the United States has 25 percent of the world's prison population.

Furthermore, our judicial system is inefficient. Men and women who have not been convicted of a crime, rot in unsafe, overcrowded and understaffed jails waiting for their day in court. This is especially true in large urban areas. For example, inmates in Chicago's jails in 2015 served the equivalent of 218 years more time waiting for trial than the sentences they would ultimately be given. Housing the inmates for this extra time cost taxpayers $11 million.

The money may be the least of it. Consider the case of Kalief Browder, who was 16 years old when arrested and who spent three years in Rikers Island-including two in solitary confinement-before his case was dismissed. The trauma of those years alone behind bars lingered. At 22, Browder committed suicide.

It gets worse: Lady Justice is far from colorblind.

Michelle Alexander memorably labeled mass incarceration "The New Jim Crow" in her landmark book of the same name.

African Americans constitute nearly 1 million of the 2.3 million persons incarcerated and are incarcerated at nearly six times the rate of whites. One in three African American (http://www.bjs.gov/content/pub/pdf/piusp01.pdf) men will experience prison; white men's risk is just 6 percent. Hispanic men are almost three times as likely to be imprisoned as non-Hispanic white men. The poor are also disproportionately represented behind bars.

The wives, girlfriends and children of African American men who go to jail or prison suffer collateral damage. Studies show that the children of inmates do less well in school and exhibit behavioral problems (http://sf.oxfordjournals.org/content/89/1/285.abstract). In addition, women partnered with inmates suffer from depression and economic hardship (http://onlinelibrary.wiley.com/doi/10.1111/j.1741-3737.2012.00998.x/full).

One might assume that being released from jail or prison would represent an opportunity to make good on commitments to be a better person and return to normal life. If incarceration actually rehabilitated inmates, then that assumption would make sense. But alas, it does not (http://www.urban.org/sites/default/files/alfresco/publication-pdfs/410804-The-Revolving-Door.PDF), despite what many people believe.

Evidence instead suggests that being locked away scars, stigmatizes and damages inmates. A history of incarceration has been linked to vulnerability to disease, greater likelihood of cigarette smoking (http://ajph.aphapublications.org/doi/pdf/10.2105/AJPH.2015.302772) and even premature death (http://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2012.301148).

Our new study (http://hsb.sagepub.com/content/57/2/240.abstract) looked at how having a family member locked up related to psychological distress (a measure of mental health) among African American men, some of whom have done time. There is not a lot of data from respondents about their history of incarceration. The assumption is that no one wants to disclose that they were locked up. And most scholarly attention focuses on collateral damage, neglecting the experiences of the formerly incarcerated.

Using existing survey data from the National Survey of American Life, we invoked the stress process model to predict psychological distress. We asked if familial incarceration was a stressor that went above and beyond the typical stress people experience. We controlled for social determinants that affect mental health, including age, education, marital status, employment and childhood health. We focused on variables that helped determine the character of familial incarceration including chronic stress, family emotional support and mastery.

Going into the study, we expected that all African American men would be distressed by the imprisonment of an immediate family member. We also expected that men who had been locked up would experience even higher levels of psychological distress because they would empathize with their family member who was currently behind bars.

We were right on one count. Men who had never been incarcerated did experience high levels of distress when a family member was locked up.

But what we found among formerly incarcerated African American men was totally unexpected. When their immediate family members were in jail or prison, formerly incarcerated black men reported low levels of psychological distress. How low? Lower than never incarcerated black men without relatives in jail or prison. And-even more surprisingly-lower than formerly incarcerated men without imprisoned relatives. How could this be possible?

After re-checking the analyses for errors and finding none, we speculated that formerly incarcerated African American men may feel no empathy for their immediate family members who were currently in jail or prison.

Lack of empathy may be a valuable survival strategy in jail or prison, but our findings imply that this "empathetic inurement" follows these men back into the community.

We think that formerly incarcerated African American men return home to families and communities that desperately need them changed in a terrible way. They may be tone-deaf when it comes to recognizing the suffering of their currently incarcerated family members. Even more, they may be unable to act as model citizens or good husbands or loving fathers.

Remember that we aim to punish offenders such that they better respect the rights of others and follow the norms associated with responsible citizenship. Cesare Beccaria, the father of criminology, taught us that the purpose of punishment was to prevent future crime.

But do we treat former inmates as full members of society? In 34 states, people who are on parole or probation cannot vote. In 12 states, a felony conviction means never voting again. In addition, prior incarceration can affect one's ability to secure certain federal benefits or get a job.

These facts indicate failure of the punishment imperative and demonstrate that reform is overdue. This is especially true given the results of a recent study that showed some black men will spend almost one third of their lives in prison or "marked" with a felony conviction (http://www.sciencedirect.com/science/article/pii/S0049089X15001234).

The United States spends about $80 billion yearly on corrections. As such, the economic crisis of 2008 ignited debate about how to decrease incarceration in the United States.

Such debate bled into discussions about access to high-quality education and health care, differential sentencing, gentrification, joblessness, residential racial segregation, wealth disparities, urban decay and pollution and lingering social inequalities.

Policy makers soon discovered that there was nothing simple about reducing the incarceration rate.

Allowed to continue unreformed, mass incarceration will shape our nation in ways that should repulse anyone who values the correlated concepts of freedom and redemption. Unless we consider mass incarceration a moral and policy failure, it will splinter already fragile families and communities. That will ultimately hurt our entire nation.

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Criminal injustice: Wounds from incarceration that never heal

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Mass incarceration (http://www.prisonpolicy.org/reports/overtime.html?gclid=COLT79vLnM0CFUQbgQod76YJHw) damages individuals and communities in ways that scholars are just starting to explore. New research (http://hsb.sagepub.com/content/57/2/240.abstract) that we've published with our colleague Mary Laske Bell shows that African American men who are former inmates are irrevocably harmed by time they spent behind bars.

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Racism Is a Significant Problem in the Penal System

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Racism Is a Significant Problem in the Penal System

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It is regrettable that the legend of the "Jena Six" has for many become the leading symbol of the grave injustices to African-Americans that pervade our nation's penal system. The legend is partly false. And the notion that racism is the main reason for the injustices to hundreds of thousands of black defendants around the nation is entirely false.

To be sure, there is still too much racism among prosecutors, judges, and jurors. But this is far less widespread and virulent, even in Jena, La., than Al Sharpton and Jesse Jackson-the media-anointed (albeit, repeatedly discredited) African-American "leaders"-like to pretend. There are still too many unwarranted prosecutions of innocent minority (and other) defendants, as detailed in my August 4 [2007] column, "Innocents in Prison." But the vast majority of those prosecuted are guilty, as may prove to be the case with some or all of the Jena Six.

Rather, the heart of the racial injustice in our penal system is the grossly excessive punishment of hundreds of thousands of nonviolent, disproportionately black offenders whose long prison terms ruin countless lives and turn many who could have become productive citizens into career criminals.

The Supreme Court heard two cases on October 2 [2007] that focus on a relatively small piece of this problem: how much discretion federal district judges have to depart from federal sentencing guidelines that provide savagely severe prison terms for small-time drug offenders, among others. The most savage penalties of all are for people-overwhelmingly, black people-caught with fairly small amounts of crack cocaine.

But the justices, hemmed in by wrong-headed mandatory sentencing laws, are merely rearranging deck chairs on the Titanic, no matter how they rule. Nothing that the Court will ever do could make much of a dent in the overly punitive regime that has sent the number of prisoners in this country soaring to 2.2 million, more than in any other nation. This represents more than a sixfold increase in the number of incarcerated Americans since 1970, when it was 330,000. More than 40 percent of these prisoners are black. And according to a recent study by the nonprofit Sentencing Project, 500,000 of the 2.2 million are locked up for drug crimes, and a majority of the convicted drug prisoners have no history of violence or high-level drug-selling.

Such are the fruits of decades of tough-on-crime posturing by politicians. Now a bipartisan group in Congress is pushing to alleviate some of the most excessive penalties, especially in crack cases. This is a small blessing. But the proposed tinkering is a far cry from the enormous policy changes needed. A more hopeful sign was a Joint Economic Committee hearing set by Sen. Jim Webb, D-Va., for October 4 [2007] titled "Mass Incarceration in the United States: At What Cost?"

But in the end, only a vast change of attitude on the part of the voters, and in turn among the state and federal officials they elect, could return sanity to the system.

With our bloated incarceration rates, especially for nonviolent drug crimes, "the system takes men with limited education and job skills and stigmatizes them in a way that makes it hard for them to find jobs, slashes their wages when they do find them, and brands them as bad future spouses," as Christopher Shea wrote in a September 23 [2007] column in the Boston Globe. "The effects of imprisonment ripple out from prisoners, breaking up families and further impoverishing neighborhoods, creating the conditions for more crime down the road."

Our penal system visits these dire consequences on a staggeringly high percentage of the African-American population. More than 22 percent of all black men in their early 30s and more than half of the subset who dropped out of high school have spent time behind bars. These percentages are far higher than they were during the worst era of American apartheid.

Is this situation the fault of white racism? Well, the main reason that an overly punitive system has such a severe effect on black men is that they commit hugely disproportionate numbers of crimes. As The Economist points out, "Young black men are seven times more likely to be jailed than whites, but they are also seven times more likely to murder someone, and their victims are usually black."

Disproportionate Penalties

The absurdly excessive penalties for possessing or selling crack cocaine could be seen as evidence that many white voters and legislators are subconsciously more willing to throw away the lives of small-time black offenders than small-time white offenders. You can call that racism, but only by stretching the word. Especially since the most severe crack cocaine sentences of all had strong support in the Congressional Black Caucus when they were adopted in 1986 and thereafter. Black officials hoped that long prison terms would quiet the "crack wars" that were then consuming inner cities. The Clinton administration also supported these laws.

Focusing mainly on the residue of racism is a distraction from the far bigger problem of over-punishment.

Orlando Patterson, the noted African-American sociology professor at Harvard, put his finger on the main source of racial injustice in a September 30 [2007] New York Times op-ed:

"This virtual gulag of racial incarceration [reflects] a law enforcement system that unfairly focuses on drug offenses and other crimes more likely to be committed by blacks, combined with draconian mandatory sentencing and an absurdly counterproductive retreat from rehabilitation [of] offenders. [This system] simply makes hardened criminals of nonviolent drug offenders and spits out angry men who are unemployable, unreformable, and unmarriageable."

In short, focusing mainly on the residue of racism is a distraction from the far bigger problem of over-punishment. It is also a distraction from understanding why African-American crime rates are so high.

The reason, Patterson says, is "something that has been swept under the rug for too long in black America: the crisis in relations between men and women of all classes and, as a result, the catastrophic state of black family life, especially among the poor.... The resulting absence of fathers-some 70 percent of black babies are born to single mothers-is undoubtedly a major cause of youth delinquency."

This is not to deny that the Jena case involved a clear injustice to identifiable African-Americans. Nor is it necessarily to deny the (debatable, in my view) assertions that Jena school authorities and/or the local district attorney used a racial double standard favoring white students over blacks.

The clear injustice was the initial use of a grossly excessive charge-attempted second-degree murder-that could have doomed five of the Jena Six to long prison terms for ganging up on Justin Barker, a white student who was neither attacked with a deadly weapon nor seriously injured. Indeed, after a much-needed outcry the charges were reduced to aggravated second-degree battery.

The 10,000 to 20,000 African-Americans who traveled to Jena from all over the country on September 20 [2007] also protested that the authorities allowed white students who hung nooses on a tree and got into fights to escape serious punishment, while throwing the book at the blacks who attacked Justin Barker.

But even if that's true, the Jena case is far from being the civil-rights morality play scripted by Sharpton, Jackson, and some in the media. Contrary to their spin, the December 4, 2006, gang attack on Barker was no "schoolyard fight." Nor was it a direct response to the deplorable (but noncriminal) hanging of nooses on a schoolyard tree by other white students more than three months earlier.

In fact, then-16-year-old Mychal Bell, who had been arrested four times for alleged violent offenses, is accused of knocking Barker unconscious in an unprovoked, blindside attack. Then, the charges say, all of the Jena Six (or seven, as it now appears) stomped the prostrate victim until an uninvolved student intervened. Barker was briefly hospitalized with a concussion and multiple bruises.

The Real Reasons Why So Many African Americans Are in Prison

"In American law," as James Kirchick wrote in the gay online magazine Advocate.com, "you are not entitled to beat a defenseless and innocent person because someone with the same skin color as that person offended you months earlier."

Imagine for a moment that the races of the Jena students had been reversed, and that six whites had ganged up on a lone black student. I suspect that there might have been an even bigger Sharpton-Jackson-led protest. But instead of attacking the prosecutor for being too hard on the black thugs who beat up a solitary victim, the protesters would have been demanding that the white thugs be imprisoned for "hate crimes." And so would some of the same media commentators who have decried the prosecutions of the Jena Six.

They would do better to turn their fire on the real reasons why so many African-Americans end up in prison: cruel sentencing laws, crummy education, and weak families.

Books

Mark Aronson Race: A History Beyond Black and White. New York: Simon and Schuster, 2007.

Earnest N. Bracey On Racism: Essays on Black Popular Culture, African American Politics, and the New Black Aesthetics. New York: University Press of America, 2003.

Faye J. Crosby Affirmative Action Is Dead: Long Live Affirmative Action. New Haven, CT: Yale University Press, 2004.

Joe R. Feagin Racist America: Roots, Current Realities, and Future Reparations. New York: Routledge, 2001.

George M. Frederickson Racism: A Short History. Princeton, NJ: Princeton University Press, 2002.

Charles A. Gallagher Rethinking the Color Line: Readings in Race and Ethnicity. New York: McGraw-Hill, 2008.

Tariq Modood Multicultural Politics: Racism, Ethnicity, and Muslims in Britain. Minneapolis: University of Minnesota Press, 2005.

Mark A. Noll God and Race in American Politics: A Short History. Princeton, NJ: Princeton University Press, 2008.

Lucky Rosenbloom Liberal Racism Creates the Black Conservative: Issues and New Perspectives. Lincoln, NE: iUniverse, 2006.

David O. Sears Racialized Politics: The Debate About Racism in America. Chicago, IL: University of Chicago Press, 2000.

Derald Wing Sue Overcoming Our Racism: The Journey to Liberation. San Francisco, CA: Jossey-Bass, 2003.

Abigail Thernstrom and Stephen Thernstrom Beyond the Color Line: New Perspectives on Race and Ethnicity in America. Stanford, CA: Hoover Press, 2007.

Howard Winant The New Politics of Race: Globalism, Difference, Justice. Minneapolis: University of Minnesota Press, 2004.

Periodicals

Tim Arango "Before Obama, There Was Bill Cosby," New York Times, November 8, 2008.

Elizabeth Atkins "Do Light-Skinned Black People Have an Advantage?" Ebony, February 2008.

K.C. Baker "You Can't Live Here ... (Unless You're White)," Good Housekeeping, April 2007.

Peter Baker "Whose President Is He Anyway?" New York Times, November 16, 2008.

Haim Baram "Israel's Secret Fears," New Statesman, May 19, 2008.

Julio Cammarota "Disappearing in the Houdini Education: The Experience of Race and Invisibility Among Latina/o Students," Multicultural Education, Fall 2006.

Benedict Carey "Tolerance over Race Can Spread, Studies Find," New York Times, November 7, 2008.

Anne Chapman "Race and Gender," Black Enterprise, February 2008.

Yusuf Davis "Where Are the African-American Baseball Players?" Ebony, May 2007.

Sean Gardiner "Runnin' Scared," Village Voice, April 30-May 6, 2008.

Nancy Gibbs "This Is Our Time," Time, November 17, 2008.

David Glenn "Our Hidden Prejudices, On Trial," Chronicle of Higher Education, April 25, 2008.

Sally Lehrman "Omitting Race: Politically Correct or Good Crime Reporting?" The Quill, May 2008.

Tod Lewan "Multiracial Americans See Attitudes Evolving," Ann Arbor News, June 15, 2008.

Bonnie Mann "Gay Marriage and the War on Terror," Hypatia, Winter 2007.

Adam Nossiter "For South, a Waning Hold on National Politics," New York Times, November 11, 2008.

Jennifer Olapido "Global Warming Is Color-Blind," Orion, November-December 2007.

Ronald Roach "Black Student Enrollment Rebounds at UCLA," Diverse, December 13, 2007.

Victor C. Romero "Critical Race Theory in Three Acts: Racial Profiling, Affirmative Action, and the Diversity Visa Lottery," Albany Law Review, Winter 2002.

Lillian B. Rubin "Fire and Flood: What a Difference Class and Race Makes, or Did Brian Williams See the News," Dissent, Winter 2008.

William H. Tucker "The Ideology of Racism," UN Chronicle, September 2007.

George Yancey "Experiencing Racism: Differences in the Experiences of Whites Married to Blacks and Non-Black Racial Minorities," Journal of Comparative Family Studies, Spring 2007.

Gary Younge "Obama and the Power of Symbols," Nation, June 30, 2008.

Source Citation

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Racism Is a Significant Problem in the Penal System

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It is regrettable that the legend of the "Jena Six" has for many become the leading symbol of the grave injustices to African-Americans that pervade our nation's penal system. The legend is partly false. And the notion that racism is the main reason for the injustices to hundreds of thousands of black defendants around the nation is entirely false.

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Reforms Are Needed to Prevent the Execution of Innocent People

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Reforms Are Needed to Prevent the Execution of Innocent People

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By the time you are reading this, the United States has probably executed its five hundredth prisoner since 1976. If not, it's just a matter of days before Oklahoma, Texas, South Carolina or Arkansas straps Tuan Nguyen, Joseph Faulder, Joe Truesdale, Robert Robbins or another of the nation's more than 3,500 death row inmates onto the gurney or into the electric chair and kills them.

Number 500 easily could have been any one of the 29 former death row inmates who nervously lined up backstage at the National Conference of Wrongful Convictions and the Death Penalty on Nov. 14, 1998. Each of these men and women were once sentenced to die; some came within hours of being executed-all were innocent. They each spent years, and sometimes decades, on death row for crimes they didn't commit. Only with a stroke of lottery-like luck, divine intervention and a few good lawyers were they freed. One by one, they marched onto the stage, stepped up to the microphone and told the crowd, "If the state had gotten its way, I'd be dead today."

More than 1,000 lawyers, law students, scholars, investigators, journalists and people in "Free Mumia" T-shirts, gathered to hear from the wrongfully convicted at Northwestern University Law School in Chicago for the three-day conference, one of the most important, uplifting and well-publicized anti-death penalty events of the decade. Conference organizers hoped to present the face of "the real death penalty" to counteract the fact that, in theory at least, two-thirds of Americans support capital punishment. The conference dramatically demonstrated that, in practice, the death penalty isn't just reserved for the Ted Bundys and John Wayne Gacys-it also condemns innocent people like Gary Gauger, Freddie Pitts and Walter McMillian.

Indeed, since the Supreme Court overturned Furman v. Georgia in 1976 and reinstated the death penalty, 75 death row inmates have been completely exonerated and released. That means that for every 7 prisoners executed, one was set free. The stories of each of these men and women are a powerful testament to the fallibility of the criminal justice system. They also suggest a path of reform. Since the United States isn't ready yet for outright abolition, death penalty opponents should pursue pragmatic, sensible reforms that could make the system fairer and more equal-and save lives.

The stories of the wrongfully convicted are overwhelming. Most involve some combination of incompetent defense lawyers, bloodthirsty or corrupt prosecutors, hanging judges, police beatings, hidden evidence or false testimony. Many are stories of simply being in the wrong place at the wrong time, poor or black: "We need someone for this," a police officer told Clarence Brandley, who was wrongfully convicted for rape and murder in Texas in 1980. "Since you're the nigger, you're elected."

The wrongfully convicted tell of sitting in closet-sized cells for 23 hours a day, writing out legal briefs longhand with a dull pencil and fighting off the roaches and mice for table scraps; they speak of the endless waiting, always thinking about burning alive in the electric chair or being stuck with a lethal needle. "I just wanted to curl up in a ball, scream and holler and bang my head against the wall," says Carl Lawson, who spent six years on Illinois' death row. "I thought, I'd rather be dead than live here in this cell. I felt like the whole world hated me. I had to push so hard to keep from killing myself."

Even freedom comes with a price. After years in prison, most of the wrongfully convicted have struggled on the outside without any skills, job prospects or compensation from the state. Topping it off, they have been held up as examples of how the system works. Try telling that to James Richardson, who was on death row for 21 years. Or Sonia Jacobs: After spending 16 years in prison for the murder of two policemen, it was exposed that prosecution witnesses had lied at her trial. She was released in 1992. Her common-law husband, Jesse Tafero, wasn't so lucky. Convicted on much of the same evidence, he was executed in 1990 before the new information came to light. "These men and women were not released because of the system," says Michael Radelet, co-author of In Spite of Innocence, a book about the wrongfully convicted, which documents 23 cases of the innocent being executed this century. "They were released in spite of it."

To appreciate the impact of these stories, consider Illinois: Since 1987, nine inmates on the state's death row have been freed. Their cases have created a new awareness of wrongful convictions and official misconduct. Northwestern law professor Larry Marshall, who helped free several of the men and was the driving force behind the Chicago conference, reports a feeling that many trial courts and juries are being more careful than they used to be. In 1997, the Illinois Supreme Court granted some form of relief in half of the capital cases before it-an extremely high percentage compared to other states. And, just a week before the conference, Illinois Supreme Court Justice Moses Harrison wrote a scalding opinion about the state's handling of capital cases. "If these men dodged the executioner, it was only because of luck and the dedication of the attorneys, reporters, family members and volunteers who labored to win their release," he wrote. "The truth is that left to the devices of the court system, they would probably have all ended up dead at the hands of the state for crimes they did not commit. One must wonder how many others have not been so fortunate."

The impact of these cases goes beyond the courtroom. Republican Gov. Jim Edgar signed a bill in 1997 that gave prisoners the right to post-conviction DNA testing. And, following the February 1997 call by the American Bar Association for a halt to executions until states can ensure greater fairness and due process, the Illinois legislature is now considering a one-year moratorium.

Of course, the only way to ensure that no innocent person is executed is to abolish capital punishment altogether. That remains a noble goal, but it's unachievable in the current political climate. Clearly however, issues of innocence, equality and fairness resonate with the public. Using the example of the wrongfully convicted as a springboard and focusing on the realities of the death penalty, opponents should push for specific, achievable systemic and legislative reforms. "We have to get back to putting fairness ahead of finality," says attorney Steven Bright, director of the Southern Center for Human Rights. "We need to get back to achieving equal justice under the law, or we should just sandblast those words right off the front of the Supreme Court building."

First, safeguards are needed before a case ever gets to court. "If you pushed me against the wall and said I could pick one reform and nothing else," says Jay C. Smith, a former high school principal who was wrongfully convicted in Pennsylvania, "it would be to make sure there's an integrity to the initial investigating process. That's what hangs you." In Smith's trial, one of the police investigators hid exculpatory evidence in his attic.

While this type of criminal activity is impossible to regulate, false or coerced confessions-the source of many wrongful convictions-could be prevented by videotaping interrogations. This idea recently got a lot of attention in Chicago, where, after hours of intense questioning, police mistakenly charged two young boys with the murder of an 11-year-old girl. States should follow the example of Minnesota and Alaska, where the entire interrogation process-not just the confession-is recorded. This reform is good for both the prosecution and the defense. "Videotaping interrogations from the very beginning and showing them to juries, Marshall says, "would save us from wrongful convictions and wrongful acquittals."

Once in court, perhaps the most dubious evidence used to send prisoners to death row is the testimony of jailhouse snitches. Nearly a third of the 75 innocent former death row inmates were convicted as a result of false testimony, usually by cellmates looking for reduced sentences or the real perpetrators claiming them as accomplices. This is a more difficult area of reform, because of the strong resistance of prosecutors to any limit on their power. But, in a closely watched case, the 10th U.S. Circuit Court of Appeals in Denver is considering whether prosecutors can legally offer money or reduced sentences in exchange for testimony. Lawyers for Sonya Singleton-a woman sent to jail on the word of a convicted drug dealer, who testified in exchange for a lesser sentence-argue that offering "anything of value" constitutes bribery, even when it's done by the government. A three judge panel recently agreed, challenging decades of legal practice. The case is likely to reach the Supreme Court, and the Justice Department is already lobbying Congress for legislation to protect prosecutors. "If the case has done nothing else," says attorney John Val Wachtel, "it has pointed out to the courts a real evil that is going on. Even if Sonya loses, the principle may win in the long run."

The Quality of Legal Counsel

The most vital factor in whether someone ends up on death row, however, is not the severity of the crime, class or race-it's quality of counsel. Among death row inmates, cases of incompetent lawyers failing to interview key witnesses, challenge flawed forensic evidence or mount even a basic defense are a dime a dozen. Though capital defense proceedings are the legal equivalent of brain surgery, defense attorneys with nothing more than three years of law school and the bar exam behind them can take a life in their hands. Their mistakes at trial often set up insurmountable obstacles on appeal. At the very least, minimum levels of capital defense training and courtroom experience should be required when a life is on the line.

Then there's the problem of funding: A capital defense case requires multiple lawyers, investigators and support staff to give the defense a fair chance against the unlimited resources of the state. This can be extremely expensive: A large Houston law firm spent more than $3 million defending Ricardo Aldape Guerra, who spent 15 years in Texas prisons for a crime he didn't commit. It took more than $1 million to free Frederico Macias in the same state. Hundreds of death row inmates don't even have lawyers to handle their appeals. The Chicago conference launched an "Innocence Network" linking law schools working on wrongful convictions to help find cases, recruit lawyers and teach law students to do pro bono work.

Building a network to investigate and litigate cases of wrongful conviction is even more crucial in the face of political efforts to limit the appeals of death row inmates and speed up the rate of executions. In 1996, Congress placed stricter limits on post-conviction habeas corpus appeals in the federal courts-a refuge for the wrongfully convicted-where judges are appointed for life and face less political pressure. Congress also cut funding from the Capital Resource Centers (CRCs), 20 facilities throughout the country that helped to recruit lawyers, coordinate efforts and file well-researched briefs for capital defense cases. Not only did the CRCs provide inmates with an adequate defense, but they helped smooth out the appeals process. Unfortunately, CRCs were too good at defending death row inmates and discovering constitutional errors, so Republicans shut them down. Re-establishing the CRCs is a top legislative priority. While it's a long shot in this Congress, the wrongfully convicted could make excellent lobbyists.

The median length of time it took for the 75 wrongfully convicted death row inmates to be vindicated was 7 years: Speeding up the rate of executions will only lead to more fatal mistakes. "So what if it takes ten years?" asks Randall Adams, the former Texas death row inmate, who was freed after 12 years, thanks in part to the film A Thin Blue Line. "At least it's an improvement from when they used to take you out in the street and hang you."

There is some good news: In recent years, DNA testing has exonerated more than 50 prisoners, including 11 death row inmates. Hundreds more cases are pending. Yet currently only New York and Illinois have laws that provide inmates access to potentially exculpatory biological evidence without limits on cost or time. In fact, according to Amnesty International, more than 30 states mandate time limits on the admissibility of any new exonerating evidence post-conviction; in 12 states, defendants have less than 30 days to introduce new evidence. DNA is the most promising recent development in identifying and freeing the wrongfully convicted, and it's only fair that every state give inmates unfettered access. "It's so important in this debate to look back at the people who we said were guilty as all hell, that through DNA were found to be absolutely innocent," Marshall says. "This is a huge breakthrough in forensics and hundreds, and thousands will be vindicated. If that is the case, how can we be killing anyone who claims an issue of innocence?"

DNA is not a panacea. It isn't even left at most crime scenes. The wrongfully convicted like Rolando Cruz of Illinois and Kirk Bloodsworth of Maryland were able to use DNA evidence to help prove their innocence only because their cases involved rape. However, the high number of recent exonerations thanks to DNA does expose the unreliable nature of some evidence like eyewitness identification.

Some death penalty opponents are critical of a focus on systemic and procedural changes. "We need to be talking less about the struggle within the system and more about the political struggle," says Marlene Martin of the Campaign to End the Death Penalty. "We must challenge the politicians. They know full well that the death penalty is applied in a racist way and that innocent people have been put on death row-they read the papers. We must put pressure on the politicians and understand their instinct to use the death penalty for political gain."

It's true that reforms, systemic and otherwise, will never be implemented without public pressure. From the outside, one of the most powerful arguments against the death penalty is its racial inequality. It's common knowledge that blacks are executed for killing whites, but whites are not executed for murdering blacks. Still, some statistics bear repeating: One study of Philadelphia found the odds of receiving the death penalty are four times higher if the defendant is black. At one point, all 39 people on Kentucky's death row were there for killing a white person, even though a thousand blacks had been killed in the state during the same period. Meanwhile, in the 38 states with capital punishment, 98 percent of prosecutors responsible for the decision to seek death are white, according to a 1996 study by the Death Penalty Information Center.

In March 1998, the outrageous racial disparity spurred passage of the Racial Justice Act in Kentucky, giving defendants the right to introduce statistical and other evidence of racial bias in their defense. Attempts to pass similar legislation in Congress have failed. With Congress paying closer attention to the black vote following the November 1998 election, the time is ripe to push for federal legislation again.

The innocent on death row highlight a much larger crisis. Radelet says the wrongfully convicted also include those who killed accidentally or in selfdefense, had improper counsel, have little mental ability, are children or should have been charged with a lesser crime. "What about the innocent doing life, doing two years," Adams adds. "If mistakes can happen with the ultimate penalty, how many other mistakes are happening?"

Some studies suggest that the rate of wrongful conviction for lesser crimes such as sexual abuse is much higher than for murder. "Capital punishment is the capstone in the war against the 'other,'" says Robert Meeropol, a leading activist whose parents, Ethel and Julius Rosenberg, were executed in 1953. "It shows that it is a war, a place where life imprisonment without parole seems humane. If we don't place it in the larger context of the prison industrial complex, we may win a narrow victory, but we lose the larger battle."

Nonetheless, the 75 innocent people released from death row serve as a powerful indictment of the criminal justice system and the continued use of capital punishment. "We are alive today despite the criminal justice system's intense efforts to kill us for crimes we did not commit," reads a statement signed by the former death row inmates at the conference. "It is our fervent hope that society is capable of learning from its mistakes."

Books

Mumia Abu-Jamal. Live from Death Row. Reading, MA: Addison-Wesley, 1995.

James R. Acker, Robert M. Bohm, and Charles S. Lanier, eds. America's Experiment With Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction. Durham, NC: Carolina Academic Press, 1998.

Jan Arriens, ed. Welcome to Hell: Letters and Writings from Death Row. Boston: Northeastern University Press, 1997.

Hugo Adam Bedau. The Death Penalty in America: Current Controversies. 4th ed. New York: Oxford University Press, 1997.

Walter Berns. For Capital Punishment: Crime and the Morality of the Death Penalty. Lanham, MD: University Press of America, 1991.

Mark Costanzo. Just Revenge: Costs and Consequences of the Death Penalty. New York: St. Martin's, 1997.

Gardner C. Hanks. Against the Death Penalty: Christian and Secular Arguments Against Capital Punishment. Scottsdale, PA: Herald, 1997.

Jesse Jackson. Legal Lynching: Racism, Injustice, and the Death Penalty. New York: Marlowe, 1996.

Robert Johnson. Death Work: A Study of the Modern Execution Process. Belmont, CA: Wadsworth, 1997.

James J. Megivern. The Death Penalty: An Historical and Theological Survey. Mahwah, NJ: Paulist Press, 1997.

Michael A. Mello and David Von Drehle. Dead Wrong: A Death Row Lawyer Speaks Out Against Capital Punishment. Madison: University of Wisconsin Press, 1998.

Debbie Morris. Forgiving the Dead Man Walking. Grand Rapids, MI: Zondervan, 1998.

Louis P. Pojman and Jeffrey Reiman. The Death Penalty: For and Against. New York: Rowman and Littlefield, 1998.

Helen Prejean. Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States. New York: Random House, 1993.

Mei Ling Rein, Nancy R. Jacobs, and Mark A. Siegel, eds. Capital Punishment: Cruel and Unusual? Wylie, TX: Information Plus, 1998.

Bryan Vila and Cynthia Morris, eds. Capital Punishment in the United States. Westport, CT: Greenwood, 1997.

Robert V. Wolf and Austin Sarat, eds. Capital Punishment: Crime, Justice, and Punishment. Broomall, PA: Chelsea House, 1997.

Periodicals

Hadley Arkes. "My Evening with Jesse," Crisis, June 1997. Available from PO Box 10559, Riverton, NJ 08076-0559.

Walter Berns and Joseph Bessette. "Why the Death Penalty Is Fair," Wall Street Journal, January 9, 1998.

Shannon Brownlee et al. "The Place for Vengeance," U.S. News & World Report, June 16, 1997.

William F. Buckley Jr. "Miss Tucker's Plea," National Review, March 9, 1998.

Fox Butterfield. "Behind the Death Row Bottleneck," New York Times, December 25, 1998.

John J. DiIulio. "Abolish the Death Penalty, Officially," Wall Street Journal, December 15, 1997.

Economist. "The Death Penalty: One in Seven Wasn't Guilty," November 28, 1998.

Lawrence D. Egbert. "Physicians and the Death Penalty," America, March 7, 1998.

Christopher John Farley and James Willwerth. "Dead Teen Walking," Time, January 19, 1998.

Samuel Francis. "Death Row Reflects Reality, Not Discrimination," Conservative Chronicle, February 11, 1998. Available from Box 29, Hampton, IA 50441.

Eric M. Freedman. "The Case Against the Death Penalty," USA Today, March 1, 1997.

Jonathan Gromer. "Machines of Death," Popular Mechanics, January 1, 1998.

Bob Herbert. "Mistakes Were Made," New York Times, January 11, 1998.

Michael Higgins. "Is Capital Punishment for Killers Only?" ABA Journal, August 1997.

Jet. "Study Cites Link Between Death Penalty and Race," June 22, 1998.

David A. Kaplan. "Life and Death Decisions," Newsweek, June 16, 1997.

John Kavanaugh. "Killing Persons, Killing Ethics," America, July 19, 1997.

Sara Kelly. "Innocence by Association," Mother Jones, March 1, 1999.

David L. Kirp. "Death Watch," Dissent, Fall 1996.

Charles Lane. "Lethal Objection," New Republic, March 2, 1998.

John McCormick. "The Wrongly Condemned," Newsweek, November 9, 1998.

Edmund F. McGarrell and Marla Sandys. "The Misperception of Public Opinion Toward Capital Punishment," American Behavioral Scientist, February 1996.

Patricia Pearson. "Sex Discrimination on Death Row," New York Times, January 13, 1998.

Fred Pelka. "Unequal Justice: Preserving the Rights of the Mentally Retarded in the Criminal Justice System," Humanist, November 21, 1997.

Michael B. Ross. "The Execution of Innocence," Peace Review, September 1998.

Joseph P. Shapiro. "The Wrong Men on Death Row," U.S. News & World Report, November 9, 1998.

Suzanne D. Strater. "The Juvenile Death Penalty: In the Best Interests of the Child?" Human Rights, Spring 1995. Available from the ABA Press for the Section of Individual Rights and Responsibilities of the American Bar Association, 750 N. Lake Shore Dr., Chicano, IL 60611.

Andrew Peyton Thomas. "Penalty Box: A Much-Needed Reform Seemed Poised to Hasten Executions-Until Federal Judges Got Their Hands on It," National Review, May 4, 1998.

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Reforms Are Needed to Prevent the Execution of Innocent People

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By the time you are reading this, the United States has probably executed its five hundredth prisoner since 1976. If not, it's just a matter of days before Oklahoma, Texas, South Carolina or Arkansas straps Tuan Nguyen, Joseph Faulder, Joe Truesdale, Robert Robbins or another of the nation's more than 3,500 death row inmates onto the gurney or into the electric chair and kills them.

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When the Supreme Court struck down death penalty laws in 1972, former Justice Potter Stewart compared the arbitrariness of the death penalty to the freakishness of being struck by lightning.

Thirty years later, were he still alive, Justice Stewart would probably appreciate his choice of words. In the past five years, an average of 78 people a year have been executed in the United States; in 1995, according to the National Center for Health Statistics, 76 Americans were struck by lightning.

Americans who support the death penalty think it should be reserved for the worst of the worst. The reality of capital punishment, however, shows that it is reserved for racial minorities, people who are retarded or mentally ill, and those who cannot afford to hire a good attorney. It is also all too often reserved for people who are factually innocent of the crime for which they were convicted and sentenced to be executed.

Doubt that the death penalty is racist? Consider this: 55 percent of the inmates who make up America's death row population are people of color (43 percent of death row inmates are black). Two of every three juvenile offenders on death row are people of color, as are a majority of retarded inmates.

Furthermore, the race of the victim plays a role in who ends up on death row. Nationwide, just half of murder victims are white, yet four out of every five people executed in the United States have died for killing white people.

Of course, the numbers do not paint a complete picture. Racial minorities have been the victims of particularly cruel and vindictive wrongful prosecutions, particularly in the South. Consider the case of Clarence Brandley, who spent 10 years on death row in Texas for a crime he did not commit.

Brandley was the head janitor at a high school where a young white female student was found strangled. When police arrived at the crime scene and saw Brandley, a black man, and another janitor, who was white, one officer reportedly declared, "One of you is gonna hang for this. Since you're the nigger, you're elected." Brandley was freed from prison when all charges against him were dropped after a Department of Justice and FBI investigation uncovered trial misconduct.

Doubt that the death penalty is reserved for people who are retarded or mentally ill? Since executions were allowed to resume in 1976, we've executed 44 mentally retarded inmates. (And that is a conservative number. Many inmates are not evaluated for mental retardation before they are executed.) ¹

These 44 inmates include Morris Mason of Virginia who, on his way to the death chamber, turned to a prison worker and said, "You tell Roger [another death row inmate] when I get back, I'm going to show him I can play basketball as good as he can." Ricky Rector of Arkansas separated his pecan pie from his last meal and left it on the windowsill of his prison cell. He wanted to eat it after the execution.

The Importance of the Trial Attorney

Doubt that the death penalty discriminates against those who cannot afford a good attorney? Consider the case of Ronald Keith Williamson, who was convicted in Oklahoma and sentenced to death for murder and rape in 1988.

Williamson's conviction was tossed out because of ineffectiveness of counsel; a federal appellate court wryly noted that his attorney failed to investigate and present to the jury the fact that another man had confessed to the rape and murder. It was a case of you get what you pay for-the attorney had received only $3,200 for his defense. Later, DNA evidence would exonerate Williamson.

Of course, that is just the tip of the iceberg. We've seen capital murder suspects represented by drunken lawyers, sleeping lawyers, biased lawyers, inexperienced lawyers, lawyers who were later disbarred, and lawyers who would be institutionalized due to mental illness.

Aden Harrison Jr., a black man, had as his court-appointed counsel 83-year-old James Venable, who had been an imperial wizard of the Ku Klux Klan for more than 15 years. Judy Haney's court-appointed lawyer was so drunk during the trial in 1989 that he was held in contempt and sent to jail. The next day, both client and attorney came out of the cellblock and the trial resumed. George McFarland's attorney slept through much of the trial. He objected to hardly anything the prosecution did, and every time he opened his eyes, a different witness was on the stand.

As Supreme Court Justice Ruth Ginsburg put it, "People who are well represented at trial do not get the death penalty. I have yet to see a death penalty case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial."

Doubt that the death penalty ensnares innocent Americans in its complicated legal web? More than 100 people have been freed from death row due to actual innocence, while close to 800 people have been executed. This means that for every eight people we are executing, one person is completely exonerated.

Think of it this way. What if a prescription drug cured eight of every nine people who took it but killed the ninth? What if an airline carrier successfully completed eight of every nine flights it launched, but the ninth resulted in mechanical failure?

What if you are able to successfully reboot your computer eight of every nine tries, but the rest of the time, it crashes and destroys your document? As a society that depends upon a functioning criminal justice system, should we have confidence when that same justice system sends innocent people to death row?

As Supreme Court Justice Sandra Day O'Connor put it, "If statistics are any indication, the system may well be allowing some innocent defendants to be executed. More often than we want to recognize, some innocent defendants have been convicted and sentenced to death."

Kirk Bloodsworth of Maryland and Clyde Charles of Louisiana should know. Bloodsworth spent nine years in prison-two on death row-before DNA testing of old evidence proved him innocent of the only crime for which he had ever been arrested, the brutal rape and murder of a nine-year-old girl. While he was in prison, his mother passed away, and Bloodsworth was forced to view the body while wearing shackles. The real child predator and killer remains unidentified.

Charles spent 19 years at Angola in Louisiana, one of the country's most notorious prisons. He fought for 9 years to get DNA testing done. The results proved that Charles could not have committed the crime, and he was released.

His children grew into adults while he was in prison, and both his parents died; he also caught tuberculosis and developed diabetes. The same DNA test that exonerated Charles identified the real criminal-who had since been arrested for committing other crimes against innocent victims while the wrong man was in jail.

Some death penalty proponents quibble over the number of people who have been found to have been factually innocent. The exact number isn't really what's important. What's important is that not one of us-death penalty opponents or proponents-would conclude that executing even one innocent person constitutes acceptable criminal justice policy in the United States.

Arguments against the death penalty are easy to make, but is anyone listening? The bad news is that most Americans continue to support capital punishment in theory. The good news is when you start to probe, there is a growing sense of unease and ambivalence.

For example, 80 percent of voters want to abolish or significantly reform the death penalty system. Sixty-nine percent of voters are more worried about executing an innocent person than executing the guilty. And 64 percent of voters-including 50 percent of Republican voters-want to suspend executions until issues of fairness can be resolved.

The fact is that people are beginning to respond to concerns about the system. Across the United States, a healthy and vibrant moratorium movement is gathering steam. Elected bodies in 73 municipalities have passed resolutions in favor of a moratorium.

Two governors, Republican George Ryan in Illinois and Democrat Parris Glendening in Maryland, have each declared a moratorium. Some 14 states have debated moratorium legislation; in New Hampshire, the legislature passed a bill abolishing the death penalty, only to see it vetoed by the governor.

In Nevada and Maryland, bills imposing a moratorium passed one chamber, only to be defeated in the other. In New Mexico, a bill to abolish the death penalty failed in the Senate by one vote. [In the future], we can expect many more moratorium bills to be debated-as well as bills calling for outright abolition.

Let's face it. The death penalty experiment in America has been tried and found wanting. It is time for the lethal injection gurney to go the way of the stake, the guillotine, and the gallows. It is time to relegate this gruesome practice to the dustbin of history. Our common decency demands no less.

Books

James R. Acker, Robert M. Bohm, and Charles S. Lanier, eds. America's Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction, 2nd ed. Durham, NC: Carolina Academic Press, 2003.

Laura Argys and Naci Mocan. Who Shall Live and Who Shall Die?: An Analysis of Prisoners on Death Row in the United States. Cambridge, MA: National Bureau of Economic Research, 2003.

Stuart Banner. The Death Penalty: An American History. Cambridge, MA: Harvard University Press, 2002.

Hugo Adam Bedau and Paul G. Cassell, eds. Debating the Death Penalty: Should America Have Capital Punishment?: The Experts on Both Sides Make Their Best Case. New York: Oxford University Press, 2004.

Walter Berns. For Capital Punishment. Lanham, MD: University Press of America, 2000.

Antoinette Bosco. Choosing Mercy: A Mother of Murder Victims Pleads to End the Death Penalty. Maryknoll, NY: Orbis Books, 2001.

James E. Coleman Jr., ed. The ABA's Proposed Moratorium on the Death Penalty. Durham, NC: Duke University School of Law, 1998.

L. Kay Gillespie. Executions and the Execution Process: Questions and Answers. Boston: Allyn and Bacon, 2002.

Mike Gray. The Death Game: Capital Punishment and the Luck of the Draw. Monroe, ME: Common Courage Press, 2003.

Harry Henderson. Capital Punishment. New York: Facts On File, 2000.

Jesse L. Jackson Sr., Jesse L. Jackson Jr., and Bruce Shapiro. Legal Lynching: The Death Penalty and America's Future. New York: New Press, 2001.

Robert Jay Lifton and Greg Mitchell. Who Owns Death? Capital Punishment, the American Conscience, and the End of Executions. New York: Morrow, 2000.

Ann Chih Lin, ed. Capital Punishment. Washington, DC: CQ Press, 2002.

Dan Malone and Howard Swindle. America's Condemned: Death Row Inmates in Their Own Words. Kansas City, MO: Andrews McMeel, 1999.

Naci H. Mocan and R. Kaj Gittings. Pardons, Executions, and Homicide. Cambridge, MA: National Bureau of Economic Research, 2001.

Lane Nelson and Burk Foster, eds. Death Watch: A Death Penalty Anthology. Upper Saddle River, NJ: Prentice Hall, 2001.

Louis P. Pojman and Jeffrey Reiman. The Death Penalty: For and Against. Lanham, MD: Rowman & Littlefield, 1998.

Austin Sarat. When the State Kills: Capital Punishment and the American Condition. Princeton, NJ: Princeton University Press, 2001.

Ivan Solotaroff. The Last Face You'll Ever See: The Private Life of the American Death Penalty. New York: Harper-Collins, 2001.

Tom Streissguth. The Death Penalty: Debating Capital Punishment. Berkeley Heights, NJ: Enslow, 2002.

Scott Turow. Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty. New York: Farrar, Straus, and Giroux, 2003.

Ted R. Weiland. Capital Punishment: Deterrent or Catalyst. Eugene, OR: Far Horizons Press, 2000.

Periodicals

John L. Allen Jr. "U.S. Allies See Death Penalty as Fascist Relic," National Catholic Reporter, January 19, 2001.

Bruce Anderson. "A Hanging Matter," Spectator, November 22, 2003.

George M. Anderson. "Healing the Wounds of Murder: Among the Victims Are Family Members of Both the Murdered and the Murderer," America, July 30, 2002.

Peter L. Berger. "Beyond the 'Humanly Tolerable,'" National Review, July 17, 2000.

Alan Berlow. "The Broken Machinery of Death," American Prospect, July 30, 2001.

John D. Bessler. "America's Death Penalty: Just Another Form of Violence," Phi Kappa Phi Forum, Winter 2002.

Philip Brasfield. "The End of Innocence," Other Side, December 2000.

Antony J. Blinken. "Listen to the People: Capital Punishment Is More Popular in Europe than Its Politicians Admit," Time International, May 21, 2001.

Carl M. Cannon. "The Problem with the Chair-A Conservative Case Against Capital Punishment," National Review, June 19, 2000.

Catherine Cowan. "States Revisit the Death Penalty," State Government News, May 2001.

John Dart. "Executing Justice," Christian Century, February 13, 2002.

Gregg Easterbrook. "The Myth of Fingerprints: DNA and the End of Innocence," New Republic, July 31, 2000.

Don Feder. "It's Hard to Pardon the Excuses Given by Death-Penalty Opponents," Insight on the News, July 16, 2001.

Samuel Francis. "Processions of the Damned," Chronicles, September 2000.

Linda Greenhouse. "Citing 'National Consensus,' Justices Bar Death Penalty for Retarded Defendants," New York Times, June 21, 2002.

Jonathan I. Groner. "Lethal Injection: A Stain on the Face of Medicine," British Medical Journal, November 2, 2002.

Cragg Hines. "There Should Be No Deadline for Justice," Houston Chronicle, October 2, 2003.

Jeffrey L. Johnson and Colleen F. Johnson. "Poverty and the Death Penalty," Journal of Economic Issues, June 2001.

Frank Keating. "Why I Support Capital Punishment," Human Events, May 19, 2000.

Alice Kim. "Death Penalty Exposed," International Socialist Review, March/April 2003.

Eugene H. Methvin. "Death Penalty Is Fairer than Ever," Wall Street Journal, May 10, 2000.

Deborah Potter. "Witnessing the Final Act," American Journalism Review, July 2001.

Sally Satel. "It's Crazy to Execute the Insane," Wall Street Journal, March 14, 2002.

Bruce Shapiro. "Rethinking the Death Penalty: Politicians and Courts Are Taking Their Cues from the Growing Public Opposition," Nation, July 22, 2002.

Kathy Swedlow. "Forced Medication of Legally Incompetent Prisoners: A Primer," Human Rights, Spring 2003.

William Tucker. "The Chair Deters," National Review, July 17, 2000.

William Tucker. "Why the Death Penalty Works," American Spectator, October 1, 2000.

James Q. Wilson. "What Death Penalty Errors?" New York Times, July 10, 2000.

Lewis Yablonsky. "A Road into Minds of Murderers," Los Angeles Times, January 14, 2003.

Gabino Zavala and Michael Kennedy. "Death Penalty Diminishes Us as a Society," Los Angeles Times, October 27, 2000.

Source Citation

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When the Supreme Court struck down death penalty laws in 1972, former Justice Potter Stewart compared the arbitrariness of the death penalty to the freakishness of being struck by lightning. Thirty years later, were he still alive, Justice Stewart would probably appreciate his choice of words.

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Capital Punishment Should Be Reformed to Protect the Innocent

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Capital Punishment Should Be Reformed to Protect the Innocent

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Note: Editor's Note: The following viewpoint was originally delivered as testimony before the U.S. Senate on November 18, 2002, in support of the Innocence Protection Act. As of this writing, the act had not passed.

For more than 2 years, I have been working hard with Members on both sides of the aisle, in both Houses of Congress, to address the horrendous problem of innocent people being condemned to death within our judicial system. This is not a question of whether you are for or against the death penalty. Many of the House Members and Senate Members who have joined this effort are in favor of the death penalty. I suspect the majority of them are in favor of it. It goes to the question of what happens if you have an innocent person who is condemned to death.

Our bill, the Innocence Protection Act [IPA], proposes a number of basic commonsense reforms to our criminal justice system; reforms that are aimed at reducing the risk that innocent people will be put to death. ¹

We have come a long way since I first introduced the IPA in February 2000. At that time, we had four Democratic cosponsors. Now there is a broad consensus across the country among Democrats and Republicans, supporters and opponents of the death penalty, liberals, conservatives, and moderates, that our death penalty machinery is broken. We know that putting an innocent person on death row is not just a nightmare, it is not just a dream, it is a frequently recurring reality.

Sentenced to Death by Mistake

Since the 1970s, more than 100 people who were sentenced to death have been released, not because of some technicality, but because they were innocent, because they had been sentenced to death by mistake. One wonders how many others were not discovered and how many innocent people were executed.

These are not just numbers, these are real people. Their lives are ruined. Let me give an example: Anthony Porter. Anthony Porter was 2 days from execution in 1998 when he was exonerated and released from prison. Why? Not because the criminal justice system worked. He was exonerated and released because a class of journalism students, who had taken on an investigation of his case, found that he did he not commit the crime. They also found the real killer. A group of students from a journalism class did what should have been done by the criminal justice system in the first place.

Ray Krone spent 10 years in prison. Three of those ten years were on death row waiting for the news that he was about to be executed. Then, [in 2002], through DNA testing, he was exculpated and the real killer was identified. These are two of the many tragedies we learn about each year.

These situations result not only in the tragedy of putting an innocent person on death row, but they also leave the person who committed the crime free. Everything fails. We have the wrong person in prison. But we have not protected society or the criminal justice system because the real criminal is still out running free. Often times, the actual perpetrator is a serial criminal.

Today, Federal judges are voicing concerns about the death penalty. Justice Sandra Day O'Connor has warned that "the system may well be allowing some innocent defendants to be executed." Justice [Ruth Bader] Ginsburg has supported a State moratorium on the death penalty. Another respected jurist, Sixth Circuit Judge Gilbert Merritt, referred to the capital punishment system as "broken," and two district court judges have found constitutional problems with the Federal death penalty.

The Innocence Protection Act

We can agree there is a grave problem. The good news is that there is also a broad consensus on one important step we have to take-we must pass the Innocence Protection Act.

That is why I wanted to let my colleagues know what is happening. As the 107th Congress draws to a close, the IPA is cosponsored by a substantial bipartisan majority of the House and by 32 Senators from both sides of the aisle, including, most recently, Senator Bob Smith of New Hampshire. A version of the bill has been reported by a bipartisan majority of the Senate Judiciary Committee. And the bill enjoys the support of ordinary Americans across the political spectrum.

What would the Innocence Protection Act do? As reported by the committee, the bill proposes two minimum steps that we need to take-not to make the system perfect, but simply to reduce what is currently an unacceptably high risk of error. First, we need to make good on the promise of modern technology in the form of DNA testing. Second, we need to make good on the constitutional promise of competent counsel.

DNA testing comes first because it is proven and effective. We all know that DNA testing is an extraordinary tool for uncovering the truth, whatever the truth may be. It is the fingerprint of the 21st Century. Prosecutors across the country rightly use it to prove guilt. By the same token, it should also be used to do what it is equally scientifically reliable to do: to establish innocence.

Just like fingerprints, in many crimes there are no fingerprints; in many crimes there is no DNA evidence.

Where there is DNA evidence, it can show us conclusively, even years after a conviction, where mistakes have been made. And there is no good reason not to use it.

Allowing testing does not deprive the State of its ability to present its case, and under a reasonable scheme for the preservation and testing of DNA evidence, it should be possible to preserve the evidence.

The Innocence Protection Act would therefore provide improved access to DNA testing for people who claim that they have been wrongfully convicted.

[In November 2002], prosecutors in St. Paul, MN, vacated a 1985 rape conviction after a review of old cases led to DNA testing that showed they had the wrong man-and also identified the actual rapist. Think how much better society would have been had they caught the real rapist 17 years ago. The district attorney wanted to conduct DNA testing in two other cases, but the evidence in those cases had already been destroyed. She has called on law enforcement agencies to adopt policies requiring retention of such evidence, and that is what our bill would call for.

The Need for Competent Counsel

Many cases have no DNA evidence to be tested, just as in most cases there are no fingerprints. In the vast majority of death row exonerations, no DNA testing has or could have been involved.

So the broad and growing consensus on death penalty reform has another top priority. All the statistics and evidence show that the single most frequent cause of wrongful convictions is inadequate defense representation at trial. The biggest thing we can do is to guarantee at least minimum competency for the defense in a capital case.

This bill offers States extra money for quality and accountability.

They can decline the money but then the money will be spent on one or more organizations that provide capital representation in that State. One way or another, the system is improved.

More money is good for the states. More openness and accountability is good for everyone. And better lawyering makes the trial process far less prone to error.

When I was a State's Attorney in Vermont, I wanted those I prosecuted to have competent defense counsel. I wanted to reach the right result in my trials, whatever that was, and I wanted a clean record, not a record riddled with error. Any prosecutor worth his or her salt will tell you the same; any prosecutor who is afraid of trying his cases against competent defense counsel ought to try a new line of work, because the whole system works better if both prosecutor and defense counsel are competent. That is what I wanted when I was prosecuting cases because I wanted to make sure justice was done.

The Constitution requires the Government to provide an attorney for any defendant who cannot afford one. The unfortunate fact is that in some parts of the country, it is better to be rich and guilty than poor and innocent, because the rich will get their competent counsel, but those who are not rich often find their lives placed in the hands of underpaid court-appointed lawyers who are inexperienced, inept, uninterested, or worse.

We have seen case after case of sleeping lawyers, drunk lawyers, lawyers who meet with their clients for the first time on the eve of trial, and lawyers who refer to their own clients with racial slurs.

Part of the problem, I think, lies with some state court judges who do not appear to expect much of anything from criminal defense attorneys, even when they are representing people who are on trial for their lives. Good judges, like good prosecutors, want competent lawyering for both sides. But some judges run for reelection touting the number and speed of death sentences they have handed down. For them, the adversary system is a hindrance.

The problem of low standards is not confined to elected State judges. [In 2002] a bare majority of the Supreme Court held that it was okay for the defendant in a capital murder trial to be represented by the same lawyer who represented the murder victim. Most law students would automatically say that is a conflict of interest, but our Supreme Court said that was all right. And [in 2001] a Federal appeals court struggled with the question whether a defense lawyer who slept through most of his client's capital murder trial provided effective assistance of counsel.

Fortunately, a majority of the court eventually came to the sensible conclusion that "unconscious counsel equates to no counsel at all," basically reversing what a State court said when it said the Constitution guarantees a person counsel. It does not guarantee they will stay awake.

No law can guarantee that no innocent person will be convicted. But surely we can do better than this. Surely we can demand more of defense counsel than that they simply show up for the trial and remain awake. When people in this country are put on trial for their lives, they should be defended by lawyers who meet reasonable standards of competence and who have sufficient funds to investigate the facts and prepare thoroughly for trial. As citizens, we expect that of our prosecutors. We ought to expect the same thing of our defense attorneys. That is all we ask for in the IPA.

Responding to Critics' Arguments

I have heard four arguments against the bill. One wonders, with all these people from the right to the left, all these editorial writers and Members of Congress from both parties supporting the IPA, what that tells us.

First, critics claim that the bill is an affront to States' rights. As a Vermonter, and as a former State prosecutor, I agree that States' rights are very important. States should have the right to set their own laws, free of Federal preemption at the behest of special interests. They should have the right to set their own budgets, free of unfunded mandates. And their reasonable expectations of Federal funding for criminal justice and other essential programs should be met, rather than bankrupting State governments because of Federal tax policy.

The IPA is entirely consistent with these principles of State sovereignty. It leaves State laws, including the death penalty laws, in place. It offers States new funding for their criminal justice systems. And there was a provision added during the committee process establishing a student loan forgiveness program for prosecutors and public defenders, something that a lot of State governments say would help recruit and retain competent young lawyers.

This is one of those cases, like in the civil rights era, where the rhetoric of States rights is being abused as a code for the denial of basic justice and accountability. Some States have made meaningful reforms, but many have not. They have had more than a quarter of a century and 100 death row exonerations to get their act together, but they have failed. As many in this body argued in 1996, when promoting legislation to speed up executions, justice delayed is justice denied. I agree with that. We cannot wait forever while innocent lives are in peril.

I have heard a second argument against the IPA, which is that society cannot afford to pay for these reforms. The truth, however, is that we cannot afford to do otherwise if we want to maintain confidence in our criminal justice system. The costs of providing DNA testing and competent counsel are relatively small, especially when you compare them to the costs of retrials that are necessitated by the lack of adequate counsel at trial, or the cost of locking up innocent people for years or even decades. I am all for efficiency, but the greatest nation on Earth should not be skimping on justice in matters of life or death.

I have heard a third argument from a vocal minority of State prosecutors. They claim the bill would make it unduly difficult, if not impossible, to seek the death penalty. That is a shocking claim. When I prosecuted cases, I felt very comfortable prosecuting those cases under the laws of our State because of two things: I knew that all the evidence we had, including potentially exonerating evidence, had been given to the defendant. And I knew I was working in a well-functioning adversarial system with effective representation on the other side. That is the way it is supposed to work.

When I hear a prosecutor say that the IPA reforms-enabling DNA testing and securing adequate defense representation-would make it almost impossible for him to do his job, it makes me wonder what he thinks that job is.

Finally, there is one more argument against the bill which is rarely stated out loud. I call it the "innocence denial" argument. We saw this in the Earl Washington case in Virginia where, despite conclusive DNA evidence to the contrary, the Commonwealth for years clung to the hopelessly unreliable and implausible confession of a mentally retarded man. We see it in claims that "the system is working" when an innocent man is released after years on death row due to the work of journalism students. And we see it in the often-repeated insistence that, no matter how many people have been exonerated, no one can prove that an innocent person has actually been executed.

The innocence deniers will never concede there is a problem. But with 100 known instances of the system failing-and those are only the ones we know about-it would be surprising if there were not more unknown cases of innocent people being sentenced to death.

The IPA was passed out of committee in the Senate and is supported by a majority of the House. We ought to pass it before more lives are ruined.

As a prosecutor, I never had any hesitation to seek the severest penalties our State could provide for people who committed serious crimes. When I look at some of the cases I have reviewed over recent years, when I see shoddy evidence, or when I see evidence that was not looked at because it might have pointed to someone else, I wonder, why wouldn't society want a better system? Passing the IPA will help fix these problems and give greater credibility to our criminal justice system.

Books

James R. Acker, Robert M. Bohm, and Charles S. Lanier, eds. America's Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction, 2nd ed. Durham, NC: Carolina Academic Press, 2003.

Laura Argys and Naci Mocan. Who Shall Live and Who Shall Die?: An Analysis of Prisoners on Death Row in the United States. Cambridge, MA: National Bureau of Economic Research, 2003.

Stuart Banner. The Death Penalty: An American History. Cambridge, MA: Harvard University Press, 2002.

Hugo Adam Bedau and Paul G. Cassell, eds. Debating the Death Penalty: Should America Have Capital Punishment?: The Experts on Both Sides Make Their Best Case. New York: Oxford University Press, 2004.

Walter Berns. For Capital Punishment. Lanham, MD: University Press of America, 2000.

Antoinette Bosco. Choosing Mercy: A Mother of Murder Victims Pleads to End the Death Penalty. Maryknoll, NY: Orbis Books, 2001.

James E. Coleman Jr., ed. The ABA's Proposed Moratorium on the Death Penalty. Durham, NC: Duke University School of Law, 1998.

L. Kay Gillespie. Executions and the Execution Process: Questions and Answers. Boston: Allyn and Bacon, 2002.

Mike Gray. The Death Game: Capital Punishment and the Luck of the Draw. Monroe, ME: Common Courage Press, 2003.

Harry Henderson. Capital Punishment. New York: Facts On File, 2000.

Jesse L. Jackson Sr., Jesse L. Jackson Jr., and Bruce Shapiro. Legal Lynching: The Death Penalty and America's Future. New York: New Press, 2001.

Robert Jay Lifton and Greg Mitchell. Who Owns Death? Capital Punishment, the American Conscience, and the End of Executions. New York: Morrow, 2000.

Ann Chih Lin, ed. Capital Punishment. Washington, DC: CQ Press, 2002.

Dan Malone and Howard Swindle. America's Condemned: Death Row Inmates in Their Own Words. Kansas City, MO: Andrews McMeel, 1999.

Naci H. Mocan and R. Kaj Gittings. Pardons, Executions, and Homicide. Cambridge, MA: National Bureau of Economic Research, 2001.

Lane Nelson and Burk Foster, eds. Death Watch: A Death Penalty Anthology. Upper Saddle River, NJ: Prentice Hall, 2001.

Louis P. Pojman and Jeffrey Reiman. The Death Penalty: For and Against. Lanham, MD: Rowman & Littlefield, 1998.

Austin Sarat. When the State Kills: Capital Punishment and the American Condition. Princeton, NJ: Princeton University Press, 2001.

Ivan Solotaroff. The Last Face You'll Ever See: The Private Life of the American Death Penalty. New York: Harper-Collins, 2001.

Tom Streissguth. The Death Penalty: Debating Capital Punishment. Berkeley Heights, NJ: Enslow, 2002.

Scott Turow. Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty. New York: Farrar, Straus, and Giroux, 2003.

Ted R. Weiland. Capital Punishment: Deterrent or Catalyst. Eugene, OR: Far Horizons Press, 2000.

Periodicals

John L. Allen Jr. "U.S. Allies See Death Penalty as Fascist Relic," National Catholic Reporter, January 19, 2001.

Bruce Anderson. "A Hanging Matter," Spectator, November 22, 2003.

George M. Anderson. "Healing the Wounds of Murder: Among the Victims Are Family Members of Both the Murdered and the Murderer," America, July 30, 2002.

Peter L. Berger. "Beyond the 'Humanly Tolerable,'" National Review, July 17, 2000.

Alan Berlow. "The Broken Machinery of Death," American Prospect, July 30, 2001.

John D. Bessler. "America's Death Penalty: Just Another Form of Violence," Phi Kappa Phi Forum, Winter 2002.

Philip Brasfield. "The End of Innocence," Other Side, December 2000.

Antony J. Blinken. "Listen to the People: Capital Punishment Is More Popular in Europe than Its Politicians Admit," Time International, May 21, 2001.

Carl M. Cannon. "The Problem with the Chair-A Conservative Case Against Capital Punishment," National Review, June 19, 2000.

Catherine Cowan. "States Revisit the Death Penalty," State Government News, May 2001.

John Dart. "Executing Justice," Christian Century, February 13, 2002.

Gregg Easterbrook. "The Myth of Fingerprints: DNA and the End of Innocence," New Republic, July 31, 2000.

Don Feder. "It's Hard to Pardon the Excuses Given by Death-Penalty Opponents," Insight on the News, July 16, 2001.

Samuel Francis. "Processions of the Damned," Chronicles, September 2000.

Linda Greenhouse. "Citing 'National Consensus,' Justices Bar Death Penalty for Retarded Defendants," New York Times, June 21, 2002.

Jonathan I. Groner. "Lethal Injection: A Stain on the Face of Medicine," British Medical Journal, November 2, 2002.

Cragg Hines. "There Should Be No Deadline for Justice," Houston Chronicle, October 2, 2003.

Jeffrey L. Johnson and Colleen F. Johnson. "Poverty and the Death Penalty," Journal of Economic Issues, June 2001.

Frank Keating. "Why I Support Capital Punishment," Human Events, May 19, 2000.

Alice Kim. "Death Penalty Exposed," International Socialist Review, March/April 2003.

Eugene H. Methvin. "Death Penalty Is Fairer than Ever," Wall Street Journal, May 10, 2000.

Deborah Potter. "Witnessing the Final Act," American Journalism Review, July 2001.

Sally Satel. "It's Crazy to Execute the Insane," Wall Street Journal, March 14, 2002.

Bruce Shapiro. "Rethinking the Death Penalty: Politicians and Courts Are Taking Their Cues from the Growing Public Opposition," Nation, July 22, 2002.

Kathy Swedlow. "Forced Medication of Legally Incompetent Prisoners: A Primer," Human Rights, Spring 2003.

William Tucker. "The Chair Deters," National Review, July 17, 2000.

William Tucker. "Why the Death Penalty Works," American Spectator, October 1, 2000.

James Q. Wilson. "What Death Penalty Errors?" New York Times, July 10, 2000.

Lewis Yablonsky. "A Road into Minds of Murderers," Los Angeles Times, January 14, 2003.

Gabino Zavala and Michael Kennedy. "Death Penalty Diminishes Us as a Society," Los Angeles Times, October 27, 2000.

Source Citation

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Capital Punishment Should Be Reformed to Protect the Innocent

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Note: Editor's Note: The following viewpoint was originally delivered as testimony before the U.S. Senate on November 18, 2002, in support of the Innocence Protection Act. As of this writing, the act had not passed.

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Criminal injustice: Wounds from incarceration that never heal

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Racism Is a Significant Problem in the Penal System

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Reforms Are Needed to Prevent the Execution of Innocent People

# data[].attributes.attachment_link.title
Capital Punishment Should Be Reformed to Protect the Innocent