[Deathpenalty]death penalty news----ALA., ILL.
rhalperi at mail.smu.edu
Wed Mar 9 10:36:04 CST 2005
Death penalty: A rotten tree gets pruned
You might fancy that Esther Brown is leaping for joy these days, singing
the praises of the U.S. Supreme Court.
But thats not quite the case.
Brown, the executive secretary of Project Hope to Abolish the Death
Penalty, is a zealous soldier in the fight against capital punishment.
Shes watched as the Supreme Court tinkered with thenations machinery of
death, most recently with a ruling banning the execution of juvenile
The countrys highest court said last week that 16- and 17-year-olds cant
vote, sign contracts or buy cigarettes, and they ought not be put to death
The ruling came three years after the court ruled that states could not
execute people who are mentally retarded, based on largely the same logic.
How can the state impose the ultimate penalty on people who cant bear
complete responsibility for their actions?
So why isnt Brown thrilled?
Its not that Brown wants to see the state execute people who are mentally
retarded or those who were underage when they committed capital crimes.
Its that Brown doesnt want to see the state execute people at all.
Brown fears the rulings have the effect of sanitizing capital punishment,
leaving the impression that theres less of a reason now to object to the
death penalty. Its just not true, she says.
"When you have a tree that is rotten to the core, you can chop off a
couple of branches - it's still rotten," says Brown, who devotes her life
to helping Alabamas death row inmates. "This is just window dressing. It's
to make the average man in the street who knows very little and cares even
less ... feel comfortable."
Certainly, the courts latest ruling will have a huge impact on inmates who
were sentenced to die for crimes they committed as juveniles. In Alabama,
the ruling means life in prison (with no hope for parole) for 13 inmates
who had been facing execution.
One is Timothy Davis, who was sentenced to die for sodomizing, stabbing
and robbing a 69-year-old woman when he was 17. Davis, now 43, says he is
"Obviously, we're delighted with this ruling," says George Jones, a death
penalty opponent who had taken a special interest in Davis case. "We
should never have been executing children."
But Brown says the courts decision does nothing to fix the fundamental
problems that taint many other death penalty cases - problems involving
race, poverty and poor legal representation.
Death of innocents:
Repeated studies have shown troubling patterns about unfairness in the
application of the death penalty based on the race of defendants and the
race of victims. Thats a problem, unless you believe the value of life
varies with skin color.
And if race is a factor in who gets the death penalty, poverty is an even
bigger issue. Because death penalty defendants are typically poor, they
are not able to afford top-dollar representation. Some on death row have
had trouble getting lawyers at all for their last appeals.
All of which leads to the most fundamental problem of all: the possibility
of executing the wrong people. In recent years, DNA testing has shown us
that seemingly airtight cases were full of holes due to mistaken
eyewitnesses, dubious informants and unscrupulous prosecutors.
Yet theres nothing in the courts rulings to address the basic weaknesses
that have let innocent people be convicted and condemned to die.
Bryan Stevenson, whose Equal Justice Initiative represents many on death
row, is the last person who'd say there are no problems with capital
punishment. "I see so many problems with the death penalty, it's not like
the list has gotten dramatically shorter," he said.
But Stevenson says he'll take what he can get - even a "marginal or
incremental victory" - since he sees no serious debate about the more
basic questions of fairness and reliability with regard to the death
penalty. "In a place like Alabama, nobody was hesitating on the death
penalty because we have juveniles (on death row)," he said.
But to Brown, the bottom line is this: The Supreme Court pruned some of
the worst applications of the death penalty. But it left a rotten tree
(source: Axis of Logic)
Higher standard for death penalty a start, but not enough
Illinois House Republican Leader Tom Cross has introduced a bill that
would explicitly demand the highest standard of certainty before a
defendant is sentenced to death. While "guilty beyond a reasonable doubt"
would remain the standard for a conviction, "guilty beyond all doubt"
would be a requirement for a death sentence. Lingering doubts would force
us to settle for life without parole. This seems a small price for
avoiding mistakes in death sentencing.
Most people assume that we would already demand the highest standards of
certainty before an execution, but the alarming string of wrongful capital
convictions in Illinois and across the country makes clear that existing
safeguards are not cutting it. Cross' proposal, which is scheduled for a
committee hearing Thursday in the state House, makes good sense, but
relying on it alone to raise the standard of certainty would be a mistake.
It is but one part of a sufficient response to the wrongful convictions
and death sentences.
The proposal would essentially provide for a different kind of "gut check"
for jurors or judges -- "Is there any way I could be wrong about this
defendant's guilt?" Ultimately, it is a kind of subjective judgment about
how certain one feels. What is needed also is an objective criterion.
To understand the limitations of relying on jurors' subjective standards
of certainty, consider the case of Naperville resident Penny Beernsten,
who survived a brutal sexual assault in Wisconsin in 1985. She was sure
when she identified her attacker as Steven Avery, but 17 years later DNA
tests positively exonerated him. Avery had spent all of those years in
prison for a crime he did not commit; Beernsten had to live with yet
Beernsten's experience serves as an important reminder of both the need to
implement more accurate procedures for handling eyewitness evidence, but
also that one's subjective sense of certainty can sometimes be dead wrong.
Massachusetts Gov. Mitt Romney recently appointed a commission to develop
a death penalty system from scratch, to serve as the basis for legislation
to reintroduce capital punishment in a state where no one has been
executed since 1947 and which officially abolished the death penalty in
1984. Setting aside important questions about the wisdom of reinstatement
(given the relative costliness of the death penalty and the availability
of life without parole, for example) the Massachusetts proposals include
many ideas that would serve well if incorporated into existing death
penalty systems in other states.
In the Massachusetts proposal, in addition to a "no doubt" standard for
death sentences, there would have to be physical evidence that is strongly
corroborative of guilt in order for a case to be eligible for the death
penalty. To ensure the integrity of this requirement, the proposal calls
for independent scientific review of the collection, analysis and
presentation of scientific evidence in capital cases. Any meaningful
effort to enhance our standard of certainty in capital cases must include
this kind of objective element.
Demanding a higher standard of certainty is but one needed reform to begin
to address the problems in the system with such a sorry record of
mistakes. While passed with much fanfare, and doubtless a good start, the
Illinois Legislature's reforms have not even begun to address systemic
arbitrariness in the application of the death penalty.
Implementing more accurate line-up procedures, statewide oversight of
prosecutors' decisions to pursue a death penalty, and a more narrowly
tailored set of eligibility factors -- all recommended by Gov. George
Ryan's Commission on Capital Punishment -- are some of the most glaring
omissions of the reform bills so far. Until we handle eyewitness evidence
as accurately as possible and ensure consistency in the application of
capital punishment, we are stuck with a real chance of mistakes and the
luck of the draw in death sentencing.
Finally, having just begun to overhaul the criminal justice system in
light of wrongful convictions, we must take the time to study the
effectiveness of enacted reforms in the real world. A state committee
charged with that task over the next several years just had its first
meeting. Continuing the moratorium during this process is the only prudent
course, and one Gov. Blagojevich has wisely endorsed. We're moving
forward, but we've got a lot of hard work ahead. We cannot simply feel
certain. We must be certain.
(source: Edwin Colfax is director of the Death Penalty Education Project
of the Center on Wrongful Convictions at the Northwestern University
School of Law; Chicago Sun-Times)
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