How Do We Avoid Executing the Innocent?
Joseph Tydings is a former U.S. senator from Maryland. As a former U.S. attorney and as a private lawyer, he has prosecuted and defended death penalty cases. Tydings therefore has credibility when he argues that the risk of executing the innocent is simply too great.
As pro bono counsel, I unsuccessfully litigated a Virginia appeal of a mentally retarded minor who had been convicted and sentenced to death for a crime that I firmly believe he didn't commit, because his court-appointed attorney didn't want to represent him and was basically worthless as his lawyer. After seven years, the Virginia governor ultimately lacked the courage to stay the sentence, and my client was executed.
Given the 129 people who were sentenced to death and who managed to establish their innocence before being executed, death penalty supporters are fooling themselves if they believe the criminal justice system is so flawless that the innocent will never be executed. [more ...]
Americans are just beginning to focus on miscarriages of justice in capital offenses and the fact that our nation, in all likelihood, continues to execute innocent people. Former Supreme Court Justice Sandra Day O'Connor - like myself, a supporter of capital punishment - in 2001 stated: "If statistics are any indication, the system may well be allowing some innocent defendants to be executed." Since she made that comment, several more people have been shown to be innocent after being sentenced to death.
Tydings points to witnesses who lie and to police and prosecutors who take "constitutionally unlawful shortcuts" as reasons for wrongful convictions, but poor lawyering on behalf of death penalty defendants is the focus of his essay.
An accused innocent is most likely to be charged in a highly emotional atmosphere after a heinous crime has been committed, when there is tremendous public pressure on prosecutors and police to find and charge a defendant. The targets in many of these situations have no financial or family resources and are forced to rely on state-paid attorneys, who often are inexperienced and unprepared to defend them in this type of case. Defendants with substantial wealth seldom face a risk of execution.
The defense of a person accused in a death penalty case is enormously time-consuming and professionally demanding for a lawyer. When a state fails to provide the funds necessary to retain a competent lawyer, our state justice system is forced to rely on the altruism of a dwindling number of pro bono attorneys willing to endure the economic sacrifice and emotionally draining task of defending a capital case. Without a competent lawyer, the likelihood of a wrongful conviction rises drastically.
Like Ms. O'Connor, I see the deep and irrefutable flaws that are built into our present system of capital punishment. These flaws hold the most risk for those at the margins of society.
Devoting greater public resources to the defense of death penalty cases would help, but Tydings doesn't see that happening. Despite the presumption of innocence, politicians have no mandate to spend taxpayer money on people who are accused of murder. And no amount of money eliminates the risk that a witness is lying or mistaken. Tydings is therefore correct: there is only one way to avoid killing innocent defendants.
We must honor America's fundamental democratic and constitutional principle that innocent people shall not be executed. The penalty for conviction in capital cases should be changed to life imprisonment without the possibility of parole until we are willing or able to provide the resources to stop these frightfully tragic miscarriages of justice.
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