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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    simple answer to your title question: (5.00 / 3) (#1)
    by Turkana on Fri Aug 22, 2008 at 12:01:05 PM EST
    stop executing people.

    We should stop executing people, (5.00 / 0) (#2)
    by inclusiveheart on Fri Aug 22, 2008 at 12:12:10 PM EST
    but in the event that he stop this barbaric practice, that should not reduce the pressure on our Judicial system and government to seek out ways to ensure that all people tried in our criminal system have access to competent representation.  Sending innocent people to jail for the rest of their lives is a very bad thing to do too.

    Glad to see you covering this - (5.00 / 1) (#3)
    by Anne on Fri Aug 22, 2008 at 12:12:40 PM EST
    it's been pretty big news here in MD, and given that we haven't exactly been making good news on related fronts here, am pleased that this commission was formed, and is taking the time to study the issue from as many perspectives as possible.

    And I agree with the Tydings' conclusion - and while I can't imagine anyone would quarrel with it, there will be those who disagree.

    I think at a minimum.... (none / 0) (#4)
    by Jerrymcl89 on Fri Aug 22, 2008 at 02:03:25 PM EST
    ... that DNA evidence should be a requirement for seeking the death penalty in all cases. I suspect that would elimintate the great majority of wrongful sentences.

    Personally, I'd just as soon see nobody executed. I have no principled objection to executing those obviously guilty of especially heinous crimes (Charles Manson, Tim McVeigh), but I can live with them just rotting in prison in order to prevent executions of the innocent.

    I almost agree with "stop executing" (none / 0) (#5)
    by badger on Fri Aug 22, 2008 at 02:12:08 PM EST
    It seems to me the most humane thing would be to make execution voluntary.

    I certainly support assisted suicide for the terminally ill, and I'd support it for people faced with life without parole, which in some cases might be equally hard to bear.

    For example, Gary Gilmore (I believe it was) years ago wanted to be executed, and I'm sure some other might feel that way too. Assuming someone is rational enough to make that decision and isn't coerced, I'd favor letting them do it.

    Life without parole certainly isn't rehabilitative and I'm not that big on the idea of punishment for life.

    Yes (none / 0) (#6)
    by bmc on Fri Aug 22, 2008 at 04:15:55 PM EST
    Most thinking people understand that there are moments when we react emotionally to hideous, brutality and cruelty, and say, "fry 'em." I've said it myself.

    But, then I spent years reading. I spent hours and hours reading about the death penalty, what it means, what it costs. And, the costs do not justify the means. I'm against the death penalty, not because I don't think some people should be put to death by the state--I do think some people should be put to death by the "state." And, in some cases, I couldn't care less about "cruel and unusual punishment" those people may suffer, too.

    But the bottom line for me is the answer to the question:

    Could we be putting innocent people to death?

    And, the answer, is an unequivocal YES.

    We already HAVE, most assuredly, put innocent people to death under our legal system.

    I cannot sanction such a system. So, I am forced to say that I cannot support the death penalty. Because if even one innocent person is murdered by the state then it isn't worth it.

    Tydings begs the ultimate question (none / 0) (#7)
    by wumhenry on Fri Aug 22, 2008 at 04:48:00 PM EST
    The ultimate question is not whether there's an appreciable risk that innocent defendants will be put to death. Rather, it's whether abolishing capital punishment would have a net beneficial effect, taking deterrence of crime into account as well as the risk of inflicting the DP on innocent people.  Would the number of innocent defendants who'd be spared from the DP exceed the number of additional murders that would be committed due to the consequent erosion of deterrence?  I doubt that Mr. Tydings could  answer "yes" to that question with any degree of certitude.

    I really don't think that's an argument.... (none / 0) (#8)
    by Jerrymcl89 on Fri Aug 22, 2008 at 05:46:16 PM EST
    ... that you'd want to make. If we're executing 25 innocent people a year, and it is (unprovably, but for the sake of argument) saving 50 lives through deterrence, it's still the government actively killing innocent people, and is not, in my view, tolerable.

    Your argument assumes facts not in evidence (none / 0) (#9)
    by Romberry on Fri Aug 22, 2008 at 09:43:22 PM EST
    On what basis due you believe (if you in fact believe) that the death penalty acts as a deterrent? I'm not aware of any real and consistent evidence that the death penalty acts as a deterrent at all. In fact, it seems that states with the death penalty tend to have higher rates of capital crimes than states that do not.

    Better ten guilty go free than a single innocent be put to death.


    Accuracy matters (none / 0) (#11)
    by bnewmiller on Sat Aug 23, 2008 at 06:34:18 PM EST
    The stats growing out of DNA exonerations raises a broader question: How (in)accurate is our justice system? If we can't get capital cases right, what are the risks of wrongful convictions in non-capital cases?