Wrongful Convictions: A New Exoneration Registry Tests Stubborn Judges

A recent tally shows that hundreds of Americans have been imprisoned for crimes they didn't commit.
l-justice-body.jpgReuters

EVOLUTIONS

Last Friday, The New York Times published a memorable story about a man, Dr. Robert L. Spitzer, who came late in life to regret an episode that marks his legacy as one of the nation's most famous and controversial psychiatrists. In 2003, the Times' reported, Dr. Spitzer had undertaken "a poorly conceived" investigation "that supported the use of so-called reparative therapy to 'cure' homosexuality." Now, nine years later and wracked by Parkinson's Disease, Dr. Spitzer decided it was time to recant. "I believe," he wrote in the same journal in which the 2003 piece had appeared, "I owe the gay community an apology."

The story is notable, sadly, in part because it seems so rare these days for public officials, or even public figures, to acknowledge the evolution of their beliefs, to publicly recognize their capacity to learn through life's experiences, and to candidly admit that they were once wrong. A basic lesson we teach our children -- learn from your mistakes! -- is subsumed by the cynical priorities and pressures we feel all around us as adults. Our Atlantic friend Marc Ambinder, in a recent column, made this point about politics:

Consistency is not a terribly interesting or useful proxy for effectiveness in a politician, and yet it seems to be the value held most high -- or the value that, because someone is most easily able to convince you that someone else lacks it, becomes important. Politicians and the media haven't developed the vocabulary to explain how positions evolve.

This self-defeating dynamic is no less true in American law. In fact, you could argue that the gravitational pull of legal precedent discourages judges from fixing their mistakes more than any other rule of politics or governance. The Constitution may not be a suicide pact, but it is closer to that than to an Etch-A-Sketch. Like politicians, judges who change their minds, who admit they once erred, often are roundly scorned. This is particularly true at the United States Supreme Court, where the justices, alone among government officials, have no one to answer to but their own consciences.

But consider the Court and the death penalty. In the 35 years since the Court gave capital punishment back to the states, no fewer than three of its death penalty advocates eventually changed their minds about its efficacy and lawfulness. Justice Potter Stewart, the Kennedy appointee, came to regret his 1976 vote in Gregg v. Georgia. In 1994, Justice Harry Blackmun, the Nixon appointee, wrote in Callins v. Collins that he would "no longer tinker with the machinery of death." And in 2008, in Baze v. Rees, Justice John Paul Stevens, the Ford appointee, called executions "pointless."

As a group, the 873 exonerated defendants spent more than 10,000 years in prison.

And consider the capital jurisprudence of another Republican appointee, Justice Anthony Kennedy. In the majority in Payne v. Tennessee, a 1991 decision which opened capital cases to victim impact testimony, Justice Kennedy in the past decade has consistently voted to limit the scope of the death penalty. In 2008, in Kennedy v. Louisiana, he wrote for a 5-4 Court that outlawed capital punishment in rape cases. In 2005, in Roper v. Simmons, he wrote for a 5-4 Court that spared juvenile offenders from execution. And in 2002, in Atkins v. Virginia, he voted against the death penalty for mentally retarded defendants.

What accounts for this? Why have all the modern justices who have moved on capital punishment moved in this direction and not the other? I think it's because those justices have placed experience over dogma, fact over doctrine, and conscience over philosophy. In an age where federal judges often are considered arrogant dispensers of universal truths, these moderate justices have shown instead the capacity to learn from their own mistakes, to acknowledge the impact of their own experiences administering the death penalty, and to courageously concede that they once were wrong.

For example, when Justice Stevens announced in 2008 that he had changed his mind about capital punishment, he wrote: "I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes" (my emphasis). And when Justice Blackmun came out against capital punishment in 1994, he famously wrote:

For more than 20 years I have endeavored -- indeed, I have struggled -- along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies (my emphasis).

Could we ever expect more from a judge? Should we ever expect more from a judge?

EXONERATIONS

Last Monday, investigators, lawyers, and writers at the Columbia Human Rights Law Review published a groundbreaking book-length piece chronicling how Texas executed an innocent man in 1989. The piece is remarkable for how deep down its authors dug to establish how and why Carlos DeLuna was executed for a crime that Carlos Hernandez almost certainly committed. Old news, proclaimed Texas prosecutors (on Twitter, no less) last week, and to a certain extent they are right. It's hard to get people focused upon a case that's a generation old. It's what has happened since DeLuna that matters.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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