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?
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.
And that's why this Monday brings such another important contribution to the debate over criminal justice in America. Early this morning, a vital new entity, the National Registry of Exonerations, published its first-ever report that picks up where the DeLuna case left off. The study results are grim: By one measure, at least 2,000 people have been falsely convicted of serious crimes in America since 1989. If Columbia Law School dug to the depths in a single case, the Registry has scanned wide the horizon in hundreds of cases to reveal both the progress made and the scope of the problem that remains.
A joint project administered by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University, the Registry profiled 873 specific cases of exoneration from 1989 through March 1, 2012. Not surprisingly, most of the men and women who were wrongfully convicted (61 percent) were black or Hispanic. As a group, the 873 exonerated defendants spent more than 10,000 years in prison -- an average of more than 11 years each. And of the 873 exonerees, nearly half, 416 to be exact, were wrongly convicted of murder. Of those, 101 were sentenced to death.
How does this happen? Why are there so many wrongful convictions when there is so much at stake for both the defendants and the victims and when we pride ourselves on a legal system designed to ensure meaningful judicial review? The reasons are legion. It matters where you are convicted, for example, and the color of your skin matters too. And it matters who your police and prosecutors and judges are. The report reveals that in a whopping 56 percent of murder-case exonerations the initial convictions was based upon "official misconduct." Carlos DeLuna, we know, was not alone.
The Registry tells us that there have been 102 exonerations of child abuse convictions, 58 exonerations in cases of non-violent crimes and 135 exonerations of defendants who actually confessed to crimes they didn't commit. It tells us more than I can list here, which is why it is so well worth reading. But beyond basic principles of fairness, and fealty to the old saw about our how justice system is designed to reduce the number of wrongful convictions, why should we care about these people and these cases? What does any of it have to do with the rest of us? The authors suggest one reason:
The tragedies are not limited to the exonerated defendants themselves, or to their families and friends. In most cases they were convicted of vicious crimes in which other innocent victims were killed or brutalized. Many of the victims who survived were traumatized all over again, years later, when they learned that the criminal who had attacked them had not been caught and punished after all, and that they themselves may have played a role in condemning an innocent person. In many cases, the real criminals went on to rape or kill other victims, while the innocent defendants remained in prison.
Although I focus upon capital cases, it wasn't such a case that the Report's authors chose to highlight first in their long narrative accompanying the data they compiled. Instead, it was the story of a man wrongfully convicted of rape. From the Report:
Edward Carter, a 19-year-old African American man, was convicted of the rape of a pregnant woman in Detroit in 1974 and sentenced to life in prison. Carter's conviction rested entirely on the cross-racial identification by the white victim.
Approximately 30 years later, he sought DNA testing through a Michigan innocence project. A search revealed that the biological evidence that was collected at the time of the crime had been destroyed, but a police officer who was involved in the search became curious.
He found fingerprints that had been lifted from the crime scene and on his own sent them to the FBI's Automated Fingerprint Identification System. The prints were matched to a convicted sex offender who was in prison for similar rapes committed at about that time in the same area. Based on this new evidence, Carter was released in 2010, after more than 35 years in prison.
How did Carter come to make it into the report? How was his case identified? The authors here were candid -- it was pure luck. They wrote: "Edward Carter's case got zero attention from the media -- no news stories, no blogs, nothing. It produced no written court opinions. We heard about it from colleagues of the attorney who represented Carter because it occurred in southeast Michigan, where much of the work constructing this Registry has taken place. If it happened in Indiana, we would never learned of it." Chilling, isn't it?
Samuel R. Gross, a Michigan law professor and editor of the Registry, says this sort of randomness is just one reason why the group's initial product is just a sliver of the story of error in our criminal justice system. "It is essential to put these numbers in context. No matter how tragic they are," Gross wrote, "even 2,000 exonerations over 23 years is a tiny number in a country with 2.3 million people in prisons and jails. If that were the extent of the problem we would be encouraged by these numbers. But it's not. These cases merely point to a much larger number of tragedies that we do not know about."
MORE ON THE DEATH PENALTY
The Exoneration Report tells us is that in the 23 years since Texas wrongfully executed Carlos DeLuna, 101 other men and women facing capital punishment have been exonerated. It is a somber statistic the factual foundations of which Justice Blackmun surely had in mind in 1994 when he conceded that America couldn't achieve a fair and accurate capital regime. And it is a statistic that Justice Stevens surely had in mind when he decided, in 2008, to stop sanctioning capital punishment since no one could or has guaranteed it will always be based upon "reason rather than caprice and emotion."
But what of the current Republican appointees on the Court? Why has Justice Kennedy moderated his view of capital punishment while other conservative justices during the same era, including fellow Reagan appointee Justice Antonin Scalia, have not? Why isn't Justice Scalia seeing the light that Justice Kennedy clearly has seen and that Justices Stevens, Blackmun, and Stewart saw before him? Is it because Justice Scalia is not looking in the right direction? Or is it because, on this topic anyway, he'd rather remain willfully blind?
It's probably a little bit of both, which says more about Justice Scalia than it does about the other justices to whom I've compared him. As I mentioned last week, Justice Scalia as late as June 2006 was still claiming in his official writing that the "machinery of death" operates in an accurate and thorough fashion. In other words, 20 years after ascending to the court, he still was writing, in Kansas v. Marsh for example, that "capital cases are given especially close scrutiny at every level" even though we were in 2006 (and are today) inundated with fresh new stories of wrongful capital convictions.
Not content to simply avert his eyes from the truth about capital punishment in America, Justice Scalia two years after Kansas v. Marsh decided to take a stand against critics of capital punishment -- and in particular judges who declared in public that they had come to realize their earlier judgments about the death penalty were wrong. In 2008, in a case styled Baze v. Rees, the Court by a 6-3 vote upheld Kentucky's lethal injection protocols. It was the case in which Justice Stevens announced his opposition to the death penalty, an opinion which generated a remarkable response from Justice Scalia.
To read Justice Scalia's Baze v. Rees concurrence today is to read the work of a man so eager to defend America's currently indefensible capital punishment statutes that he was willing to ridicule his most senior colleague in doing so. It is to read the work of a man for whom evidence of wrongful convictions and exonerations are proof that the system works, not that it doesn't, and who believes that the Constitution permits a death penalty even if it is poorly or unfairly or inaccurately it is carried out. Even though he didn't have to do so to dispatch the case, Justice Scalia wrote:
But actually none of this really matters. As Justice Stevens explains, " 'objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.' " Ante, at 14; emphasis added; some internal quotation marks omitted). "I have relied on my own experience in reaching the conclusion that the imposition of the death penalty" is unconstitutional. Ante, at 17 (emphasis added).
Purer expression cannot be found of the principle of rule by judicial fiat. In the face of Justice Stevens' experience, the experience of all others is, it appears, of little consequence.
The experience of the state legislatures and the Congress -- who retain the death penalty as a form of punishment -- is dismissed as "the product of habit and inattention rather than an acceptable deliberative process." Ante, at 8. The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a "thirst for vengeance." Ante, at 11. It is Justice Stevens' experience that reigns over all.
Notice what's missing from the litany of "experiences" that Justice Scalia ticks off? It's the most obvious -- the real-world experience of his fellow justice, Stevens, with a third of a century under his belt, who had (by 2008) seen hundreds upon hundreds of faulty capital convictions brush up against the shores of the Supreme Court. It is the experience of the jurist who came to understand, case by case, term by term, injustice by injustice, the nefarious racial dimensions of capital sentencing, the vast scope of prosecutorial and police misconduct, the perils of witness identification, and the manipulation of science.
To Justice Stevens, his experience on the Court changed a great deal about what he once had believed about capital punishment. The same was true of Justices Blackmun and Stewart (and Kennedy, I believe). To Justice Scalia, however, then and now, the experience of presiding over countless capital cases is not just irrelevant but worthy of scorn. Did you notice whose experience rated with Justice Stevens' on the list compiled by Justice Scalia? "Fellow citizens who support the death penalty." Silly you, you thought federal judges existed in our constitutional scheme to preserve and protect individual rights from the whims and caprices of the majority.
Taken together, the Columbia Law School report on Carlos DeLuna and the new National Registry of Exonerations provide any reasonable, open-minded person with specific, detailed, objective proof that America (and the Supreme Court in particular) tolerates today an arbitrary and capricious death penalty system, one which has resulted in the execution of innocent men and the wrongful convictions of hundreds more. This means that there are far fewer factual justifications today than yesterday for Justice Scalia's warped view that veteran judges should ignore what they see in court when they decide cases.