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The online version of this article appears in four parts. Click here to go to parts one, two, and three.

Speeding Up Executions

MANY of the more than eighty prisoners who have been freed from death row over the past two decades are alive today only because their executions were stayed long enough for the truth about their cases to emerge. Some had to wait fifteen or twenty years. Nevertheless, the drumbeat for speedier executions continues. The Supreme Court, Congress, and many states have moved during the past decade to expedite executions by making it more difficult for defendants to have their appeals heard. States have, for example, placed stringent time limits on appeals. In Virginia a person convicted of murder is given twenty-one days after conviction to present new evidence of innocence. Suffice it to say that new evidence rarely, if ever, materializes in a capital case during the first three weeks following conviction.

In 1995 Congress weighed in on the need for speedier executions when it eliminated the $20 million annual budget for Post-Conviction Defender Organizations, which had provided some of the most sophisticated and effective counsel for death-row inmates in twenty death-penalty states. The following year Congress passed the Antiterrorism and Effective Death Penalty Act, slapping a one-year statute of limitations on the filing of habeas corpus petitions in capital cases. Until then Americans had lived quite comfortably with the notion that there should be no time limit on habeas appeals -- that the right to be free from illegal restraint never expired.

The radical revision of habeas law was sold to the House of Representatives by Henry Hyde, the chairman of the Judiciary Committee, as the "Holy Grail" of criminal-justice reform, a long-sought change that would address what he called "the absurdity, the obscenity" of "endless appeals" in death-penalty cases. The average time between sentencing and execution is a little over eight years. "Eight years is ridiculous, fifteen and seventeen years even more so," Hyde proclaimed during House debate on the act, insisting that such delays "make a mockery of the law." Orrin Hatch, the chairman of the Senate Judiciary Committee, declared that "support for an end to frivolous death-penalty appeals is the most authentic evidence of an elected official's support for the death penalty." Hyde and Hatch directed their spleen at the pariahs on death row, but 99 percent of habeas petitions relate to noncapital cases. Still, this fundamental right has now been circumscribed for everyone. As for the one percent of habeas petitions filed by death-row inmates, neither state nor federal courts have found them entirely "frivolous." On the contrary: in nearly two thirds of the cases courts have found violations so serious as to warrant overturning the convictions.

Will the new one-year statute of limitations increase the likelihood that innocent people are executed? Congressman Bill McCollum, of Florida, a leading advocate of capital punishment and one of the authors of the anti-terrorism bill, thinks not. "It simply speeds up the process of execution where someone's truly guilty," McCollum says, adding that there is no time limit on filing a claim of innocence. He would like to see the time between sentencing and execution reduced from the current national average of eight years to four to six years. But in the past, evidence of innocence has taken seven, twelve, fifteen, or more years to surface. McCollum insists that speeding up the process will actually benefit death-row inmates, because the expert resources brought to bear just before an execution will now come into play in the fourth year rather than the fourteenth. That may be wishful thinking. And it clearly doesn't apply to the cases whose outcomes have nothing to do with the typical legal actions brought on behalf of the condemned -- the cases that turn on pure serendipity, that need time for the real murderer to step forward and confess, or time for police officers or witnesses who perjured themselves to feel safe in talking. Time may heal all wounds, but it won't do much for a lethal injection.

Robert E. Morin, who got Kirk Bloodsworth released from prison, told a conference at American University in 1995 that speeding up executions will result in the execution of innocent people. "It's not a question of increasing the probability; it's going to happen," Morin says. "It's just a matter of when, and when we discover their innocence." Morin, now a superior-court judge in the District of Columbia, said that "anybody who wants to compress the time" should "sit down and have a conversation with Mr. Bloodsworth and his family about why you wanted to shorten the period of time he had to work on his case."

For its part, the Supreme Court has sought in recent years to give maximum discretion to state-court constitutional determinations. It has, for example, expanded the so-called harmless-error doctrine, making it easier for states to uphold convictions regardless of whether errors or prosecutorial misconduct contributed to an unfair trial. And under Chief Justice William Rehnquist it has seized on every available opportunity to limit federal-court review of state habeas rulings. A provision of the new anti-terrorism law limiting federal habeas review to cases in which a state-court decision "involved an unreasonable application of clearly established federal law" has already been narrowly interpreted by several of the most conservative circuit courts. And if the Supreme Court follows their lead, says John Blume, a habeas expert and the director of the Cornell Death Penalty Project, "it would be impossible for a person to get federal habeas relief."

Where the Court is headed on claims of innocence is not at all clear. In January of 1993, in Herrera v. Collins, Rehnquist bemoaned "the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in death penalty cases" and dismissed the argument that "claims of actual innocence based on newly discovered evidence" provide a rationale for habeas relief. At the same time, the court's majority ruled that it would be unconstitutional to execute a defendant with "a truly persuasive demonstration of actual innocence made after trial." What a "truly persuasive" case would be, however, remains unclear, because the court has yet to identify one. Leonel Herrera's case was evidently not what the justices had in mind. He was executed three and a half months after the Supreme Court issued its ruling. His final words were "I am innocent, innocent, innocent.... Something very wrong is taking place tonight."

The Public-Opinion Factor

AS executions become increasingly common, the media seem to find them less and less newsworthy, and the public grows decidedly more blasť about them. (The five-hundredth execution since capital punishment was reinstated, in 1976, received a 141-word notice in the New York Times "National News Briefs" column.) Dozens of stories about innocent people wrongly condemned to death have provided entertaining fodder for TV newsmagazines, yet they've provoked little public outcry and few demands for compensation of victims or calls for action against police officers, prosecutors, and judges who perpetrate these miscarriages. Only a handful of states have addressed the need for preventive measures, such as better-funded defense services.

Unquestionably, support for the death penalty remains high -- the proportion in favor of it has ranged from 70 to 76 percent over the period 1982-1996, as against 38 percent in 1965 and 47 percent in 1970. It is these numbers that drive the debate on capital punishment. Nevertheless, when questioners suggest that the death penalty "has a built-in racism" or that "many people have been sentenced to death who have later been found innocent," support for capital punishment declines abruptly. In one survey 48 percent of respondents had "some doubts" or "serious doubts" when the race factor was introduced, and 58 percent expressed doubts when the possibility of innocence was introduced. Even in the states most strongly in favor of the death penalty support drops dramatically -- to anywhere from 50 to 61 percent, depending on the poll -- when the alternative of life imprisonment with absolutely no possibility of parole is mentioned to respondents.

Studies of capital juries buttress the idea that Americans are far less gung-ho about the death penalty than the polls suggest. Because capital juries are "death-qualified," one might expect the typical jury to be much more inclined to impose death than the public at large, of which approximately 25 percent opposes the death penalty under any circumstances. But a 1993 Justice Department study indicated that where death was an option, juries imposed it in only one out of eight cases. One reason for this is that almost all death-penalty states now offer life without parole as an option for jurors. Studies also show that in some cases jurors have been concerned about executing an innocent person; they have "lingering doubts" about the defendant's guilt, and although those doubts may not be strong enough to warrant letting the defendant go free, they forestall a vote for death.

Finally, unlike normal citizens responding to the latest sensational murder case on television, jurors are required to consider mitigating evidence in sentencing. Although the idea of a murderer is an abstraction to most of us, jurors must confront flesh-and-blood human beings. And the evidence suggests that when they get to know a defendant, when they learn the details of an individual case, many jurors find it difficult to take a person's life.

Building In Safeguards

ENGLAND'S experience might lead one to expect that public support for the death penalty would decline dramatically if it could be proved that an innocent person had been executed. Yet some death-penalty advocates believe, like Congressman Bill McCollum, that what they see as the remote possibility of executing an innocent person is no reason to abolish capital punishment. Others have argued that the occasional accidental execution of an innocent person is the price the country must pay to combat violent crime. William Kunkle, the Chicago prosecutor who both secured the death penalty for the serial killer John Wayne Gacy and brought the unsuccessful case against police officers and prosecutors for allegedly framing Rolando Cruz, argues that the execution of innocent people is inevitable. "Sooner or later it's going to happen," he says. "It comes with the territory. It is not humanly possible to design a system that is perfect. And if people are not prepared for the eventuality that human institutions are going to make mistakes, then they shouldn't support the death penalty, and they shouldn't elect legislators who support it."

Although it is undoubtedly impossible to design a perfect system, that hardly argues for tolerating the status quo. Nevertheless, the idea that this system is the best that human beings can design remains an article of faith among many prosecutors, death-penalty supporters, and citizens in general. William Otis, the former aide to President Bush, argues, "It goes back to first principles. It depends on what a person really believes about the nature, honesty, and legitimacy of government in this country. And a person who basically has faith in those things is more likely to believe that the death penalty is a permissible remedy than the person who doesn't."

But the first principles with which many of us grew up were designed to protect innocent and powerless individuals from an abusive and overweening government, whether federal or state. From that perspective there can be no greater offense by a state, and nothing more damaging to its legitimacy, than the execution of an innocent person. The fact that we are not able to guarantee that no innocent person will be executed remains the most powerful argument against the death penalty. If the government and we citizens want to continue executing men and women, we might at least take some steps to reduce the risk that the ultimate sanction will be imposed on innocent people. That won't be easy. In an environment in which defendants are typically presumed to be guilty, any legislator who tries to provide safeguards for the accused is certain to be attacked as "soft on crime." The problem is one not only of reclaiming some fundamental notions of fairness but also of building in new safeguards at virtually every stage of the criminal-justice process.

First, reforming the system might begin at the investigative level, where the police should be required to record, on either videotape or audiotape, both interrogations and confessions.

Second, serious efforts must be made to eliminate criminal abuses of law-enforcement power. Attorney General Janet Reno knows firsthand the kind of outrageous behavior that goes on in high-profile murder cases. In 1989, as a Florida district attorney, Reno was personally responsible for the release of James Richardson, the man who was sentenced to death for the murder of his seven children, when evidence emerged that police officers and prosecutors had framed him. As the nation's top judicial officer, Reno knows, particularly since Waco, how unwilling law-enforcement officers are to police their own. She should therefore appreciate the need to establish independent special prosecutors or inspectors general in every state to investigate and prosecute police, prosecutorial, and judicial misconduct.

Third, routine DNA testing must be made available to inmates who believe that it will demonstrate their innocence. And better procedures are needed to ensure both that DNA and other evidence is preserved as long as a person is incarcerated and that the defense is given full access to it.

Fourth, the use of jailhouse snitches, many of whom are known pathological liars, must be drastically curtailed. Such informant testimony should be inadmissible unless it is backed by corroborating evidence.

Fifth, better methods of judicial selection are needed to ensure an independent judiciary. Ultimately this means eliminating the election of judges and thus removing the blight of judges who not only take campaign contributions from the attorneys who try cases before them but also routinely place their own political and financial interests above the Bill of Rights.

Sixth, the American Bar Association should press for adoption by the states of a provision in the American Law Institute's "Model Penal Code" which is designed to minimize the risk of convicting and executing innocent people. The provision would prohibit a death sentence if the evidence, albeit sufficient to sustain a guilty verdict, "does not foreclose all doubt respecting the defendant's guilt." To date no state has adopted this "residual doubt" provision.

Seventh, whether an official's corruption, simple witness error, or the racism of an arresting officer led to wrongful imprisonment, the victims of such miscarriages should be compensated. Unfortunately, those who have been wrongfully sentenced find it nearly impossible to rid themselves of the taint of criminality, and tough-on-crime legislators don't seem terribly distressed about these victims of the system. Only fourteen states have statutory compensation for people who have been wrongfully incarcerated. Federal law provides a miserly $5,000, regardless of time served.

Eighth, and most important, the right to counsel and to due process must be given substance through the creation of adequately funded nationwide public-defender services. Both the existing systems of court-appointed counsel, which are rife with conflicts of interest, and the unconscionable contract systems that rely on low-bid attorneys have to go. In addition, states need to adopt and enforce reasonable standards for the appointment and performance of defense attorneys in capital cases, such as those proposed by the American Bar Association a decade ago. The Strickland decision's grant of immunity to incompetent lawyers should be overturned, and the Justice Department should facilitate this by joining the next viable Sixth Amendment challenge to go before the Supreme Court. The history of the Sixth Amendment since Gideon demonstrates that it is not enough to assert that everyone has a right to an attorney. Criminal defendants, and capital defendants especially, need attorneys who are well trained, experienced, and adequately paid.

Some outspoken death-penalty supporters who favored defunding the Post-Conviction Defender Organizations now say they favor funding post-conviction representation in capital cases. Others say they want to see competent counsel provided at the trial stage, in order to avoid unnecessary appeals and overturned convictions. But there's a catch: conservatives invariably want to consign the issue of spending to the states, which is where the Sixth Amendment has been moldering, a sort of discretionary constitutional right, since its adoption, in 1791.

How much should the states be spending to ensure equal protection for every U.S. citizen? Nobody really knows. Robert Spangenberg, the country's leading authority on indigent-defense programs, says the country spent about $1 billion on indigent defense in 1986, or about $200 per case -- a "totally inadequate" figure, he says. The quality of indigent defense varies state to state, from quite good to reprehensible. Spangenberg says that it would cost the State of Florida, to cite one example, about $25 million a year to properly handle its backlog of capital appeals alone. The state legislature has currently budgeted $6 million. Where the states will get the money to defend the rights of a constituency with no political power remains the big question. What is clearly needed is some sort of permanent funding mechanism that is not subject to annual budget skirmishes and political fashions. One idea is to make indigent defense a fixed percentage of some other annual budget, such as the prosecutor's budget -- which, in particular, would lock in the notion that fair representation is a sine qua non for both sides if justice is to be genuine. As a result of lawsuits that successfully challenged the constitutionality of programs that often provided defendants with unqualified or horribly overworked lawyers, several states and counties have been forced to increase indigent-defense spending and to adopt basic standards of competency for their public defenders. Most recently the State of Connecticut agreed to hire approximately eighty new attorneys and support-staff members for its public-defender system in response to a lawsuit brought by the American Civil Liberties Union. More challenges along these lines by, among others, the organized bar should be encouraged.

For its part, the organized bar shares responsibility for the fact that there are currently scores of people on death row without lawyers, and for the state of indigent defense in general. In 1982 the American Bar Association issued a report on what it called "the crisis in indigent defense funding," in which it advised, "We must be willing to put our money where our mouth is; we must be willing to make the constitutional mandate a reality." Seventeen years later there is little for which to thank the ABA. It does provide expert resources to law firms handling capital cases, and it funds its own Death Penalty Representation Project, which over the past eighteen months has enlisted forty-five law firms to defend death-row inmates without charge. But the project's director calls it little more than a "small Band-Aid on a gaping wound." The ABA has done a good job of documenting serious problems with the administration of the death penalty and the crisis in indigent defense. But the ABA, the largest voluntary professional association in the country, also represents one of the wealthiest and most privileged segments of American society. With a few notable exceptions, these generally well-informed professionals from one year to the next do little more than approve high-minded resolutions condemning the status quo that has been so good to them. If state and local bar associations were really serious about addressing these problems (and there's little evidence that they are), they might underwrite a model indigent-defense program or two, or a capital-representation office. If nothing else, they should be standing up for equal justice by lobbying their state legislators to find the money to finance public defenders at levels that don't make a mockery of the Sixth Amendment.

Finally, the Justice Department or a presidential commission should follow the example of Canada, and examine why our courts continue to sentence innocent people to death, and whether we have in fact executed innocent people. The steady accumulation of wrongful convictions and death sentences in the United States constitutes a prima facie case that we are dealing with widespread, systemic flaws in the administration of justice. Until those flaws are corrected, we should declare a moratorium on executions.

The online version of this article appears in four parts. Click here to go to parts one, two, and three.

Alan Berlow is a freelance journalist and the author of Dead Season: A Story of Murder and Revenge (1998).

Photographs by Loren Santow/Impact Visuals.

Copyright © 1999 by The Atlantic Monthly Company. All rights reserved.
The Atlantic Monthly; November 1999; The Wrong Man - 99.11 (Part Four); Volume 284, No. 5; page 66-91.