Opening the Death Row Exit

Too many innocent Americans have found themselves on death row. In the last fourteen years, over 87 people--one for every seven that have been executed--have been exonerated after a wrongful conviction and death sentence. The death penalty is a punishment that should never be imposed, and it should certainly never be imposed on the innocent. Unfortunately, too few of our national leaders have been willing to recognize and address this epidemic of failure in the justice system. A new bill introduced in Congress, while not perfect, would do much to prevent the execution of the innocent.

The "Innocence Protection Act," versions of which are now in committee in both houses of Congress, would provide two significant protections for the wrongfully accused.

The first increases the availability of DNA testing to the wrongfully convicted. Eight men have been released from death row and scores more from prison after DNA tests revealed their innocence; many of them were convicted before effective DNA techniques were developed. In some states, however, the prosecution may refuse to release samples for DNA testing after conviction. Many states also have time limits, some as low as six months after conviction, beyond which no new evidence of innocence may be introduced--even though wrongfully convicted inmates are incarcerated for seven and a half years on average before their innocence is discovered. The bill would require the federal government and states receiving certain federal grants to make DNA testing available in cases where it could provide evidence of innocence and to offer a new hearing after a favorable result, no matter how long ago the original trial took place. It would also take steps to ensure that DNA evidence would be preserved until testing can take place.

The second important protection would reform the woefully inadequate and underfunded system of public defense for capital crimes. Because indigent defendants in many states are represented by court-appointed lawyers paid only a fraction of the normal rate for similar legal work, the system tends not to select those lawyers with the necessary experience and qualifications to try a complex criminal case, but those who are willing to work cheap. A state that is willing to pay any price to recruit talented and knowledgeable prosecutors but refuses to commit resources towards the defense does not have a justice system worthy of the name. The bill would provide strong incentives to states to create and maintain a peer-reviewed list of qualified capital defense attorneys, who would be paid at reasonable rates.

Such reasonable measures have attracted support from both sides of the political aisle. The bill was introduced in the Senate by Sen. Patrick Leahy (D-Vt.) and unveiled in the House by Rep. Bill Delahunt (D) of the Tenth District of Massachusetts and by Rep. Ray LaHood (R-Ill.). These are no bleeding-heart liberals: Leahy and Delahunt are former prosecutors, while LaHood is a well-known supporter of the death penalty. The bill's bipartisan support was underscored by the presence at the announcement of the House version of the bill of Illinois Gov. George Ryan, a death penalty supporter, whose state has exonerated 13 men from death row in the last fourteen years. Several of those men were exculpated by DNA evidence, and Illinois has adopted a law providing for widespread DNA testing. Ryan has also prudently (although belatedly) declared a state moratorium on executions until the system can be reformed.

Even the most rabid supporters of the death penalty should recognize that the interests of justice are not served by the execution of the innocent, and there can be no moral justification for a refusal to support sensible measures that would enable the wrongfully convicted to prove their innocence. In the words of the late Justice Harry A. Blackmun '29, "The execution of a person who can show that he is innocent comes perilously close to simple murder."

The only completely effective defense against such wrongful executions, of course, would be an end to the death penalty.