The Anniston Star
Section: Opinion
July 2, 2006
Author: Richard C. Dieter
Special to The Star

In decid­ing a nar­row issue about an obscure part of Kansas’ death penal­ty law, the Supreme Court last week revealed a chasm of dif­fer­ing opin­ions regard­ing the fun­da­men­tal reli­a­bil­i­ty of cap­i­tal pun­ish­ment in this coun­try. Although the oppos­ing views were wide­ly diver­gent and sharply expressed, the court did us all a ser­vice by iden­ti­fy­ing the key prob­lem that may decide the future of the death penal­ty in this coun­try in com­ing years.

The issue before the court was sim­ply whether Kansas juries should be required to impose the death penal­ty when they believe that the aggra­vat­ing and mit­i­gat­ing fac­tors in a case are exact­ly equal. In a close vote, the court held that it is per­mis­si­ble to allow a tie to go in favor of the state’s request for death. The deci­sion, how­ev­er, is like­ly to be remem­bered for a much dif­fer­ent debate with­in it.

Justice David Souter, writ­ing for the four jus­tices in the minor­i­ty, voiced a strong con­cern about the dan­gers of exe­cut­ing inno­cent defen­dants. We should not be impos­ing death sen­tences in close cas­es, he not­ed, because we now have volu­mi­nous evi­dence that many peo­ple have been wrong­ly con­vict­ed in death penal­ty cas­es. Since ​“death is dif­fer­ent” from every oth­er pun­ish­ment, we should err on the side of cau­tion.

Justice Antonin Scalia, agree­ing with the major­i­ty regard­ing Kansas’ law, but writ­ing only for him­self, took strong excep­tion to the four jus­tices’ con­cerns about inno­cence. For one thing, he said, he knew of no recent case where an exe­cut­ed per­son had been shown to be inno­cent. If there were such a case, he not­ed, it would have been ​“shout­ed from the rooftops.” Moreover, he said, even in cas­es where inmates had been freed from death row, the prob­lem of inno­cence was great­ly over­stat­ed.

Both asser­tions by Scalia deserve a response. With respect to exe­cut­ing the inno­cent, Scalia seems not to be ful­ly informed. Just days before his opin­ion was pub­lished, and for the fourth time in the past two years, such a case was indeed being shout­ed from the rooftops. The sto­ry about the prob­a­ble inno­cence of Carlos DeLuna, who was exe­cut­ed in Texas in 1989, appeared on ​“ABC World News,” ​“Nightline” and the front pages of the Chicago Tribune. Major sto­ries and series about two oth­er Texas cas­es of prob­a­ble inno­cence, those of Ruben Cantu and Cameron Willingham, and one case from Missouri, that of Larry Griffin, have also appeared repeat­ed­ly in oth­er major papers and wire reports.

Scalia is cor­rect that none of the many DNA exon­er­a­tions over the past decade have involved some­one who was already exe­cut­ed. Unfortunately, DNA evi­dence is often allowed to dete­ri­o­rate over time. Moreover, some states have refused to allow access to such evi­dence after an exe­cu­tion has occurred. So there is not yet incon­tro­vert­ible proof of such a fatal mis­take. But giv­en the thor­ough­ness of the four inves­ti­ga­tions men­tioned above, the prob­a­bil­i­ty that such an exe­cu­tion has occurred is high.

Scalia’s sec­ond asser­tion is that even cas­es involv­ing peo­ple who have been offi­cial­ly cleared of all the charges that sent them to death row are not a cause for con­cern. He par­tic­u­lar­ly men­tions the cas­es on the Death Penalty Information Center’s inno­cence list as exam­ples of sound­ing an unnec­es­sary alarm.

DPIC’s list of 123 cas­es is not the prod­uct of sub­jec­tive judg­ments about inno­cence. Rather, it is an objec­tive record of peo­ple who have been sen­tenced to death, whose con­vic­tions were over­turned, and who were then cleared of all relat­ed charges and freed by the jus­tice sys­tem. For Scalia, it is improp­er to call these defen­dants ​“inno­cent.” He cites a few cas­es in which the orig­i­nal pros­e­cu­tor, or a court review­ing a civ­il claim for wrong­ful con­vic­tion, expressed a belief that the defen­dant might still be guilty.

The impli­ca­tions of deny­ing such peo­ple the sta­tus of inno­cence are far reach­ing. The prin­ci­ple that you are inno­cent until proven guilty is a bedrock prin­ci­ple of our crim­i­nal jus­tice sys­tem, and it has been a fun­da­men­tal tenet of every respect­ed judi­cial sys­tem for cen­turies, going back to bib­li­cal times. If a per­son­’s sta­tus of inno­cence can be tak­en away mere­ly because a pros­e­cu­tor sus­pects the per­son of a crime but nev­er proves it in a fair tri­al, then the state assumes dan­ger­ous pow­ers at the expense of the peo­ple. No one should have to prove his inno­cence.

However one may label the peo­ple who have been freed, their cas­es should indeed raise alarms across the coun­try. In all 123 cas­es, the jus­tice sys­tem unan­i­mous­ly con­vict­ed the indi­vid­ual and then expressed such cer­tain­ty in its deci­sion that it sen­tenced the per­son to death. This same jus­tice sys­tem then reviewed the cas­es and con­clud­ed that each per­son could not even be con­vict­ed of the slight­est offense, and they were set free. For every eight indi­vid­u­als who have been exe­cut­ed since 1973, one per­son has been exon­er­at­ed and freed from death row. That ratio reflects a ter­ri­ble record and is ample cause for the court’s con­cern.

Justice Scalia makes one more claim that has been heard often from pro­po­nents of the death penal­ty: that exon­er­a­tions from death row prove that the sys­tem works. In some cas­es, that is, thank­ful­ly, true. But in many oth­er cas­es, it was only the for­tu­itous advent of sci­en­tif­ic DNA test­ing that freed the indi­vid­ual, or the dogged work of jour­nal­ism stu­dents, or the pro bono work of a large law firm — ser­vices avail­able only to a hand­ful of the thou­sands of indi­vid­u­als on death row — that saved these lives.

Justice Scalia was cer­tain­ly right on one point. He said the death penal­ty has become an ​“inco­her­ent” sys­tem. The faulty con­struc­tion of much of that sys­tem is large­ly the court’s respon­si­bil­i­ty. But with all its com­pli­ca­tions, this sys­tem too often fails to get the most fun­da­men­tal job done right: being cer­tain of guilt before any­one is deprived of life. The issue of inno­cence is very seri­ous and deserves our utmost atten­tion.

Richard Dieter is exec­u­tive direc­tor of the Death Penalty Information Center in Washington, D.C.

Caption:
Leilah Rampa/​The Anniston Star

Copyright, 2006, The Anniston Star, Consolidated Publishing Co. All Rights Reserved.
Record Number: /​ans/​raw/​07 – 02-2006/opin­ion/2006/as-insight-0702 – 0‑6f30s2936.htm

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