Article 1. America’s Death-Penalty Lottery

America’s Death-Penalty Lottery

This year around 100 Americans will be poisoned, hanged, gassed, shot or electrocuted. In a country where some 17,000 people a year are murdered, this would not seem exceptional. But the killer in these 100 cases will be the state.

It is hard to think of any well-known politician in America who disapproves of a punishment that two out of three Americans support. Yet, doubts about its workings have increased. In the past 30 years, 87 people on death row have been set free. On June 3, 2000, the American President announced a stay of execution for Ricky McGinn.

These little signs of rethink will be welcomed by all those people who do not share the affection for the death penalty held by so many Americans.

One reason why America has kept the death penalty is an admirable one: because it is so democratic. In virtually every other country where the death penalty has been removed it has been done by the political establishment in the face of polls showing support for it. Most Americans believe, in the words of John Stuart Mill, one of Britain’s great philosophers of liberty, “that to take the life of a man who has taken that of another is not to show want of regard for human life. On the contrary, it shows more emphatically our regard for it, by the adoption of a rule that he who violates that right in another forfeits it for himself.”

Conflicts about the proper respect for life can never be resolved; there is no solid evidence about the death penalty’s effectiveness as a deterrent. But both sides can agree that if such a punishment is to exist the courts must take the most painstaking care to establish the guilt of the accused beyond any reasonable doubt. As Mill himself conceded, there is “one argument against capital punishment which I cannot deny to have weight: that if by an error of justice an innocent person is put to death, the mistake can never be corrected.” It is here that America’s courts are failing.

Since 1976 (when the death penalty was reintroduced) America has executed 640 people. So the 87 people exonerated after being sentenced to death amount to one reprieve for every seven killed. No one knows for sure whether innocent people have been killed. But there is surely a disturbing likelihood that this has happened. There are half a dozen cases in which people have been executed despite doubts about their guilt being expressed even by the Supreme Court. In 1993, Leonel Herrera was executed in Texas even though a former judge submitted an affidavit that another man had confessed to the crime.

Many examples of wrongful convictions have been discovered not by higher courts but by dogged investigations by journalism students. Such freelance rescues mitigate, but do not justify, the failure of the criminal justice system to reverse its own mistakes. And these are legion. The system – including courts, prosecutors and governors – is influenced by politics (it seems unlikely that Ricky McGinn would have received his stay of execution had Mr Bush not been running for president); prejudice (blacks are sentenced to death out of all proportion to their numbers); and, perhaps most important, plain inconsistency.

America has had hundreds of thousands of murder trials since 1976. Most of them were potentially capital cases. In practice, the public prosecutors sought the death penalty in fewer than 5% of the cases. Facing experienced and diligent defence lawyers, prosecutors rarely seek the ultimate punishment. But when they do so, it tends to be not because of the severity of the crimes committed, but because the defence lawyer looks easy game. The death penalty is also more common in some places than others: Texas imposes it about 40 times as often as New York, a state of comparable population and with similar crime problems.

Yet this lottery is not beyond improvement, in three ways. First, all states should give death-row inmates dispensation to have DNA tests. Eight of the miscarriages of justice since 1982 have been brought to light by the development of DNA tests after the original convictions. But only New York and Illinois grant all death-row prisoners the right to have DNA tests, and most have strict limits for the presentation of new evidence. Clyde Charles spent nine years trying to persuade the Louisiana courts to let him have a DNA test done. When they relented, the test exonerated him.

But even if this were done, DNA evidence, especially in murder cases, is often unavailable or inconclusive. A more vital problem is the gross inadequacy of defence counsel. Most people accused of murder get a lawyer appointed by the court. A few fall asleep during the trial; others turn up drunk; a horrifying number lack experience in murder trials.

New York state has set a special Capital Defence Unit with experienced lawyers who specialize only in capital cases. Other states should copy the idea – and require that defendants in murder trials have at least two lawyers drawn from the pool.

Third, the courts have to deal with prosecutorial misconduct. At present, prosecutors make up their own minds how to fulfill the legal obligation to hand over to the defence evidence that is “relevant” and “exculpatory”. In cases involving the death penalty, they should open their files to the defence without reservation. This would force the prosecution to seek the death penalty only where it had incontrovertible proof. And until all these measures are put in place, American states should follow the example of Illinois and impose a moratorium on further executions.

(From ‘The Economist’, abridged)