CROOKED JUSTICE SYSTEMS UNDERMINE THE CASE FOR THE DEATH PENALTY

With a number of last-minute exonerations handed to death row inmates lately, a crisis of conscience appears to be growing over the death penalty in this country. For those who doubt it, one need only look at Alabama, one of the unlikeliest of places for the penalty's re-evaluation. The fire-engine red state, where evangelism readily mixes with a socially conservative brand of politics, is tied with South Carolina for the eighth-highest number of executions in the United States since 1976. But even in Alabama, the death penalty is now opposed by the state's largest and most powerful newspaper. In November, the regularly conservative editorial board of The Birmingham News announced it had found gaping irregularities in that state's criminal justice system, forcing it to about-face and oppose capital punishment. "Cases where inmates have been convicted and later cleared challenge long-held notions about the reliability of eyewitness identification, the use of jailhouse snitches and, in some cases, the integrity of police and prosecutors," the editors said in the introduction to a series examining how death penalty convictions are won in Alabama. "While these questions apply to all criminal cases, they are particularly troubling in death penalty cases where mistakes can go, literally, to the grave."

Capital punishment's most vocal critics have long been liberals and civil rights groups who say blacks and Latinos are more likely to end up on death row than whites. Religious conservatives, including most recently Sen. Rick Santorum, R-Pa., have also joined in the chorus of doubts. But the American public still overwhelmingly supports the death penalty, and politicians remain hesitant to voice any opposition.


The debate over the death penalty is often over whether certain killers deserve to die. The more horrific the crime, the more persuaded fence-sitters may be that capital punishment is an effective tool. Every story about a Jessica Lunsford, Dylan Groene and Carlie Brucia — children who were kidnapped, sexually assaulted and brutally murdered — seems to validate those who want government to mete out the ultimate punishment.

The Birmingham News took a different approach to the issue. The power to take life is not a right the government should have, the newspaper said. Rather, it is a privilege that must be earned by the system. The board called on the state to establish more and better resources for poor defendants, including a higher wage for defense attorneys; removal of elected judges' power to override a jury's decision and impose the death penalty; mandated pre-trial hearings to determine the credibility of witnesses and jailhouse informants; and preservation of all evidence, especially DNA, in capital cases. "Is that standard too high to demand?" the editorial board asked. "Not when we're talking about a punishment that can't be undone, a sentence as final as death."

Political Perils

National awareness of the risk of wrongful capital convictions dates back at least to 2000, when former Illinois Gov. George Ryan, a pro-death penalty Republican, declared a moratorium on executions after a series of investigations uncovered faulty capital convictions. After a state probe, Ryan commuted the sentences of all 167 Illinois death row convicts, saying he'd rather that 166 guilty men live than put to death one potentially innocent prisoner.

Mark R. Warner, Virginia's popular outgoing governor and a possible 2008 presidential candidate, announced on Wednesday that two prisoners — one of whom is in his 20th year behind bars — would be set free after DNA evidence disproved rape charges against them. He also said that all 660 boxes of cases filed in the state's Department of Forensic Science would be reviewed, with DNA testing done as needed. Last month, Warner granted clemency to a man who would have been the 1,000th inmate to be executed since capital punishment was restored by the Supreme Court in 1976. Warner commuted the man's sentence to life in prison without parole because evidence in his trial was improperly destroyed by a court clerk, making DNA testing that could potentially exonerate him impossible.

Few other states have taken such dramatic measures. Only 13 states, including Illinois and Virginia, have formed panels to study capital convictions. Among them is California, which saw a high-profile execution on Tuesday when it administered a lethal injection to quadruple murderer Stanley Tookie Williams, co-founder of the infamous Crips gang.

Not on that list of 13 is Texas, which has a smaller death row than California but has outpaced the rest of the country in executions by miles — a whopping 355 in less than 30 years. In total, the states and federal government have put to death 1,003 inmates since 1976. Though President Bush used Texas' death penalty statistic to prove in the 2000 election that he was tough on criminals, the Lone Star State has found itself increasingly isolated in the world in its fervent embrace of capital punishment and has become the butt of comedians' jokes. A recent pro-death-penalty editorial in the Yakima (Washington) Herald-Republic was headlined: "Death Penalty Isn't Reckless in U.S. — Well, Maybe in Texas."

Some death penalty opponents believe a groundswell of discomfort is emerging toward capital punishment as it is currently practiced, but politics has stymied efforts at re-examination. Since 1988, when Democratic presidential candidate Michael Dukakis, a death penalty opponent, crashed and burned in his effort to defeat Vice President George H.W. Bush, politicians have declared their opposition to capital punishment at their peril. "Democrats have failed to get out the message that they're tough on crime," conceded Democratic strategist Cliff Schecter. "For that reason, they've often felt like they need to sound tougher on it." Schecter said he did not know of a politician who was publicly pro-death penalty and secretly opposed to the practice. But simply expressing reservations about how it is carried out also appears politically untenable.

Nonethless, a spate of high-profile exonerations moved Congress to pass the 2004 Innocence Protection Act, which among other things expanded inmates' access to DNA testing. The passage of the act was a concession by federal lawmakers that the criminal justice system did not contain as many fail-safes as it should.

Still, criticizing the death penalty can leave politicians open to charges that they are soft on crime. In last year's U.S. Senate race in Colorado, Ken Salazar, a Democrat, ran an ad charging that his Republican opponent, Pete Coors, was against the death penalty even for Usama bin Laden. Salazar went on to win the election, although the death penalty issue was not the sole reason for Coors' defeat.

Ironically, some observers say, leadership on re-examination of the death penalty may be more likely to come from religious conservatives like Coors than social-issue liberals. Virginia Governor-Elect Tim Kaine is an example of this new breed of candidate. The Democrat is both anti-abortion and anti-death penalty, and handily defeated his Republican opponent despite ads that took a similar tack as the one Salazar used to run against Coors. "Tim Kaine [proves] you can show religious conviction [and be a Democrat]. He believes in life and therefore believes the death penalty is wrong," Schecter said.

While the Catholic Church has long been on the frontlines of the anti-death penalty movement, religious conservatives in the United States have been slow to approach the issue with the same fervor they bestow on abortion, assisted suicide and stem cell research. "We believe all life is sacred," said the Birmingham News editorial board on Nov. 6. "And in embracing a culture of life, we cannot make distinctions between those we deem 'innocents' and those flawed humans who populate death row." Bob Blalock, the News' editorial page editor, said he did not expect the investigative series to be well received. "We live in a state that probably is even more in favor of the death penalty than what you might see nationally," Blalock told FOXNews.com. "If you had asked me beforehand, I would have said readers would be 2-to-1 against what we did. But in e-mails and letters and phone calls, readers were more than 2-to-1 supportive of what we've done."

Voters OK With Mistakes

The majority of Americans remain in favor of the death penalty, though that figure is down from where it was just a few years ago. A Gallup poll conducted Oct. 11-13 shows that 64 percent favor capital punishment for murderers, as compared to 70 percent two years ago. Support for the death penalty peaked in 1994 at 80 percent, according to the poll. As long as that's the case, Blalock said, lawmakers will be too timid to criticize the death penalty openly, miscarriages of justice notwithstanding. "I don't know that that's going to change nationally or in Alabama until the polls make it seem OK for politicians to step out in front of the crowd," Blalock said. "As long as you have polls showing seven out of 10 people favoring the death penalty, it's going to be the rare politician who's going to say, 'The death penalty troubles me.'"

Most polls show that support for the death penalty goes down when life imprisonment is also an option. Perhaps surprisingly, while 61 percent of respondents to the Gallup poll said they believe the death penalty is applied fairly, 59 percent also said that they believed an innocent person has been wrongly executed in the past five years. The mantra for many death penalty reform advocates is "mend it, don't end it." They believe strongly that people who commit heinous and calculated murders do not deserve to live, but want fixes in the criminal justice system to reduce the chance that the government will execute the innocent.

Death penalty proponents contend that the threat of false convictions is greatly exaggerated, despite the fact that more than 120 death row inmates' convictions have been overturned since capital punishment was reinstituted. "The system errs decidedly on the side of caution. Many guilty murderers are relieved of a death sentence because of technical flaws," said Michael Rushford of the Criminal Justice Legal Foundation. "If an innocent person were executed in this country, I'd know about it and so would you."

Time-consuming and costly probes into capital convictions after convicts have died are rare. But recently, investigations by journalists at The Houston Chronicle and The Chicago Tribune cast serious doubts on the guilt of some who had already been put to death. To deduce that an innocent person has never been executed from the fact that no proven cases have been uncovered "just defies common sense," said Samuel Gross, professor at the University of Michigan Law School. "When you look at the stories of people who were exonerated in capital murder cases, you see time and again that essential steps along the way were caused by chance. What if the real killer hadn’t confessed?" Gross wondered. "Maybe the real killer could've gotten hit by a truck or wasn't arrested for another homicide."

Gross was speaking from personal experience. He participated in an investigation that recently led the St. Louis Circuit Attorney's office to reopen a murder investigation — 10 years after the man convicted of the crime had been executed. "The importance of luck in cases we do know about almost certainly implies there were others who weren't so lucky," Gross said.

Another, perhaps more disturbing, observation may explain the lack of national outrage over the possible execution of innocent people. When most voters look at death row, they may simply just not see a reflection of themselves. "Let's face it — middle-class Americans are less likely to be in the desperate circumstances that studies show criminals disproportionately come from," said Jody Armour, a professor at the University of Southern California Law School. "People may be willing to accept some error. If the criminal justice process is disproportionately falling on the poor and minorities, many Americans may feel like neither of those groups are ones that characterize them or the ones they care most about.

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