A Criminal Enterprise

Rational Responses to the Innocence Crisis Go Further Than Death Penalty Repeal

Posted in News by Bidish J. Sarma on January 22, 2011

In an exciting moment in the anti-death penalty movement, both houses of the Illinois legislature voted to repeal capital punishment. Now, the decision of whether to abolish the state’s death penalty resides in Governor Pat Quinn’s hands.

The Illinois Senate’s decision on the repeal bill came on the eight-year anniversary of former Governor George Ryan’s announcement that he would commute the sentence of 163 death row inmates and pardon another four. The Governor’s decision was motivated in large part by the concern that the State had wrongly convicted over half of the death row inmates whose cases had concluded with either execution or exoneration between 1978 and 2000. See Lawrence Marshall, The Innocence Revolution and the Death Penalty, 1 Ohio St. J. Crim. L. 573, 578 (2004). Those numbers, the Governor thought, were shocking and unacceptable.

Innocence has proven to be a driving force in the current effort to push legislatures to repeal the death penalty. After all, the question we must ask ourselves is: can we tolerate the risk – any risk – that we will use the power of the State to execute someone who is innocent of the crime for which they have been convicted? The question raises a powerful and unshakeable inference: a human institution – any human institution – is imperfect. Mistakes are a reality. For many, that reality is enough to win the argument that the death penalty is not a policy option to which we should dedicate precious resources to maintain.

But, as critical a tool as innocence has been to the anti-death penalty movement, I wonder why the alarming error rate has not yet inspired many other changes in the criminal justice system. After all, many innocent individuals who were sitting on death row are now sitting in prison, serving a life sentence without the possibility of parole. Innocence undermines the conviction, not just the punishment.

The elimination of the death penalty responds to the worry that an irreversible act, an execution, permanently prevents an inmate from bringing to light his innocence. But, that cannot be our only worry. How many people in prisons across the country will never be able to muster the immense resources it takes to be exonerated? How many inmates have died in prison without vindicating themselves and enjoying the freedom and opportunities they rightfully deserved? How many of those stories will remain unknown?

Surely, Illinois is attempting to take a step in the right direction. But, legislatures, judges, and lawyers must work greater changes in the criminal justice system to curtail the convictions of innocents. A serious look at the reliability of eyewitness identification and quasi-scientific evidence (like “bite-mark” analysis), legal and disciplinary actions against prosecutors who commit misconduct or fail to disclose exculpatory evidence, a commitment to confrontation and the presumption of innocence, and responsible consideration of evidentiary rules governing the admissibility of the other bad acts an individual has committed – these are just a handful of things that could make a meaningful impact upon the innocence crisis.

This is not to say that criminal justice reform advocates have not been pushing for these kinds of changes for years. But, it seems that innocence is most effectively and most often deployed in the battle against the death penalty. There is no doubt that the fight against the death penalty currently relies upon innocence arguments to gain traction. However, does innocence rely upon the death penalty as well?

Deterrence and the Death Penalty

Posted in News by Sophie Cull on January 18, 2011

Outgoing Governor of Pennsylvania, Edward Rendell, wrote a letter to the state General Assembly in his final days as governor, questioning the effectiveness of the death penalty. He wrote,

“As a former District Attorney and as a death penalty supporter, I believe the death penalty can be a deterrent – but only when it is carried out relatively expeditiously.”

Dissatisfied by the delays in actual executions caused by the appeals process, the Governor called on legislators to decide if the process could be sped up or otherwise, called them to consider repeal.

There is no doubt that Rendell is a death penalty supporter: he signed six execution warrants on the same day that he issued this letter – bringing the total number of execution warrants to 119 during his term as governor.

Rendell subscribes to Beccaria’s well-accepted theory that deterrence will only be achieved through punishment that swiftly follow on the heels of the crime. His frustration with capital punishment is rooted in his belief that it can deter future crimes – if only the process didn’t take so long.

Last week, the Illinois legislature voted to repeal the death penalty. Some opponents of the bill spoke about the need for capital punishment to protect prison guards and deter murderers serving life from killing inside the prison walls. Others spoke of general deterrence, claiming that without the death penalty, there would be a higher murder rate in the state of Illinois. That will remain to be seen if the Governor signs the bill.

Regardless of whether the death penalty does deter would-be murderers (and we can probably all agree that pursuing a conclusive answer to this question seems much like chasing the white rabbit), the question we should ask is: what weight should we give deterrence in deciding whether or not we want the death penalty?

It seems to me that deterrence is a secondary reason to have the death penalty which is only compelling in conjunction with a primary reason. If we believe that the death penalty is a just, retributive punishment for the taking of a life, then deterrence would provide a further reason for carrying that punishment out.

But deterrence alone should not be a satisfactory reason for our society to ask for the death penalty. We may deter a child from disobeying us by striking her across the cheek, but just because our technique is effective, it does not make it right. You may disagree, thinking “The death penalty is absolutely necessary if it means we will stop future homicides.” But that is to assume it is the only way to prevent future homicides, as though there are no alternative measures we might take. I believe that way of thinking undersells our potential to create positive change in our communities. In Louisiana, for instance, perhaps the money that is spent potentially preventing homicides by putting people on death row could be funneled into education, healthcare and infrastructure to try and turn around Louisiana’s ranking as the 2nd worse state in the U.S. to raise a child. It is not a coincidence that the vast majority of death row inmates in Louisiana grew up in poverty and dropped out of school. While the link between the death penalty and the homicide rate is inconclusive, there is no question that education and poverty plays a key role in the prevalence of violent crime.

Therefore, I submit that we should not simply ask “is the death penalty deterring crime?” as Governor Rendell urged his legislature to do; we should ask “is the death penalty the most effective way to deter crime?”