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?

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