The numerous flaws of the death penalty were featured in two great articles* that appeared in Memphis’ The Commercial Appeal this past weekend. It’s quite appropriate to have a paper in Western Tennessee highlight our flawed capital punishment system given that over a third of all death sentences in our state come from Shelby County. The recent release of former death row inmates Ndume Olatushani and Timothy McKinney as well as the new trial ordered for Michael Rimmer, all cases out of Shelby County, give further rise to the need for repeal.
Peter Nuefeld, co-director of the Innocence Project, argued in his guest column that while scientific advancements have been critical in getting at the truth in capital cases, they are not enough. After all, of the 142 individuals who have been exonerated from death row in this country, only 18 had DNA evidence in their cases. False confessions, eyewitness misidentification, ineffective defense counsel, jailhouse snitches and police and prosecutorial misconduct can and do lead to wrongful convictions. While reforms could certainly help to reduce mistakes, our system will always have some degree of fallibility, and therefore, the risk of executing the innocent will always exist until we end the death penalty.
In addition to the real risk of innocent people being put to death, this article addresses the enormous cost of maintaining the death penalty as well as its arbitrary application. Also discussed is the progress that has been made in recent years. In addition to a reduction in death sentences, as the public learns more about the problematic system, support for the death penalty has decreased, resulting in six states repealing their death penalty in the last six years with other states likely to repeal in the near future. Fortunately, the death penalty is no longer a partisan issue. People of all political stripes are realizing that there are smarter ways to respond to crime and are speaking out against the death penalty. At TADP, our work continues to educate more citizens so that they too will join this growing movement toward repeal.
Photo via The Guardian
*you must subscribe to The Commercial Appeal to access the articles. If you are not able to view them, here is the text of each:
Guest column: DNA exonerations hold many lessons
By Peter Neufeld, Special to The Commercial Appeal
Sunday, August 18, 2013
In February 1986, Luttrell, Tenn., native Paul House was sentenced to death for the murder of his neighbor, Carolyn Muncey, who had been raped and beaten to death the previous summer. The evidence against House seemed solid. A forensic expert testified at trial that a pair of jeans collected from House had blood that matched Muncey’s blood type on them; a second forensic expert testified that House’s blood type matched the semen found on Muncey’s undergarment.
After he had served more than two decades on Tennessee’s death row, House’s first-degree murder conviction was vacated and the indictment dismissed in 2009 based on DNA testing and other new evidence of innocence. It turns out that unsealed vials of the victim’s blood likely spilled onto House’s pants while both items of evidence were in transit to the FBI lab where they were later tested. DNA testing later revealed that the semen, said to have matched House’s blood type, came from the victim’s husband. Additional DNA testing on a hair recovered from the scene and material under the victim’s fingernails pointed to other perpetrators.
Since 1989, 311 people have been exonerated by DNA evidence. Eighteen of these individuals served time on death row — many, like House, coming perilously close to their execution dates. These DNA exonerations have taught us that the system is deeply flawed and that the appeals process does not provide adequate protections to detect errors.
Unfortunately, DNA testing is not a panacea for the inadequacies of the criminal justice system. Biological evidence that can be submitted for DNA testing is available in less than 5 percent of the cases that involve serious felonies. In other words, DNA just isn’t available in most capital cases and their prosecutions depend on much less reliable evidence. An individual’s life can hinge on a questionable identification, the testimony of one jailhouse informant, an inadvertent contamination or the work of an overburdened practitioner who is relying on a forensic practice that has never been scientifically validated.
Individual opinions can — and will — differ as to whether capital punishment is a morally appropriate punishment for the most heinous of crimes or an immoral license for state-sanctioned killing. We can all agree, however, that because death is an irreversible punishment, all necessary resources must be provided to ensure that every aspect of the capital punishment system — investigation, defense, prosecution, trial, appeal and post-conviction — produces as fair and accurate a result as possible.
In July, the FBI and the Department of Justice agreed to review more than 2,000 criminal cases in which FBI lab examiners had declared microscopic matches between crime-scene hairs and those of the accused. This unprecedented review of past cases has already uncovered as many as 27 death penalty convictions where, just as in the case of Paul House, FBI forensic experts may have mistakenly linked defendants to crimes with exaggerated and unscientific claims about the significance of the data. Of the 311 DNA exonerations, 72 involved erroneous hair analysis. While it’s too early to know how many capital prosecutions were affected by faulty hair analysis or testimony, the government’s willingness to take on this review marks a giant step forward in ensuring scientific validation and accountability for what passes as forensic science.
But the nation has barely begun to heed the lessons learned from the DNA exonerations. Eyewitness misidentifications played a role in nearly 75 percent of the DNA exonerations, yet most states, including Tennessee, have failed to pass proven reforms that would help prevent misidentifications. Similarly, false confessions, which have played a role in 50 percent of the DNA exonerations, can be sharply curtailed by requiring police to videotape interrogations in full. Yet most states, including Tennessee, still don’t require police to do so, even in an era when video surveillance dominates so much of our daily lives. We must also address inadequacies in resources for defense lawyers and provide more rigorous oversight of police, prosecutors and defense lawyers.
While the United States has a strong judicial infrastructure, wrongful convictions and forensic errors continue to serve as sober reminders of the fallibility of the criminal justice system. We must work to recognize and reform the various systemic weaknesses that can cause wrongful conviction —and therefore, wrongful executions. Only after we have implemented those reforms and recognized the remaining threat of wrongful conviction presented by systemic and human error can we fairly assess whether a capital punishment system should continue to exist in our country.
How long will the death penalty survive?
By Janell Ross, The Root
Sunday, August 18, 2013
DNA science helps state-by-state fight for abolition
On May 7, officials at the Mississippi State Penitentiary planned to strap Willie Jerome Manning to a gurney and pump a lethal cocktail of drugs into his veins at precisely 7 p.m.
But just five hours before he was set to die, the state’s Supreme Court halted Manning’s execution. Attorneys for the U.S. Justice Department had found that a piece of forensic evidence offered against Manning — by an FBI expert who testified with certainty that a hair found in a murder victim’s car belonged to Manning — was “invalid,” throwing the convicted man’s guilt into doubt.
With that new information and after a series of hearings, the Mississippi Supreme Court in late July gave Manning’s attorneys 60 days to file a brief in Oktibbeha County Circuit Court supporting their request for DNA testing and fingerprint analysis of the evidence in his case.
Manning’s case has attracted national attention and the assistance of legal heavyweights Barry Scheck and Peter Neufeld, co-founders of the New York-based nonprofit organization the Innocence Project. In some ways, what has happened to Manning, who was convicted of the 1992 murders of two Mississippi State University students, is emblematic of American justice and the state of its most severe and irrevocable penalty: capital punishment. And the reason, advocates of abolishing the death penalty
say, is increasing cultural awareness of DNA science and expectations that it can be used to reach certain, not just likely, conclusions about guilt.
Twenty years after the first death-row prisoner was exonerated because of that science, many states have moved beyond questions about the quality and quantity of lawyers in death-penalty cases or how frequently these sentences are handed down when defendants of color are accused of killing white victims. Those issues made headlines in the late 1980s and 1990s. Today, death-penalty opponents are forcing debates about actual innocence and pushing for an end to capital punishment state by state.
“I think, unfortunately, there was a point not so long ago where even in some of the most liberal, progressive, even activist circles, doing away … with the death penalty was just another lost lefty cause,” said Diann Rust-Tierney, executive director of the Washington-based National Coalition to Abolish the Death Penalty. “But there’s no question, no question at all in my mind, that 20 years after the first condemned man that science proved to be innocent walked out of jail, there’s a new kind of momentum. We’ve truly turned some kind of corner.”
Indeed, according to the Innocence Project, 18 people have been exonerated after DNA tests showed that they did not commit the crimes for which they were sentenced to death. A new chorus of voices has joined the usual human rights collective that has long wanted to rid the country of capital punishment. Six states have eliminated capital punishment in the last six years, and at least two others are expected to follow in the near future, death-penalty opponents say.
Inside the NAACP — the nation’s largest and oldest civil rights organization — organizers are beginning to speak quietly but openly about a state-by-state movement to abolish the death penalty that includes a national endgame. There’s even talk of eventually bringing a case to the U.S. Supreme Court that asks the justices to eliminate capital punishment nationwide.
The number of people receiving death sentences is declining, Rust-Tierney said. Legislation to reform or repeal the death penalty is now regularly introduced in states across the country. Perhaps most significantly, longtime death-penalty opponents have been joined in the trenches by civil rights activists and those with the political experience and social standing to raise real questions about inequality in the criminal justice system.
“The death penalty really is becoming increasingly marginalized,” Rust-Tierney said, “and with good reason.”
Since 2000, death-penalty sentences handed down by state courts and juries have declined nearly 75 percent, and the number of executions has been cut in half, said Richard Dieter, executive director of the Death Penalty Information Center, a Washington-based nonprofit organization that opposes capital punishment.
One explanation for the change: Crime itself has declined, said Dieter. Another is that the nation’s increasingly cash-strapped states have looked at the cost of the death penalty and the multiple appeals and hearings that almost always follow, he said. Longtime death-penalty opponents wish, Dieter said, that arguments about the uneven nature of death-penalty sentences had made the difference.
“It’s a combination of a lot of things,” Dieter said. “But if I had to point to one thing, it’s innocence, the possibility of actual innocence. DNA testing has revealed to the public that in so many cases where people thought the right person was on death row, (it) turned out to be wrong. DNA has produced some growing awareness of the irrevocable and fallible nature of the death penalty.”
It’s the so-called “CSI” effect. Juries want proof. And even in states such as Texas — the longtime national leader in executions — beginning this year, prosecutors will be required to ensure that any evidence that can be tested for DNA material undergoes that process before a jury is asked to impose the death penalty. And all of the 32 states that maintain the death penalty also now give juries the option of sentencing defendants to life without the possibility of parole.
In 2012 and 2013, legislatures in Connecticut, Maryland, Delaware and Colorado considered repealing the death penalty. Only the Connecticut and Maryland measures became law. But Colorado’s governor did institute a moratorium on executions.
Longtime death-penalty opponents say that the increasing involvement of new voices in the movement to abolish capital punishment has also played a significant role in the slow state-by-state death of capital punishment. One of those new voices: the NAACP.
“Look at Maryland,” said Jane Henderson, executive director of Maryland Citizens Against State Executions. “I think the governor wanted to do away with the death penalty for some time, and most of the votes have been there in the Legislature for a while. We’ve certainly been here working on it. But when the NAACP came in and really pressed the issue, I think it gave some people the political cover they needed.”
Still, change happens slowly. In Maryland, Kirk Bloodsworth, a white ex-Marine, became the nation’s first exonerated death-row inmate in 1993 after DNA testing proved that he was not guilty of the 1984 rape and murder of a 9-year-old girl. But it wasn’t until March of this year that Maryland abolished the death penalty.
Although public support for the death penalty hit a 39-year low in 2011, it ticked up slightly this year. About 63 percent of the respondents in a nationwide Gallup poll in January said they supported the death penalty as a potential penalty for murder.
Activists know that they still have an uphill fight. There are just over 3,100 people who have been sentenced to death in the nation’s prisons. Although blacks make up just 13 percent of the nation’s population, African-American inmates make up 41 percent of those living on death row and 35 percent of those executed since the Supreme Court affirmed the constitutionality of capital punishment in 1976.
Just over 80 percent of the nation’s executions last year occurred in Southern states, which still support the death penalty in strong numbers.
“I think we want to aggressively champion equality and challenge injustice whenever and wherever we can,” said Niaz Kasravi, the NAACP’s criminal justice director. “That sounds lofty and certainly is a tremendous task, but I think there’s no question that the racial inequalities we have seen in who is sentenced to death; the errors that we know have happened or almost happened; and the aggressive way that policing (and) the broader criminal justice system are distorting communities of color across this country have given us a very clear sense of mission here.”
NAACP officials could not help but note the crowds — including thousands of young people — mobilized in the run-up to Troy Davis’ 2011 execution in Georgia, Kasravi said.
Davis, an African-American man convicted in the 1989 murder of an off-duty police officer, became a sort of national cause. Seven of the nine witnesses who initially offered damaging testimony against him recanted significant portions of their testimony. More than 1 million people signed a petition calling on Georgia to reconsider his death sentence.
The Supreme Court ordered a lower court to reconsider evidence in the case that strongly suggested Davis’ innocence, and a former U.S. president — even the pope — asked Georgia to commute Davis’ sentence. In September 2011, Georgia executed Davis. In his final statement, he maintained his innocence.
Ben Jealous, a longtime civil rights activist and organizer, took the helm at the NAACP after serving as director of Amnesty International’s U.S. Human Rights Program, where he focused on death-penalty issues, prisoner rights and racial profiling, and juvenile justice matters. So adding the death penalty to the NAACP’s list of national priorities wasn’t exactly a stretch, Kasravi said.
If and when the state-by-state battle that death-penalty opponents are waging now causes the death penalty to be abolished in a simple majority of states — 26 — the NAACP is prepared to mount a constitutional challenge on the grounds that the death penalty amounts to cruel and unusual punishment in the states where it remains. The Supreme Court barred states from executing the mentally disabled in 2002 and juveniles in 2005 on the same grounds.
“Abolishing the death penalty really isn’t a far-fetched idea,” Kasravi said. “At this point, I’d say it’s within sight.”
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