March 9 ALABAMA: Death penalty: A rotten tree gets pruned You might fancy that Esther Brown is leaping for joy these days, singing the praises of the U.S. Supreme Court. But thats not quite the case. Brown, the executive secretary of Project Hope to Abolish the Death Penalty, is a zealous soldier in the fight against capital punishment. Shes watched as the Supreme Court tinkered with thenations machinery of death, most recently with a ruling banning the execution of juvenile offenders. The countrys highest court said last week that 16- and 17-year-olds cant vote, sign contracts or buy cigarettes, and they ought not be put to death either. The ruling came three years after the court ruled that states could not execute people who are mentally retarded, based on largely the same logic. How can the state impose the ultimate penalty on people who cant bear complete responsibility for their actions? So why isnt Brown thrilled? Its not that Brown wants to see the state execute people who are mentally retarded or those who were underage when they committed capital crimes. Its that Brown doesnt want to see the state execute people at all. Sanitizing death: Brown fears the rulings have the effect of sanitizing capital punishment, leaving the impression that theres less of a reason now to object to the death penalty. Its just not true, she says. "When you have a tree that is rotten to the core, you can chop off a couple of branches - it's still rotten," says Brown, who devotes her life to helping Alabamas death row inmates. "This is just window dressing. It's to make the average man in the street who knows very little and cares even less ... feel comfortable." Certainly, the courts latest ruling will have a huge impact on inmates who were sentenced to die for crimes they committed as juveniles. In Alabama, the ruling means life in prison (with no hope for parole) for 13 inmates who had been facing execution. One is Timothy Davis, who was sentenced to die for sodomizing, stabbing and robbing a 69-year-old woman when he was 17. Davis, now 43, says he is innocent. "Obviously, we're delighted with this ruling," says George Jones, a death penalty opponent who had taken a special interest in Davis case. "We should never have been executing children." But Brown says the courts decision does nothing to fix the fundamental problems that taint many other death penalty cases - problems involving race, poverty and poor legal representation. Death of innocents: Repeated studies have shown troubling patterns about unfairness in the application of the death penalty based on the race of defendants and the race of victims. Thats a problem, unless you believe the value of life varies with skin color. And if race is a factor in who gets the death penalty, poverty is an even bigger issue. Because death penalty defendants are typically poor, they are not able to afford top-dollar representation. Some on death row have had trouble getting lawyers at all for their last appeals. All of which leads to the most fundamental problem of all: the possibility of executing the wrong people. In recent years, DNA testing has shown us that seemingly airtight cases were full of holes due to mistaken eyewitnesses, dubious informants and unscrupulous prosecutors. Yet theres nothing in the courts rulings to address the basic weaknesses that have let innocent people be convicted and condemned to die. Bryan Stevenson, whose Equal Justice Initiative represents many on death row, is the last person who'd say there are no problems with capital punishment. "I see so many problems with the death penalty, it's not like the list has gotten dramatically shorter," he said. But Stevenson says he'll take what he can get - even a "marginal or incremental victory" - since he sees no serious debate about the more basic questions of fairness and reliability with regard to the death penalty. "In a place like Alabama, nobody was hesitating on the death penalty because we have juveniles (on death row)," he said. True enough. But to Brown, the bottom line is this: The Supreme Court pruned some of the worst applications of the death penalty. But it left a rotten tree standing. (source: Axis of Logic) ILLINOIS: Higher standard for death penalty a start, but not enough Illinois House Republican Leader Tom Cross has introduced a bill that would explicitly demand the highest standard of certainty before a defendant is sentenced to death. While "guilty beyond a reasonable doubt" would remain the standard for a conviction, "guilty beyond all doubt" would be a requirement for a death sentence. Lingering doubts would force us to settle for life without parole. This seems a small price for avoiding mistakes in death sentencing. Most people assume that we would already demand the highest standards of certainty before an execution, but the alarming string of wrongful capital convictions in Illinois and across the country makes clear that existing safeguards are not cutting it. Cross' proposal, which is scheduled for a committee hearing Thursday in the state House, makes good sense, but relying on it alone to raise the standard of certainty would be a mistake. It is but one part of a sufficient response to the wrongful convictions and death sentences. The proposal would essentially provide for a different kind of "gut check" for jurors or judges -- "Is there any way I could be wrong about this defendant's guilt?" Ultimately, it is a kind of subjective judgment about how certain one feels. What is needed also is an objective criterion. To understand the limitations of relying on jurors' subjective standards of certainty, consider the case of Naperville resident Penny Beernsten, who survived a brutal sexual assault in Wisconsin in 1985. She was sure when she identified her attacker as Steven Avery, but 17 years later DNA tests positively exonerated him. Avery had spent all of those years in prison for a crime he did not commit; Beernsten had to live with yet another trauma. Beernsten's experience serves as an important reminder of both the need to implement more accurate procedures for handling eyewitness evidence, but also that one's subjective sense of certainty can sometimes be dead wrong. Massachusetts Gov. Mitt Romney recently appointed a commission to develop a death penalty system from scratch, to serve as the basis for legislation to reintroduce capital punishment in a state where no one has been executed since 1947 and which officially abolished the death penalty in 1984. Setting aside important questions about the wisdom of reinstatement (given the relative costliness of the death penalty and the availability of life without parole, for example) the Massachusetts proposals include many ideas that would serve well if incorporated into existing death penalty systems in other states. In the Massachusetts proposal, in addition to a "no doubt" standard for death sentences, there would have to be physical evidence that is strongly corroborative of guilt in order for a case to be eligible for the death penalty. To ensure the integrity of this requirement, the proposal calls for independent scientific review of the collection, analysis and presentation of scientific evidence in capital cases. Any meaningful effort to enhance our standard of certainty in capital cases must include this kind of objective element. Demanding a higher standard of certainty is but one needed reform to begin to address the problems in the system with such a sorry record of mistakes. While passed with much fanfare, and doubtless a good start, the Illinois Legislature's reforms have not even begun to address systemic arbitrariness in the application of the death penalty. Implementing more accurate line-up procedures, statewide oversight of prosecutors' decisions to pursue a death penalty, and a more narrowly tailored set of eligibility factors -- all recommended by Gov. George Ryan's Commission on Capital Punishment -- are some of the most glaring omissions of the reform bills so far. Until we handle eyewitness evidence as accurately as possible and ensure consistency in the application of capital punishment, we are stuck with a real chance of mistakes and the luck of the draw in death sentencing. Finally, having just begun to overhaul the criminal justice system in light of wrongful convictions, we must take the time to study the effectiveness of enacted reforms in the real world. A state committee charged with that task over the next several years just had its first meeting. Continuing the moratorium during this process is the only prudent course, and one Gov. Blagojevich has wisely endorsed. We're moving forward, but we've got a lot of hard work ahead. We cannot simply feel certain. We must be certain. (source: Edwin Colfax is director of the Death Penalty Education Project of the Center on Wrongful Convictions at the Northwestern University School of Law; Chicago Sun-Times)
