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Historical Perspective: THE DEATH PENALTY: 25 YEARS LATER
25 years ago a group of prosecutors from across the country went to
the United States Supreme Court begging for another chance at implementing
a fair and just death penalty. They were appearing before the Court just
4 years after the 1972 decision in Furman v. Georgia, in which the Court
had held that the capital punishment systems then in place were
unconstitutional.
In Furman, the justices had pointed to many flaws in the states
implementation of the death penalty, including the arbitrariness of the
penalty, the racial and class-based nature of the decision whether to seek
and impose the death penalty in any given case, and the risk of condemning
the innocent to die. In 1976, the prosecutors were returning to the Court
asking for another chance. They assured the Court that this time they would
get it right. They promised they had created a new and improved death
penalty procedures that would eliminate the vices that had led the Court
to strike down capital punishment earlier.
The Justices decided to give the states another chance, and the death
penalty was back. Now, 25 years later, we have the opportunity and the
obligation to review the clinical data that ahs developed since 1976 in
order to and determine whether the prosecutors correctly predicted that
the new system would lead to a fairly and accurately implemented death
penalty.
The evidence leads to an unmistakable conclusion. Despite all of the
promises that the reforms of 1976 would lead to a system defined by
super-due-process and unassailable fairmess, the death penalty remains
plagued by the very same flaws that led to its pre-reform invalidation.
The arbitrariness continues. The racism continues. The disproportionate
impact on poor defendants with bad lawyers continues. And, perhaps most
dramatically, we now understand (with the gift of DNA technology that
helps show this is some case where biological evidence is available)
that the system's propensity to condemn the innocent to die is far more
significant a problem that anyone had ever imagined.
There is no question, then, that the system is broken. The reforms of
last generation failed miserably. The system today cannot come close to
generating confidence that the states can now be trusted to decide who
should live and who should die.
The only open question is what to do now. Some argue that the states
should be given yet another chance to reform their systems. They argue
that once we improve the quality of lawyering in capital cases and
implement some other procedural changes, we will eliminate, once and for
all, the problems that have plagued application of capital punishment.
If this argument seems eerily familiar it is because it is nearly
identical to the argument made 25 years ago in support of the post-Furman
series of reforms. We have gone down that reform road, however,and we have
learned that it leads nowhere. As the expression goes, though, burn me once
shame on you. Burn me twice, shame on me. It is time to recognize that no
number of legal reforms will ever eliminate the core problems that infect
the death penalty.
Those core problems are the products of human fallibility. Eyewitnesses
make mistakes sometimes. Some defendants falsely testify against others in
order to secure leniency for themselves. Some police coerce confessions
from innocent suspects and testify falsely about what was said (by the
police and the suspect) in the interrogation room. As with every other
profession, some prosecutors are less than virtuous and allow political
or racial factors to impact on decisions about cases. These problems
will remain, no matter how many reforms we implement.
The recent events in the Laurie Roscetti case drive home the point. 4
young men were convicted of that crime. Two of them ended up testifying
against the others, even though we now know that all four of them were
innocent. A crime laboratory technician claimed that the physical
evidence implicated these defendants, even though it is now recognized
that the evidence in question actually exculpated them completely.
Mercifully, this was not a death case. Had it been, there is no way of
knowing whether these 4 innocent men would have been alive to see the
day on which the courts recognized that a tragic mistake had taken place.
If we are serious, then, about our unyielding commitment to fairness and
accuracy, there is only one true solution. We must replace the death
penalty with other punishments, such as life without possibility of
parole. To be sure, it is awful when we imprison an innocent person, but
that is worlds apart from killing that person. Even a person sentenced
to life without parole retains the opportunity to prove his or her
innocence. When we execute a person, however, we have taken away that
opportunity forever.
Governor Ryan has declared that executions should only resume in Illinois
when we can be sure that the system works. Under this standard and it is
surely the correct one when human life is involved it is clear that the
death penalty must be abandoned.
For those who believe, as I do, that abolition is the appropriate
response to the evidence that has developed over the past 25 years about
the vices of the death penalty, there is a strong temptation to voice
that view and to stay out of the reform discussion altogether. But there
is peril in taking that route. For there is a chance that those who
advocate reform will prevail, and if that happens it is critical to
ensure that the reforms that are implemented are more than just window
dressing. Although no reforms will solve the problem, there are some
reforms that are more meaningful than others, and it is incumbent on
those who understand the flaws in the death penalty system to point this
out.
Hence, even for those of us who support abolition unwaveringly, there is
reason to continue to work with those who seek to develop significant
reforms that will serve to reduce although not eliminate the problems
with the death penalty.
Let there be no mistake, though. There is no reason to go down this
reform road again. We have tried that, and it has failed. It is time to
recognize, as so many of our allies throughout the world have now
recognized, that the death penalty cannot be implemented fairly and
justly, and that its costs (moral and economic) far outweigh any of its
purported benefits.
(source: Lawrence C. Marshall, who is a Professor of Law at Northwestern
University School of Law, where he serves as Legal Director of the
Center on Wrongful Convictions of the Bluhm Legal Clinic)
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