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Damning evidence supports deep judicial reform

The new national study showing that nearly 70 percent of murder convictions leading to the death penalty were overturned on appeal is one of the more damning pieces of evidence pointing out the need for deep judicial reform.

Convincing arguments against the death penalty are made from moral and religious perspectives and on the basis of humanitarian concern. Such arguments, dependent on belief systems and opinion, are immeasurably bolstered every time another study shows that the death penalty is disproportionately administered to people of color, to those who are poor and to those who receive inadequate or incompetent legal counsel.

This latest study by James S. Liebman and a team of lawyers and criminologists at Columbia University was touted as the most extensive look yet at the death penalty in the United States. It examined appeals in all death penalty cases from 1973, the year the Supreme Court reinstated capital punishment, to 1995. The study found that during that period 75 percent of those whose sentences were set aside received less severe sentences after retrial. Many of those, in turn, had their convictions overturned again in the appeals process.

We can thank Pope John Paul II and many of the American bishops for keeping the death penalty before the public as a compelling issue. Most of the public -- 66 percent, according to one recent poll, though that number is down from recent years -- support the death penalty. The bishops are bucking national sentiment, but they make a strong case, linking their concern for the lives of the accused and convicted to concern for life along the rest of the spectrum -- victims of crime, those perceived to be foreign enemies, the poorest of the poor and life in the womb. It is a consistent ethic that cuts across ideological and partisan lines.

Because of the nature of the punishment, the rate of error in capital cases is frightening. It is bad enough that states in this country are increasingly playing the role of executioner while much of the rest of the world is abandoning the practice as unnecessarily brutal and uncivilized; how much worse if our justice system is executing innocent people.

Reason, however, can leach out of the argument rather quickly. Ari Fleischer, a spokesman for Texas Gov. George W. Bush, the presumptive Republican presidential candidate, was unfazed by the report. It was, he said, proof that “there is an extra level of vigilance and caution in death penalty cases.”

Commenting on the finding that 75 percent of those whose sentences were set aside on appeal were later given lesser sentences and that 7 percent were found not guilty, Fleischer told The New York Times, “This shows that 93 percent were still found guilty” of a crime. “It’s not an error about their innocence. It’s just a question of the appropriate punishment.”

Perhaps that’s the outlook one must have in a state that has executed far more than any other -- 218 people since 1976 -- many under suspicious circumstances and with the aid of notoriously incompetent lawyers.

The study should have the effect of shocking the political and judicial systems into taking new measures to protect the innocent and to diminish use of the death penalty.

Unfortunately, the political direction in recent years has accomplished just the opposite. Congress and President Clinton have dramatically cut the time inmates have to appeal to federal courts, cut back the number of appeals allowed and shortened the process leading to execution.

At the same time, the study showed, convictions were being overturned as a result of incompetent defense, prosecutorial errors, police misconduct, bias on the part of judge or jury and faulty instructions by judges to juries.

Clinton and others might find the get-tough rhetoric politically expedient, but diminishing the rights of inmates on death row only exacerbates the glaring inadequacies of the justice system. Getting rid of the death penalty would be a logical first step toward cleaning up the mess.

National Catholic Reporter, June 30, 2000