Death Penalty Repeal and the Age of Innocence Projects

Yesterday, the State of Connecticut took a critical step toward joining a handful of states whose recent death penalty repeals were motivated by unsettling evidence of innocent people on death row.  The post-midnight Senate vote following animated testimony in favor of a bi-partisan repeal bill was a close 20-16.  Republican Representative Smith stated that one of his main concerns with Connecticut’s death penalty is the record of DNA exonerations.  Not surprisingly, innocence held moral sway.

As counsel on a death penalty appeal early in my legal career, I witnessed the moral impropriety of a death sentence based on rife prosecutorial misconduct and set against a gnawing backdrop of actual innocence.  The defendant, Delma Banks, Jr., fortunately prevailed in having his death sentence commuted in an impassioned opinion delivered for the majority by Justice Ginsburg in Banks v. Dretke.  Despite this rare instance of habeas relief, Mr. Banks still faces the threat of a death sentence in a new trial.  Like many other death row cases, Mr. Banks’s retrial is based on stale evidence and questionable prosecutorial tactics.  Although the pursuit of innocence claims was foreclosed years ago, Mr. Banks’s case now exists in a climate of growing recognition of wrongful convictions.  Indeed, the trailblazing work of the Innocence Project and its many spinoffs has slowly permeated the national consciousness with the haunting whisper that the state sometimes kills innocents on death row.

Created in the early nineties, the Innocence Project fueled a moral suspicion of the death penalty’s legitimacy, even among many of its supporters.  Less than a decade later, former Illinois Governor Ryan (R) led the charge among a small cadre governors who questioned the propriety of the death penalty.  In instituting the nation’s first moratorium on state executions to permit a thorough review of the capital judicial process, Ryan made innocence central to his reasoning: “Until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one will meet that fate.”  He subsequently commuted 156 death sentences before leaving office in 2003.   A handful of death penalty repeals followed.  In total, New York, New Jersey, New Mexico and, ultimately, Illinois have each repealed the death penalty in the past five years, joining 16 states and the District of Columbia that do not have a death penalty.  The influence of innocence projects is unmistaken.  Prior to 2007 the last repeal of a death penalty statute had occurred more than two decades earlier in 1984.   Just last year, former New Mexico Governor Gary Johnson (R) reflected that, “As governor of New Mexico, I was a bit naive and I did not think the government made mistakes with regard to the death penalty. I came to realize that they do. I don’t want to put one innocent person to death to punish 99 who are guilty.”  Similarly, the New York Observer noted that former New York Governor Patterson’s repeal of New York’s death penalty statute seemed to be “a tacit acknowledgement that the Innocence Project has exposed horrific flaws in our judicial system.”

Of course, my emphasis on innocence is not to suggest that it was the only motivation for all recent death penalty repeals. Importantly, New Jersey Governor Jon Corzine stated, “[T]he question was more fundamental. State-endorsed violence begets violence and undermines our commitment to the sanctity of life.”  This is, of course, the greater flaw with the death penalty as a whole.  However, the age of innocence projects has made it easier for both supporters and detractors of the death penalty to speak honestly about its weaknesses and forge a common ground that does not depend on an overall castigation of the practical.  While persuasive arguments for the repeal of the death penalty abound, ranging from fiscal burden to racial disparity to barbarity, none has proved a more effective mobilizing tool than innocence.

As of February 2010 250 people were exonerated nationwide through DNA testing.  Thanks to last year’s decision in Connick v. Thompson, those who found innocent are not likely to find recompense in the courts even where flagrant prosecutorial misconduct is found.  Death row survivors like John Thompson whose $14 million dollar jury verdict that was affirmed by panel of the Fifth Circuit and then reaffirmed en banc before it was overturned by a sharply divided Supreme Court, can at least take comfort in knowing that proof of innocence has not only spared their lives, but continues to inspire lawmakers to spare the lives of others. Such repeal efforts are especially important in light of the most recent evidence of prosecutorial misconduct revealed in a study by the Prosecutorial Oversight Coalition which found that none of the Texas prosecutors who committed error in 91 cases between 2004 and 2008 received disciplinary action.

In the face of mounting evidence of the death penalty’s potential to kill innocents and of prosecutorial misconduct that is often the driving force behind wrongful convictions, Connecticut’s move toward repeal will hopefully encourage other states to rethink their death penalty statutes.  State by state repeals may be the only way to spare innocent lives and bring about necessary criminal justice reform.

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2 Responses

  1. Ken Rhodes says:

    I wonder if the advocates for repeal are missing a crucial issue. In arguing for right vs. wrong, they will always encounter those who are convinced the “right” is on the other side. I.e., the biblical injunction of “an eye for an eye” justice.

    But there is not one of those proponents of the death penalty who can make a practical data-based case for it as a deterrent, and there is a HUGE case against it as an incredible waste of money. The cost of the original trial plus exhaustive appeals far exceeds the cost of incarceration. If you’re skeptical about that statement, Google cost of death penalty cases. You will find quite an array of sources on both ends of the political spectrum, and many points along the continuum, reporting the same facts. When Fox News and Amnesty International both say the same thing, you gotta give it some credence.

    And for what? A feel-good moment for the family of the victim when they say “well, at least he got what he deserved.” Gotta tell ya — ain’t worth my tax dollars.

  2. Fortunately, to win repeal, we need not convince everyone, only the appropriate majority. In any case, some individuals will never be moved in their obdurate beliefs or fixed emotional orientations, be it by rational persuasion, moral doubt, or overwhelming evidence of various sorts.