Even death penalty proponents do not want to see innocent people executed. In recent times, though, a number of prisoners have come within minutes of a walk to the death chamber before being exonerated of a capital crime. In Illinois alone, 13 men on death row were freed within the past two decades. To his credit, Governor George Ryan of Illinois imposed a moratorium on executions there because of the high number of mistaken convictions.
Some of those released in Illinois and in other states were exonerated as a result of DNA testing—genetic examination of biological evidence such as blood, semen and hair. Now its wider application in capital cases is in the hands of Congress, through its deliberations regarding the Innocence Protection Act (S 486). It was first introduced in February 2000 by Senator Patrick Leahy, Democrat of Vermont, chairman of the Senate Judiciary Committee. On July 11 the committee began what Senator Leahy referred to in his opening statement at the committee’s executive business meeting on that date as “its long-anticipated mark-up on a death penalty reform package.” With sufficient support, it stands a chance of being brought to a favorable vote this year.
The act has two major provisions or titles. Aimed at exonerating the innocent through DNA testing, Title I would establish rules regarding applications for DNA testing by inmates who claim to be innocent. It also forbids the destruction of biological evidence in a criminal case during a defendant’s incarceration. Most death penalty cases, however, are in state courts, not in the federal system, so the act would also allow states to apply for federal grants for DNA procedures that would make testing available to prisoners on death row in the 38 states with capital punishment statutes. An increasing number of these states have already moved in this direction on their own, so Title I will probably not face major challenges. In addition to providing a means of verifying the accuracy of death penalty convictions in terms of guilt or innocence, Kevin Doyle—head of the New York State office that defends indigent people accused of capital crimes—told America that DNA testing also serves as a window into the fallibility of the criminal justice system: “You become aware of the number of cases in which the wrong person was identified as the perpetrator—identified by a wholly sincere but profoundly mistaken eyewitness or victim.”
Greater challenges can be expected in regard to the act’s other important provision, namely, the right to competent counsel for indigent persons charged with capital offenses. Title II would establish a national commission to develop standards for legal representation for poor defendants facing the death penalty. It would also help ensure that defense attorneys receive adequate training, compensation and resources enabling them to mount an effectively argued defense in capital cases. As matters stand now, many persons accused of capital crimes—especially in the South—find themselves represented by underpaid public defenders and court-appointed attorneys who often lack the time, experience and resources (to cover the costs of expert professional testimony, for example). In one notorious Texas case, the defense attorney slept through a significant portion of the proceedings. The case gave rise to the phrase, “the sleeping lawyer syndrome.” Mr. Doyle observed that in situations of this kind, the defense of the accused person is “just a farce.” He went on to say that “if such a thing as a fair death penalty law exists at all, there’s no more important guarantor of fairness than competent counsel.” Again, even death penalty proponents would agree that competent counsel is a right.
But Richard Dieter, executive director of the Death Penalty Information Center, pointed out to America that some states might view the Title II provision for competent representation as intrusive on the part of the federal government. A significant amount of money is involved in grants for which states could apply—$100 million for the first year—and Mr. Dieter said that prosecutor groups might tend to “smell this as money for the defense” and therefore as a threat to their own prosecutorial interests. A danger consequently exists that Title II may be weakened by lobbying forces of this kind. Should a state decline to accept the competency-defense funds, though, the funds could go to organizations in that state that provide legal assistance in capital cases. Almost three years have passed since the Innocence Protection Act was first introduced in Congress. Now is the time for Congress to take positive action upon it, and thereby provide a greater level of justice in a capital punishment system that is riddled with inequities.