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Four-year study shows that more innocent people are being sent to death row.
BY DAVID E. ROVELLA
SPECIAL TO THE NATIONAL LAW JOURNAL
The National Law Journal (p. A01)
Monday, August 4, 1997
TWENTY FIVE YEARS after the U.S. Supreme Court ushered in a new era of capital punishment, death penalty opponents say the nation is entering a more ominous period, in which the risk of executing the innocent is no longer remote.
A report recently released by the Washington, D.C.-based Death Penalty Information Center, a death penalty opposition group, says that between 1993 and 1997, 21 death row prisoners were exonerated by the courts. Previous reports showed that, on average, 2.5 innocent defendants were released annually from death row between 1973 and 1993.
Now, DPIC says an average of 4.8 innocent defendants were released each year since 1993. The 21 cases cited brings the total of such wrongful convictions to 69 since 1973.
"If you have this many mistakes, you can't say we're executing only guilty people," said Richard C. Dieter, DPIC executive director and author of "Innocence and the Death Penalty: The Increasing Danger of Executing the Innocent."
Additionally, the average length of time between sentencing and exoneration has increased from 6 1/2 years to seven, the report says. The increase is considered an important measure because recently enacted federal legislation aims to speed the process of imposing the death penalty to as little as five years by shortening appeals. The Bureau of Justice Statistics reports that the average stay on death row is eight years.
"The current emphasis on faster executions, less resources for the defense, and an expansion in the number of death cases means that the execution of innocent people is inevitable," says the 36-page report.
Human Error
Prosecutors contend that the increased release of innocent persons from death row shows the system works.
"We have a human system that involves mistakes, often mistakes of the gravest kind, but this shows that the system is working," said William L. Murphy, four-term district attorney of Staten Island, N.Y., and president of the National District Attorneys Association.
Under New York's 1995 death penalty law, Mr. Murphy has declined to seek death in one eligible case and is deliberating on a second.
The report, a sequel of sorts to a similar DPIC study in 1993 commissioned by a House Judiciary Subcommittee, comes on the 25th anniversary of Furman v. Georgia, 408 U.S. 238 (1972), which outlawed existing death penalty laws while setting the stage for Gregg v. Georgia, 428 U.S. 153 (1976), which approved modern-day death penalty statutes. Currently, 38 states and the federal government have active death penalties. Since 1973, 6,000 people have been sentenced to death, and 402 have been executed.
"The prediction in 1993 was that the risk of executing innocent people would increase," said Mr. Dieter. "Expansion of the death penalty contributes to that. If you have more cases, you'll probably have more mistakes."
The most recent example of such mistakes was the case of Rolando Cruz and Alejandro Hernandez, convicted in Illinois of the murder of 10-year-old Jeanine Nicarico. Eventually, after a convicted murderer admitted to the killing, both were released. Prosecutors and police were recently charged with obstruction of justice related to the cases.
Death penalty experts claim that last year's defunding of 20 federal post-conviction defender organizations last year, limitations on federal habeas corpus petitions and the broadening of the federal death penalty will not only accelerate the number of executions, but put more financial pressure on state appellate courts.
"The defunding and the habeas limitations started last year, so the effects have not taken hold yet," said Ronald Tabak, chairman of the Death Penalty Committee of the American Bar Association's Section for Individual Rights and Responsibilities. "The number of cases we won't find out about will increase because of these factors."
Mr. Murphy said the NDAA's Policy and Legislation Committee is reviewing the February ABA report calling for a death penalty moratorium, authored by Mr. Tabak. But he added that the DPIC report's numbers show innocent prisoners are not being allowed to slip through the cracks. Mr. Dieter countered that the resource centers' vigilance was critical in exonerating innocent prisoners. But for the few groups surviving on private funding, though, he said their impact has diminished significantly.
"The [remaining resource centers] don't have the same mandate," he said. "Before, they made sure that each person on death row had representation and made sure no one went unprotected."
One criminologist said that the increase in the number of exonerated death row prisoners has less to do with legislation and more to do with forensics.
"The increased use of DNA evidence is balancing off the tendency to speed up the execution process," contends Prof. Richard Moran, of South Hadley, Mass.' Mount Holyoke College. He added that there will be an increased burden on state appellate courts as federal habeas restrictions begin to take hold.
"When people went through state appeals, they were treated as perfunctory," Professor Moran said. "Now the real contests will be at the state level."
Mr. Tabak warns that high-profile capital cases, such as that of convicted Oklahoma City bomber Timothy J. McVeigh, may contribute to public ambivalence toward the risk to innocent prisoners.
"Hopefully, people don't believe that every capital lawyer has the resources available that [McVeigh lawyer] Stephen Jones did," he said.¤