New Death Penalty Doubts

If state and federal appeals courts felt compelled to overturn two-thirds of the death penalty convictions they reviewed over a 22-year period, what does that say about the flaws of the criminal justice system? This astoundingly high reversal rate is the key finding of a sweeping study released Monday that should intensify uncertainties about the penalty among some elected officials and the public.

The finding, in a study by Columbia University law professor James S. Liebman and two associates, comes at a curious moment in the nation’s prolonged debate over the morality of state executions. A divided Supreme Court Monday refused to overturn the death sentence of a Virginia murderer despite a clear error in his sentencing hearing; 38 states permit executions, and 3,752 men and women sit on death row nationwide. In recent decades popular support for capital punishment polled so strongly that legions of politicians and judicial nominees have seen opposition to it as a sure path to defeat.

On the other hand, evidence that the “system . . . is wasteful and broken,” as Liebman concluded, is inescapable. Too many defendants are represented by drunk or grossly incompetent trial lawyers or no lawyers at all, convictions are based on witnesses who were paid police informants, there is misconduct by police and prosecutors. These are some of the failures of a criminal justice system predicated on fairness but too often running on expediency.

Earlier this year, Illinois’ governor, a death penalty supporter, grew so troubled by problems found in several capital convictions that he suspended executions pending a formal review. The exoneration of a handful of inmates nationwide through DNA testing has provided scientific proof of egregious errors in those cases and has cast shadows on convictions in others. A recent Gallup poll found support for the death penalty at its lowest level in 19 years, about 66%--down from its 1994 peak of 80%. Even Texas Gov. George W. Bush--who has permitted 131 executions, many of which followed trials that a Chicago Tribune investigation concluded were deeply flawed--earlier this month granted a convict a 30-day delay of execution so DNA evidence can be reviewed.

The study released Monday found high reversal rates nationwide. Even in California, which in recent years has had fewer apparent abuses than many other states, the reversal rate was 87%. Those who support the death penalty see this as evidence that the system works, that appellate review sifts out the errors and the innocent. However, for many others, the high reversal rates properly tug at the conscience. They provide glaring evidence of widespread error at the trial level that should clear the way for reform at trial as well as appeal.

A proposal by Sen. Patrick J. Leahy (D-Vt.), which could be heard today in the Senate Judiciary Committee, offers solid first steps: His bill, S 2690, would provide access to DNA testing for federal and state convicts and establish stricter standards for court-appointed lawyers in capital cases.

In the meantime, other states, including California, would do well to follow Illinois’ lead, braking the death penalty machinery until or unless repairs are made.