A Life-or-Death Reform

Not long ago, Americans’ support for capital punishment was rock-solid. That was before they knew how many people on death row were wrongly convicted. In recent years, 99 across the United States have been exonerated and released, some just hours before a state executioner would have killed them with gas, electricity or an injection.

Support for the death penalty has always been based on the belief that defendants are guilty and got a fair trial. What happens when facts shake that confidence? Public support has dropped nationally, from 77% five years ago in one poll to just over 63% last year, the lowest level in 20 years. Support drops to 46% when pollsters list life without parole as an alternative to death.

Now comes Columbia Law School professor James S. Liebman with data showing that mistakes in death penalty cases occur with horrifying frequency. His measure is the reversal rate--the frequency with which death sentences are thrown out on appeal for grave errors (which does not necessarily mean that a defendant was exonerated).

In a study released this week, Liebman reviewed more than 5,000 cases over 23 years and found that in the states that most often handed out the death penalty, nearly 70% of those sentences were ultimately reversed. Mississippi led the pack with a staggering reversal rate of 92%. In other words, Liebman concluded, “heavy and indiscriminate use of the death penalty creates a high risk that mistakes will occur ... including execution of the innocent.”

California, which has the most people on death row--602--is not among Liebman’s top 10. But just in the past two weeks, California judges reversed death sentences in two separate cases. In one case the court ruled that the defendant’s Miranda rights were violated, and in the other an appeals panel cited the “egregious failure” of the defense lawyer to competently represent his client.

Liebman found such mistakes over and over as he examined data from other states. The major causes for the high reversal rate include mistaken identification, post-conviction discovery of exculpatory evidence, including evidence from DNA tests, misconduct on the part of the prosecutor or incompetence of the defendant’s attorney.

That’s where legislation would help. The proposed Innocence Protection Act, introduced by Sen. Patrick J. Leahy (D-Vt.), would encourage states to set higher standards for lawyers who represent death penalty defendants, increase compensation for defense lawyers in state and federal capital cases and establish national guidelines for the preservation and testing of DNA evidence.

Leahy’s worthy measure has more than two dozen co-sponsors, but nearly a year after its introduction the bill still awaits its first hearing. Envision those 99 wrongly convicted individuals being led into prison death chambers and the importance of such reform becomes clear.