Theodore Roosevelt once told a story that illustrates the folly of being too eager to inflict punishment. The story concerned a group of cowboys who apprehended a man they suspected of being a horse thief. In the Old West, this was a capital offense, and the cowboys quickly strung the man up. Shortly thereafter they learned that another man had confessed to the crime.
The cowboys designated the most tactful among them to inform the widow of the man mistakenly hanged. He knocked on the door of the cabin and when the man's widow appeared, the cowboy solemnly removed his hat and said, ''Ma'am. We hanged your husband as a horse thief but after we were finished, we got word that somebody else did it. I guess the joke is on us.''
As it was with the cowboys, so it is with the contemporary urge to execute those convicted of serious crimes as quickly as possible. But the grim joke is not on us but on those who will suffer society's ultimate sanction for crimes they did not commit.
In the 24 years since the Supreme Court reinstated the death penalty, about 620 people have been executed in the United States, according to the statistics of the Death Penalty Information Center. During that time, 85 people who had been sentenced to death were found to have been innocent of the crime for which they had been condemned and freed from death row. In light of these statistics, it is a reasonable conclusion that some of those actually executed were also innocent.
Even for those who favor the use of the death penalty in capital cases, this is an exorbitant price to pay for retribution. It is even less justifiable in light of advancements made in the science of DNA, which can, in many cases, link an individual to a crime or exonerate him.
Supporters of the death penalty can find little satisfaction in allowing the guilty to remain at large as innocent men and women are executed when a relatively inexpensive test can connect an individual to the crime or clear him. In spite of this, only two states -- Illinois and New York -- give inmates the right to DNA testing when it could produce new evidence of innocence.
But there is more to the problem of hastily meting out punishment than just the lack of access to DNA evidence for those condemned. There is also the routine subversion of the constitutional right to counsel in capital cases by the discount-store justice that is often provided for poor criminal defendants. In one instance, in Alabama, a defendant in a murder trial was defended by a lawyer whose practice had been limited to real estate closings and divorces. It was roughly equivalent to having brain surgery performed by a dermatologist. Moreover, in many cases juries are not even made aware that they have choices other than the death sentence in capital cases. Public opinion surveys have shown that juries are less likely to support the death penalty when they are told that life in prison without possibility of parole is an option.
These problems seem so glaring and so straightforward that no reasonable person would oppose solving them, but there are vast complications that emerge from our federal system in which states are given primary responsibility for enforcing criminal law. The main obstacle to DNA testing are state laws that forbid the introduction of new evidence in the interest of limiting death row appeals and speeding executions.
Death row errors constitute a national crisis in the administration of capital punishment. We need legislation to make it less likely that fatal mistakes will infect our federal and state judicial systems.
Reforms I propose in the Innocence Protection Act of 2000 would give offenders convicted of federal crimes access to DNA testing in those cases where test results might exonerate them. The bill would also forbid the government from destroying biological material from a crime scene that would be needed to conduct these tests. Because most criminal defendants come within the jurisdiction of state criminal law, the Innocence Protection Act would provide incentives for states to safeguard DNA materials and make the tests available to those convicted where there is biological material that might prove their innocence.
It would ensure adequate representation by requiring states to appoint qualified lawyers in capital cases. The bill would also ensure that both federal and state criminal juries are apprised of alternatives to the death penalty.
No bill, however carefully crafted, can remedy every defect in the American criminal justice system, Prosecutors will continue to enjoy enormous latitude in choosing which defendants will go on trial for their lives. Witnesses will suffer from imperfect recall and judges will not prove omniscient. But we must begin somewhere.
(Leahy is a Democratic senator from Vermont.)
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