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Death Penalty Reforms Proposed

March 09, 2002

In "Myths Aside, Death Row Isn't Filled With Innocents" (Commentary, Feb. 26), Joshua Marquis spins a few myths of his own. First, death row isn't "filled" with innocents, but no one suggests that it is. What we know is that nearly 100 innocent people have been released from death row since 1973. What we do not know--in part because of laws that Marquis defends that deny DNA testing to check the facts--is how many other innocents are on death row and how many may have been executed.

Second, concern about the use of the death penalty is not premised, as Marquis suggests, on the boogeyman of the "bloodthirsty prosecutor." The concern that runs across the political spectrum is based on the facts, including a defect that Marquis fails to mention: ineffective defense counsel. Those who know the system best know that with the current state of indigent defense in many parts of the country, the biggest myth about the death penalty is the myth of infallibility.

Third, Marquis says we need to worry more about guilty people wrongfully freed than innocents wrongfully imprisoned and executed, but he offers no data and ignores a key fact: We have seen cases where killers went on rampages while innocent people were in jail for their crimes. There is no surer way to have a dangerous killer on the loose than to lock up the wrong man for the crime, refuse to consider further evidence and then close the case file.

I have sponsored the bipartisan Innocence Protection Act--modest reforms that would not abolish the death penalty but would take a few steps toward making good on the Constitution's promise of effective representation of counsel for the defendant and would make DNA testing available to convicted offenders in appropriate cases. Marquis claims that the bill's procedural reforms "would effectively prevent states from ever seeking the death penalty." As a former prosecutor I am troubled to hear a prosecutor claim that competent defense representation and broader defense access to DNA evidence, which competent prosecutors use to determine the truth, would make his job impossible.

Marquis also asserts that the bill has "failed to gain traction." The Innocence Protection Act is supported by about half the members of the House, 25 senators and many state officials, including judges and prosecutors. Our co-sponsors are Republicans and Democrats, and supporters and opponents of the death penalty. I only wish that more of my legislative initiatives "failed" like this one.

Sen. Patrick Leahy

Chair, Judiciary Committee

(D-Vt.), Washington

*

Marquis writes that the Oregon Supreme Court's reversal of 68% of death verdicts does not suggest that "innocent" people are being sentenced to death but only that courts are reversing judgments for "hyper-procedural errors" such as "faulty jury instructions." Actually, the new study by Columbia law professor James S. Liebman reveals that the leading cause of reversals nationwide is incompetence of defense counsel. Faulty instructions, the second-largest cause, are hardly hyper-procedural errors, however, since reviewing courts reverse only if the outcome might have been different had the erroneous jury instruction not been given. Judgments reversed for erroneous jury instructions are invariably remanded for retrial, and 7% of death row defendants whose convictions are reversed are acquitted at their retrials. Another 82% receive a sentence of less than death.

Marquis offers Oregon as a "good example" of low use of the death penalty because it has only 25 inmates on death row. Those 25, however, rank Oregon sixth in the nation when compared with Oregon's homicide rate. Its high rate of reversals (11.1% higher than average) is consistent with Liebman's thesis that the states that charge the highest proportion of their homicides as death penalty cases also have the highest error rates. The data are also consistent for Virginia (29th in the nation for death sentencing rate, with a 10.3% lower-than-average rate of reversals) and California (31st nationwide, with a 14.3% lower-than-average rate of reversals).

It's time for prosecutors to stop whining and start working for consistent standards to narrow the overuse of the death penalty. The bottom line of Liebman's groundbreaking research is incontrovertible: Prosecutors are stuffing more death penalty cases down the throat of our criminal justice system than it can possibly digest, and indigestion is the chief cause of reversible error.

Gerald F. Uelmen

Professor of Law, Santa Clara

University School of Law

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