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In Defense of the Innocent

September 21, 2002

A bill called "the Innocence Protection Act" sounds mushy until one notes that for every seven people executed since 1977, one person on death row is eventually exonerated by new evidence. Among those cleared was Anthony Porter of Illinois, who was only hours from death in 1999 when a judge stayed his execution. He later was released after a man came forward and admitted to the double homicide that had put Porter in prison for 17 years.

Stories like Porter's have made even some government officials who support capital punishment in theory--Illinois Gov. George Ryan, for instance--queasy over how it is imposed in practice. The tales of indisputable injustice so disturbed Ryan that two years ago he called a halt to executions in his state until he was satisfied that the death penalty was being imposed fairly and appropriately. He's still not satisfied. Nor is the chief judge of Delaware's Superior Court, who this month halted capital trials in that state pending further review.

Even the U.S. Supreme Court, which permitted states to reinstate capital punishment in 1976, seems to be taking another look, based in part on growing public concerns about who is sentenced to death and in what circumstances. Last term, the court held the execution of mentally retarded felons to be unconstitutional and many observers believe that the court may rule this term on whether juveniles should be spared as well.

Manifold problems send to death row innocent people and those society usually holds less than fully responsible for their actions--teenagers and people with mental retardation, for instance.

Some states, including Texas, have set competency standards so low for lawyers who represent capital defendants in recent years that even counselors who are asleep or drunk during portions of their client's trial have not been disqualified. Many states pay such a pittance for the months, sometimes years of work involved in representing these mostly indigent clients that they often draw from the bottom rungs of the profession. States also vary widely in how carefully their appellate courts review death sentences and how they collect, test and preserve DNA and other evidence that can help convict or exonerate a defendant.

The proposed Innocence Protection Act, a bipartisan bill making its way through Congress, would help reserve death row for the guilty. It would provide set federal standards for the collection and testing of DNA evidence and provide money to states that adopt those standards. The bill also would establish a grant program to encourage states to improve their capital defense programs. States that accept the money must agree to give these cases only to lawyers who meet basic competency standards--and to pay them appropriately.

The measure passed the Senate Judiciary Committee this summer with Republican support. An identical House measure, with backing from 250 Republicans and Democrats--some of whom support the death penalty--awaits action by the House Judiciary Committee.

Some 3,700 men and women around the nation now have a date with the executioner. The prospect that innocent people could be among them should frighten every American.

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