Legal Affairs – Enact a Civilized Crime Bill, for a Change

National Journal

Congress and the President have a chance this year to show that they care as much about avoiding the execution (and imprisonment) of innocent defendants as they do about punishing the guilty ones. They can adopt the Innocence Protection Act, a bipartisan proposal co-sponsored by death penalty supporters and opponents who agree that you can be tough on crime without punishing innocent people. The bill would give prisoners expanded access to possibly exculpatory DNA evidence. It would also deliver-if only in capital cases-on the Supreme Court’s long-broken 1963 promise to provide indigent criminal defendants with competent trial lawyers.

Tough on crime? You bet. Helping defendants and prisoners who can prove their innocence would result in more arrests of real criminals. And making trials more fair would expedite the executions of those condemned killers whose guilt is clear, by speeding up the seemingly endless appellate process that now overturns a staggering percentage of all death sentences.

In the words of columnist George F. Will-a pro-death-penalty conservative-"many innocent people are in prison, and some innocent people have been executed," due to "appalling miscarriages of justice" and other "demonstrable, multiplying failures in the criminal justice system." He should tell President Bush, who seemed alarmingly comfortable with the kangaroo-court style of justice that produced the executions of more than 150 defendants-at least two of whom may well have been innocent-on his watch as governor of Texas. Nationwide, some 95 inmates since 1973 have been released from death rows based on new evidence that either proved their innocence or cast grave doubt on their guilt.

Nobody knows how many innocent defendants have been executed or remain in prison. For years, the Supreme Court, Congress, and the Clinton Administration seemed not to care. Congress in 1994 added death sentences for more than 50 federal crimes. Two years later, it made even more daunting the maze of technical obstacles that the Court’s conservatives had put in the paths of prisoners seeking federal court (habeas corpus) review of state convictions and death sentences. Congress also defunded the Death Penalty Resource Centers, which had helped inmates with appeals. This after the Justices had already (in 1995) barred federal courts from hearing death row appeals based on newly discovered evidence, unless the "new facts unquestionably establish (the prisoner’s) innocence." In other words, if a death row inmate can only prove that he is probably innocent, the state is free to execute him.

But lately, the political landscape has changed. The reason "can be summarized in three letters: DNA," Ronald Weich, a former Senate staffer who is now a partner in the Washington office of Zuckerman Spaeder LLP, writes in the April issue of The Champion, a trade publication for criminal defense lawyers. "While DNA technology has helped the police catch criminals, it has also exposed a national crisis in the administration of capital punishment, by enabling investigators to exonerate defendants" whose DNA did not match the DNA in the blood, semen, or hair at the crime scene. Meanwhile, public support for the death penalty has dropped from 80 percent in 1994 to 66 percent now; more than half of poll respondents are open to a national moratorium on executions until the most-glaring questions about the fairness of the system are resolved; and some 90 percent support DNA testing for all who might thereby prove their innocence.

Although DNA evidence is available in a relatively small percentage of cases (a bullet leaves no DNA), it has freed enough wrongly convicted prisoners to alert more and more people to the unreliability of much eyewitness testimony, jail-house snitches, and police officers who manufacture (or suppress) evidence to bolster their often-mistaken hunches. "There were always guys sitting around in prison saying, `Hey, I was framed,’ and who believed them?" observes Weich. "Now, there’s scientific evidence."

Enter Sen. Patrick Leahy, D-Vt., and Rep. William D. Delahunt, D-Mass., both former prosecutors who oppose the death penalty. Leahy crafted the Innocence Protection Act carefully enough last year to win the co-sponsorship of pro-death-penalty Democrats such as Joe Lieberman of Connecticut and Republicans such as Gordon H. Smith of Oregon. And Delahunt has rounded up some 175 co-sponsors in the House, including Ray LaHood of Illinois and 19 other Republicans.

Title I of the bill would require the federal government to preserve all possibly relevant DNA evidence and to provide postconviction DNA testing for all federal prisoners (both on and off death row) who can show that it might prove their innocence. The bill would also provide financial incentives for states to do the same. And it would require the states to do so in death penalty cases. Some states are already moving in this direction.

On April 16, U.S. District Judge Albert Bryan Jr., of Alexandria, Va., held that the Constitution requires Virginia to allow the DNA testing sought by a prisoner challenging a 1990 rape conviction. But this novel decision may not survive on appeal. And prosecutors-who don’t like seeing their mistakes exposed-will continue to thwart prisoners’ requests for DNA testing unless Congress acts.

Title II would go much farther, by attacking the biggest cause of unfair trials and erroneous convictions: incompetent court-appointed defense lawyers. It would establish a national commission to formulate minimum standards for representation in capital cases, including adequate compensation, trial experience, and a centralized, independent appointing authority in each state. To induce states to comply, the bill uses both the carrot of financial incentives and the stick of subjecting any that fail to meet the minimum standards to more-skeptical federal court review than current law provides.

This ingenious provision would be a far more sensible response to complaints about endless, repetitive death row apppeals than the procrustean cutbacks on appeal rights that we have seen in the past. Instead of proceeding on the demonstrably false assumption that state courts can be trusted to avoid unwarranted executions, the Innocence Protection Act would calibrate the degree of federal court scrutiny to the willingness of states to provide competent defense counsel.

This provision rankles some states’ rights conservatives. But those who have come to appreciate the case for federal oversight of state courts in matters of dimpled chads should reconsider the case for federal oversight of state courts in matters of life and death. If it was a good thing for the U.S. Supreme Court to reverse the unfair state court recount in Bush vs. Gore, why would it be a bad thing for federal courts to reverse the death sentences of people condemned in demonstrably unfair state court trials?

It is clear that in many death-penalty states, court-appointed defense lawyers are woefully inexperienced, underpaid, and so incompetent or pressed for time that they fail to discover or highlight evidence that could exonerate their clients. Horror stories abound. Three defense lawyers in Houston slept through major portions of their clients’ capital trials. The state courts’ response? "The Constitution doesn’t say the lawyer has to be awake," one of the trial judges remarked. Then the highest criminal appeals court in Texas upheld all three convictions. (One is now before a federal appellate court.)

"I have seen four cases in Georgia in which counsel referred to their clients with a racial slur," recalled Stephen B. Bright, director of the Atlanta-based Southern Center for Human Rights, in congressional testimony last year. "I had a case in Alabama in which my client was represented by a lawyer so drunk that her trial had to be suspended for a day, and the lawyer sent to jail to sober up…. I have seen case after case in which the defense lawyer for a person facing the death penalty was denied an investigator and funds for expert assistance."

A single-minded advocate of making sure that no criminal goes unpunished might object that good defense lawyers are a bad thing because they will sometimes fool jurors into letting clearly guilty defendants off the hook. True. (O.J. Simpson comes to mind.) Any reform to protect innocent defendants will benefit some guilty defendants as well. But this one would also lead to the apprehensions of some criminals (those who go free every time an innocent defendant is convicted) and expedite the punishments of others (by making their convictions appeal-proof).

More fundamentally, the bedrock principle of Anglo-American justice is that it is better "that many guilty persons should escape unpunished than one innocent should suffer," as John Adams put it. Does Congress still believe that? Does President Bush? We’ll see.