The Death Penalty: When There's No Room for Error
By RICHARD PEREZ-PENA
When Gov. George Ryan of Illinois called last
month for a moratorium on executions in his
state, he focused on the fact that 12 men on death row
had recently been proven innocent. Sentencing an
innocent person to death was, the governor said,
"shameful," but he said little about how the legal
representation these inmates had received at trial may
have contributed to justice gone wrong.
The Chicago Tribune
found, however, that 33
|Photo: The Death Chamber in Trenton, where mistakes are final.|
people who were
sentenced to die in
Illinois had lawyers
who were later
suspended, and many
more had lawyers with
no experience in
capital cases. Death
penalty experts say the
situation is almost certainly worse -- though not as well
documented - in states where capital punishment is
They also said that in many
capital cases the means to
mount a good defense, which often costs $250,000 or
more, are lacking. Elisabeth Semel, who runs an
American Bar Association project examining this
question, describes the disparity in resources available
to the prosecution and the defense this way: "It's like a
match between Mike Tyson and Martin Short, and the
referee -- the judge -- is on Tyson's payroll."
Colorado, Connecticut and
New York have attempted
to address these problems by creating a state funded
central office of defense lawyers who specialize in
capital cases. David D. Wymore, chief deputy public
defender in Colorado, said: "We found years ago that
we had to cultivate this expertise because capital law
is very complex and has all these traps. If you're
inexperienced, you'll do a poor job at trial and you'll
fail to preserve your rights on appeal."
Colorado is a Western state
where the death penalty is
popular, yet prosecutors there seek the death penalty
infrequently -- about three times a year, on average -- in
part, experts say, because they believe that the
Colorado Office of the Public Defender will defeat all
but the strongest cases.
"The Colorado office does
an excellent job, and that
greatly reduces the chance of miscarriages of justice,"
said Stephen B. Bright, director of the Southern Center
for Human Rights in Atlanta and a professor at Yale
A vigorous system for
defendants not only means
fewer wrong verdicts, it
also means fewer death
death penalty lawyers are
adept at dissuading
prosecutors from seeking
capital punishment, and
juries from applying it. In 52
capital trials in Colorado since 1975, five people have
been sentenced to death, and only one has been
"For that reason alone, few
states will adopt this kind
of system," said Franklin E. Zimring, law professor and
director of the Earl Warren Legal Institute at the
University of California at Berkeley. "There is a great
desire to have assembly-line executions."
Connecticut, like Colorado,
has a capital defense team
within its public defender office, which is under
contract to the state to provide legal counsel to indigent
defendants. As in most Northeastern states, prosecutors
seek the death penalty only rarely. Still, in the 27 years
since Connecticut reinstated capital punishment, no one
has been executed.
New York's death penalty
law, enacted in 1995, also
created the Capital Defender Office, rated by experts as
the gold standard of its kind. The office has a $15
million budget, provided by the state. Its 21 trial
lawyers and 17 investigators all receive intensive
training, and many have worked on capital cases in
other states. The Capital Defender Office joins a case
as soon as a defendant is charged with first-degree
murder. Since 1995, there have been 524 cases in
which prosecutors either charged first degree murder or
went to court leaving open the possibility of that
charge. The Capital Defenders Office participated in
the defense in these cases as long as there was a
possibility of a sentence of execution.
Ultimately, prosecutors have
sought the death penalty in
39 cases, winning it five times. The first execution is
years away, as all the cases are under appeal.
Kevin Doyle, New York's Capital
Defender, says his
office has "a cultural advantage," in that New Yorkers
are not as enthusiastic about the death penalty as people
in the South and West. "There's a moral ecology that
says we're not just going to pay lip service to
constitutional rights," he added.
Then there are states like
Texas, Alabama and Georgia,
where the death penalty is frequently imposed, and
there is no public defender system at all. Instead,
judges appoint lawyers for poor defendants and set
their compensation, often at low rates. Even states like
Illinois appoint lawyers this way when the caseload is
too large for the public defender offices.
"It's a culture of habitually
hangers-on," said David I. Bruck, a defense lawyer in
South Carolina who helps train lawyers in handling
death penalty cases. "They don't know capital law,
they're cozy with the judges and they're underpaid. It's
not a good situation."
Note: this is a column by a Death Penalty Supporter objecting to the Illinois decision.
February 4, 2000 NYT
The Justice Americans Demand
By DAVID FRUM
WASHINGTON -- Must we make the same mistakes
over again? On Monday, the Republican governor of Illinois,
George Ryan, suspended executions in his state while he investigates how
13 men could have been wrongly sentenced to death. (Fortunately, none
of the executions were carried out.) Opponents of capital punishment,
like the unfortunately named Quixote Center, have seized on Mr. Ryan's
action as an opportunity to call for a moratorium on all executions
And who knows? There might possibly be a governor or two ready to
listen. But let's hope not. For in their zeal to halt a punishment they regard
as barbaric, death-penalty opponents have helped corrode American
trust in the democratic system.
Over the past 30 years, Americans have expressed steadily increasing
support for the death penalty. In 1965, before the great crime wave of
the 1970's, a Harris poll reported that only 38 percent of Americans
supported capital punishment; 47 percent opposed it. Today, 71 percent
favor it; 21 percent oppose it.
Thwarted politically, death-penalty opponents looked to the courts to
suppress executions for them. For a long time, they succeeded. Their
greatest victory came in 1972, when a 5-4 majority of the Supreme
Court declared capital punishment as carried out by most states a "cruel
and unusual punishment" prohibited by the Eighth Amendment.
Even after the Supreme Court reversed itself in 1976, the lower federal
courts could be counted on to mire each and every death-penalty case in
a tangle of litigation. Although juries imposed the death penalty more and
more frequently in the 1980's and 1990's, it remains true that the number
of Americans executed in any given year has yet to exceed the number
killed by lightning. And even when death sentences are finally carried out,
it is only after immense delays: the 68 prisoners executed in 1998 spent
an average of 10 years and 10 months on death row.
The spectacle of lawyers and judges tying up capital cases in
never-ending procedural review, while crime rates skyrocketed, helped
discredit opposition to the death penalty. More ominously, it also helped
discredit the courts themselves.
The percentage of Americans expressing "great confidence" in the
Supreme Court fell even more rapidly from 1965 to 1979 than the
percentage expressing "great confidence" in Congress and the
presidency, according to the Harris poll.
Opponents of the death penalty are unchagrined. Because they believe
that their cause is a righteous one, they regard all tactics as legitimate.
Certainly, shifting their focus from the courts to the governors is
welcome; after all, governors are elected and accountable in a way that
the federal courts are not.
But even with elected officials, death-penalty opponents are proceeding
in a way that public opinion is bound sooner or later to perceive as
underhanded. Instead of simply working to elect governors who explicitly
oppose capital punishment, they are hoping to persuade governors who
support executions to flip-flop after the election -- and to justify the
switch by disguising it as a merely temporary precaution.
The plan might succeed. But such success would come at a very high
price. One of the most disturbing features of modern American life is the
cynicism expressed by ordinary citizens about the workings of their
government. Their loss of trust in their institutions has generally coincided
with a loss of faith in their ability to control those institutions.
On the campaign trail, Democrats like Bill Bradley promise to reignite
now vanished idealism. What needs to be understood, though, is that it is
the refusal of democratic liberalism to accept popular will on burning
issues like the death penalty that helped snuff out that idealism in the first
Governor Ryan acted properly: If state justice seems to be miscarrying,
it's a governor's job to find out why and right it. But once Mr. Ryan has
found the answer, the criminal laws of Illinois must be honored.
When death-penalty opponents call on governors to flout democratically
enacted laws, they are inviting those governors to abuse their power,
alienating and embittering their electorates. If you treat people like
subjects, it is hardly surprising that they cease to feel like citizens.
Frum, a senior fellow at the Manhattan Institute, is the
author, most recently, of "How We Got Here: The 70s: The Decade
That Brought You Modern Life (For Better or Worse)."
Note: The following story from the Chicago Tribune gives more details on the Illinois decision. Students in Policy & Ethics are not responsible for the details here, they are given for your referece.
Ryan: 'Until I can be
Illinois is first state to suspend death
By Ken Armstrong
and Steve Mills
Tribune Staff Writers
February 1, 2000
Denouncing a system
that is "so fraught
with error and has
come so close to the
Gov. George Ryan
on the death penalty
in Illinois, marking the
first time any state has
taken such dramatic
"Until I can be sure
sentenced to death in
Illinois is truly guilty,
until I can be sure
with moral certainty
that no innocent man
or woman is facing a
lethal injection, no
one will meet that
fate," Ryan said.
Ryan decried the state's "shameful record of
convicting innocent people and putting them
on Death Row" and repeatedly referred to the
13 condemned inmates who have been
cleared since Illinois reinstated capital
punishment in 1977, one more than the
number of inmates the state has executed.
The governor said his decision was spurred
by the wrongful convictions and a recent
Tribune investigative series, "The Failure of
the Death Penalty in Illinois," which examined
the state's 285 capital cases and exposed
how bias, error and incompetence have
turned the state's harshest punishment into its
least credible. The investigation revealed that
roughly half the death-penalty cases that have
completed at least one round of appeals have
been reversed for a new trial or sentencing
hearing. It also detailed how misconduct by
prosecutors and police, dubious forensic
evidence and such unscrupulous tactics as
excluding blacks from juries have contributed
to wrongful convictions.
Ryan specifically pointed to the Tribune's
findings that questionable jailhouse-informant
testimony had been used in at least 46
death-penalty cases, and that 33 Death Row
inmates were represented at trial by an
attorney who has been disbarred or
"Disbarred lawyers, jailhouse
informants--those kinds of problems are in
the system, and we've got to get them out,"
Ryan's announcement received broad
support statewide and nationally. In Illinois,
even conservative legislators who support
capital punishment lauded Ryan's decision,
as did Atty. Gen. Jim Ryan and the Cook
County state's attorney's office. Nationally,
U.S. Sen. Patrick Leahy (D-Vt.), a member
of the Senate judiciary com-mittee who is
readying a package of death penalty reforms,
called Ryan's decision "courageous and
timely." Leahy said it would be "a catalyst for
a similar review in Washington."
Death penalty critics and American Bar
Association leaders said they hope Ryan's
decision will prompt other states to follow
"When a conservative Republican governor
in a large state with a large Death Row
recognizes that there are so many systemic
questions about the death penalty, it strongly
buttresses the need for a moratorium in all the
other states," said New York City attorney
Ronald Tabak, who heads a death-penalty
committee for the ABA, the nation's largest
lawyers' group. "As great a need as there is
for a moratorium in Illinois, the need is even
greater in Texas, Florida, Louisiana and many
The association came out in support of a
national moratorium three years ago.
Despite concerns about the possibility of
executing an innocent person, Ryan said he
continues to support the death penalty. In
March, he declined to halt the execution of
Andrew Kokoraleis, but called it a "very
The threat of an innocent person being
executed--a specter raised by the country's
growing number of wrongful-conviction
cases--has helped fuel movements in
numerous states to suspend or even abolish
the death penalty.
But Ryan's decision makes Illinois the first of
the country's 38 states with the death penalty
to formally suspend executions pending a
review of the capital justice system.
At least six states considered a moratorium
last year, but none adopted such a measure.
The closest any state came was Nebraska,
where legislators approved a moratorium bill
but the governor vetoed it.
The Illinois House approved a moratorium
bill last year, but the measure failed in the
By temporarily suspending executions, Ryan
has in effect taken the very step at which the
Senate balked. As governor, Ryan has the
power to grant stays or reprieves, a move
that does not negate a death sentence but
does delay execution.
"There's going to be a lot of folks who are
firm believers in the death penalty who may
not agree with what I'm doing here today,"
Ryan said. "But I am the fellow who has to
make the ultimate decision whether someone
is injected with a poison that's going to take
Ryan said he would not approve another
execution until he has appointed a committee
to study the capital system's flaws and that
committee has finished its review and made
recommendations. "This, in effect, is a
moratorium," he said.
The governor said he has not decided who
will be on the committee, but added, "It's not
going to be a stacked panel one way or the
Ryan also said he has not set any timetable
for the committee to complete its work. In
the meantime, Ryan's decision will not
prevent prosecutors from continuing to
pursue the death penalty in pending cases.
At least three other committees created by the
General Assembly and state Supreme Court
have been studying the death penalty as well.
Ryan denied that he is imposing a
moratorium to deflect attention from a
growing driver's licenses-for-bribes scandal
that occurred while he was secretary of state,
saying the move was necessary to prevent the
execution of innocent defendants. Ryan even
mentioned that a 14th Death Row inmate
might soon be cleared of a murder.
A Ryan spokesman said the governor was
referring to Edgar Hope Jr., who has been
condemned twice for separate murders.
Students at the Chicago-Kent College of Law
and their professor, Richard Kling, filed court
papers last week saying they uncovered
evidence that implicated a different man in
one of the slayings.
Investigations by Northwestern University
journalism students played a role in three
exoneration cases, including last year's
release of Anthony Porter, who came within
two days of execution.
"How do you prevent another Anthony
Porter--another innocent man or woman from
paying the ultimate penalty for a crime he or
she did not commit?" Ryan said. "Today I
cannot answer that question."
Cook County Public Defender Rita Fry, who
recently called for an investigation into
possible police and prosecutorial misconduct
in the 13 wrongful-conviction cases, said she
trusted Ryan's motives.
"I assume that he's doing it for all the right
reasons," Fry said. "I think he realizes that
this is an embarrassment to Illinois and that
the system, while not perfect, could certainly
be better. I think he's trying to do the right
Two weeks ago, Cook County defendant
Steve Manning became the 13th Illinois Death
Row inmate to be cleared. In its five-part
series published in November, the Tribune
exposed the holes in the prosecution's case
against Manning, including its reliance upon a
jailhouse informant with a history of lying.
Ryan received support from fellow
Republicans who favor the death penalty,
including state Sen. Kirk Dillard of Hinsdale.
"The person who stands behind the final
lethal injection and the prisoner is George
Ryan," Dillard said. "He's the final stopper,
and if he's not comfortable with the process,
then I would support his efforts to have
experts make him comfortable with the
"My guess is virtually every member of the
Senate Republican caucus supports the death
penalty, and I don't know how any of us
could oppose the governor wanting to make
sure that the death-penalty system, the most
important cornerstone of Illinois criminal law,
is working properly. How can you not want
to make sure?"
Lawrence Marshall, a Northwestern
University law professor whose work helped
free two of the state's 13 exonerated Death
Row inmates, said Ryan's decision "is a
wonderful, wonderful statement of his moral
"Even if a person looks guilty, he now knows
from our lessons in Illinois that looks can
deceive," Marshall said.
But, Marshall said, the moratorium is only a
"The real question is going to become: What
happens? What does the commission look
like and how seriously do they take their
job?" Marshall said.
Ryan's moratorium will have the most
immediate effect on Death Row inmates
Willie Enoch and Walter Thomas. Dan Curry,
a spokesman for Jim Ryan, said they are
nearest in line for execution, having all but
exhausted their appeals.
Enoch was sentenced to death in Peoria
County for the 1983 rape and murder of a
Peoria woman, and Thomas was condemned
for the stabbing death of an Aurora woman
during a 1986 robbery.
Ten more Death Row inmates could reach
the end of their appeals within the next year,
Curry said. But the attorney general supports
the moratorium and will not seek execution
dates until the suspension is lifted, Curry
"(Jim Ryan) and others involved in the
administration of criminal justice in Illinois
want to make sure capital punishment
operates fairly," Curry said. "Everyone is
working toward the same goal. And if the
governor believes the process should
continue in an execution-free environment,
the attorney general supports that."
David Erickson, the top aide to Cook County
State's Atty. Dick Devine, said the office
supports Ryan's moratorium. Roughly half
the death sentences in Illinois involve Cook
The commission that Ryan plans to appoint
should look at every aspect of the capital
system, beginning with whether Illinois has
too many categories of crimes that are
punishable by death, Erickson said.
"The fundamental question that the legislature
and people who support the death penalty
have to answer is this: If it's the supreme
punishment, why do we keep expanding the
definition of what makes a capital crime?"
Erickson said. "Our position would be that if
you're going to do an examination of the
entire system, then you really do the entire
Although he did not directly criticize Ryan's
decision, state Sen. Ed Petka (R-Plainfield), a
former Will County state's attorney, said the
moratorium has "little practical effect"
because executions take so long to carry out.
"I believe in capital punishment, and I think
the quicker we get on with the business of
getting rid of hard-core, cold-blooded killers
who are truly guilty" the better, Petka said.
But state Sen. Chris Lauzen (R-Aurora),
another staunch conservative who supports
the death penalty, said he wholeheartedly
agreed with Ryan's decision.
"What else could we do?" Lauzen said.
"Nobody wants to put innocent people on
July 10, 2000
What Death-Penalty Errors?
By JAMES Q. WILSON
MALIBU , Calif. -- For those who support capital
punishment, as I do, the possibility that innocent
people could be executed is profoundly disturbing. No
human arrangement can guarantee perfection, but if
perfection is not possible, then the number of errors
ought to kept as low as possible. For that reason, it is
worth studying "Broken System: Error Rates in Capital
Cases," the recent report by Professor James Liebman
and others at the Columbia University Law School,
especially since that document has stimulated an
outpouring of media coverage.
Its essential finding is
that, for the last two decades or
so, courts have found "serious, reversible error" in a
large fraction of the cases they reviewed. These errors,
the report claimed, often involved weak or incompetent
defense attorneys and the withholding of important
evidence from the juries.
But notice what the report
did not say. Its authors did
not attempt to discover whether any innocent person
had been executed, and they made no claim that this has
happened. Instead, they said that the large number of
appeals leaves "grave doubt whether we do catch" all
of the errors. The clear implication is that, were the
truth known, we might well be killing many innocent
But that truth is not known.
The Death Penalty
Information Center, a rallying point for opponents of
execution, reports that since 1973, when the Supreme
Court reinstated the death penalty, 69 people have been
released from death row after they were found to be
innocent. But the center does not say that any innocent
person has been put to death, though if it had found such
a case it surely would have proclaimed it.
The Columbia University report
shows that death
sentences are intensively reviewed by appeals courts.
Some critics of these reviews think they take too long
and involve too many unnecessary bites at the apple,
and that may be true. But if we are to err, it is best that
we err on the side of safety.
Nine or 10 years usually
pass between the imposition
of the death penalty and its being carried out. It took 19
years and appeals heard by more than 30 judges before
Gary Graham was executed last month in Texas. It is
hard to imagine that this much time is necessary for an
adequate appeal, but offsetting the cost and delay is the
assurance of only a small chance that an innocent
person will be killed. The 5,760 death sentences
handed out since 1973 had, by 1995, led to only 313
Mr. Liebman suggests that
the high rate of appeals
means that serious errors are often made by the trial
courts. But before we can accept that conclusion, we
must first know whether the errors were serious enough
to affect the outcomes of the cases when they were sent
back for new trials. Did an "error" cause a new trial
that set aside the death penalty? Unfortunately, Mr.
Liebman was able to learn this for only a small number
of the reversals.
Because of Supreme Court
death-penalty conviction leads to an appeal to the
state's highest court. About two-fifths of these cases
were reversed. As I read the report, we have no
information about what happened in the new trials.
Then there are state appeals
after convictions. These
also led to many reversals, but we don't know what
happened to the great majority of these cases when they
were retried because trial courts ordinarily do not
publish their findings. Mr. Liebman and his colleagues
managed to find 301 cases that had been retried, but we
have no idea whether these were representative of all
of those appealed or were only a few dramatic ones
that somehow came to the attention of outsiders.
Of these 301 new actions
by trial courts, 22 found that
the defendant was not guilty of a capital crime, 54
reimposed the death sentence and 247 imposed prison
Then there were appeals to
the federal courts that also
led to reversals in about two-fifths of the cases, but
again we are not certain what happened in all the new
The report also lumps together
cases going back to
1973 with those decided more recently, even though the
Supreme Court in 1976 created new procedural
guarantees that automatically overturned many of the
death-penalty decisions made between 1973 and 1976.
It is not clear from the Columbia report what fraction of
its reversals date back to these big changes in the rules.
In short, in the vast majority
of death-penalty cases we
have no idea whether the finding of error that led to a
reversal was based on a legal technicality, a changing
high-court standard about how a capital crime ought to
be tried or a judgment that the defendants might be
innocent. All we know for certain is that a lot of
death-penalty cases are reviewed over a long period of
time -- a fact that dramatically reduces the chances of
innocent people having been executed.
More procedural reforms may
be coming. Congress is
now considering a bill that would require federal
courts to order DNA testing, at government expense if
the defendant is indigent, whenever DNA evidence
from the crime is available. It also would require states
seeking federal crime-control funds to certify that they
have effective systems for providing competent legal
services to indigent defendants in death-penalty cases.
But more might be done at
the state level. States ought
to have laws that create imprisonment without
possibility of parole for first-degree murder
convictions, and the judge in every such case should
instruct the jurors in the sentencing phase that they can
choose that or the death penalty. This allows jurors
who may have some doubts about the strength of the
evidence or some other plausible worry to hedge their
bets if they are so inclined.
Not every state now has such
laws. In Texas, the
alternative to the death sentence is life in prison, but
without an absolute guarantee that the offender will
actually spend his life there. Jurors rightly suspect that
the perpetrator will find some way to get back on the
street, and so they often vote for death.
The American Law Institute,
a group of legal scholars
that designs uniform state legal codes, has
recommended that even when a jury decides that capital
punishment is appropriate, the judge should be allowed
to bar the death penalty if the evidence "does not
foreclose all doubt respecting the defendant's guilt."
The states have not adopted this rule, but perhaps they
should, especially if this change could be coupled with
procedures designed to reduce the seemingly endless
number of post-trial appeals.
In the meantime, we ought
to calm down. No one has
shown that innocent people are being executed. The
argument against the death penalty cannot, on the
evidence we now have, rest on the likelihood of
serious error. It can only rest, I think, on moral grounds.
Is death an excessive penalty for any offense? I think
not, but those who disagree should make their views on
the morality of execution clear and not rely on
arguments about appeals, costs and the tiny chance that
someday somebody innocent will be killed.
James Q. Wilson is the
author of "Moral Judgment"
and "The Moral Sense."