The failures of the death penalty

The failures of the death penalty

By Kerry Max Cook, 1/25/2003

IN 1976, after spirited debate and dissent, the US Supreme Court revisited the issue of capital punishment after a 10-year hiatus from executions by reinstating the use of the death penalty in Gregg v. Georgia.

One by one, constitutional challenges to the various death statutes enacted were summarily rejected by the courts. The reinstated death penalty became a reality when, on Jan. 17, 1977, the executioner sang his song with the killing of Gary Gilmore by firing squad in Utah. Despite its self-proclaimed role as the main guardian of human rights around the world, the United States joined China, Iran, Iraq, and Saudi Arabia, and America's charnel houses became open for business as a violent society declared war on crime.

In 1993, in the landmark decision, Herrera v. Collins, the US Supreme Court ruled that it did not violate the Constitution for a state to execute an innocent person. Three years later, President Clinton reacted to the horrible bombing of the Murrah Federal building in Oklahoma City by signing the ''Anti-Terrorism Effective Death Penalty Act'' into law, which further minimized appellate review for those sentenced to death, including the innocent who were wrongfully convicted at trial. These decisions were followed by a series of Byzantine court decisions that denied legal relief even to those who had not received even a semblance of a fair trial.

For example, in Burdine v. Texas, the Fifth Circuit Court of Appeals ruled that a defendant could be executed even though his lawyer slept through a significant portion of his client's death penalty trial.

To date, 824 people have been executed since the death penalty was reinstated and nearly 3,700 condemned await execution on America's death rows. While these people wait, more and more of them are proved innocent and released from death row - 102 confirmed innocent people so far - innocent souls snatched from certain death. But for the intervention of organizations such as Centurion Ministries, the Innocence Project, and law school students, these innocent people would be dead.

How many innocent people must die in order to satiate society's thirst for retribution and advance a politician's career?

I am an expert on these issues. I was forced to spend more than two decades on death row in Texas for a rape and murder I did not commit. In reversing my wrongful conviction in 1996, the highest appellate court in Texas ruled that ''police and prosecutorial misconduct has tainted this entire matter from the outset.'' My legal odyssey with the state of Texas consisted of nearly four trials and spanned 22 years. Before the dust had settled in my ordeal, the only real criminal in the courtroom was the district attorney's office that had prosecuted me.

America's experiment with the death penalty has failed. After 17 innocent people were freed from death row in Illinois and a two-year moratorium spent studying the state's death penalty, earlier this month former Governor George Ryan of Illinois commuted the sentences of all 167 Illinois prisoners facing the death penalty to life without the possibility of parole. The failed criminal justice system of Illinois that convicted and sentenced innocent people to death is not unique, it is a microcosm of what is happening throughout the country. The only thing that distinguishes Illinois is that it had a courageous governor who was willing to put politics aside and admit that the criminal justice system makes mistakes.

Given that human beings are fallible, it should not come as a surprise that the criminal justice system, administered by human beings, is also fallible. As a result, we cannot be certain that the people we are executing are guilty.

Those who commit violent crimes should be punished. Society does need to be protected from violent criminals. However, we should not be in the business of killing the innocent. There are no posthumous pardons being declared for those executed innocent. I advocate life without parole as the alternative to the death penalty because, as William Shakespeare once wrote, ''Time is the justice that examines all offenders.''

Kerry Max Cook's story and five others are featured in the play ''The Exonerated'' at the Wilbur Theatre.