How the Malfunctioning Death Penalty Challenges the Criminal Justice System

By Walker, R. Neal | Judicature, March/April 2006 | Go to article overview

How the Malfunctioning Death Penalty Challenges the Criminal Justice System


Walker, R. Neal, Judicature


A hard look at the nation's experience with capital punishment yields the sobering conclusion that the system is deeply flawed and begs for reform.

Having just passed a milestone in the administration of capital punishment in the United States-the 1,000th execution since the death penalty was reinstated 30 years ago-it is fair to ask some probing questions about how the system is working and, more to the point, what sort of effect the continued use of the death penalty has on the criminal justice system. As noted below, a hard look at the nation's modern experience with capital punishment yields the sobering conclusion that the system is deeolv flawed and bees for reform.

We are currently witnessing an unprecedented critique of the administration of capital punishment in the United States. A series of reports and recommendations by a number of organizations, blue ribbon committees, and gubernatorial study commissions press serious complaints about the administration of the death penalty and urge systemic reforms to address arbitrary sentencing patterns, the lack of adequate defense counsel, prosecution misconduct, the persistence of race as a factor in capital sentencing, and other problems.1 Even President George Bush, an enthusiastic supporter of capital punishment, acknowledged during the 2005 State of the Union Address that "people on trial for their lives must have competent lawyers by their side," an implicit recognition that many capital defendants do not.

A fair summary of these reports is that the current use of the death penalty is deeply flawed and cannot be remedied without systemic reforms. As a consequence, the reports invariably include a raft of recommendations directed to the bench and legislatures in death penalty jurisdictions. Some reports, like the recent ABA study of Georgia's death penalty system, call for moratoriums on the use of capital punishment pending implementation of recommendations regarding the jurisdiction being evaluated.2 Collectively, these reports pose a direct challenge to the criminal justice system-reform the system or abandon capital punishment. How death penalty jurisdictions respond to these critiques will illuminate just how committed we are to insuring that the death penalty is administered accurately and fairly, free of the corrosive effects of racial bias and arbitrariness.

The man who enjoys his coffee while reading that justice has been done would spit it out at the least detail3

The current movement for reforming the manner in which death penalty cases are handled may be traced to Illinois, where more condemned prisoners have been exonerated (18) than executed (12) in the modern era.4 One of the exonerated prisoners, Anthony Porter, came so close to execution that he had ordered his last meal and been fitted for his burial clothes. Following his exoneration, the governor at the time, Republican George Ryan, declared a moratorium on executions and subsequently appointed a bipartisan commission to determine the reasons that so many innocent prisoners had been sentenced to death. The commission's 207-page report exposed a system rife with police and prosecution misconduct, one plagued by inadequate defense counsel and over-reliance on unreliable evidence, including informant testimony and questionable eyewitness identifications.5

These problems are hardly limited to Illinois. According to the Death Penalty Information Center, since 1973, 122 people in 25 states have been released from death row "with evidence of their innocence."6 While it might not be said that there is conclusive proof that all of these prisoners were innocent, sufficient doubts about their guilt existed that they were ultimately freed. Equally troubling, a recent study by researchers from the University of Michigan Law School indicates that capital defendants are more likely to be convicted in error than defendants convicted of non-capital crimes.7

The cause of these wrongful convictions has been the subject of intense scrutiny.

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