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Crime & Justice

Major Report Urges Reform of U.S. Capital Punishment System

WASHINGTON, May 7 2014 (IPS) - Innocent people will be executed in the United States if the country’s capital punishment system is not reformed, warns a new report.

These reforms include improving the use of forensic science, taping confessions, and providing better trained counsel to defendants. These suggestions were among 39 recommendations released Wednesday in a report by the Constitution Project, a nonpartisan group working to improve the U.S. criminal justice system.

"If this [Constitution Project report] had been in place before I went to trial, I probably would not have gone to death row.” -- Anthony Graves

The report’s authors, collectively known as the Death Penalty Committee, include both supporters and opponents of the death penalty. The publication comes as the United States, one of just 43 countries that haven’t outlawed capital punishment, is in the midst of one of its largest national discussions on the issue in years.

More than 30 states in the United States continue to allow the death penalty, despite findings that the capital punishment system appears to be biased against minorities – and despite dozens of known cases of innocent people being sentenced to death. Since 1973, over 140 people have been exonerated from “death row”, but critics say it is impossible to tell how many of the 1400 who have been executed may have been innocent.

“Most disturbingly, there is evidence that defendants have been put to death despite significant questions regarding their innocence, undermining confidence in the entire criminal justice system,” the report states.

“There can no longer be any doubt that innocent people do get convicted of horrific crimes, spend years in prison and even face execution. Wrongful convictions undermine society’s confidence in the ability of the criminal justice system to perform its most basic function – to convict the guilty and acquit the innocent.”

The report comes just a week after a botched execution in the Midwestern state of Oklahoma. A prisoner named Clayton Lockett was scheduled to die by lethal injection, but the deadly chemicals were erroneously injected into his flesh.

The procedure reportedly drug out for almost half an hour, during which the conscious Lockett writhed in pain, according to his lawyer.

The Death Penalty Committee is recommending a single-dose injection, rather than the three drugs that Oklahoma and most other states currently use. The committee would also require that the federal government approve the drug or drugs used – a potentially important new issue given that states across the country are currently experimenting with new drugs, after pharmaceutical companies have started refusing to supply their products for lethal injections.

The horrific story has re-ignited a broad public conversation here. Yet advocates that work with the issue say that, while it is good to have the public’s attention on this issue, the more important concerns involve judicial mistakes.

“Despite the Oklahoma execution, I think the more important recommendations [in the new report] have to do with mistakes of innocence,” Richard Dieter, the executive director of Death Penalty Information Center, a clearinghouse, told IPS.

“Recommendations about improving the quality of counsel, the forensics, the DNA testing, the testing of evidence, the videotaping of suspects who are sometimes pressured into confessing something they did not want to do … these are the kinds of things that could help prevent wrongful convictions on death row and possibly wrongful executions.”

Fatal mistakes

Just this week, a federally funded study found that a minimum of four percent of prisoners on death row in the United States are innocent, according to research published Monday in the scientific journal Proceedings of the National Academy of Sciences.

Although small, any number above zero represents an innocent person sentenced to death, like Anthony Graves. Graves was convicted in 1994 for murder and sentenced to death based on testimony supplied only by the other convicted murderer, Robert Carter.

Before his own execution, Carter repeatedly admitted that Graves was not involved, but the process of re-investigation took years. Finally, in 2010, Graves was exonerated and released.

“We’re never ever going to stop killing innocent people as long as we have the penalty,” Graves said Wednesday at a panel discussion here.

“But if this”, he continued, holding up a copy of the Constitution Project report, “had been in place before I went to trial, I probably would not have gone to death row.”

Potentially of help to Graves would have been a report recommendation on videotaping custodial interrogations. Following such a procedure, proponents say, would reduce the risk of false confessions – and provide juries with the context of confessions provided.

Another series of suggestions detail how to improve the use of forensic science in providing evidence.

Mark White, a former governor of Texas and co-chair of the Death Penalty Committee, described Wednesday the forensics police department in Houston, where “leaks in the ceiling contaminated samples and people were not qualified to do the sampling.”

According to a 2011 study, over 50 percent of the first 250 people exonerated by DNA testing were convicted based on forensic mistakes.

Another problem are inadequately trained attorneys.

Mark Earley, a former attorney general of Virginia, described how he was appointed fresh out of law school to represent a defendant on trial for his life. Earley said he also witnessed incompetent representation repeatedly during his time as attorney general, when he oversaw 36 executions in three and a half years.

“For someone who is a ‘small government’ conservative, why did I believe the government always gets it right?” he askedWednesday.

“It’s not about being for or against the death penalty. But it’s about saying that if there is a death penalty, the trial process should be fair.”

Slow reform

Some say the political climate in the U.S. is ripe for reform on the issue of capital punishment. Following the botched execution in Oklahoma, last week President Barack Obama requested that Attorney General Eric Holder review the application of the death penalty throughout the country.

“In the application of the death penalty in this country, we have seen significant problems – racial bias, uneven application of the death penalty … situations in which there were individuals on death row who later on were discovered to have been innocent because of exculpatory evidence,” Obama told reporters. “And all these, I think, do raise significant questions about how the death penalty is being applied.”

Experts in the field say that reform is likely, but only after a long and slow process.

“Unfortunately the death penalty is immersed in a political ballet,” the Death Penalty Information Center’s Dieter told IPS.

“I think the death penalty is actually declining by dramatic levels, and that will probably continue. It is not serving people well: it is expensive and it is picking out those who happen to be poor and minorities.”

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