Fact-finding: Most states aren’t as lucky as Illinois. They don’t have reporters and investigators digging into the details of old cases. As the death penalty becomes routine and less newsworthy, the odds against real investigation grow even worse. And even when fresh evidence does surface, most states place high barriers against its use after a trial. This has been standard in the legal system for generations, but it makes little sense when an inmate’s life is at stake.
Standards Of guilt: In most jurisdictions, the judge instructs the jury to look for “guilt beyond a reasonable doubt.” But is that the right standard for capital cases? Maybe a second standard like “residual doubt” would help, whereby if any juror harbors any doubt whatsoever, the conviction would stand but the death penalty would be ruled out. The same double threshold might apply to cases involving single eyewitnesses and key testimony by jailhouse snitches with incentives to lie.
Cost: Unless executions are dramatically speeded up (unlikely after so many mistakes), the death penalty will remain far more expensive than life without parole. The difference is in the upfront prosecution costs, which are at least four times greater than in cases where death is not sought. California spends an extra $90 million on its capital cases beyond the normal costs of the system. Even subtracting pro bono defense, the system is no bargain for taxpayers.
Whether you’re for or against the death penalty, it’s hard to argue that it doesn’t need a fresh look. From America’s earliest days, when Benjamin Franklin helped develop the notion of degrees of culpability for murder, this country has been willing to reassess its assumptions about justice. If we’re going to keep the death penalty, the public seems to be saying, let’s be damn sure we’re doing it right. DNA testing will help. So will other fines. But if, over time, we can’t do it right, then we must ask ourselves if it’s worth doing at all.
Groups like theDeath Penalty Information Center monitor cases of prisoners on death row whose guilt, the advocates believe, may not be beyond a reasonable doubt.Afew top candidates, from the DPIC and others:
Gary Graham
GRAHAM HAS BEEN ion death row in Texas for nearly 20 years for killing a man during a 1981 supermarket robbery. A 17year-old at the time, he was convicted on the testimony of a single eyewitness who claimed she saw Graham from 30 to 40 feet away in a dark parking lot. Three other eyewitnesses could not make a positive identification of Graham at the crime scene. A store employee who said he saw the shooter fleeing told police Graham was not the killer-but he was never called to testify And none of Graham’s fingerprints or DNA was found at the scene. Last week the U.S. Supreme Court declined to hear his case; he is scheduled for execution June 22. Joe Amrine was sentenced to death for stabbing a man with an ice pick in a Missouri prison in 1985. The conviction was based on the testimony of two fellow prisoners who said they witnessed the murder. But the two told different stories, and both later said they had lied under pressure from a prison investigator. Larry Osborne , Kentucky’s youngest death-row inmatewas convicted of killing an elderly couple by setting their house on fire when he was 17. His conviction was based primarily on statements from a 15year-old friend, who Osborne’s lawyer says was pressured to snitch by investigators. The friend then drowned before he could be cross-examined at the trial. There was no compelling physical evidence. An appeal is pending.
John Fads WIlle , A drifter from Florida, Wille was convicted along with his girlfriend in the 1985 kidnapping and murder of an 8-yearold girl in Louisiana. Their convictions were based entirely on confessions they made at the time. (His girlfriend is currently serving a life sentence.) But Wille’s lawyer claims they both have histories of false confessions. And he says the forensic evidence contradicts their stories.
-
Bibliography
HE STOOD AT THE THRESHOLD OF THE EXECUTION chamber in Huntsville, Texas,18 minutes from death by lethal injection, when official word finally came that the needle wouldn’t be needed that day The rumors of a 30day reprieve were true. Ricky McGinn, a 43-year-old mechanic found guilty of raping and killing his 12-yearold stepdaughter, will get his chance to prove his innocence with advanced DNA testing that hadn’t been available at the time of his 1994 conviction. The double cheeseburger, french fries and Dr Pepper he requested for dinner last Thursday night won’t be his last meal after all.
Another galvanizing moment in the long-running debate over capital punishment: last week Gov. George W. Bush granted his first stay of execution in five years in office not because of deep doubts about McGinn’s guilt; it was hard to find anyone outside McGinn’s family willing to bet he was truly innocent. The doubts that concerned Bush were the ones spreading across the country about the fairness of a system with life-and-death stakes. “These death-penalty cases stir emotions; Bush told NEWSWEEK in an exclusive interview about the decision. Imagine the emotions that would have been stirred had McGinn been executed, then proved innocent after death by DNA. So, Bush figured, why take the gamble?