BACKGROUND: The American Law Institute dropped its support of the death penalty in 2009 after its members perused a paper written by Carol Steiker, Harvard Law School, and Jordan Steiker. University of Texas Law School. One of the major reasons the Institute cited for dropping this support was the likelihood, especially given the availability and reliability of DNA testing, that some persons sentenced to death will later, and perhaps too late, be shown to have not committed the crime for which they were sentenced. One of the sections of the influential paper raises the element of erroneous convictions of the innocent in America's criminal justice system, as follows:
"Although there is debate about what constitutes a full “exoneration,” it is beyond question that public confidence in the death penalty has been shaken in recent years by the number of people who have been released from death row with evidence of their innocence.
The Death Penalty Information Center, an anti-death penalty organization, keeps a list of exonerated capital defendants that now totals 129 for the years since 1973.
While it is difficult to extrapolate from the number of known exonerations to the “real” rate of wrongful convictions in capital cases (for the same reason that it is difficult to extrapolate from the number of professional athletes who test positive for steroids to the rate of steroid use among athletes), reasonable estimates range from 2.3% to 5%.
Because exonerations of death-sentenced prisoners are such dramatic events, they have generated extensive study of the causes of wrongful convictions, in capital cases and more generally.
There is widespread consensus about the primary contributors to wrongful convictions: eyewitness misidentification; false confessions; perjured testimony by jailhouse informants; unreliable scientific evidence; suppression of exculpatory evidence; and inadequate lawyering by the defense.
Professor Samuel Gross of Michigan has studied wrongful convictions in both capital and non-capital cases, and he has made a convincing case that erroneous convictions occur
disproportionately in capital cases because of special circumstances that affect the
investigation and prosecution of capital murder.
These circumstances include pressure on the police to clear homicides, the absence of live witnesses in homicide cases, greater incentives for the real killers and others to offer perjured testimony, greater use of coercive or manipulative interrogation techniques, greater publicity and public outrage around capital trials, the “death qualification” of capital juries which makes such juries more likely to convict, greater willingness by defense counsel to compromise the guilt phase to avoid death during the sentencing phase, and the lessening of the perceived burden of proof because of the heinousness of the offense.
In light of the well-known causes of wrongful convictions and the great public concern that exonerations generate, especially in capital cases, one might expect that this would be an area in which remedies should be relatively easy to formulate and achieve
without much resistance in the judicial or legislative arenas.
In fact, remedies have proven remarkably elusive, despite the clarity of the issues and degree of public sympathy.
First, it did not prove easy for those who were eventually exonerated by DNA to get access to DNA evidence or to get relief even after the DNA evidence excluded them as the perpetrators of the crimes for which they were convicted.
A recent study of The first 200 people exonerated by post-conviction DNA testing revealed that approximately half of them were refused access to DNA testing by law enforcement, often necessitating a court order.
After being exonerated by DNA evidence, 41 of the 200 required a pardon, usually because they lacked any judicial forum for relief, and at
least 12 who made it into a judicial forum were denied relief from the courts despite their favorable DNA evidence.
Second, these early difficulties cannot be written off as preliminary kinks that have been worked out of the system.
While the vast majority of states have now passed legislation requiring greaterpreservation of and access to DNA evidence, the ABA Moratorium Implementation Project’s recent assessment of 8 death penalty states included an assessment of how well these states were complying with the ABA’s recommendations regarding preservation of and access to biological evidence, and the provision of written procedures, training and disciplinary procedures for investigative personnel.
As in the context of the provision of defense counsel services, findings of complete non-compliance or only partial compliance with the ABA’s recommendations were commonplace, while full compliance was rare.
Similar resistance can be found to implementing reforms aimed at preventing some of the most common causes of wrongful conviction, such as videotaping police interrogations to prevent false confessions, changing photo identification procedures to avoid misidentification, subjecting jailhouse snitch testimony to greater pretrial scrutiny, and performing external independent audits of crime labs.
Resistance to providing adequate funding for capital defense services has already been documented above, and the failure of defense lawyers to challenge misidentifications, false confessions, and unreliable scientific evidence has been an important element in the generation of wrongful convictions.
This resistance has a variety of causes.
Some law enforcement groups resist changes in investigative procedures with which they have been comfortable, such as interrogations and identification procedures.
Moreover, they may oppose proposals for greater monitoring and disciplining of investigative personnel because they fear that misunderstandings may lead to misuse of such procedures.
Some reforms are expensive, such as investing in the infrastructure for reliable preservation of biological material, while others promise to be too open-ended in the resources that they might require, such as improving defense counsel services.
Once again, as in the provision of adequate defense counsel services, there is not very much question about the general types of improvements that would be helpful in
reducing wrongful convictions; rather, there appears to be an absence of political will to implement them (or to do so in an expeditious fashion).
Moreover, a number of the factors catalogued by Samuel Gross that render capital prosecutions more prone to error are simply inherent in the nature of capital crimes and not obviously subject to amelioration by changing the capital justice process.
These circumstances militate against the undertaking of a reform project by the ALI and support the suggestion that the ALI instead call for the rejection of capital punishment as a penal option."
----------------------------------------------------------------------------------
The entire paper by Carol Steiker and Jordan Steiker can be found by clicking on Google search - at the following address - and then scrolling to the bottom where it is included as "Annex B."
http://www.google.ca/search?q=%22report+to+the+ALI+concerning+capital+punishment%22+steiker&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a
Harold Levy...hlevy15@gmail.com;
