Posted: July 16, 2012 3:45 PM
by Barry Sheck
(Originally posted at UN DPI-NGO Youth Exchange)
An extraordinary movement towards repeal of the death penalty has swept the United States in the past few years – New York, New Jersey, New Mexico, Illinois, and Connecticut have all taken this step legislatively and a repeal referendum is now on the ballot in California that has an excellent chance of passing. This momentum has come about largely because of a shift in the public discourse on the issue. Past repeal efforts have focused on moral arguments. But reasonable people can differ as to whether capital punishment is a morally appropriate sanction for the most heinous of crimes or an immoral license for state sanctioned killing. But few want to be part of a government that is responsible for executing an innocent person.
To that end, the DNA exonerations have had a game changing impact on the death penalty debate. Since 1989, 292 people have been exonerated by DNA evidence — 17 involved inmates who served time on death row. The significance of these post-conviction DNA exonerations, even in non-capital cases, is that the public has come to realize that the state doesn’t always get it right in capital or non-capital cases. The DNA exonerations have generated hundreds of dramatic “learning moments” about the root causes of wrongful convictions – eyewitness misidentification, false confessions, unreliable forensic science, prosecutorial and police misconduct, inadequate defense counsel, jailhouse informant testimony, witness perjury and racial bias. At the same time, in 42% of these cases the real perpetrator is identified by DNA but often, tragically, after committing more crimes while an innocent man was imprisoned.
Unfortunately, DNA testing is not a panacea for the inadequacies of the criminal justice system because only 5% of serious felony cases have any biological evidence where DNA testing could be used to solve the crime. The other 95% of prosecutions turn on much less reliable evidence. Eyewitness testimony and confessions are two of the most common forms of evidence, and they have proven to be leading causes of wrongful conviction.
Forensic error is another leading cause. A 2009 National Academy of Sciences report, Strengthening Forensic Science in the United States: A Path Forward, offered a sobering critique of traditional forensic science fields, noting that, with the sole exception of DNA evidence, none of traditional forensic science disciplines, including hair microscopy, fingerprint, bullet and bloodstain analysis, have been scientifically verified.
Obviously, the unreliability of traditional forms of evidence carries serious consequences in capital cases. Take the case of Troy Davis who was executed by the State of Georgia last year. Unfortunately, DNA evidence wasn’t available in his case, but substantial evidence had come to light since his original trial pointing to his innocence. The Georgia Bureau of Investigations conceded that the ballistics evidence used against Davis was unreliable, and one of the jurors who sat on the case said that if she had known about that she would not have voted to give Davis the death penalty. Seven of the nine witnesses who identified him as the shooter recanted their testimony. One of the two witnesses who maintain that Davis was the shooter is thought by many to be the real perpetrator and has made admissions to others that he committed the crime. The other remaining eyewitness had been up for 24 hours straight at the time he observed the shooting and reported on the night of the crime that he “wouldn’t recognize [the shooter] again.” Yet two years later, this witness identified Davis in an in-court identification that required him to simply identify the only African-American sitting at the defense table. The board of pardons and paroles ignored this evidence and allowed the execution to go on anyway.
The case made international headlines and protests around the globe. This outpouring of support for Davis illustrates the public’s growing concern on the unreliability of the system. It also showed that this isn’t just an issue that we are grappling with as Americans. The injustice that Davis faced forced people around the world to examine their feelings about the use of the death penalty and opened their eyes to the fact that their own criminal justice systems are fallible too. As we’ve seen here in the U.S., it’s only a matter of time before this lack of trust in the system causes other countries to abandon the death penalty.
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