Death Penalty. Problems and Challenges

In the summer of 1984, a young girl was kidnapped, raped, and murdered near her home in Baltimore County, Maryland. Twenty-three-year-old Kirk Bloodsworth was accused of the crime, and he was convicted and sentenced to death after a jury trial based largely on the eyewitness testimony of some boys playing near the murder site.

Three days after Bloodsworth’s conviction, police and prosecutors learned about David Rehill. Hours after the girl’s murder, Rehill had shown up at a mental health clinic with fresh scratches on his face and had mentioned to therapists that he was “in trouble with a little girl.” Rehill closely resembled Bloodsworth, who was already on death row. Six months passed before police decided to interview Rehill. Nevertheless, they did not place him in a lineup or doublecheck his alibi.

Due to a technical error in the trial, Bloodsworth was granted an appeal two years after his conviction. Even though prosecutors had known about Rehill for those two years, they withheld this information from the defense until two days before the second trial. Bloodsworth’s attorneys did not have enough time to investigate the new information and failed to ask for a trial postponement. The second jury never learned that there was another suspect, and they also convicted Bloodsworth of rape and murder. In 1993, however, DNA analysis of the victim’s clothing revealed that Bloodsworth could not have committed the crime, and he was exonerated. Trial observers and commentators were disquieted to learn that an innocent man had been sentenced to death.

Kirk Bloodsworth was not the first nor the last capital defendant to receive faulty legal representation, a death sentence, and eventual exoneration through postconviction evidence. In 1993, Gary Gauger was wrongfully convicted of murdering his parents on the basis of a coerced confession obtained by police after he was held for nearly twenty hours of questioning without food or access to an attorney. Gauger was acquitted only after a law professor took over the case and revealed solid information pointing to the real killers. In 2001, Earl Washington Jr. was released from prison after definitive DNA tests proved that he could not have committed the 1982 rape and murder that had led to his conviction and death sentence. An African American with an IQ indicating that he was retarded, Washington had allegedly “quickly” confessed to the crime even though he could not describe the victim or identify where or how he had killed her. Washington, Gauger, and Bloodsworth are among the more than ninety-five American death-row inmates who have been released from prison after charges against them were dropped due to wrongful convictions and overwhelming proof of innocence.

Americans’ support of capital punishment, many death penalty critics contend, has been largely based on the assumption that only people who are undeniably guilty of felony murder are executed. However, for various reasons, innocent people can end up on death row. Faulty eyewitness identifications, false testimony—often presented by “jailhouse snitches” seeking reduced sentences—police misconduct, mishandled evidence, false confessions, inept legal representation, and the personal prejudices of jurors can lead to wrongful convictions.

Contributing to the occurrence of wrongful convictions is the problem of systemic discrimination based on race, class, or social status, many analysts maintain. According to death penalty opponents, the wrongly convicted are often “outsiders”—racial minorities, nonconformists, the poor, the mentally ill, or the mildly retarded—who do not receive equitable treatment in the criminal justice system. The mentally incompetent and the poor, in particular, cannot afford their own legal representation and are assigned court-appointed lawyers who are often overworked, inexperienced, or underpaid. Such scenarios make indigent defendants doubly vulnerable in cases in which police or prosecutors have suppressed evidence, critics point out. As Richard Dieter, executive director of the Death Penalty Information Center, states, “There is much that remains arbitrary and unfair about the death penalty.”

As a result of the widely publicized stories about innocents on death row, American opinion on the death penalty has shifted. While a majority still support capital punishment, 80 percent of Americans also believe that an innocent person has been executed since 1995, and 63 percent support a suspension of executions until the fairness of capital trials can be determined. Reflecting this growing skepticism about the accuracy of murder convictions, Illinois governor George Ryan proclaimed a temporary moratorium on executions in his state in January 2000. Although he generally supports the death penalty, Ryan became alarmed when he learned that more than half of the condemned inmates in Illinois had been found innocent long after their convictions. In his announcement of the moratorium, Ryan stated, “I cannot support a system which, in its administration, has proven so fraught with error and has come so close to the ultimate nightmare, the state’s taking of innocent life.” In 2003, Ryan went one step further: He commuted his state’s death sentences to sentences of life without parole.

Many death penalty critics agree with Ryan, arguging that the best way to ensure the protection of innocents is to replace the death penalty with the sentence of life in prison with no possibility of parole. But death penalty supporters often contend that concerns about executing innocents are mainly the result of biased media coverage. According to attorney Paul Kamenar, there have actually been “very few” cases involving the overturn of a death sentence, and “no case in the last 50 years where an innocent person was executed.” He insists that “the death penalty is working and is working apparently at 100 percent accuracy.”

Even the fact that death-sentence reversals have occurred, capital punishment supporters point out, reveals the adequacy of existing safeguards against arbitrary mistakes in death penalty cases. For one thing, there is an average of twelve years between conviction and execution, enough time to allow for several appeals. In addition, technological innovations, such as DNA testing, have greatly improved the quality of evidence collection at crime scenes, allowing for more accurate identification of suspects as well as providing exonerating evidence for those who have been wrongly accused.

But death penalty critics maintain that there will never be enough appeals or enough technology to absolve all innocent death-row inmates. As commentator Richard Cohen argues, human error will always be a factor in criminal investigations—which should be enough reason to abolish capital punishment: “To play God . . . in the face of all we know about human error is an expression of titanic arrogance coupled with a casual indifference to human life. . . . You can DNA test to your heart’s content, provide money for crackerjack lawyers, look every prosecutor in the eye and make him cross his heart, but the innocent will, inevitably and with certainty, die anyway.”

Many death penalty advocates, however, do not agree that unfairness in the administration of the death penalty nor the possibility of executing innocents justifies abolishing capital punishment. Some argue that the deterrent effect of the death penalty protects a greater number of innocents than are likely to be lost through wrongful executions. West Point teacher Louis Pojman maintains, for example, that “society has a right to protect itself from capital offenses even if this means taking a finite chance of executing an innocent person.” Pojman offers compelling analogies to support his argument: “Fire trucks occasionally kill innocent pedestrians while racing to fires, but we accept these losses as justified by the greater good of the activity of using fire trucks. We judge the use of automobiles to be acceptable even though such use causes an average of 50,000 traffic fatalities each year. We accept the morality of a defensive war even though it will result in our troops accidentally or mistakenly killing innocent people.” Unfairness and human fallibility will always exist, death penalty supporters contend, but they should not become obstacles to effective and just forms of punishment.

The recent debate about innocents on death row is likely to remain contentious in the years to come as more states consider legislation that would impose a moratorium on executions. The authors in At Issue: Is the Death Penalty Fair? present various opinions on the fairness of the death penalty and whether reforms can help prevent or reduce the possibility of wrongful executions.
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1. Introduction 2. Table of Contents 1. The Death Penalty Is Unfair to Minorities and the Poor 2. The Death Penalty Is Not Unfair to Blacks 3. Executing the Mentally Retarded Is Unfair 4. The Mentally Retarded Do Not Face Execution 5. The Death Penalty Is Biased in Favor of Women 6. A Moratorium on Executions Is Justified 7. Wrongful Executions Are Not Likely to Occur 8. The Possibility of Wrongful Executions Justifies Abolishing the Death Penalty 9. The Possibility of Wrongful Executions Does Not Justify Abolishing the Death Penalty 10. Effective Legal Counsel and DNA Testing Could Prevent the Execution of Innocents 11. DNA Evidence Will Not Prevent the Execution of Innocents 12. The Unfairness of the Death Penalty Could Lead to Its Abolition 13. Abolitionists’ Arguments Should Focus on Morality Rather than Fairness 3. Organizations to Contact 4. Bibliography 5. Copyright

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