Washington
Times - - 20.03.01
Death
penalty ignominy BY Bruce FeinFor a select category of barbaric
crimes, the death penalty is justified as retribution against the
perpetrator, like Adolph Eichmann.But it is disgraceful for the
government in this category of cases to deny an indigent accused
at least mediocre defense counsel to bolster what may be the chief
safeguard against executing the innocent, which also leaves the
guilty free to commit new barbarities. (Some recent death-row
exonerations have led to evidence snaring the actual perpetrator).
Indeed, nothing even semi-convincing can be said against a
statutory right to average defense counsel when life hangs in the
balance, as championed by Sen. Pat Leahy, Vermont Democrat, and an
array of his apostles in the Innocence Protection Act of 2001 (S.
486).Some allege that erroneous death penalty verdicts and
deficient defense counsel are no problem. But consider these
alarming facts.Over the past quarter-century, approximately 100
death penalty prosecutions culminated in the conviction of a
person later found innocent of the crime charged, reaching a peak
of eight exculpations annually in each of the past two years.These
shocking miscarriages against the poor were regularly occasioned
by sublunar defense counsel or worse - for example, a neglect to
introduce exculpatory confessions by other suspects or hibernating
during pretrial months or years. Accordingly, the Illinois Supreme
Court on Jan. 22, 2001, announced new rules to ameliorate the
state's error-prone capital punishment system by establishing
training and experience floors for both prosecutors and defense
counsel. Illinois' Republican Gov. George Ryan had declared a
moratorium on executions a year earlier in the wake of 13
exonerations of death-row inmates.On Aug. 3, 1995, the Conference
of State Chief Justices adopted a resolution urging each of the 38
death penalty states "to establish standards and a process
that will assure the timely appointment of competent counsel, with
adequate resources, to represent defendants in capital cases at
each stage of such proceedings." The Conference acknowledged
that the reasons for chronic inadequacy of defense attorneys were
twofold: "lack of standards and criteria for choosing defense
counsel and lack of funding."The United States Supreme Court
has recognized the indispensability of skilled legal defense to
reliable jury verdicts in the notorious Scottsboro, Ala., rape
prosecution case of Powell vs. Alabama (1932). It has thus
declared that a denial of counsel in criminal prosecutions
automatically mandates a new trial and is never harmless error.Some
defend the prevailing defense lawyer decrepitude in death-penalty
prosecutions by noting that the innocent have ultimately been
exonerated through extensive post-verdict reviews before appellate
or habeas corpus courts, governors, and clemency boards.But that
defense seems patently indefensible. It ignores the long years of
wrongful imprisonment and emotional trauma before exoneration
arrives. Moreover, as the Supreme Court lectured in Ward vs.
Village of Monroeville (1972), a defendant is entitled to a
constitutional trial in the first instance irrespective of whether
taints are redressed through post-verdict devices. In addition,
the defense of the status quo is no argument against strengthening
the key barrier to sentencing the innocent to death - adequate
defense lawyering - in light of both the irreversibility of
executions and the fallibility of judges.Providing reasonably
schooled and experienced defense lawyers and their corresponding
expense are not problems. In 1999, for instance, only 272
defendants nationwide were sentenced to death, a trivial
percentage of the nation's criminal justice docket. Furthermore,
what the Leahy legislation seeks is not a Clarence Darrow for
every death penalty prosecution of an indigent, but only midrange
defense counsel in plentiful supply. Finally, there seems but one
apt characterization of a nation as blessed with riches as ours
turning fastidiously parsimonious when it comes to forestalling
executions of innocent paupers: morally repugnant.Critics of the
Leahy bill also maintain it violates states' rights by meddling in
their death penalty systems, echoing earlier protestations during
the civil rights movement of federal prosecutions of
race-motivated crimes when states defaulted on their
constitutional obligation of colorblind justice under the 14th
Amendment.Under the Supreme Court's declaration in Herrara vs.
Collins (1993), however, a state execution of an innocent inmate
would violate the due process clause of the 14th Amendment. And
undisputed death penalty facts demonstrate that a congressional
insistence on upgrading defense counsel by states would be a
reasonable measure to prevent such chilling constitutional
wrongdoing.In any event, the Leahy proposal eschews congressional
coercion of states in favor of gentlemanly courtship and the charm
of federal funds. It would empower a nine-member National
Commission on Representation to promulgate recruitment,
performance and compensation standards to ensure reasonably
talented defense counsel in capital cases against the indigent.
Federal dollars would be available to underwrite state initiatives
to satisfy the federal standard; states not so inclined generally
would be left undisturbed. Some members of Congress, nevertheless,
fear that endorsing the Leahy bill would expose them to a "soft-on-crime"
indictment. But the accusation can be persuasively turned on the
accuser. The bill would build, not destroy, public confidence in
the death penalty, and would raise, not diminish, the chances of
apprehending and punishing those truly guilty of capital crimes.
|