LOS
ANGELES TIMES - 25/06/01
Death
Penalty Reforms Gather New Momentum Justice: With dozens of death row
inmates freed, a cry rises for precautions, such as DNA tests.
By
ERIC LICHTBLAU, Times Staff Writer WASHINGTON--One was a numbers runner
from Boston who was set up by the mob. Another was a Central Valley welder
whose lawyer failed to do even basic defense work. A third was a mildly
retarded Chicago man who spent 17 years in prison for murder and was let
go only after someone else confessed. The three men are among nearly 100
former convicts who share a numbing notoriety: All were freed from death
row and released from prison, some just hours before execution, because of
questions about their guilt. Amid a remarkable flurry of recent debate
about who society executes and why, the freed convicts are Exhibit A in a
controversial push by Democratic congressional leaders beginning this week
to reform death penalty procedures nationwide. Backers say the $50-million
measure protects the innocent by ensuring that prisoners have access to
DNA testing and adequate lawyers. Opponents attack it as a back door to
"abolishing" the death penalty through procedural hoops, making
it all but impossible to enforce. What all agree is that the Democrats'
stunning takeover of the Senate earlier this month now means a much higher
profile and a legitimate shot at success for the proposal, which Senate
Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) has made one of his
priorities. And that has death penalty supporters worried. "The death
penalty is certainly under attack. It's under a well-funded and virulent
attack, and much of it unfortunately is based on misinformation,"
said Kent Scheidegger, legal director for the Criminal Justice Legal
Foundation in Sacramento, a conservative group that supports capital
punishment. No one on either side of the debate thinks the United States
will return any time soon to the climate of the mid-1970s, when the U.S.
Supreme Court banned execution as cruel and unusual punishment. But even
death penalty advocates such as Scheidegger detect a "softening"
in recent attitudes, with debate often centering less on the morality of
capital punishment than on how it is applied. "I think the growing
national consensus on the death penalty is that if we're going to have the
death penalty, it has to be fair," said Stephen Bright, a prominent
death penalty opponent in Atlanta who will testify Wednesday at a Senate
hearing that kicks off what promises to be vigorous debate on Leahy's
proposed Innocence Protection Act. Recent polls show that, while a
majority of Americans still favor the death penalty, the numbers are
shrinking. California saw a particularly sharp drop, with support
declining from 78% in 1990 to 58% last year, according to a Los Angeles
Times Poll. The pace of executions also appears to be slowing. There have
been 37 executions in the nation so far this year, down from 85 for all of
2000 and 98 in 1999, according to the Death Penalty Information Center,
which opposes capital punishment. The steady stream of death row inmates
declared innocent, including a Florida man acquitted less than three weeks
ago of murdering a Tampa couple, has alarmed many people. Illinois has
exonerated so many inmates facing execution--13 in 13 years--that Gov.
George Ryan declared a death penalty moratorium last year. With about
3,700 prisoners nationwide sentenced to death, officials in some parts of
the country have rejected calls for moratoriums. But a series of recent
developments has revitalized the debate, testing the resolve of death
penalty backers and emboldening critics. Consider the events of just the
last three weeks. * In Indiana, the federal government carried out its
first two executions in 38 years amid intense controversy. Oklahoma City
bomber Timothy J. McVeigh's execution was postponed for a month after the
government admitted it failed to give the defense 4,000 pages of documents.
Lawyers for Juan Raul Garza, a drug kingpin convicted in three murders,
argued that the deck was stacked against him as a Latino in Texas trying
to avoid a death sentence. * In Washington, D.C., Atty. Gen. John Ashcroft
declared just days before Garza's execution that there was no ethnic or
geographic bias against federal death row inmates. Criminal trends, not
discrimination, explain why about 80% of the federal inmates facing death
are minorities, he said. Ashcroft's findings enraged critics, who attacked
his data as suspect and incomplete. * In Florida, Gov. Jeb Bush signed a
bill preventing the execution of mentally retarded convicts, a move in
step with recent decisions in other states. In Texas, the Legislature did
the same in an effort to soften the state's notoriety for executing
people, but Gov. Rick Perry vetoed the measure. * In Alabama, the
electrocution of a man with an IQ of 69, convicted in the killings of his
ex-wife and two others, was blocked by the U.S. Supreme Court after his
attorneys argued that mentally retarded convicts should not be put to
death. (Mental retardation is usually defined as having an IQ below 70.)
The high court is expected to consider that question in another case
involving a North Carolina defendant. * In Europe, where most nations ban
the death penalty, President Bush told reporters that "we should
never execute someone who is retarded," a seeming shift from his
position as governor of Texas that sent White House aides scrambling to
clarify his remarks. * And in France, opposition to capital punishment
forced the United States to forgo the death penalty against James Charles
Kopp, accused of killing an upstate New York abortion provider, before the
French would agree to extradite him following his March arrest. "What
I think we're seeing," said Elisabeth Semel, director of the American
Bar Assn.'s Death Penalty Representation Project, "is that this
country is undergoing a reexamination of the death penalty. "We
haven't reached the point where we can say the death penalty has been
rejected, but the doubts and the discomfort and the dissatisfaction are
becoming very pronounced," she said. So pronounced that many death
penalty supporters believe that the debate has tilted too far toward
protecting the rights of the accused and away from protecting the rights
of the victims. In the view of some law enforcement groups and supporters
of the death penalty, Leahy's proposed Innocence Protection Act risks
pandering to the guilty. The bill seeks to ensure convicted offenders
access to DNA testing and to prevent the premature destruction of
biological evidence. It also would provide $50 million for a national
commission to establish standards for ensuring that death row inmates have
competent lawyers to defend them. States that do not meet the standards
could lose substantial federal funds for prisons and other projects.
Bright, director of the Southern Center for Human Rights, said incompetent
defense attorneys extend well beyond a few lawyers in Texas who were
caught napping during capital punishment trials. "The quality of
legal defense in this country is just horrible," he said.
"People are being processed through the courts like an assembly line.
It's just not justice." While all agree that the goals of the
legislation are noble, opponents counter that the vast majority of inmates
are ably defended. Joshua K. Marquis, a prosecutor in Oregon who is a
board member of the National District Attorneys Assn., said the
ill-advised reforms contained in the legislation could wreak havoc on the
criminal justice system. DNA isn't a "magic bullet" that can
instantly determine the true culprit in any crime, Marquis said. He
maintained that the Leahy bill allows so much "wiggle room" in
determining who gets DNA testing that it invites abuse by criminals who
have no legitimate prospects of getting out of prison. "As drafted,
I'm concerned that this would basically be a functional abolition of the
death penalty, and it would create an enormous logjam" of forensics
tests, he said. "There's a great deal here that would make the death
penalty virtually impossible to enforce." Marquis testified against
an earlier incarnation of Leahy's bill last year, when a competing plan
from Sen. Orrin G. Hatch (R-Utah), with much less expansive DNA
requirements, helped kill Leahy's proposal. But a lot has changed since
then. Eleven more death row inmates have been freed since January 2000.
And with the Democrats' takeover of the Senate, Leahy has replaced Hatch
as the influential chairman of the Judiciary Committee. Passage of Leahy's
measure is considered far from a done deal. Although it has more than 200
co-sponsors from both parties in the House and Senate, it faces a
potential threat from a fellow Democrat: Sen. Dianne Feinstein of
California. Feinstein has offered a compromise that would limit those
defendants eligible for DNA testing. Her version also would use financial
inducements, rather than penalties, to encourage states to meet national
standards for defense attorneys. Whichever version wins out, "Leahy
deserves credit for making this a huge issue," said a senior aide to
another Democrat. "This is an issue that people didn't even want to
touch a few years ago. I mean, competent counsel for defendants? That's
considered being weak on crime," the official said. "Leahy has
already moved this issue a lot further along than anyone really thought it
could go."
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