February 23, 2002

The Death Penalty Re-examined

America's death penalty system is badly broken. Just how broken was underscored two years ago when a study of capital appeals by a team at Columbia University unearthed the fact that fully 68 percent of all death sentences reviewed by appellate courts between 1973 and 1995 were reversed because of serious error.

 A new follow-up study by the same researchers finds that states and counties that make most use of the death penalty � applying it to a wide range of crimes instead of reserving it for "the worst of the worst" � are also the most prone to flawed verdicts. When it comes to the death penalty, as Senator Patrick Leahy, the Vermont Democrat, has observed, practice does not make perfect.

 These latest findings have landed at a moment of considerable churning over the death penalty. While the majority of the public still backs it, support is no longer overwhelming. On Wednesday the Supreme Court heard arguments in a case it could use to reverse its disgraceful 1989 decision allowing the execution of retarded people. A capital case on next term's docket will revisit the vexing issue of racial discrimination in jury selection.

 On Capitol Hill, meanwhile, promising legislation is pending in both chambers that would reduce the risk of executing innocent people. In the past year many states have enacted death penalty reforms. You do not have to oppose the death penalty to support laws making it fairer.

 The Columbia studies show that, far from mere "technicalities," the errors most often leading to reversal were incompetent legal counsel, suppression of evidence by police or prosecutors, and improper jury instructions by judges. Realistically, state and federal appeals judges cannot be relied upon to catch all the mistakes, especially given the limited availability of experienced volunteer lawyers to handle capital appeals, and stringent rules for reversing a death verdict that permit egregious errors to slip through.

The proposed legislation would establish national standards for the representation of capital defendants, and provide the resources to meet them � a step Justice Sandra Day O'Connor appeared to endorse in recent comments. The measure � the bipartisan Innocence Protection Act � would also require preservation of biological evidence that may later prove crucial on appeal, and ensure federal and state death row inmates access to DNA testing if that could help exonerate them.

 The House version, sponsored by Ray LaHood, a Republican, and Bill Delahunt, a Democrat, has 218 co-sponsors. That number, about half the House, reflects the growing unease across the country � and across party lines � about perpetuating a death-penalty system prone to unfairness and mistakes. Armed with the devastating findings of the Columbia researchers, the measure's backers need to press on.