Death penalty: How foolproof is justice?

By Pat M. Holt

WASHINGTON � Prosecutors are becoming increasingly resistant to appeals of convictions in death-penalty cases. Appellate courts and even legislative bodies are becoming increasingly insistent on fixing a point of closure in such cases - sometimes at the expense of justice. In federal cases, the Justice Department is pushing prosecutors to ask for death more often.

As sentiment seems to be growing against the death penalty, those who support it appear to be pushing harder for it. These factors combine to sharpen and politicize the issue.

In a hearing before the Missouri Supreme Court recently, the following chilling snippet of dialogue took place, brought to us courtesy of The New York Times:

Judge: "Are you suggesting, even if we find Mr. Amrine innocent, he should be executed?"

Prosecutor: "That's correct, your honor."

That brought to mind for this commentator a memory from a federal court house in Providence, R.I. when I was a young reporter for the Providence Journal-Bulletin and the judge sternly lectured an assistant US attorney that a prosecutor's first duty is not securing convictions but seeing that justice is done.

Americans have long prided themselves that their system of criminal justice is the fairest in the world, refined over nearly 800 years since a reluctant King John signed Magna Carta at Runnymede June 15, 1215. The Charter has been reinforced by the US Constitution, especially as amended, and has been further strengthened by a long line of Supreme Court decisions.

Noteworthy among the standards prosecutors must meet is conviction of defendants by a 12-member jury of their peers, each of whom must be convinced of their guilt beyond a reasonable doubt by evidence that must itself meet strict standards. One of the arguments frequently made by supporters of the death penalty is that if prosecutors meet these standards, the defendant must surely be guilty. This is why prosecutors and appellate courts are so frustrated when convictions are appealed repeatedly, especially over the issue of penalty instead of guilt. Consequently, Congress and the Supreme Court have limited grounds for appeal. This is partly to advance a political purpose (preserve the death penalty) and partly a procedural one (to prevent clogging appellate court calendars).

Last week, the Supreme Court lowered the standards of proof the accused must meet when appealing on the basis of racial bias in a trial that resulted in a death sentence. Nevertheless, recent experience leads one to question whether the protections provided to individual rights by the revered documents of Anglo-American jurisprudence have always been scrupulously observed.

Defendants are frequently underprivileged and sometimes underrepresented, despite constitutional guarantees of the right to counsel. The defense tends to be poor and weak; the prosecution is always rich and strong. State or local prosecutors and judges are frequently elected and subject to popular pressure for convictions in cases involving gruesome crimes. Police also feel such pressure. There have been some notorious cases of police brutality against suspects.

If over-zealous police and prosecutors get convictions in such cases and, later, zealous appellate lawyers get the convictions overturned, how many other such convictions remain enforced? How many innocent defendants are put to death while pious governors cite our supposedly foolproof judicial system in turning down last-minute appeals for executive clemency?

Technology has recently made available types of evidence such as DNA that have led to the reversal of convictions after death sentences have already been irretrievably carried out. How many other such cases were carried out without having been appealed? How many rape cases have drawn long sentences, and have been in the process of being carried out when DNA evidence established the defendant's innocence? How many wrongful convictions for lesser crimes have gone unappealed for lack of resources by defendants?

Reasonable people are entitled to wonder how foolproof our judicial system in fact is. Is it adequate to the demands of the 21st century, both in protecting the innocent and punishing the guilty? How could it be made better? Two modest steps suggest themselves:

� Governors should exercise more leadership in shielding state judges and prosecutors from political pressure.

� The number of public defenders should be increased and be better-funded.

Others would doubtless come from the further study the problem deserves.

� Pat M. Holt is former chief of staff of the Senate Foreign Relations Committee.