The death penalty has a long and heinous history. As recently as 1750, those under British rule, including Americans, could be executed for such crimes as denying the “True God” or marrying a Jew. Such crimes were downgraded over time, with help from the Eighth Amendment, and in recent years the only crimes left to get death were murder and, in rare cases, rape.
Despite the eligible offenses decreasing, though, the number of deaths actually went up in the last century. There were more executions in the 1930s than in any other decade in American history. While not explicitly known, one reason for this could be the financial collapse of that era. As we will see, a defendant’s income is directly connected to his guilt and likelihood of execution.
Things turned around completely in 1972, due to Furman v. Georgia, when the death penalty was declared unconstitutional on the basis that capital punishment is cruel and unusual as then applied. This ruling reduced everyone’s death sentence to life imprisonment, including such notorious monsters as Sirhan Sirhan, Charles Manson and Richard Speck. The death penalty came back a few years later with a landslide 7-2 vote, thanks to Gregg v. Georgia, where they determined a “fair” way to decide death: divide the guilt and punishment phases of trial into two separate hearings. Ironically, since the United States restored the death penalty in 1976, sixty other countries have abolished it, leaving America in an elite group alongside Saudi Arabia and China. The only European country with a death penalty today is Belarus.
Over the next few decades, the death penalty was refined to fit into fewer and fewer situations, and became increasingly overseen. Ring v. Arizona in June 2002, for example, made it necessary for a jury and not a judge to qualify a defendant for death. Other rulings made it more difficult to execute a minor or someone with a mental handicap, such that those facing death would be fully competent to decide their actions when they had committed their crime. As the saying goes, don’t do the crime if you can’t do the time; why feel sympathy for those executed or sentenced to life in prison if they willfully chose to engage in reprehensible behavior?
Death penalty advocates would have a strong case using this argument, especially now that executions happen so rarely, if it were not for one tricky aspect. Wrongful convictions are still a very real part of criminal cases, regardless of the sentence. We should never feel comfortable sentencing an innocent person to death or life in prison, causing them to lose their families and independence because of some trivial error or court misconduct. Remember, during the same time Illinois executed twelve men, another thirteen were found innocent and freed.
Other arguments exist for opposing the death penalty, such as moral concerns, the fact executions cost more than life imprisonment, or that seven of ten death sentences ultimately get set aside on appeal for trial court errors. The idea that capital punishment is a deterrent has repeatedly been disproved; murder rates are highest in the states that execute the most frequently. Ignoring the moral argument, which is outside the scope of this column, the cost and appeal factors come back to the same issue as wrongful convictions. We simply must keep refining and improving our justice system. Better convictions would, in theory, reduce the need for costly appeals.
As Mike Gray, the author of “Death Game”, told me, the age of corrupt officials is not behind us. Gray says “police hide exonerating witnesses” and “prosecutors with their eyes on higher office ignore evidence suggesting innocence”. Those of us in Northeast Wisconsin have not forgotten the backroom deals of Winnebago County district attorney Joe Paulus. While his acceptance of bribes did not affect murder cases, this no less illustrates how prosecutors are human, too, and susceptible to influence like anyone else.
Sadly, the biggest determining factor between guilt and innocence seems to be the income of the defendant. The same goes for harsh punishments versus lighter ones. “It’s a penalty we reserve for people who can’t afford the finest lawyers,” said Illinois Supreme Court Justice Seymour Simon. Or as Gray says, “People who can afford the best lawyers don’t get the death penalty, period. Same with draconian sentences.”
This is just as true in Wisconsin as it is anywhere else. Professor Keith Findley, of the Wisconsin Innocence Project at the University of Madison, explained to me, “Minorities and the poor are indeed over-represented among those who have been exonerated after having been wrongly convicted. The data suggests that being poor and a member of a minority group increases the chances that you will be accused and convicted of a crime you did not commit.” What struck me as most shocking was when he said, “Wisconsin, in particular, has one of the most racially disparate incarceration rates in the country, and that might also be an indicator that minorities are at increased risk of wrongful conviction.” We want to believe that racism is a largely outdated or Southern practice, but the data says otherwise.
In 1987, a study in Georgia found the death penalty was issued most commonly when a black man murdered a white person (22%). The other combinations of victim and defendants’ races ranged from only 1-8%. Justice Antonin Scalia notoriously remarked that this study was probably accurate, but concluded that America is inherently racist country and it was only natural for this to affect the issuing of harsher sentences to minorities. Scalia fails to consider that juries who are more willing to execute a black man may also be more willing to falsely convict one.
According to their website, the Wisconsin Innocence Project has freed dozens of people falsely convicted of murder and rape. More often than not, this is because of advanced techniques in DNA examination that were not around at the time of conviction. Yet, we hear again and again about false confessions, flawed witnesses and botched science.
A key to solving the crisis of wrongful convictions is to ensure that all defendants are assisted by competent attorneys. This common sense approach — who wants any legal argument posited by an incompetent lawyer? — was shut down in June 2001, when Congress was overwhelmed by death penalty advocates who felt that such attorneys would lead to the courts adopting an anti-capital punishment bias. Yet, in the same summer, conservative justice Sandra Day O’Connor freely acknowledged that “the system may well be allowing some innocent defendants to be executed.”
We must keep trying to create better lawyers, better laws and better ways to gather evidence. Right now the fate of a client is left up to their attorney, and the district in which the crime was committed. There are thirteen federal jurisdictions, and not all agree on how to interpret the same laws. A mistrial in one state could be an execution in another. As Mike Gray suggests, the guilt and sentence for a defendant is often the luck of the draw.