Protecting the Innocent

Today, 3700 people sit on death row in America—a greater number than in any other year since the reinstatement of the death penalty in 1976. Since then, a total of 699 men and women have been executed in the United States, including 16 so far in the first two months of this year.

During this same period, 95 people—more than one out of every 100 men and women sentenced to death in the United States—have been exonerated after spending years on death row for crimes they did not commit.

People like Randall Adams, who was nearly executed for the 1976 killing of a Dallas policeman until Errol Morris’s 1988 documentary, The Thin Blue Line, demonstrated that Adams’s principal accuser had in fact committed the crime.

And Walter McMillian, convicted on perjured testimony in a two-day trial and released seven years later after the State of Alabama admitted that prosecutors had willfully withheld evidence of his innocence.

And Anthony Porter, a mentally ill man who was just two days away from execution when the real killer was persuaded to confess—not by prosecutors, but by a private investigator working with journalism students at Northwestern University.

And Earl Washington, a mentally retarded man who served 17 years in prison—much of it on death row—for a rape and murder he did not commit and who finally regained his freedom thanks to DNA testing.

It’s cases like these that convinced such organizations as the American Bar Association—which has no position on the death penalty per se—to urge a halt to executions until each jurisdiction can ensure that it has taken steps to minimize the risk that innocent persons may be executed.

It’s cases like these that convinced Illinois Governor George H. Ryan—a Republican and a supporter of the death penalty—to put a halt to executions in Illinois until he could be certain that “everyone sentenced to death in Illinois is truly guilty.”

I oppose the death penalty. My colleague, Rep. Ray LaHood (R-Ill.), supports it. But we agree profoundly that a just society cannot engage in the killing of the innocent. We have come together in a bipartisan effort, introducing the Innocence Protection Act to help prevent what Governor Ryan has called “the ultimate nightmare, the state’s taking of innocent life.”

Identical legislation has been introduced by Sens. Patrick Leahy (D-Vt.), Gordon Smith (R-Or.) and Susan Collins (R-Me.), who also hold differing views on the death penalty itself.

The Innocence Protection Act is a comprehensive package of concrete reforms that will help reduce the risk that innocent persons will be put to death—and that the guilty will remain at large.

The Act includes two principal elements. First, it would ensure eligible federal and state inmates access to DNA testing to establish innocence. Currently, many are denied access to testing and/or prevented from introducing the evidence that would exonerate them—and, in many cases, identify the guilty party.

Second, the Act would improve the quality of legal representation for indigent defendants in capital cases through federal incentives to states. Lawyers assigned by the court to these unpopular and unprofitable cases are often inexperienced, overworked or incompetent. It is little wonder that over half of all death sentences are overturned on appeal or after post-conviction review because of errors at trial.

Within the Congress, we’re making real progress. We now have over 200 House and Senate cosponsors—more than twice the number who were committed to last year’s bill.

As a prosecutor for over 20 years, I was treated to a daily lesson in human fallibility. Judges, jurors, police, eyewitnesses, defense attorneys and prosecutors themselves—all are human beings, and all make mistakes. The justice system is a human artifact, and nothing we can do will bring absolute certainty to such a system.

But we do have the means at our disposal to minimize the possibility of error. And where lives are at stake, we have a responsibility to put those tools to use.

It was John Adams, Class of 1755, a graduate of this great University, who declared that it is better “that many guilty persons should escape unpunished than one innocent should suffer.” I hope that 200 years later we still share that noble sentiment. But we need not pay that price. For in sparing the innocent, we also minimize the possibility that the guilty go free.

The Innocence Protection Act will help ensure that fewer mistakes are made in capital cases—and that when mistakes are made, they are caught in time.

Congressman Bill Delahunt (D-Mass.) represents the 10th district of Massachusetts.