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The Death Penalty’s ‘Normal Accidents’

By James M. Doyle

In the final days of this year’s Supreme Court term, Justice Stephen Breyer unexpectedly launched a new offensive against the American system of capital punishment. The offensive was announced in his dissenting opinion in a case upholding the legality of Oklahoma’s lethal injection protocol.

Some commentators believed that Breyer was training his artillery on one particular target: namely, Justice Anthony Kennedy, the Roberts Court’s perennial swing voter. Just days earlier, Kennedy had displayed his taste for making history in a grandiloquent opinion for the Court in the same-sex marriage case of Obergefell v. Hodges. He might be ripe for conversion.

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The Death Penalty and Dzhokhar Tsarnaev

By James M. Doyle

The superb opposing legal teams in the Tsarnaev case will provide an indictment of the system in principle. They will prove that an adversary trial can never produce what the Supreme Court says capital punishment depends on: the community’s individualized moral judgment on a particular defendant.

No lawyers can supply what that judgment needs: a full understanding of an individual.

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The Death Penalty and the Ugly Power of Prosecutors

By Elizabeth Renter

For two months, Illinois Governor Pat Quinn stalled on his ultimate endorsement or veto of a bill that would end capital punishment in that state and commute the sentences of those currently awaiting their death to life in prison.

Nine days before the March 18 deadline arrived, he took action to formally abolish the death penalty. Though he could have waited nine days and allowed the already-approved bill to pass without his specific endorsement, Quinn cited the inability to guarantee a flawless death penalty system, taking the opportunity to point out the role of wrongful convictions and discriminatory treatment in the application of the ultimate punishment. 

Up until his last minute signature, he had given no clear indication on whether or not he would sign the legislation. While his office was bombarded with calls and letters from across the state, the country, and around the world, the governor said he had been weighing his conscience.

He wasn’t the only one. Supporters and dissenters alike pulled out all the stops when it came to arguing their positions, some basing their opinions on religious morality and others on hard facts. 

Although the suspense has ended, it’s worthwhile to look at one of the key arguments brought by death penalty supporters in Illinois because it remains relevant to the continuing national debate on  this issue.

The debate brought to light many flaws in the criminal justice system. From moral positions and related discussions of “just desserts” and retribution, to the issue of wrongful convictions and the potential state-sponsored death of innocents, no argument seemed off limits.

But of all of the arguments, perhaps the most interesting (and distracting) was the one  put forth by Illinois prosecutors, who claimed they need the death penalty as a bargaining tool, as a threat to hang over the heads of defendants.  Their argument brought the issue of plea bargains and prosecutorial power to the forefront.

Prosecutors were concerned that with one fell swoop the governor could take away a tool they often use in murder cases—the threat of death. Hold a potential death sentence over a defendant’s head with a convincing argument of certain conviction and they are far more likely to bargain with prosecutors. This, prosecutors say, is why capital punishment must be kept on the table.

It’s been estimated that well over 90 percent of criminal cases in the United States are resolved by plea bargains, with the defendant admitting to all or part of the offense in exchange for a more lenient sentence or reduced charges. And like every negotiated bargain, prosecutors know if they aim high they’ll be happier with the eventual compromise. But what happened to filing appropriate charges that could be proven at trial? 

A prosecutor wouldn’t charge someone with capital murder if they didn’t think they could gain a conviction, right? Wrong.

The Chicago Tribune recently revealed some telling statements in regards to plea bargains in murder cases, stating “the move would rob them (states’ attorneys) of an important bargaining chip – the threat of death to get guilty pleas from suspects who opt for life in prison.” Put this way, it’s obvious the concern is more about conviction numbers than it is about fact-finding, justice, or applying the statutorily correct charges to the specific criminal act.

Trials cost more than plea bargains, and plea bargains certainly play an important role in the American justice system.

But, they weren’t always so prevalent and cost wasn’t always the motivating factor. The standardization of court practices combined with mandatory sentencing laws created an environment in the late 18th and 19th centuries where the prosecutor’s choice and willingness to negotiate became a deciding factor in just what charge someone would face and their according sentence. The practice would only grow with time.

When it comes to something as serious as a murder charge, the integrity of a confession or admission of guilt can’t be downplayed. Using the death penalty as a “bargaining chip” cheapens the system and ultimately leads to questions regarding the truth of statements that might be made by defendants attempting to avoid capital punishment. Convincing defendants that the case against them is solid enough for a conviction isn’t as difficult as one might think for a prosecutor.  The ability to convince and argue is practically written into the job description.

Statistical data regarding guilty pleas made when the defendant was actually innocent are difficult to come by. However, according to the Innocence Project, 22 of the first 265 DNA exonerees pled guilty to crimes they didn’t commit. Some defense attorneys admit anywhere from 2 percent to 15 percent of their clients admit to guilt in plea agreements when they are actually innocent of the charges at hand.

Prosecutors arguably hold the most power in today’s criminal courts. Of course they don’t want to lose the ability to threaten defendants with death—its effectiveness is proven by their own admission.

But the argument over the death penalty should not be based in its value as an intimidation tool used to gain convictions. It should be focused, instead, on the motivations behind the use of the death penalty as a punishment itself,  and on whether or not such a punishment has a place in modern America.

Elizabeth Renter is a freelance writer specializing in criminal justice issues. A former corrections professional, she has been a regular blogger for Change.org and numerous defense attorneys. Her work has also been featured in Race-Talk.org and Huffington Post, among others. You can see more of her work and contact Ms. Renter through her website, www.elizabeththewriter.com.

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After the Exoneration, What About the Victim?

By Mai Fernandez

Hardly a month goes by, it seems, without another news story about a wrongly convicted inmate being freed as a result of DNA testing. According to the Innocence Project, 266 people have been exonerated in U.S. history.  The ordeals of these exonerees are heartbreaking.

But what about the victims in these cases? We have to start thinking about society’s responsibilities to them.  

Victims commonly react with shock to the news of exoneration. One Texas victim told us she was “confused, angry, and terrified” when she learned the wrong man had been convicted of raping her 20 years ago. “How could this happen?” she asked.

This victim lapsed into a depression, fearing that the wrongly convicted man would kill her, as he had threatened to do when he was tried. “Every day seemed like a struggle just to survive,” she said. “Only this time, you have to deal with the guilt that you helped put the wrong man in prison.”  

Working with such victims creates enormous challenges for prosecutors and advocates. Some victims have moved, married, had children, and never told their loved ones about their victimization. Learning about an exoneration may cause victims to feel unsafe and deeply resentful of the criminal justice system that failed them. Some victims even tell authorities never to contact them again about their case.

Chris Jenkins, an advocate in the Dallas County District Attorney’s office, recommends creating a carefully considered protocol for contacting and supporting victims.

District Attorneys’ offices must decide when to contact the victim. Should it be when the defendant requests the test? When the state agrees to allow the test? When the test establishes the guilt or innocence of the convicted individual? On the one hand, why alarm the victim about the test request because the test may later confirm the defendant’s guilt? But the victim may find out through an automated victim notification system like Victim Information and Notification Everyday (VINE), that the offender has been moved to another location for the test. For that reason, prosecutors and victim advocates may want to consider contacting these victims before they are notified to explain why the offender is being moved. 

Prosecutors and advocates must be prepared to answer victims’ questions about the law and forensic DNA. Victims usually want to understand the process of DNA testing and what happens after an exoneration occurs. They want to know whether the investigation will be reopened and what are the chances—often after many years—of apprehending and convicting the real offender. 

In sexual assault cases where the statute of limitations on prosecuting the crime has been reached, victims must deal with the state’s inability to prosecute the real offender, even if the individual is identified and apprehended. The sense of injustice such victims feel can be overwhelming. 

When offenders apply for exoneration, victims need to know their options and rights. First, they need to understand they can refuse to be involved with the case. They also need to know their notification rights and what victim services are available after notification and testing.

Throughout the testing process, authorities must strive to protect victims’ privacy. In one Dallas case described by Chris Jenkins, the police needed a DNA sample from a victim, but the victim did not want her family or her employer to know about the case. So a detective flew to the city where the victim lived and met her at the security office of her local airport. The District Attorney’s office obtained what was needed, while still protecting the victim’s privacy.

Finally, authorities should treat victims in exoneration cases as the victims of a newly committed crime, regardless of whether the crime can be prosecuted. These victims need support, advocacy, and full access to their rights. They may need victim compensation for counseling to help them cope with the psychological trauma exoneration (and renewed fear of the real offender) may cause.

They should not have to face these challenges by themselves. 

Because exonerations are likely to continue or perhaps increase in the future, society must redouble its efforts to support the victims of these crimes. Justice requires no less.

Mai Fernandez is executive director of the National Center for Victims of Crime. Its online DNA Resource Center includes interviews with victims and forensic experts, a Webinar series, news articles, and conference presentations on forensic DNA also offers a range of information on forensic DNA for victims, victim service providers, and the public. Among the interviews is a conversation with Debbie Jones, a Texas victim advocate and the victim in a Texas exoneration case.

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