US Sen. Orrin Hatch announced in June his plans to introduce federal legislation providing some death row inmates with access to DNA testing that could establish their innocence.
Hatch, one of the most conservative members of the Senate and a longtime death-penalty supporter, said in making his announcement June 13 that testing will "ensure that only the guilty are executed" and would lend "support and credibility to the accuracy and integrity of capital cases."
Hatch offered his proposal as the fervor leading up to the June 22 execution of Gary Graham, also known as Shaka Sankofa, in Texas was about to reach its peak. In New York, thousands protested at the state Republican headquarters against the planned execution, carrying placards and banners and chanting "No justice, no peace / 'til Shaka's released" and "Hey Bush, what do you say / how many people have you killed today?"
Similar actions have taken place across the country: demonstrators in Palo Alto, Calif., interrupted a George Bush fund-raiser, while in Detroit a group of religious, labor and community leaders held a hunger strike. Demonstrations also occurred in Austin and Houston, Los Angeles, Washington D.C., Boston and other cities.
The furor stems from questions of Graham's guilt -- and the larger questions about the fairness of the death penalty.
Gary Graham was convicted in 1981 of killing Bobby Grant Lambert in a Safeway parking lot. The trial took two days. His defense attorney, a man who has been disciplined four times for unprofessional conduct and has never won a murder case, didn't call any witnesses during the trial. No murder weapon was produced, nor any fingerprint, blood or DNA evidence provided. Just one of the five eyewitnesses at the scene said she could recognize the killer and others have said Graham was not the man they saw at the murder scene.
At the same time, recent studies cast serious doubt on the ability of the criminal justice system to fairly administer the death penalty. A Columbia Law School study of 5,760 court decisions between 1973 and 1995 released in June found that more than two out of three convictions have been overturned on appeal and that of those 82 percent ultimately resulted in lesser sentences and 7 percent in exoneration.
The study, "A Broken System: Error Rates in Capital Cases," found the most common errors were incompetent defense attorneys (37 percent of the time), prosecutorial misconduct (19 percent) and faulty jury instructions (20 percent).
In addition, the report also found that more than 90 percent of the states that administer death sentences have overall error rates of 52 percent or higher and that 85 percent have error rates of 60 percent or higher.
And according to the Death Penalty Information Center, more than 80 people have been released from death row wince 1973 after proving their innocence. The center also found that more than a third of all defendants executed since 1976 were African Americans and that African Americans currently make up 46 percent of the total death row population in America.
"American capital sentences are persistently and systematically fraught with serious error," Professor James S. Liebman, who conducted the study, said in a press release. "Indeed, capital trials produce so many mistakes that it takes three judicial inspections to catch them, leaving grave doubt whether we do catch them all."
In Texas, according to an investigation by the Chicago Tribune, of the 131 executions under Bush: 43 featured defense attorneys who were publicly sanctioned for misconduct -- either before or after their work on these cases; 40 involved trials in which the defense presented no evidence or only one witness during the sentencing phase; 29 featured a psychiatrist who gave testimony that the American Psychiatric Association condemned as unethical and untrustworthy; 23 relied on jailhouse informants, considered to be among the least credible of witnesses; and 23 included visual hair analysis, which has consistently proved unreliable.
These findings have helped turn the tide nationally, and have helped convince politicians from both sides of the political aisle -- most of whom have been staunchly pro-death -- to take a closer look at capital punishment.
In recent months:
* Gov. George Ryan, a Republican, of Illinois imposed a moratorium on executions after 13 men were exonerated by new evidence;
* The New Hampshire legislature voted to abolish the death penalty in May, though Gov. Jeanne Shaheen, a Democrat, vetoed the bill;
* Bush also has gotten into the act, issuing a temporary reprieve for a man convicted of sexually assaulting and murdering his stepdaughter to allow DNA testing to be conducted.
While the reliability of capital convictions has been questioned, the Hatch bill falls far short of guaranteeing capital defendants they will not be wrongly executed. The Hatch plan would grant the DNA test only when identity was at issue during the trial and if the results could establish a defendant's innocence. That's only a fraction of the men and women on death row.
A broader proposal has been floated by Sens. Patrick Leahy (D-Vt.) and Gordon Smith (R-Ore.) that would allow testing relevant to a defendant's claim that he was wrongly convicted or sentenced. It also would set minimum competency requirements for defense lawyers working capital cases and require judges to inform juries they can issue a life sentence rather than execution.
The Leahy-Smith bill would offer far better protection against the execution of someone who had been wrongfully convicted, but it falls short of shoring up the shaky legs on which the death penalty stands.
A better approach is the one put forth by US Sen. Russ Feingold (D-Wisc.), who has introduced legislation that would place a national moratorium on the death penalty while a commission studied its administration and effectiveness as a deterrent.
Of course, such a study is likely to find the same things the researchers at Columbia University found, raising serious questions about the ability of our judicial system to fairly and effectively administer so final a punishment, one that cannot be reversed once meted out.
Given that -- and the scant evidence demonstrating that capital punishment is an effective deterrent -- the Feingold bill offers us a chance to shut down the machinery of death permanently.
The Justice Project, and the full text of the Columbia University report, can be found at (www.thejusticeproject.org) or (justice.policy.net).
The International Action Center and the National Peoples Campaign/Millions for Mumia, based in New York, are organizing against the death penalty. The can be found at
(www.iacenter.org) or (www.peoplescampaign.org), or reached via e-mail at iacenter@iacenter.org
Hank Kalet is a poet and managing editor of two weekly newspapers in central New Jersey.