Ultimate justice

Given the broad public support for the death penalty, it is reasonable – or at least realistic – to assume that the federal government and the governments of 38 states will continue to execute those convicted of the most heinous crimes. The heart-wrenching testimony presented by convicted and exonerated death row inmates Wednesday at the Senate Judiciary Committee hearing on the Innocence Protection Act should, however, give even the ultimate penalty’s most ardent supporters reason to pursue ultimate justice just as ardently.

One such testifier was Michael Graham, who spent 14 years on Louisiana’s death row before attorneys working his case for free proved that key witnesses lied and that prosecutors withheld exculpatory evidence. Mr. Graham was found not merely not guilty, but utterly innocent of the double murder for which he was about to die.

He is just one of 95 people in 22 states who have been released from death row since 1973. His erroneous conviction, like far too many others, was overturned not, as death-penalty proponents are fond saying, because the system works. Any system that relies upon free lawyers – or upon scholars, as in the numerous wrongful convictions uncovered by Northwestern University law students that led to a moratorium on executions in Illinois – is not a system, but an abomination waiting to happen.

The Innocence Protection Act, co-sponsored by Maine Sen. Susan Collins, does not attempt to eliminate the death penalty. It merely compels states that choose to exercise this sovereign right to do so in a way that fully ensures equal protection under the law when it counts for the most.

The act has two key provisions, of which the one to give convicted felons greater access to DNA testing enjoys broad bipartisan support. The other, to establish standards for lawyers representing those accused of death-penalty crimes, is running into strong opposition based upon a combination of states-rights advocacy and wishful thinking.

Attorney competence is always a ticklish issue, especially when being debated in a forum packed with attorneys. But as the issue gets explored more deeply, more cases come to light in which condemned persons, especially those forced by poverty to rely upon court-appointed counsel, were represented by attorneys who were drunk, asleep or simply untrained and unprepared for capital cases. The argument that these attorney standards would only further delay justice for the families who lose loved one to violent crimes both ignores the numbers – more than 90 freed in 22 states – and demonstrates a fundamentally flawed understanding of the concept of justice.

In her testimony, Sen. Collins effectively answered the argument against Congress compelling states to adopt standards for competent counsel by observing that, even for life-long federalists like herself, “the stakes in capital cases are simply too high and our national interest in protecting the innocent is too great.”