PROTECTING THE ACCUSED

The legal system is not just to be fallible, but to be particularly fallible when it comes to the poor, who rely on the court system for competent counsel, and sometimes fallible with tragic results when death is the imposed penalty. Federal District Judge Jed Rakoff of New York recently ruled that the due-process rights of capital defendants are violated because of the error rate that leads to the deaths of the wrongly accused. His ruling is further evidence of the nation’s unease about the death penalty and ample reason for Congress to raise minimum standards for indigent defense in capital cases.

When researchers at Columbia University looked at more than 4,000 capital cases in 28 states over 23 years, they concluded that seven out of every 10 death penalty cases contained serious reversible error. Studies like this one prompted Justice Sandra Day O’Connor last summer to comment, “If statistics are any indication, the system may well be allowing some innocent defendants to be executed. … Serious questions are being raised about whether the death penalty is being fairly administered in this country.”

The Senate Judiciary Committee today or tomorrow is expected to consider the Innocence Protection Act, introduced by Sens. Susan Collins, Pat Leahy and Gordon Smith, which improves safeguards against wrongful convictions by expanding access to DNA testing and raises standards for the quality of indigent defense in capital cases. These changes are badly needed. Earlier this year, new DNA evidence made Ray Krone the 100th innocent person since 1973 to be released from death row. Mr. Krone was sentenced to death a decade ago for the murder of an Arizona waitress. He spent three years on death row before his first conviction was overturned. He was retried and sentenced to life in prison in 1996. His story is frighteningly common.

The Innocence Protection Act now has 25 Senate cosponsors and 230 supporters in the House. The Senate bill has been amended since being introduced last year, tightening requirements for obtaining post-conviction DNA testing, adding a proposal to ensure that execution of a death sentence is stayed during Supreme Court review and overhauling the competent counsel section to reduce perceived federal mandates.

Members of the Judiciary Committee will feel increasing public pressure to pass these protections as the issue is more deeply explored and more cases arise of condemned people who were found to be represented by attorneys who were drunk, asleep or simply untrained and unprepared for capital cases. The argument heard now that these attorney standards would only further delay justice for the families who have lost loved one to violent crimes both ignores the errors and demonstrates a flawed understanding of the concept of justice.

The Supreme Court this year has limited the reach of the death penalty twice, ruling that juries, not judges, were to decide these cases and against executing the mentally retarded. Public sentiment has shifted on this issue as more and more cases of false evidence and faulty legal representation are found. Congress, too, should find these compelling reasons for reform.