Earlier this month, 48 nations and a host of religious groups and other organizations filed briefs with the U.S. Supreme Court seeking to abolish the execution of minors in this country.
Those filing included former President Jimmy Carter, former Soviet President Mikhail Gorbachev, the American Bar Association, the American Medical Association, countries from the European Union, and Canada and Mexico.
As the Supreme Court ponders whether or not the U.S. will continue to allow those under 18 to be subjected to the death sentence, perhaps it should consider whether or not the criminal-justice system is flawless enough to support the death penalty at all.
In 1972, the Supreme Court ruled in Furman vs. Georgia that capital punishment as it was administered by the states was "cruel and unusual punishment" and therefore violated the Eighth Amendment of the U.S. Constitution. The decision was based on findings that the death sentence was disproportionately imposed on minorities and the poor; it resulted in the commutation of the death sentences — from death to life with the possibility of parole — for the more than 600 people on death row in 38 states around the country.
Among these inmates was a man named David Keaton. He was sentenced to death in Florida in July of 1971, after he was convicted of killing a police officer during an armed robbery, based on a coerced confession. In 1974, he was exonerated. He was released from prison in 1979. Keaton has never fully recovered emotionally and psychologically from the experience. Had his sentence not been commuted under Furman, he may have been executed as an innocent man.
The Supreme Court, however, left the door open for states to reform their death-penalty statutes to make them fairer and less discriminatory, and, in 1976, the court allowed the states to resume capital punishment.
But has the system really been reformed?
Last year, Illinois Gov. George Ryan decided to grant clemency to all 167 death-row inmates in his state after holding exhaustive clemency hearings prompted by the discovery that 13 inmates on death row were in fact innocent. Ryan, a conservative Republican who had long been a staunch supporter of the death penalty, was so disturbed by the uneven way in which capital-punishment cases were being handled that he could no longer allow the practice to continue in good conscience.
As Ryan explained, "We now have 13 death-row inmates exonerated. That means that we have more people exonerated from death row than the 12 we executed out of 25. It's like flipping a coin, heads or tails. Live or die. Can you believe that?"
It would be naïve to think that Illinois is the only state in the union that was capable of putting an innocent person to death, and that the problems Ryan encountered were absolutely unique and isolated aberrations.
In Washington state, Benjamin Harris was sentenced to death in 1984 for the alleged murder of an auto mechanic. In 1994, U.S. District Court Judge Robert Bryan ruled that his case had been handled so incompetently over the years (he was misadvised by his original attorney to confess to the murder in order to avoid the death penalty, among other things) that he had serious questions about Harris' guilt, and ordered that Harris be retried.
During those 10 years of appeals, Harris came close to being executed on several occasions. Had one of his subsequent lawyers been as incompetent as his first, or an appellate judge not quite as attentive, Washington could have executed an innocent man. While the system did eventually prevent this from happening, it is chilling and unjust that Harris was ever in the position to be racing against the clock to save his own life because he was appointed a lawyer who didn't spend enough time to properly defend him.
Discovering the innocence of any person who has had to live under the ominous shadow of execution is an alarming indication that there are still rampant problems with the machinery through which the death penalty is administered.
Ryan, the former Illinois governor, is currently encouraging all governors to impose moratoriums on the death penalty in their states until these problems are truly resolved beyond any doubt. They would be wise to heed his call.
Kirsten Johnson is a documentary filmmaker originally from the Seattle area whose most recent film, co-directed with Katy Chevigny, is "Deadline," a documentary about capital punishment in the U.S. It will air in a special two-hour presentation of "Dateline" on NBC tonight.
Copyright © 2004 The Seattle Times Company