Capital Punishment? A Dead Policy Walking

A jury in Boston has returned a guilty verdict on all 30 counts against the Boston Marathon bomber Dzhokhar Tsarnaev. Now the jury must deliberate on the punishment, which could be either life in prison or death. Capital punishment is outlawed in Massachusetts, but Tsarnaev was tried in federal court, where the death penalty is allowed. The jury will have to decide whether he lives or dies. The case provides a new reason to take a hard look at capital punishment, and why this irreversible, highly problematic practice should be banned.

Anthony Ray Hinton is alive today, a free man. But just last week he was on death row in Alabama, where he spent 30 years. Hinton was the 152nd person in the United States to be exonerated from death row, where he spent three decades for a crime he did not commit. He was accused of killing two fast-food restaurant managers in 1985. There were no eyewitnesses, nor fingerprints. Prosecutors alleged that bullets found matched a revolver belonging to Hinton's mother. Hinton had ineffective counsel, and no money to mount a credible defense or to hire a genuine expert witness to challenge the ballistics.

"The American criminal-justice system ... treats you better if you're rich and guilty than if you're poor and innocent," Bryan Stevenson told me. He is the founder and executive director of the Equal Justice Initiative, and the attorney who eventually freed Anthony Ray Hinton. The unfair trial was just the beginning. "We developed the evidence that showed that these bullets could not be matched to a single gun and that it wasn't Mr. Hinton's gun," Stevenson explained. "The state then refused for 16 years to even retest the evidence. ... It was really unconscionable that they chose to risk executing an innocent person over risking the perception that they were somehow making a mistake or not being tough on crime." In a remarkable and, according to Stevenson, extremely unlikely turn of events, the U.S. Supreme Court agreed to look at Hinton's case, and unanimously overturned his conviction. "Had they not intervened, I think the risk of a wrongful execution would have been very, very high," Stevenson said.

Nearby, in Louisiana, Glenn Ford was released in March 2014, also after three decades on death row. Evidence cleared him of the 1983 fatal shooting of a jewelry-store owner. Now, as a free man, he faces a death sentence of a different kind: stage 4 lung cancer that has spread to his bones, lymph nodes and spine. He is in hospice care, and wasn't strong enough to speak to me this week. But Marty Stroud was. He is the man who prosecuted Glenn Ford 30 years ago, and today regrets that he did so. He now says that Ford had an unfair trial in which key evidence was suppressed by police and the prosecutors, and that Ford lacked the money to mount a proper defense. Moreover, Stroud says, if he had properly done his job at the time, and all the evidence was collected, they would not have even been able to arrest Glenn Ford, let alone try him for the crime. Now, 30 years later, prosecutor Marty Stroud feels differently about capital punishment: "I am 100 percent against the death penalty. It is barbaric. And the reason it is barbaric, is that it is administered by human beings, and we make mistakes. We are not infallible."

In addition to the legal, ethical, racial and economic-injustice arguments against the death penalty, there is a growing practical reason to halt the practice as well. It is becoming harder to obtain the drugs used in lethal injections. European drug companies are refusing to supply the drugs if they are used to kill people. The American Pharmacists Association (APhA) has now joined national organizations of physicians and anesthesiologists in discouraging their members from participating in executions. Dr. Leonard Edloe, a pharmacist with the APhA, told me: "We just don't want our pharmacists being involved either in the dispensing of the drugs or the use because, really, the prescriptions are illegal. They aren't prescriptions, they're purchase orders." Because of the shortage of lethal-injection drugs, Utah has reinstated the firing squad, and Oklahoma now uses untested drug combinations, which have caused botched executions with painful, protracted deaths.

The deliberations on the Tsarnaev case bring new, heightened attention to the death-penalty debate in the United States. Eighteen states plus the District of Columbia ban the death penalty. But there are still more than 3,000 people on death row in the U.S. As Bryan Stevenson notes, "For every nine people that have been executed in this country, we have now identified one innocent person [on death row]." The time for a moratorium on executions is now.

Denis Moynihan contributed research to this column.