The biggest failing of lethal injection is that it does not work as the early pioneers envisioned. Because of the lack of medical supervision, it can be difficult to find a vein. When a vein is found, unconsciousness cannot be guaranteed, and the evidence is clear that full anesthesia is often absent. The drugs used after the initial dose cause intense pain when the condemned is conscious. Death can be a prolonged and torturous affair.
In addition, the drugs used are becoming increasingly difficult to source.
Unless doctors become executioners—very unlikely—the future of lethal injection is doubtful. Will the inevitable decline in lethal injection lead to a return to the electric chair? Again, doubtful. America may need to reevaluate the whole question of capital punishment—especially in the light of the innocence problem.
16
THE PROBLEM OF INNOCENCE
One key element of the justice system, guaranteed by the Constitution, is due process. The state must respect the legal rights of the citizen. This includes the right to appeal a conviction. Generally the appeal will be unsuccessful. If the detectives and the district attorney have done their job, they will have caught and prosecuted the right guy. But nobody is perfect, and they occasionally get it wrong. A successful appeal will release a prisoner with their reputation restored. An innocent person will return to society and begin rebuilding his or her life.
Sometimes it is not an appeal that releases an innocent person. It can be new evidence. In the past this was unlikely, but with advances in forensic science it becomes easier and easier to unearth new facts. One thing that has made a huge difference is DNA profiling. Three decades ago, blood could be grouped into A, B, AB, and O. So blood at a crime scene could be consistent with a suspect. But there was no way of telling for certain that the blood came from the actual suspect. Now we can tell exactly who the blood, semen, or saliva came from. There have been many cases of blood and semen samples being reexamined for DNA evidence, which pinpointed someone other than the person convicted. Some DNA samples remain viable for testing for decades after a crime. The most famous example of this was when a Victorian shawl from London was examined in 2014, which might prove that the unknown killer Jack the Ripper was a Polish immigrant, Aaron Kosminski.
If later evidence proves someone was not a killer or that someone else was the killer, justice can be done and the innocent person released. That is part of due process, guaranteed by the Constitution.
However this is not possible in the case of the death penalty. Once someone is executed, conclusive proof of innocence is no good to the executed individual. They are dead. Execution is irreversible.
How common is this in practice? With good detective work and well-regulated trials, wrongful convictions should be a rarity. Unfortunately, major studies of false conviction show that this faith in the legal system is badly misplaced. One in twenty-five on death row may be completely innocent of the crime for which they will eventually be executed. That is a staggering amount of wrongful judicial deaths—roughly seventy since the moratorium on executions was lifted in 1976.
In 2014, the Proceedings of the National Academy of Sciences of the United States published an article entitled “Rate of False Conviction of Criminal Defendants who are Sentenced to Death.” The article, by respected researchers Samuel Gross, Barbara O’Brien, Chen Hu, and Edward Kennedy, began:
In the past few decades a surge of hundreds of exonerations of innocent criminal defendants has drawn attention to the problem of erroneous conviction. All the same, the most basic empirical question about false convictions remains unanswered: How common are these miscarriages of justice?
To actually estimate the proportion of erroneous convictions we need a well-defined group of criminal convictions within which we identify all mistaken convictions, or at least most. It is hard to imagine how that could be done for criminal convictions generally, but it might be possible for capital murder.
The rate of exonerations among death sentences in the United States is far higher than for any other category of criminal convictions. Death sentences represent less than one-tenth of 1 percent of prison sentences but they accounted for about 12 percent of known exonerations of innocent defendants from 1989 through early 2012. A major reason for this extraordinary exoneration rate is that far more attention and resources are devoted to death penalty cases than to other criminal prosecutions, before and after conviction.
The figures analyzed make frightening reading. Since the mid-seventies, 143 convicts on death row have been exonerated. Some had been on death row as long as thirty-three years before their sentence was overturned and their innocence proved. A previous study had found that 2.3 percent of all death sentences between the lifting of the moratorium and 1989 resulted in exoneration. Another study suggested that if modern DNA analysis had been available, 3.3 percent of convictions would not have happened because the DNA evidence would have cleared the suspect.
Following a detailed analysis of the more than four thousand inmates on death row, the report concluded that at least 4.1 percent of these would be exonerated if they remained on death row, adding: “We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.”
There are roughly 3,100 American prisoners on death row at the time of publication. Are 127 of these men and women completely innocent?
In 2001, The Center on Wrongful Convictions at the Northwestern Law School in Chicago analyzed eighty-six cases of exonerations and showed that the leading cause of wrongful conviction was false or shaky eyewitness testimony, followed closely by police and/or prosecution misconduct. Sloppy forensic science, false confessions (either as a result of mental illness or of police pressure), and information from snitches given in exchange for reduced sentences, were also contributing factors.
The Innocence Project was founded in 1992 by Barry Scheck (one of O. J. Simpson’s legal team) and Peter Neufeld. It is a nonprofit organization committed to exonerating wrongly convicted people. They often use DNA testing and they are also committed to reforming the criminal justice system to prevent future wrongful convictions. In more than twenty years, they have secured the release of 318 innocent people, including eighteen from death row.
They point out that through their efforts and the efforts of others, twenty people who have been sentenced to death have been proved innocent and exonerated by DNA evidence—and in half of those cases the DNA analyses pointed to the real killers. Those twenty innocent men and women had spent an average of nearly fourteen years behind bars, proclaiming their innocence. The majority were of color. This is a concern, because one of the reasons why death sentences were suspended after the Furman decision was that the penalty was applied arbitrarily and unevenly, and black defendants were more likely to be sentenced to the chair. Now the death row population more closely resembles the general population—but are black defendants getting a raw deal still? It would seem that way if the majority of exonerations continue to be of people of color.
The problem of innocence is one that the US justice system will have to urgently tackle if the death penalty is to remain in use.
17
INNOCENCE IS NO DEFENSE—HERRERA v. COLLINS
“I am an innocent man, and something very wrong is taking place tonight,” were the last words of a man who knew he was going to die because the Supreme Court had decided that imprisoning and executing an innocent man was not a violation of his civil rights.
Proof of innocence is not enough to get you off the electric chair. In support of the assertion that the law is an ass, the Supreme Court ruled in 1993 that proof of innocence was not grounds for the Supreme Court stepping in and stopping an execution. New trials can only be granted in cases of procedural screwups, not in cases of new evidence being uncovered. It was a landmark judgment that has condemned several innocent people to death.
If you polled the majority of Americans they would probably believe that the death penalty, the
ultimate sanction of the law, is a very serious business, and that the authorities generally know what they are doing. They would believe that people do not go to the chair or the needle unless they are proved beyond doubt to be guilty of the murder for which they are charged. But the reality is different. The truth is that an unacceptably high number of people who face execution are innocent. Death row is full of wrongly convicted prisoners.
The most recent research was done in 2013 by Samuel Gross, Barbara O’Brien, Chen Hu, and Edward Kennedy, and was published as “Rate of False Conviction of Criminal Defendants who are Sentenced to Death,” in the Proceedings of the Natural Academy of Sciences. The academics found that 4.1 percent of all those on death row are innocent of the crimes for which they have been convicted. One in twenty-five of those executed is killed by the state in the wrong. That is a huge figure. Extrapolating that across the twentieth century, we find that roughly 340 people were wrongly executed by US authorities in that time.
With modern advances in forensics, particularly DNA evidence collected in the past but only possible to analyze now, many convictions are coming into doubt.
If you find new evidence that proves you are innocent, you are off the hook, right? Wrong. According to the Supreme Court, proof of innocence is immaterial once you have been sentenced. The Supreme Court is quite happy for innocent people to go to the electric chair once their trial was carried out in a procedural, correct manner. Innocence or guilt doesn’t come into it after that.
The Supreme Court position, which affects several hundred prisoners now on death row, was established following Herrera v. Collins in 1993. To understand their decision, we need to look at the murder of two Texan law enforcement officials.
Texas Department of Public Safety Officer David Rucker was working on a stretch of highway a few miles north of Brownsville in the Rio Grande Valley on the night of September 29, 1981, when he encountered a car. There are no witnesses to what happened, but a few minutes later a passerby noticed the parked patrol car at the side of the road and went to investigate. He found Rucker on the ground beside the car, dead from a gunshot to the head.
Around the same time, a car was spotted speeding along the stretch of highway, away from the scene where Rucker had met his death. Los Fresnos Police Officer Enrique Carrisalez, and his partner turned on their flashing lights and set off in pursuit. They caught the speeding car, which immediately pulled over. Carrisalez got out of the patrol car and approached the other car. The driver opened his door and leaned out to talk to the officer. Suddenly a shot rang out and Carrisalez fell back. He had been shot in the chest. The car shot off into the night.
Carrisalez was brought to hospital where he underwent emergency surgery and was placed in intensive care. His partner was able to give investigators the plate number of the car they had been pursuing, and it was traced to a woman who was the live-in girlfriend of Leonel Torres Herrera. When a photo of Herrera was shown to Carrisalez, he immediately identified it as the man who had shot him. However, he did not pick the photo out of a lineup. He was shown just one photo. Nine days after being shot, Officer Carrisalez succumbed to his injuries.
Within a few days, Herrera was arrested and charged with the murder of both Carrisalez and Rucker. There was a good case against him. Not only had one of the two victims identified him, but it was known by law enforcement that he frequently drove his girlfriend’s car. And Carrisalez testified that there had only been one occupant of the car, so there could be no doubt as to who was the shooter. In addition, Herrera’s social security card had been found alongside Rucker’s patrol car on the night he was killed. And when the shooter’s car was examined, splatters of blood consistent with Rucker’s (type A) were found on it. Blood was also found on Herrera’s pants and wallet. Most damning was that a handwritten letter was found in Herrera’s possession when he was arrested, that “strongly implied,” according to investigators, that he had killed Rucker.
In January 1982 Rucker went on trial. During the trial, Carrisalez’s partner identified Herrera as the shooter. He was convicted and sentenced to death.
So far, nothing out of the ordinary. But during the inevitable appeals process new evidence emerged. Herrera’s legal team produced two legal affidavits. One was from Hector Villarreal, who represented Herrera’s brother Raul, a convicted felon. The other was from Juan Franco Palacious, a former cell mate of Raul Herrera. Raul had been murdered in 1984, three years after the two cops were shot. The affidavits claimed that Raul Herrera was driving the car on the night in question and had been the shooter. If they were true, Leonel was innocent. As the brothers looked alike, it would explain the evidence of identification.
Herrera claimed that the new evidence of his innocence meant that executing him would violate his Eighth Amendment rights, as executing an innocent man was a “cruel and unusual punishment” outlawed by the amendment.
The case was considered by the Supreme Court in 1993. They had two questions to consider. The first was whether the Eighth and Fourteenth Amendments (guaranteeing due process in a trial) allowed the state to execute someone who was innocent of the crime for which they had been sentenced to death. The second was whether the state should have procedures in place following a conviction to protect against the execution of an innocent person. In other words, did the state have to consider the new evidence or could they ignore it and go ahead with the execution? The court handed down a majority opinion—six to three.
Chief Justice William Rehnquist, delivering the majority verdict, held that a claim of actual innocence based on new evidence was not grounds for the Federal authorities to step in and stop an execution. He said, “Few rulings would be more disruptive of our federal system than to provide for federal habeas review of freestanding claims of actual innocence.”
In other words, at a Federal level they were washing their hands when it came to questions of fact.
He did note, however, that if Herrera was innocent the only relief he could expect was that the state of Texas might grant a retrial: “Were the petitioner to satisfy the dissent’s ‘probable innocence’ standard, the District Court would presumably be required to grant a conditional order of relief [stay of execution] which would in effect require the State to retry petitioner ten years after his first trial, not because of any constitutional violation which had occurred at the first trial, but simply because of a belief that in light of petitioner’s new-found evidence a jury might find him not guilty at a second trial.”
But the Supreme Court and the Federal Authorities did not have an obligation, in this ruling, to order a reexamination of the evidence. Without this pressure the District Court could leave well enough alone and ignore the new evidence.
Which is what Texas did. Rehnquist’s opinion held that the Court’s refusal to even consider the new evidence did not violate due process. Legally the way was now clear to execute a man even if he was innocent.
Justice Sandra Day O’Connor agreed, but with a reservation, saying, “The execution of a legally and factually innocent person would be a constitutionally intolerable event.” She then added that Herrera was not “legally and factually innocent” because he had been convicted fairly by a jury. Never mind that the jury was not in possession of the new evidence.
“Consequently, the issue before us is not whether a State can execute the innocent. It is whether a fairly convicted and therefore legally guilty person is constitutionally entitled to yet another judicial proceeding in which to adjudicate his guilt anew, ten years after conviction, notwithstanding his failure to demonstrate that constitutional error infected his trial.”
Stripped of legalese, her opinion was that once convicted, always convicted. New evidence was not grounds for a new appeal. An appeal would only be granted if you could show that the first trial had been conducted improperly.
Justice Harry Blackmun, along with Justices John Paul Stevens and David Souter, dissented from the majority opinion. Blackmun said, “Nothing could be more contrar
y to contemporary standards of decency or more shocking to the conscience than to execute a person who is actually innocent.”
He would have favored a court looking at the new evidence to determine whether a new trial was necessary, and wrote: “We are really being asked to decide whether the Constitution forbids the execution of a person who has been validly convicted and sentenced, but who, nonetheless, can prove his innocence with newly discovered evidence.”
Four months after the Supreme Court ruling, Texas had not taken any action on the new evidence. On May 12, 1993, Leonel Torres Herrera was strapped to the gurney for lethal injection. He had refused a last meal. His final words were, “I am innocent, innocent, innocent. Make no mistake about this: I owe society nothing. Continue the struggle for human rights, helping those who are innocent. I am an innocent man, and something very wrong is taking place tonight. May God bless you all. I am ready.”
This landmark decision would have widespread implications. With advances in DNA profiling, old cases could be reexamined by eager defense attorneys, but the Supreme Court ruling meant that any new evidence uncovered might be irrelevant; it was not unconstitutional to execute someone who had been fairly convicted, even if they had been convicted in the wrong.
With one in twenty-five on death row innocent, the implications are frightening. So how did states react to the Supreme Court ruling? In theory many proclaim that it is better that the guilty go free than one innocent man be executed, but the practice is different. States tolerate the execution of the innocent so that the guilty also get the chair. Legislators have progressively cut off avenues of appeal, mainly by imposing strict timelines.
The Anti-terrorism and Effective Death Penalty Act, passed in 1996, gives a prisoner just twelve months after his conviction to file a writ of habeas corpus (a request for a Federal Court to review a case for constitutional violations). Most states have their own restrictive deadlines. Some require prisoners to present new evidence within thirty days of conviction, which is clearly impractical in most cases. Often new evidence is uncovered years after conviction. And some states have “closed discovery” rules, which prevent attorneys or journalists from reviewing the evidence after a conviction.
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