03/18/2010 05:12 am ET | Updated May 25, 2011

Beyond a Lingering Doubt: It's Time for a New Standard on Capital Punishment

Barring an eleventh hour intervention by the governor of Virginia, the D.C. sniper John Muhammad will be put to death for his role in the shooting spree that claimed 10 lives and terrorized the nation's capital in 2002.

Tomorrow's execution sets the stage for the story I want to share about a dinner I had recently with a good friend.

My friend, an American diplomat, had been at the United Nations in New York a few weeks ago, discussing, among other things, the death penalty with European Union colleagues. Coincidentally, that same week a controversy was brewing in Texas over Gov. Rick Perry's decision to replace three members of the State Forensic Science Commission just as the commission was about to investigate whether Texas had executed an innocent man in 2004.

Incensed by the idea that innocent people might have been put to death for crimes they did not commit - and no doubt primed by his European counterparts - my friend made a passionate argument for why the death penalty should be abolished in the U.S.

Knowing his personal connection to a capital crime, I couldn't resist asking, "And you would support such a ban even if it meant that the D.C. sniper would be spared?"

His friend being one of Muhammad's 10 victims, he fell momentarily silent before finally conceding, "No, he deserves to die."

And therein lies the dilemma we face as a nation when it comes to capital punishment: No one wants to see an innocent person put to death - but some criminals deserve to die for their offenses.

This dilemma is reflected in two conflicting views on the death penalty that permeate American society. On the one hand, our awareness of flaws with capital punishment is increasing as result of technological advances. According to the Death Penalty Information Center, there have been nearly 1,200 executions in the past 25 years. This may not shock too many people. But what is shocking is that, in the same time period, there have been nearly 140 exonerations of death row inmates. That's over 10%! Just as interesting, the average number of releases from death row between 1973 and 1999 was 3 per year. With the increased introduction of exculpatory DNA evidence, this number has risen to 5 per year in the past decade.

The conclusion is inescapable: innocent people are often sentenced to death.

On the other hand, our desire for eye-for-an-eye justice against those who murder our fellow citizens also increases when the media bombard us with real-time coverage of acts of violence. Continuous footage of the Oklahoma City bombings, the D.C. sniper spree, the Fort Hood rampage, and similar events leaves us feeling victimized and angry. The consequence is a need to punish those responsible for these heinous crimes with the ultimate sanction: death.

As we wrestle with how to continue punishing the truly guilty while better protecting the truly innocent, let me suggest a compromise measure which, although still imperfect, will go further in safeguarding against misapplications of the death penalty.

In the United States, we are all entitled to "life, liberty, and the pursuit of happiness." However, these "rights," if you can call them that, are not equal. While we should all enjoy happiness, government cannot - and need not - go far out of its way to help us pursue it.

Liberty is a different story. There is a high legal standard that must be overcome before someone can be imprisoned. The deprivation of liberty requires that the accused first be found guilty, beyond a reasonable doubt, of committing a crime.

In theory, the right to life is the strongest right any American possesses. The standard for depriving one of life should be higher than any other legal action. In practice, though, this is not the case. The standard for depriving life is no different than the standard for depriving the lesser right of liberty: conviction based on evidence that establishes guilt beyond a reasonable doubt.

As anyone who has watched a crime drama knows, beyond a reasonable doubt does not mean beyond a shadow of a doubt. The existence of doubt as to guilt is not enough for a juror to avoid a finding of guilty. So long as a juror feels that the prosecution has established guilt beyond a reasonable doubt, that juror is obligated to vote guilty. Unfortunately, the system is far from perfect and, from time-to-time, juries are wrong.

The largest (and most obvious) problem is that, while someone wrongfully convicted can always be released (and compensated for damages), once someone is deprived of life by the state, there is no way to undo the damage. Therefore, we must do everything we can to assure that this right - the most important right to which all Americans are entitled - is safeguarded from erroneous deprivation. As the late Supreme Court Justice Harry Blackmun once declared, "Nothing could be more contrary to contemporary standards of decency or shocking to the conscience than to execute a person who is actually innocent."

To reduce the likelihood of a miscarriage of justice, let me propose a bifurcated standard for capital cases - one for the trial phase and one for the sentencing phase. I believe that juries should continue applying the beyond a reasonable doubt standard for determinations of guilt in capital cases (which speaks to deprivations of liberty), but the standard for sentencing someone to death (which speaks to deprivations of life) must be elevated to a stricter standard: beyond a lingering doubt.

As the Constitution Project argued in a 2005 report of death penalty reform: "Given the irrevocable nature of the penalty of death, a decision to impose the penalty requires a greater degree of reliability than is required for imposition of other penalties. Jurors should not vote for the death penalty if they entertain doubts as to the defendant's factual guilt."

In other words, after a jury finds someone guilty of a capital crime but prior to being able to impose the death penalty, the jury must conclude that the accused is guilty beyond any doubt. As a society, our own lingering doubts on the effectiveness of the current capital punishment system leave us with no other conclusion.