THE BLOG
08/23/2016 06:43 am ET Updated Aug 24, 2017

No Time For Trump: Killing Off The Death Penalty

Leigh Vogel via Getty Images

The death penalty exoneration reported in the New York Times contained the customary horrors.

In 1983, police in rural North Carolina arrested two mentally-disabled African-American teenage half-brothers for the rape and murder of an 11-year-old girl. After hours of interrogation without a lawyer, the oldest brother cracked under threats of execution, signing a confession written by police. Then, bewildered, he asked his interrogators: "Can I go home now?"

He never did. Confronted with the coerced confession after hours of the same unrelenting pressure, the intellectually disabled 15-year-old brother signed a confession of his own.

At trial, both recanted their confessions, the only evidence against them. But a Bible-thumping prosecutor later known as America's "deadliest DA" sought the death penalty. The jury sent them to death row.

In 1994, the U.S. Supreme Court declined to review the case. In dissent, Justice Harry Blackmun noted that the older brother had the mental age of a nine-year-old. "This factor alone," he wrote, "persuades me that the death penalty in this case is unconstitutional."

After 30 years, pro bono lawyers pressed for DNA testing of a cigarette butt found near the victim's body. The testing matched the DNA on the cigarette to a man with a history of sexual assaults who lived a block from where the body was found. A man who -- only weeks after the murder -- had confessed to the rape and murder of an 18-year-old girl in the same town. Remarkably, the local police had never questioned him about the strikingly similar crime for which the brothers were sentenced to death.

In 2014, the brothers were released -- 31 years too late.

This case typifies the reason that the 2016 platform of the Democratic Party states succinctly: "We will abolish the death penalty, which has proven to be a cruel and unusual punishment. It has no place in the United States of America." But If Donald Trump becomes president, we will have more such cases -- many more.

Trump is a longtime death penalty enthusiast who has committed to expanding its reach. This despite all the evidence that its application is unconscionable -- entrapping the innocent, and disproportionately ensnaring the poor and the miserable, while bypassing those whose guilt is often greater.

Start with the innocent. By March of this year, the number of official death row exonerations reached 156. The reasons are not hard to pinpoint.

Trump is a longtime death penalty enthusiast who has committed to expanding its reach.

First, race. In almost 80 percent of the cases where the defendant is executed, the victim was white. In contrast, the majority of death row inmates -- that is, the 10 percent of defendants eligible for the death penalty who actually receive it -- are black or Latino.

To this add the most dire personal hardship. The biographies of death row inmates are numbingly similar: fetal alcohol syndrome, organic brain damage, medical inattention, economic and educational deprivation, and repeated familial beatings, torture and sexual abuse which makes mere parental neglect enviable by comparison. In itself, the laser-like focus of our death penalty on those who suffer society's most terrible conditions exposes its inescapable inequity.

Cement all this with terrible lawyers. Routinely, the disadvantaged get the defense that they can pay for.

A review of death row cases documents the inevitable results. Lawyers who are overworked, inexperienced, unprepared and underpaid. An absence of vital expert witnesses. Forensic or scientific evidence which is botched or phony. A failure to investigate facts essential to the defense.

But not all of the distortions of justice are inadvertent. Add police and prosecutors who, unchecked by a zealous defense, run roughshod at trial and, at times, withhold potentially exculpatory evidence. Or "eyewitnesses" who are vengeful or mistaken. Or crafty snitches who shift blame to the defendant in exchange for a lighter sentence. Or, in some cases, all of this.

There is no way to redeem these miscarriages. Far from being a magic bullet, DNA exonerations expose but the tip of the death penalty's dark iceberg. Contrary to popular delusion, DNA evidence is available in less than 10 percent of murders -- steel bullets, which account for the majority of killings, do not create human DNA. The only question is how often we have buried our mistakes.

This is, perhaps, the ultimate price of a regime so blatantly discriminatory: while it unerringly selects the underprivileged, it does not exclude the innocent. But the American system is specifically engineered to ensure that those are convicted stay convicted, guilty or not.

This is the dirty secret which few of us understand.

In 1996, responding to the widespread perception that death sentences were being unreasonably delayed by last-minute legal maneuvers, Congress passed the Anti-terrorism and Effective Death Penalty Act -- AEDPA. Its aim is to place "finality" of sentencing and execution above the risk of executing the wrong person.

If "effective" means putting the innocent to death, AEDPA is an indubitable success. Once convicted a defendant can present new evidence of innocence only through a habeas corpus petition -- the very remedy AEDPA seeks to curb. And its effects on habeas corpus are draconian.

Suppose that a defense lawyer uncovers persuasive new evidence that the man about to die is, quite possibly, innocent. Under AEDPA, that is not nearly enough to prevent his execution. Instead, the new evidence must be so "clear and convincing" that no reasonable jury would now convict him of murder.

"Reasonable doubt" no longer applies. 50-50 does not pass the test. Even "more likely not" won't do it. In short, AEDPA reverses the burden of proof.

And yet, unbelievably, even if the defendant musters "clear and convincing evidence of innocence," the state can still execute him.

Why? Because AEDPA erects yet more barriers against the use of this new evidence.

First, the evidence is barred if his original lawyer could have discovered it had they been reasonably diligent. So if the lawyer who defended him was too incompetent or inexperienced or just plain lazy to uncover what he should have found, the prisoner is out of luck.

Second, even if the exculpatory evidence could not have been found before conviction, it is still barred if the reviewing court finds that the original trial was "constitutionally fair." Chilling as it it may seem, a man who newly discovered evidence appears to vindicate can nonetheless be executed if the trial which convicted him -- however wrongly -- is deemed "fair."

Under AEDPA, this is hardly a daunting standard. The most common claim of unfairness is that the defendant's lawyer was so grossly inadequate that this denied his client a fair trial. And drunks and drug addicts and lawyers who fell asleep at crucial moments have been found good enough to get their client executed.

The certainty that we have executed many hundreds of innocent people should cause us to recoil.

But stop and consider the resulting Catch-22. If the defendant had a lawyer bad enough to pass test two -- that his trial was unfair -- then he probably has failed test one: very often the new evidence could have been discovered by more diligent lawyer.

Yet even if a defendant clears every one of these hurdles, another barrier awaits. In order to get a hearing to consider the new evidence, he needs the approval of the federal court overseeing his case. If the court turns him down -- no matter how arbitrary the reason -- he is barred from appealing.

In other words, he's dead. If his claim was presented before, no matter how badly -- or incompletely -- he's dead. And even if the U.S. Supreme Court hands down a new rule of law which would prevent his execution were he tried today, it does not matter unless the Court expressly applies the rule to habeas corpus petitions. Otherwise, he's dead.

Truly, this is justice in a fun house mirror -- Franz Kafka as executioner.

That should haunt us all. And the certainty that we have executed many hundreds of innocent people should cause us to recoil. As Justice William Brennan once wrote: "It is tempting to pretend that those on death row share a fate in no way connected to our own... Such an illusion is ultimately corrosive, for the reverberations of justice are not so easily confined... [ T]he way in which we choose who will die reveals the depth of moral commitment among the living."

Instead, the way we choose who will die betrays a moral blindness, a preference for punishment as palliative which allows the ills of our society to permeate the gravest judgment we can make about a fellow human -- that we are entitled to take his life. And with this, all too often, comes class bias -- the idea that these people are not like us, and therefore should be of no concern.

A word of personal honesty, for the death penalty can never be a bloodless subject.

Many occupants of death row have committed murders too hideous to describe here. Were the victim a member of my family, I would be gripped by the desire for vengeance. But society does not owe me that. The loss of a loved one cannot be redeemed -- not this way, not through this system. For the error and injustice embedded within is rooted in human flaws beyond our power to abolish.

But, state-by-state, it is within our power as citizens to abolish the death penalty. And it is within the power of the Supreme Court to bar it all together -- yet another reason to care about which president appoints our justices, and which party has now committed to ridding us of capital punishment.

This last point is crucial. A Supreme Court ruling would bar the federal government from imposing capital punishment, a step Congress is unlikely to take. And the states most enthusiastic about the death penalty -- Texas, Missouri, Georgia and Florida -- have the least qualms about its inequity. In particular, Texas -- which leads the country in death row exonerations -- continues to briskly execute its prisoners.

In the near term, these and other states are no more likely to abolish the death penalty than are countries like China, North Korea, Iran, Pakistan, Saudi Arabia and Yemen. When it comes to capital punishment its advocates, typically conservative, forget that it is something they scorn in other contexts -- a government program. So the question is whether the federal government or any state can constitutionally maintain a regime of death so discriminatory and prone to lethal error.

In crucial areas of the law, much may depend on who takes Antonin Scalia's place. Including whether America, like Yemen or North Korea, continues to execute the innocent.

Here, again, the death of Antonin Scalia looms. On the Court, no one advocated the death penalty more fiercely; no one was more cavalier about the prospect -- indeed, the certainty -- of wrongful executions. To read his opinions on the subject is to wonder at the callousness, smugness and sheer self-satisfaction which so blithely permeates his prose. But his unwonted exuberance may have had an unwanted result -- pushing his colleagues closer to abolition.

Before Scalia's demise, a 5 to 4 Republican majority upheld Oklahoma's lethal injection protocol. In dissent, Justice Breyer, joined by Justice Ginsburg, questioned the death penalty as a whole. "Today's administration of the death penalty," Breyer wrote, "involves three fundamental constitutional defects: serious unreliability, arbitrariness in application, and unconscionably long delays that undermine [it's] penological purpose."

Now Donald Trump has offered us a list of prospective nominees to fill the vacancy Scalia left. All are hard-line conservatives, all but certain to uphold this shameful aspect of our justice system. In this way, as in others, Trump has promised to perpetuate Scalia's dubious legacy.

In crucial areas of the law, much may depend on who takes Antonin Scalia's place. Including whether America, like Yemen or North Korea, continues to execute the innocent.

In murderous dictatorships, we find that unacceptable. And so we should at home.