POINT/COUNTERPOINT: Can The Death Penalty Be Fixed?

We Can’t Stay Out Of The Reform Discussion

Lawrence Marshall
By: Lawrence Marshall

Two years after Illinois Gov. George Ryan declared a moratorium on executions, a commission appointed by Ryan is preparing to issue recommendations on what to do about the death penalty system.

Among opponents of capital punishment, a debate is growing over whether to propose measures to fix the system, as the anti-death penalty Illinois Death Penalty Education Project did in a recent report, or to insist on abolition, as the Campaign has.

To reflect these two points of view, we print an article by leading death penalty lawyer Lawrence Marshall, and a response by Marlene Martin of the Campaign to End the Death Penalty.

Lawrence Marshall is the legal director of the Center on Wrongful Convictions at the Northwestern University School of Law and one of the country’s leading capital defense attorneys. This article, excerpted with his permission, appeared in full in the Chicago Sun-Times.

Twenty-five years ago, a group of prosecutors from across the country went to the United States Supreme Court begging for another chance at implementing a fair and just death penalty. They were appearing before the Court just four years after the 1972 decision in Furman v. Georgia, in which the Court had held that the capital punishment systems then in place were unconstitutional.

In Furman, the justices pointed to many flaws in the states’ implementation of the death penalty, including the arbitrariness of the penalty, the racial and class-based nature of the decision whether to seek and impose the death penalty in any given case, and the risk of condemning the innocent.

In 1976, the prosecutors were returning to the Court asking for another chance. They assured the Court that this time they would get it right. They promised they had created new and improved death penalty procedures that would eliminate the vices that led the Court to strike down capital punishment earlier.

The Justices decided to give the states another chance, and the death penalty was back. Now, 25 years later, we have the opportunity and the obligation to review the clinical data that has developed since 1976 in order to determine whether the prosecutors correctly predicted that the new system would lead to a fairly and accurately implemented death penalty.

The evidence leads to an unmistakable conclusion. Despite all of the promises that the reforms of 1976 would lead to a system defined by super-due process and unassailable fairness, the death penalty remains plagued by the very same flaws that led to its pre-reform invalidation.

The arbitrariness continues. The racism continues. The disproportionate impact on poor defendants with bad lawyers continues. And, perhaps most dramatically, we now understand (with the gift of DNA technology that helps show this in some cases where biological evidence is available) that the system’s propensity to condemn the innocent to die is far more significant a problem than anyone had ever imagined.

There is no question, then, that the system is broken. The reforms of the last generation failed miserably. The system today cannot come close to generating confidence that the states can now be trusted to decide who should live and who should die.

The only open question is what to do now. Some argue that the states should be given yet another chance to reform their systems. They argue that once we improve the quality of lawyering in capital cases and implement some other procedural changes, we will eliminate, once and for all, the problems that have plagued application of capital punishment.

If this argument seems eerily familiar, it is because it is nearly identical to the argument made 25 years ago in support of the post-Furman series of reforms. We have gone down that reform road, however, and we have learned that it leads nowhere. As the expression goes, though, "Burn me once, shame on you. Burn me twice, shame on me." It is time to recognize that no number of legal reforms will ever eliminate the core problems that infect the death penalty.

If we are serious, then, about our unyielding commitment to fairness and accuracy, there is only one true solution. We must replace the death penalty with other punishments, such as life without possibility of parole. To be sure, it is awful when we imprison an innocent person, but that is worlds apart from killing that person. Even a person sentenced to life without parole retains the opportunity to prove his or her innocence. When we execute a person, however, we have taken away that opportunity forever.

Governor Ryan has declared that executions should only resume in Illinois when we can be sure that the system works. Under this standard -- and it is surely the correct one when human life is involved -- it is clear that the death penalty must be abandoned.

For those who believe, as I do, that abolition is the appropriate response to the evidence that has developed over the past 25 years about the vices of the death penalty, there is a strong temptation to voice that view and to stay out of the reform discussion altogether. But there is peril in taking that route. For there is a chance that those who advocate reform will prevail, and if that happens, it is critical to ensure that the reforms that are implemented are more than just window dressing. Although no reforms will solve the problem, there are some reforms that are more meaningful than others, and it is incumbent on those who understand the flaws in the death penalty system to point this out.

Hence, even for those of us who support abolition unwaveringly, there is reason to continue to work with those who seek to develop significant reforms that will serve to reduce -- although not eliminate -- the problems with the death penalty.

Let there be no mistake, though. There is no reason to go down this reform road again. We have tried that, and it has failed. It is time to recognize, as so many of our allies throughout the world have now recognized, that the death penalty cannot be implemented fairly and justly, and that its costs (moral and economic) far outweigh any of its purported benefits.