Massachusetts Citizens Against the Death Penalty

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MCADP, MA Citizens Against the Death Penalty

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last update 1/6/10

Fall 2002 Newletter

Reforms Galore — Maybe!
Hugo Bedau

The risks of convicting the innocent in capital cases has suddenly caught the attention of the nation, and proposed reforms are sprouting like mushrooms after the rain. Largely unnoticed was a brief document, Mandatory Justice: Eighteen Reforms to the Death Penalty, released last year by The Constitution Project, part of Georgetown’s University’s Public Policy Institute. Among its recommendations were these four: adopt a better standard of incompetence of defense counsel than is provided by the Supreme Court’s ruling in Strickland v. Washington (1984); enact LWOP as the alternative to the death sentence; conduct proportionality review of all capital convictions and sentences; treat the jury’s “lingering doubt” over the defendant’s guilt as a mitigating circumstance in the sentencing phase.

Hugo Bedau

Attorneys Barry Scheck and Peter Neufeld and journalist Jim Dwyer, in their book, Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted, offer a list of forty proposed reforms. Seven would restrict the admissibility of eyewitness testimony. Fourteen others are devoted to controlling the evidence tendered by jailhouse snitches. Another fourteen would constrain forensic laboratories and the use in court of their findings.

Law professor James Liebman and his associates at Columbia University, authors of A Broken System (released in part last year, and the rest this past February), limit themselves to ten recommended reforms to death penalty jurisprudence, including these three: Requiring proof of guilt “beyond any doubt” in a capital case, insulating sentencing and appellate judges who deal with capital cases from “political pressure,” and increasing compensation for capital defense counsel to provide incentives for “well-qualified lawyers” to do the work.

By far the most comprehensive set of reforms—totaling no fewer than 85 in number—have issued from the massive report of the Illinois Commission on Capital Punishment, submitted to Governor George Ryan this past spring. Nineteen proposed reforms are addressed to police and pretrial practices; the Commission also joins Scheck et al. in endorsing videotaping of interrogations. Seven of their recommendations address the role of forensic evidence; of course they urge wider use of DNA testing. Prosecutorial selection of homicide cases to be tried as capital cases is the subject of three proposed reforms. Ten of the recommendations are aimed at overhauling pretrial proceedings, including use by the prosecution of testimony from informants in custody. They would not bar such testimony, but they would insist that uncorroborated testimony of this sort would not by itself be a sufficient basis for imposing a death sentence. The Commission also agreed with Liebman et al. in favoring adequate compensation for defense counsel in post-conviction litigation.
What are we to make of these 150 recommendations? How likely is it that most—or any—of them will be enacted into law? Will the courts or the legislatures take a leading role in embracing these reforms? Will they prove to be so expensive and complex that legislatures will conclude society would be better off without the death penalty? It is too early to tell. Watch our website for further developments.

Hugo Bedau is Tufts Emeritus Fletcher Professor of Philosophy
and member of the MCADP Board

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