AMERICA NEEDS TO RAISE ITS GUARD
AGAINST FATAL MISTAKES OF JUSTICE

WASHINGTON -- Theodore Roosevelt once told a story that illustrates
the folly of being too eager to inflict punishment. The story
concerned a group of cowboys who apprehended a man they suspected of
being a horse thief. In the Old West, this was a capital offense, and
the cowboys quickly strung the man up. Shortly thereafter they learned
that another man had confessed to the crime.

The cowboys designated the most tactful among them to inform the widow
of the man mistakenly hanged. He knocked on the door of the cabin and
when the man's widow appeared, he solemnly removed his hat and said,
"Ma'am. We hanged, your husband as a horse thief but after we were
finished, we got word that somebody else did it. I guess the joke is
on us."

As it was with the cowboys, so it is with the contemporary American
urge to execute those convicted of serious crimes as quickly as
possible. But the grim joke is not on us but on those who will suffer
society's ultimate sanction for crimes they did not commit.

In the 24 years since the Supreme Court reinstated the death penalty,
about 620 people have been executed in the United States, according to
the statistics of the Death Penalty Information Center. During that
time, 85 people who had been sentenced to death were found to have
been innocent of the crime for which they -had been condemned and
freed from death row. In light of these statistics, it is a reasonable
conclusion that some of those executed were also innocent.

Even for those who favor the use of the death penalty in capital
cases, this is an exorbitant price to pay for retribution. It is even
less justifiable in light of advancements made in the science of DNA,
which can, in many cases, link an individual to a crime or exonerate
him.

Supporters of the death penalty can find little satisfaction in
allowing the guilty to remain at large as innocent men and women are
executed when a relatively inexpensive test can connect an individual
to the crime or clear him. In spite of this, only two states -
Illinois and New York give inmates the right to DNA testing when it
could produce new evidence of innocence.

But there is more to the problem of hastily meting out punishment than
the lack of access to DNA evidence for those condemned. There is also
the routine subversion of the constitutional right to counsel in
capital cases by the discount-store justice that is often provided for
poor criminal defendants.

In one instance, in Alabama, a defendant in a murder trial was
defended by a lawyer whose practice had been limited to real estate'
closings and divorces. Moreover, in many cases juries are not made
aware that they have choices other than the death sentence in capital
cases. Public opinion surveys have shown that juries are less likely
to support the death penalty when they are told that life in prison
without possibility of parole is an option.

These problems seem so glaring and straightforward that no reasonable
person would oppose solving diem, but there are vast complications
that emerge from our federal system in which states are given primary
responsibility for enforcing criminal law. The main obstacles to DNA
testing are state laws that forbid the introduction of new evidence in
the interest of limiting death row appeals and speeding executions.

Death row errors constitute a national crisis in the administration of
capital punishment. Legislation is needed to make it less likely that
fatal mistakes will infect our federal and state judicial systems.
Reforms I propose in the Innocence Protection Act of 2000 would give
those convicted of federal crimes access to DNA testing in cases where
test results might exonerate diem.

The bill would also forbid destruction of biological material from a
crime scene. Because most criminal defendants come within the
jurisdiction of state criminal law, the bill would provide incentives
for states to safeguard DNA materials and make the tests available to
those convicted where there is biological material that might prove
their innocence.

It would ensure adequate representation by requiring states to appoint
qualified lawyers in capital cases. The bill would also ensure that
both federal and state criminal juries are apprised of alternatives to
the death penalty.

No bill, however carefully crafted, can remedy every defect in the
American criminal justice system, Prosecutors will continue to enjoy
enormous latitude in choosing which defendants will go on trial for
their lives. Witnesses will suffer from imperfect recall and judges
will not prove omniscient. But we must begin somewhere.