More tinkering with death

This editorial titled “More tinkering with death” appeared in the May 19 issue of The Record, newspaper of the Archdiocese of Louisville, Ky. It was written by Joseph Duerr, editor.

When will we ever learn the futility of trying to fix the system of capital punishment in order to get it right?

A number of efforts have been made to “get it right” — to make it fair and equitable and to ensure that no innocent person is executed. Several states have formed study commissions — including an extensive review in Illinois — and various recommendations on fixing the system have been offered. But none have been successful.

Still, some continue to try. The latest is Massachusetts Gov. Mitt Romney, who in late April, introduced a bill to reinstate the death penalty in his state, which abolished it two decades ago. “To the extent that is humanly possible, this would not ever result in a questionable execution,” he said of his proposal.

Romney’s bill has features intended to create a death penalty system that he believes would be virtually foolproof. These elements include:

Requiring “conclusive scientific evidence,” such as DNA or fingerprints, to link the defendant to the crime scene, murder weapon or victim’s body.

The jury finding of “no doubt” about the defendant’s guilt for the death penalty to be imposed. This standard is stricter than “beyond a reasonable doubt” needed for a conviction.

Giving the defendant the option of having two separate juries — one for the trial and another for the sentencing.

Providing the defendant high-quality defense representation with development of a list of “capital case qualified” defense lawyers. The defendant would be given two attorneys for the trials and another for the mandatory review of a death sentence by the state Supreme Judicial Court.

A review panel would conduct a scientific examination of evidence before any death sentence is carried out, and a review commission would be set up to investigate any complaints filed by death-row inmates or any errors that may have occurred during the trial.

The bill would restrict capital punishment to first-degree murder that involves terrorism, prolonged torture, multiple killings or the killing of police officers, judges, prosecutors, jurors or witnesses.

“Just as science can free the innocent, it can also identify the guilty,” Romney said. And he noted that his proposal “is not only right for Massachusetts, but it’s a model for the nation.”

How often in the recent past have we heard proposed capital punishment reforms described as models for the country only to be followed with the disclaimer that no system is foolproof and that error is possible?

The best example can be found in Illinois. A commission formed by former Gov. George Ryan made more than 80 recommendations to reform capital punishment three years ago. A reform package was adopted by the state Legislature about a year later. The commission report said the reforms represented its best efforts to have a more just, fair and accurate system of capital punishment, but it added: “No system, given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death.”

In fact, the moratorium on executions that Ryan imposed before he set up the commission still remains in effect in Illinois. This should send an additional chilling message to Massachusetts lawmakers as they weigh Romney’s proposal.

Romney also should take a cue from Ryan, who emptied death row in Illinois before leaving office in 2003. Ryan said: “Because our three-year study has found only more questions about the fairness of sentencing; because of the spectacular failure to reform the system; because we have seen justice delayed for countless death-row inmates with potentially meritorious claims; because the Illinois death penalty system is arbitrary and capricious — and therefore immoral — I no longer shall tinker with the machinery of death.”

These words came from a governor who at one time had been a proponent of capital punishment.

Rather than tinkering with the machinery of death — and expending energy and taxpayers’ money to do so — those who are under the illusion that the death penalty system can be fixed would better serve their constituents in a way that works. This is life in prison without parole, which provides punishment for serious criminals and protection for society and avoids any possibility of executing an innocent person.

This is as foolproof as you can get.

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