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DNA, the Law, and the Politics of the Death Penalty Debate


Listen to Anthony Brooks' interview with Gov. George Ryan, who imposed a moratorium on executions in Illinois. More...

 LINKS - Pro-Death Penalty

Criminal Justice Legal Foundation

Justice for All

 LINKS - Anti- Death Penalty

Death Penalty Information Center

ACLU - Death Penalty Campaign

 Death Row Defenders

Center on Wrongful Convictions

The Innocence Project

If the government takes a person's freedom away, locks him up, condemns him to death and then DNA analysis proves him innocent, what does the government owe that person? How can society repay stolen years? Restore a ruined reputation? Or heal a scarred soul? DNA testing can free some of the falsely convicted, but it can't give them back their lives.

A recent gathering at the Center on Wrongful Convictions at Northwestern University in Chicago makes the point. The center investigates and litigates cases of mistaken convictions, including those of nine innocent men sentenced to death in Illinois who were freed. One of them was Darby Tillis, who describes the horror of spending 10 years condemned to die for a murder he didn't commit. "It was no joke," says Tillis. "I was not there to use up taxpayer money. I was there to die!"

Tillis was convicted of the murder of a hot dog vendor on the north side of Chicago. A witness implicated him, but it was later revealed she was protecting her boyfriend, the real murderer. Tillis, 60 years old, was released in 1987, but he says after a decade in prison he still suffers from debilitating mood-swings. "I'm very sick," he says.

In a classroom over-looking Lake Michigan, about 30 law students gather to hear Tillis and six other men who were sentenced, most of them to death, for crimes they didn't commit. Leading the discussion is Rob Warden, Executive Director of the Center, who says society typically does little or nothing to compensate people who have been wrongly convicted. "We've really established barriers," he says, "to treat these victims fairly."

A case in point on this evening is Ronald Jones, who was sentenced to death for the rape and murder of a young Chicago woman in 1985. He was convicted on the basis of a confession that he says was beaten out of him by Chicago police. Years later, after a DNA test proved he was not the source of the semen recovered from the victim, he was exonerated and released from prison. Prosecutors abandoned the case, but Jones says the message he gets form the justice system is that he did the crime, even if "DNA said I didn't do it." Jones says, "the blessing of DNA" unlocked the prison, but it didn't give him back his life.

Fourteen states provide some sort of compensation to the wrongfully convicted, including Illinois. But they must apply for a pardon based on actual innocence, as opposed to a lack of evidence of guilt. Consider the case of Kenneth Adams, who spent 18 years in jail for rape and murder until a DNA-test freed him. It took another year to get a pardon. "I kind of resented that," says Jones, "because it didn't seem right that we had to request a pardon to receive any compensation." Adams believes that the state should at least provide those it locks up in error with some sort of counseling when they are released. Referring to his own case, Adams said prison took away "18 years of life" and left him with "18 years of prison memories of hell."

"How can you assume," he asks, "that a man does 18 years in prison, then gets out and [that] everything's alright?" Adams is one of the so-called "Ford Heights Four," who eventually shared in a $36 million settlement from a civil rights suit. But such outcomes are rare. Of the six other men here, four have received nothing at all. Larry Marshall, the legal director of the Center on Wrongful Convictions, says as hard as it was for Adams to put his life back together, and difficult as it still is for him to continue to live with the nightmares and stress disorders, Adams represents a good story. "That's a happy ending," says Marshall.

And when it comes to DNA exonerations, Marshall says, it's important to keep in mind the following: since 1989 more than a hundred people have been released from prison because of DNA tests, 12 of them from death row. While these are just a fraction of the nation's criminal cases, they suggest how false convictions and other defects plague the entire criminal justice system, including the vast majority of cases in which there is no DNA evidence available. "We need to look at DNA as a lens into the problem of wrongful convictions," he says. Marshall argues that DNA is showing how problems such as eyewitness error, prosecutorial misconduct, false confessions and poor legal council corrupt the criminal justice system.

Meanwhile, Peter Neufeld of the Innocence Project in New York says DNA has recast the debate about the death penalty. "With the frequency of these DNA exonerations," Neufeld contends, "people are saying, 'it's not about morals, politics or religion - it's about the reliability of the system.'" Not surprisingly, supporters of the death penalty, such as Dudley Scott with the Texas-based group, Justice for All, have a different perspective. Scott says DNA testing has made the death penalty and all criminal sanctions less prone to error and "safer." Scott argues if the states want to protect the innocent through criminal justice reform, they should look to toughening post-conviction parole and appeals, which he says are "very likely responsible for the murders of 100,000 innocent people since 1973." Scott says "reason and logic" would suggest that the states have probably executed innocent people. But on the other hand, he says, knowing that murderers live and harm again, many more people would be put at risk if capital punishment were to be abolished.

The likelihood that the innocent are being executed was enough to compel Illinois Governor George Ryan, a onetime supporter of the death penalty to suspend executions two years ago. Simple arithmetic convinced him the system was broken: of 25 people put on death row in Illinois since 1987, 12 were executed, 13 were falsely accused and eventually freed, including Anthony Porter, a retarded man who came within a few days of execution for a murder he didn't commit. So Ryan halted a system he says was like flipping a coin. "It's a system that either works or it doesn't," says Ryan. "And if it doesn't, then we shouldn't have it.

It was largely the work of the Center on Wrongful Convictions that made a convert of Ryan, and led to a sweeping study of the death penalty in Illinois. Ryan's commission proposed 85 ways to prevent executions of the innocent, including the establishment of a statewide DNA database. Other recommendations include requiring police to videotape interrogations to discourage coerced confessions; a ban on executing the mentally retarded and those convicted on the basis of a single eye witness or a prison informer. Ryan's commission said without major reform the capital punishment system cannot be trusted. For his part, Ryan says more people need to understand how the death penalty works, or doesn't work. "I think a lot of people are like I was and feel the death penalty works and works well," he says. "I didn't realize it until I was the guy that had to throw the switch."

Perhaps the last word should come from the case of Earl Washington, where this documentary project began. But the reality is that in spite stories like these, the majority of Americans still believes in the death penalty. Washington spent 18 years jailed in Virginia for murder until DNA exonerated him. Kenneth Stolle, a State Senator from Virginia Beach, where Earl Washington now lives, concedes the investigation that led to Washington's conviction was flawed, and his pardon justified. But he says the same can be said of the death penalty: it's flawed, but justified. He says the question for people to consider is, does the benefit of the death penalty outweigh the possibility that we may be putting an innocent man to death? "And right now," says Stolle, "the vast majority of the public that I represent feel that the death penalty is a necessary evil."

That may be a fitting last word because in the end it reflects how most Americans feel. Over the last five years, the advent of DNA testing and a procession of high profile exonerations have weakened overall support for capital punishment. But according to national surveys, about two thirds of Americans still support it, even as the vast majority now understand the system is imperfect, or according to some, fatally flawed.

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