Criminal Justice: How Do We Fix the System?

It depends on whether the support for Troy Davis can be converted into a lasting movement.

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Troy Davis' late-night execution in Georgia is a powerful example of a glaring and unavoidable truth: America's criminal-justice system is broken. Davis' case became an international cause after years of activism by his family and civil rights groups. It's now well-known that Davis unsuccessfully sought a new trial after seven of the witnesses who pegged him as the shooter of Mark McPhail, a Savannah, Ga., police officer, recanted their testimony, and after another man confessed to the crime. The state of Georgia may well have executed a man for a crime he didn't commit, and the stain of this taints every citizen of this country. 

We may never know if Davis was innocent. Someone took the life of McPhail, subjecting his family to never-ending pain and loss. If it was Davis, as a jury believed, then he should have spent the rest of his life paying for his decision. But the breadth of reasonable doubt amassed in this case should have made the execution of Davis an impossibility. The decision by the state to take his life demonstrates why the death penalty must be abolished in the U.S.

It should by now be apparent that some innocent man or woman has been executed in the 35 years since the Supreme Court held that the imposition of the death penalty is not in and of itself unconstitutional. We have only to look at the case of John Thompson, who learned, only weeks before his execution date, that prosecutors in the now-infamous New Orleans district attorney's office had withheld exculpatory evidence that would have demonstrated that Thompson was not the shooter in the murder of a prominent city businessman. Thompson had sat on death row in solitary confinement for 14 years.

The group Thompson has formed since his release, Resurrection After Exoneration, estimates that there are currently 400 known exonerees living in the U.S. -- people who spent years behind bars for crimes they didn't commit. The advent of DNA testing has greatly accelerated our ability to prove innocence, but there are many cases in which the truth will never be known.

The fact that the death penalty is imposed most often when the victim is white has been proved again and again by empirical studies. But the author of the most famous of these studies, David Baldus, died last year with little attention given to the Supreme Court's decision in 1986 rejecting the significance of this data in determining the constitutionality of the death penalty's application. Instead, the continued use of the death penalty despite proven racial disparities in its imposition has been treated by the Supreme Court as a problem without a solution.

Given our long and complex history of race, the U.S. may be among those countries most poorly positioned to ensure that this ultimate punishment is meted out equitably. And yet we have continued to allow its use, and in those states with the most egregious history or racial discrimination in the criminal-justice system.

Thus, a state like Alabama does not even require a unanimous jury decision to impose the death penalty. Only 10 out of 12 jurors in that state need to vote for death. And when 10 jurors choose to impose a life sentence, some judges in that state use a "judicial override" (pdf) to impose death.

But it's not just the death penalty or bad prosecutors that demonstrate the depth and breadth of the problems in our criminal-justice system. In fact, we are learning how often cases that seemed rock-solid have been built on sand. This year the Supreme Court will take up a case involving the use of eyewitness identification, which has been proved to be shockingly unreliable.

In the book Picking Cotton, Jennifer Thompson-Cannino and the man she wrongly identified as having raped her in North Carolina in 1984, Ronald Cotton, co-authored a memoir that examines how the certainty of a victim in identifying a criminal defendant -- especially when laden with the complexities of race and gender -- is often unreliable. But juries are powerfully persuaded by a victim's certain identification of a criminal suspect.

The Supreme Court will also hear at least five cases involving ineffective assistance of counsel, including one in which lawyers at a major law firm essentially abandoned the representation of their death row client while a petition for review was pending.

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