By: Marc H. Morial
President and CEO
National Urban League
Last August a federal judge in Boston startled the legal community by stating from the bench that it was likely innocent people were being convicted of capital crimes "and undoubtedly executed, much more often than previously understood."
Alan Gell, a twenty-eight-year-old North Carolinian, was in line to be one of them. He was on North Carolina's death row, slated to be executed for the 1995 murder of a retired truck driver during a robbery.
But Alan Gell is no longer on death row—nor in prison.
This month a state judge ordered him released immediately after concluding that during Gell's initial trial prosecutors had withheld evidence that strongly suggested his innocence.
The ruling in the Gell case followed by two weeks another death penalty case in North Carolina in which DNA testing proved that Darryl Hunt, another death-row inmate, who had been convicted in two jury trials for a 1984 rape and murder of a young woman, was innocent. The DNA tests pointed to another man, who then confessed.
In addition, on the same day as the Hunt case broke, North Carolina's Supreme Court struck down death sentences for two other inmates, ordering a new trial for one, and a new sentencing hearing for the other.
These developments within one month in North Carolina underscore the growing likelihood that America's death rows hold a significant number of people either completely innocent of the crime they were charged with or whose guilt was not proved.
For, the challenging of capital convictions and death-penalty sentences, via the use of DNA testing and other means, during the last decade has revealed that sloppy police work, defendants' inadequate legal representation, and judicial error are substantial factors in sending the innocent to death row.
Perhaps most worrisome, innocent defendants in some number of cases are being convicted of capital crimes because of deliberate prosecutorial misconduct—such as the concealment by prosecutors of evidence that would raise doubts about the defendant's guilt.
This was the crux of the decision to free Alan Gell, and of the U.S. Supreme Court's decision this week to lift the death sentence against Texas inmate Delma Banks, Jr. and allow him to appeal his conviction for a 1980 murder. The Court's decision made it clear that it believes Texas prosecutors withheld evidence that could have cast doubt on the charge that Banks' committed the murder.
Since 1973 a total of 113 death-row inmates have been exonerated and released from prison, an average of two to three a year. Since 1999, however, as the momentum of the challenges to the death penalty has increased, 36 death-row inmates have been exonerated, including 10 last year, the greatest number ever in any one year.
Those numbers should cause us all to consider the injustices that led to the convictions of people innocent of the crime they were charged with; and how, in many of these cases, the innocent only survived to be "proven innocent"because of their tenacity and luck in fighting for their lives.
They were innocent—but almost executed anyway.
There are growing calls for moratoria on executions, a growing reluctance among juries to levy the death penalty, efforts to insure that defendants in capital cases, who are most often poor, are represented by good attorneys, and even legislative attempts at the state and federal levels to fix the flaws in various parts of the steps of death-penalty cases.
These efforts are worthwhile—in our view, both for their practicality and for their underscoring the moral arguments against the death penalty: It is a practice that cannot be "fixed"by the application of "practical"measures. It is inherently cruel and inhuman punishment, in no small measure because it is layered through and through with America's legacy of class and racial oppression.
Although African Americans disproportionately populate the death rows of America, this injustice ensnares Americans of all racial backgrounds.
The death penalty debate has also had the positive effect of casting a harsh light on the entire criminal justice system, too.
In other words, if some substantial number of death-penalty cases are corrupted by such egregious flaws, what degree of confidence can one have about the administration of justice for less serious crimes?
The answer: One can be confident that, with regard to America's criminal justice system, far too often justice is not served.
That is certainly the widespread perception among African Americans, as the National Urban League's scholarly journal, The State of Black America, to be published next month, will examine in significant fashion via our new National Urban League Equality Index, our new National Urban League survey, and several critical articles.
That examination will show that the negative, disproportionate involvement of African Americans, especially black males, in the criminal justice system, is a crucial bulwark of the significant "equality gaps"that exist between black Americans and white Americans and that mock the meaning of those hallowed words, "…and justice for all.".
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