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Jewish World Review Jan. 15, 2003 / 12 Shevat, 5763

Roger Simon

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How many of them are guilty? How many of them are innocent? | In 1902, J.B. Brown was sentenced to die in Florida, but because of a legal technicality -- the jury foreman's name was entered on the execution warrant instead of Brown's -- his sentence was commuted to life. Eleven years later, a man gave a deathbed confession clearing Brown.

In 1915, Charles Stielow received a stay of execution 40 minutes before he was to be killed. Three years later, he was exonerated and released.

In 1933, in Washington, D.C., Charles Bernstein's death sentence was commuted minutes before his scheduled execution. Two years later, he was found to be innocent, released and pardoned by the president.

In 1926, Anastarcio Vargas was prepared for the electric chair -- his head had been shaved -- when his sentence was commuted to life in prison. Four years later, he was pardoned and the State of Texas gave him $26,500 in compensation.

Jerry Banks had been convicted twice and sentenced to die for two murders in Georgia in 1974. He was on death row and awaiting a third trial when the prosecution dropped the case because of evidence of tampering, forgery, incompetence of counsel and suppression of evidence.

And then there are all those cases in modern times when men convicted of serious crimes, sometimes on eyewitness testimony, have been released from prison because DNA evidence proved they could not have been the perpetrators.

My general point is that the criminal justice system does not work perfectly.

Of course it doesn't, you are saying. Nothing works perfectly! As long as human beings are involved, there will be human error.

Which is exactly my point. The death penalty is the one penalty that cannot be reversed.

Given that, shouldn't we demand that it work perfectly? Can we really accept a system that executes innocent people along with the guilty?

Gov. George Ryan of Illinois has commuted the sentences of everyone on that state's death row. They will not be released from custody. Most will be held in prison for the rest of their lives without the chance for parole.

Ryan, who is leaving office under a cloud of unrelated scandal, took this move for a very simple reason: He could not be sure that everyone on death row was really guilty; he could not in good conscience preside over their executions.

In Ryan's statement, he cited a newspaper study of death-row cases. "Half, half, if you will, of the nearly 300 capital cases in Illinois had been reversed for a new trial or resentencing," Ryan said. "Thirty-three of the death-row inmates were represented at trial by an attorney who had later been disbarred or at some point suspended from the practice of law.

"Our capital system is haunted by the demon of error: error in determining guilt, and error in determining who among the guilty deserves to die."

And Ryan didn't even deal with the issue of how death-penalty law changes. We would like to think that the rules covering such important matters as life and death are carved in stone in this nation. But that is not so.

From 1930 to June 28, 1977, 455 men were executed for rape in America. Five more were awaiting death when the Supreme Court outlawed the death penalty for rape. Those five were allowed to live. But what about those 455? Tough luck, guys. Lousy timing on your part. Better luck next time.

In June of last year, the Supreme Court said we could no longer execute mentally retarded people in this country. But since the death penalty was re-instituted by the court in 1976, about 35 to 44 (studies disagree) mentally retarded people had already been executed.

And it didn't get many people too upset when they were. In 1992, then-Gov. Bill Clinton took time off from the critical New Hampshire primary to rush back to Arkansas to preside over the execution of Ricky Ray Rector, a retarded man, who pushed aside the dessert of his last meal because, he said, he wanted to save it "for later."

Standards change. The death penalty that used to be OK for some crimes back then is considered cruel and unusual punishment today. Science advances. Some people marked for death are found to be innocent. Juries, prosecutors, judges and eyewitnesses are only human. Humans make mistakes.

There are currently more than 3,500 people on death rows in the United States. How many of them are guilty? How many of them are innocent? Nobody knows with certainty. And isn't that reason enough not to kill them?

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© 2002, Creators Syndicate