Earl Washington Jr., a mildly mentally retarded man who was nearly executed in Virginia for a rape and murder he did not commit, walked out of prison six years ago after he was exonerated by DNA evidence. This week, Virginia officially declared him innocent.
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Mr. Washington's case raises several issues regarding the administration of the death penalty, foremost of which is the issue of innocence. Several Web sites, such as Pro-Death Penalty.com and the Clark County Prosecutor, attack the Death Penalty Information Center's count of exonerations and the scholarship of individuals such as Michael Radelet and Hugo Bedau. Despite evidence to the contrary, several sources regularly claim that no evidence exists to prove that an innocent individual has ever been executed.
Several U.S. Supreme Court Justices, elected officials, journalists, and academics have produced statements and evidence that the probability of having executed an innocent person is very high. For example, speaking before a group of women lawyers, Justice Sandra Day O'Connor (Associated Press, 2001) commented that "If statistics are any indication, the system may well be allowing some innocent defendants to be executed." Mr. Washington's case is an example of the logic behind the former justice's comments. If he (and others) residing on death row come close to their appointment with the executioner, then does it not stand to reason that one or more wrongfully convicted individual(s) has been put to death? The evidence by Radelet and Bedau, among others, coupled with the logic of statements like Justice O'Connor's makes a convincing case. Are we to believe that people like Mr. Washington are sent to death row by the State for any other purpose but to die?
Critics of the exoneration issue argue that the number reported by the DPIC is exaggerated and suggest that the risk of executing an innocent person in the future is small and/or the criminal justice system is somehow self-correcting. How many wrongful convictions does it take to outweigh arguments for retributive justice or the thirst for revenge? After conviction and sentencing, do the police usually continue to investigate crimes? Do prosecutors continue to review cases, scanning for new leads?
Mr. Washington's case also raises the issue of the cost of wrongful convictions. The Post reports that he received a settlement of $1.9 million from the State of Virginia. The compensation provided by a few states and the cost of litigation will only increase the total cost of capital punishment, which is already 2-5 times higher than the cost of life in prison. So while the costs continue to increase, more dollars are diverted from effective crime control policies.
But at least Mr. Washington has a pardon. Many wrongfully convicted individuals, such as Charles Fain, never received even an apology from the State of Idaho, let alone any compensation or assistance in getting his life back together. Many are released from death row, but remain in legal limbo.
And while the police are concentrating their efforts on the wrong person, the real killer may continue to commit future crimes. In Mr. Washington's case, the actual killer has been identified and sentenced (he was in prison serving time for a rape committed in 1984; Mr. Washington was pardoned for the 1982 rape and slaying). The killer in Mr. Fain's case remains unidentified. Even after exoneration, some individuals connected to the case continue to believe that the wrongfully convicted are in fact guilty, evidence not withstanding.
All too often, these are the same individuals who promised the community and the victims' friends and family that justice would be provided. Many family members and friends of murder victims do not want the memory of their relative and friend marred by another act of violence (see Murder Victims' Families for Reconciliation). In the case of wrongful convictions, the defendant, the family and friends of both the victim and the defendant, and society, never catch so much as a glimpse of justice.
Perhaps Mr. Washington's case, and those similarly situated both on and off death row, is contributing the the continued decline in public support for capital punishment (see Gallup). Not only has support dropped from the previous high of 80% in 1994, but we also see that when asked to choose between life in prison or a death sentence, support for capital punishment drops significantly. Since 2000, we have seen fewer death sentences imposed and fewer executions.
The U.S. is part of shrinking minority of countries that retain the death penalty (see Amnesty International). Why?