November 21, 2006

Zero Tolerance For Executing The Innocent

A few years ago our federal government adopted a “zero tolerance” policy towards the possession of illegal drugs. These laws allow our government to board a private vessel and conduct a search for illegal drugs. If even so much as a single joint (one marijuana cigarette) is found on board then the government can immediately seize the vessel. In recent years, our government has seized boats and yachts worth millions of dollars; even when there was no proof that the owner knew that someone else had even brought the illegal drugs on board.

The courts have consistently upheld the governments right to seize these boats as this “zero tolerance” policy promotes a greater good by deterring other from using their own vessels as means in which to transport illegal drugs. Because of the “War on Drugs” it became a government priority to adopt this zero intolerance as a means in which to reduce the trafficking of illegal drugs and the damage they do to our society.

If we as a society find it necessary to adopt a zero tolerance policy on drugs because of a belief that these drugs have a damaging effect on our society, then why don’t we have a similar zero tolerance policy on conduct that undermines and damages the integrity of our judicial system itself?

Think about it… if illegal drugs are such an evil upon the moral fabric of our society that we will give our government the power to seize our homes, vehicles, boats – our private property and even impose mandatory life sentences for the mere possession of even small amounts of illegal drugs, then why are we not even more intolerant of an even greater evil that plagues our society?

The evil I speak of is the wrongful convictions and even condemnation of innocent men and women; all too often by deliberate acts of prosecutorial misconduct. What could undermine the moral fabric of our society more than to allow our judicial system to become so inherently corrupt from within its own ranks that even the innocence of any person becomes irrelevant?

How many people in our society today are aware that our United States Supreme Court has ruled that even the factual innocence or a person is not sufficient to stop the state from executing that person? That our Constitution does not prohibit executing an innocent man as long as he was given a “fair trial?” Even if our Constitution does not specifically protect against executing the innocent, as a matter of moral conscience shouldn’t we as a society be morally offended that our courts would find it acceptable? Shouldn’t we as a society insist on the adoption of a zero tolerance policy towards executing the innocent?

What could be more destructive to the integrity of our judicial system than to find that we have executed an innocent person? If public confidence is our judiciary is undermined, then can it ever truly be restored?

I believe the time has come to demand the adoption of a zero tolerance policy towards the execution of innocent men and women. When we as a society carry out the deliberate execution of even one person then we all become murderers. We can convict and condemn a million guilty men, but when we cross the line and by deliberate design and intent, convict and condemn then execute even one innocent man or woman; we all become murderers. Even the possibility of executing even one innocent person should be morally offensive; that as a collective society we should be repulsed – but in fact, very few express concern.

In fact, the truth is that as a society we have become tolerant of wrongful convictions and the causes for them. In recent years we have seen almost 150 men and women released from death row after being wrongfully convicted and condemned. Although this only shows those wrongfully sentenced to death, there are quite literally thousands more who suffered similar injustices we don’t hear about because they remain imprisoned with no means in which to prove their innocence.

As a matter of moral conscience this should bother us; not only those who are labeled as “bleeding heart liberal” because they dare to recognize our judicial system is imperfect and advocate change. But even the most conservative citizens should be bothered by a system that not only has such a high rate of wrongful convictions, but a system that has evolved to the point where politically manufactured procedural rules have been created that make it almost impossible for an innocent person to even prove their innocence.

This dirty secret our judiciary does not want the common public to know – the execution of an innocent person in today’s system is now inevitable. They know this, but they don’t want you to know.

Why is this? Because in the past 20 years political interests have forced the courts – even the U.S. Supreme Court itself – to adopt procedural rules that severely limit appellate review of claims of error. In an overzealous effort to expedite the execution of the guilty we have equally advocated expediting the execution of the innocent. As the procedural protections against wrongful convictions are systematically dismantled and appellate review “streamlined” with every elimination of these procedural protections we increase the probability of executing an innocent person.

In recent years as more and more “reforms” are adopted to eliminate review of criminal convictions in the interest of promoting quicker executions, that probability of executing an innocent person substantially increases. The simple truth is that if our courts become unwilling to even hear a persons evidence supporting a claim of innocence, then how do we know if the claim of innocence is valid?

What is especially troubling about this recent political push to eliminate full review of claims of procedural error and even actual innocence is that with the relatively recent use of DNA testing we are finding that there is an extremely high rate of wrongful convictions. Not everyone who claims to be innocent is actually innocent, but as a matter if moral conscience, shouldn’t we as a society at least recognize that we have a moral obligation to ensure to the fullest extent possible that those we do convict and condemn, are in fact guilty?

If we can give our government the power to impose a zero tolerance policy on drugs, then shouldn’t we also insist that our government and especially our judiciary adopt and practice a zero tolerance policy on wrongful convictions and the inevitable execution of innocent men and women? Isn’t it time that our elected politicians and appointed judges recognize that the inevitable execution of even one innocent person will ultimately and irreparably undermine the confidence our society has in the system as a whole? The only way to protect the integrity of our system itself is to adopt a zero tolerance policy towards the imprisonment and/or execution of innocent men and women by recognizing that any claim of actual innocence supported by competent evidence must be fully and fairly reviewed by the courts without imposition of procedural rules that today prohibit the review of such claims.

The time has come for all people of moral conscience to call upon both elected politicians and appointed judges to recognize that a legitimate claim of innocence should not and cannot be denied review because of procedural rules create to promote expedited finality of legitimate convictions. Only by insisting that all supported claims of actual innocence be fully and fairly reviewed can we minimize the inevitable probability of executing innocent people. That is the “zero tolerance policy” we need.