Alberto Cremonesi

NEW YORK, Sep 21 2006 (IPS) — When we talk of capital punishment there is no room for mistakes; no allowances for doubt or indecision. There is definitely no mechanism for review of guilt or innocence after someone has been killed.

Yet, consider these people:

Jeffrey Mark Deskovic, 33, spent nearly half his life in a New York prison for a rape and murder he did not commit. DNA testing cleared Deskovic and he was released Sep. 20 from prison.

“I was supposed to finish out my education…begin a career,” Deskovic, choking up, told reporters when leaving the court room. “Marry, have a family, spend some time with my family…share the last years of my grandmother’s life with her.” Deskovic was 17 years old when he was ordered to spend his life in prison.

In 2004, Ryan Matthew, convicted for the murder of a local convenience store owner in Louisiana, escaped the death penalty after prosecutors dropped all charges on the basis of DNA testing results.

There are other stories of executions conducted too fast, trials completed too quickly and mistakes too easily made. And yet, the state-sanctioned killings continue. Now, DNA testing is helping to prove that innocent people continue to be killed or placed on death row. It proves that the U.S. judicial system is flawed; it sends innocent people to jail and, worse, puts them to death.

Northwestern University School of Law’s Centre on Wrongful Convictions (CWC) documented at least 38 executions carried out in the United States in spite of compelling evidence of innocence or serious doubt about guilt since capital punishment was restored in the mid-1970s. According to this study, while innocence has not been proven in any specific case, there is reasonable doubt that some of the executed prisoners were innocent.

Moreover, the American Civil Liberties Union (ACLU) has documented 123 death-row inmates who, since 1973, have been exonerated and freed before their executions.

Officially, courts do not consider claims of innocence after a person has been executed. In the past, people attempting to prove innocence had to do so by re-examining the evidence and re-interviewing witnesses and investigators, with no finality granted them. In the last 20 years, however, they have had a new tool: DNA testing.

While DNA testing was still viewed with suspicion by prosecutors in the 1980s, nowadays its implementation and accessibility has shown it essential in many trials. As it has become more accepted, it has provided an absolute that previously was not available.

“DNA has introduced dramatic changes in the whole criminal justice system. Now capital executions are viewed in a more sceptical light thanks to this testing,” Richard Dieter, executive director of the Death Penalty Information Centre (DPIC), told IPS.

Except in the case of identical twins, the structure of a person’s DNA is unique. Only about 10 percent of DNA contains the sequences that encode genes. The rest is “non-coding” DNA that has repeating sequences which experts can use to identify individuals.

“Recently, with DNA death-row exonerations, those who may support the death penalty in principle have questioned its legitimacy given the risk that we may have executed – we may execute – an innocent person.,” Sarah Tofte, researcher for the U.S. Program at Human Rights Watch, told IPS.

This has led some prosecutors, law enforcement officials, conservative politicians and others to support moratoriums on the death penalty, if not outright abolition. The staff of the CWC pioneered the investigation and litigation of wrongful convictions, relying a great deal on DNA testing. Their work proving the innocence of 11 men sitting on death row in the U.S. state of Illinois was a driving force behind former Governor George H. Ryan’s decision to suspend executions in Illinois in January, 2001.

The Innocence Project, which worked to free Deskovic, only handles cases where post-conviction DNA tests can yield conclusive proof of innocence. To date, it has helped exonerate 184 people, proving that wrongful convictions are not rare.

DNA tests point up the underlying need to reform of the criminal justice system, including a halt to the death penalty, human rights experts said.

“In my opinion, the recent exonerations of both death-row inmates and other prisoners represent just the tip of the iceberg of the failures of our criminal justice system. There is an intolerably high risk that many, many prisoners currently incarcerated are in fact innocent, including many death-row inmates,” John Holdridge, director of the Capital Punishment Project for the ACLU, told IPS.

Until the late 1990s, DNA testing was seldom used due to the high cost, which ran into thousands of dollars. Recently, with the improvement of new technologies, the price has dropped to about 1,000 dollars, a small amount compared to the average cost of a trial. Texas, for instance, with over 300 people on death row, spends an estimated 2.3 million dollars per case, according to the DPIC.

“Now almost everybody can afford the cost of a DNA test. It should be freely and automatically available to every death-row inmate and every person charged with a crime. Furthermore, it should be freely available to every prisoner with a substantial claim of innocence,” Holdridge said.

DNA tests played a substantial role in establishing prisoners’ innocence in at least 14 cases of the 123 exonerations since 1973, according to the DPIC.

Nonetheless, the scope of DNA is limited to the few individual cases in which biological evidence is available. For every DNA exoneration, there are countless cases where testing cannot help because no DNA was left on the scene or the evidence had been lost or destroyed.

“DNA testing is a very good tool to prove the innocence of inmates, but unfortunately it does not mean the end of erroneous capital executions,” Holdridge said.

But it does point up the weaknesses in the U.S. justice system: Innocent people still are being put to death by the government.

“Hopefully people worldwide will continue to be concerned and indignant about the capital punishment issue. What is essential for succeeding is that people recognise it as a major diminishing of human values,” Dieter said.