Fatal Flaws in the Justice System

By David Feige

Last week an Illinois state commission charged with examining the fairness of the death penalty released its findings. The commission, composed of 14 prominent citizens - including nine present or former prosecutors - recommended more than 80 changes designed to ensure that the death penalty is administered in a just fashion. A slight majority of the commission also declared themselves in favor of abolishing the death penalty entirely.

These recommendations say a lot about the criminal justice system - the whole system, not just capital punishment. The death penalty has always galvanized public sentiment. And just as horrific crimes have brought cries for justice through death, so the exoneration of death row inmates has become a rallying point for opponents of capital punishment.

But from inside the criminal justice system, the whole debate about the death penalty can sometimes seem like a distraction. The reality is that for every person on death row, there are many more who will die before completing their sentences. They will die alone in their cells or in the prison yard. They will die from jailhouse violence or natural causes hastened by stressful conditions and substandard medical care.

The main causes of these virtual death sentences are three-strikes laws and mandatory minimum sentencing. Because of them, more and more people receive prison terms of 20 or 30 years or life with no chance of parole. In California, there are inmates serving life sentences for petty theft, receiving stolen property or possession of marijuana for sale. All over this country governments are spending more and more money on aging inmates - creating entire geriatric wards for prisoners no longer able to walk or talk, let alone maim or kill.

Long sentences are not rare. The next case I am likely to take to trial carries a mandatory minimum sentence of 15 years to life. Why? Because my client is charged with possessing more than four ounces of cocaine. Just about every public defender I know has a horror story about a client who was the victim of a long mandatory sentence. Almost no one else remembers these prisoners. They do not face the needle or the electric chair, so there is no debate about them.

Because of the complexity and the potential punishment, defendants in death penalty cases are in some jurisdictions afforded better than average lawyers and greater than average resources. Many appellate courts look more closely at a case when the defendant has been sentenced to die. And yet we still make mistakes - not a few, but many. In Illinois, there were more innocent death row inmates exonerated than guilty ones put to death. There is no reason to think the error rate is any lower in cases that receive less scrutiny.

For all its thoughtful recommendations and groundbreaking work, the Illinois commission runs the risk of focusing too much attention on a small number of cases while ignoring the same problems in the broader criminal justice system. Mandatory sentencing and the continued politicization of criminal-justice issues make it ever harder for defendants, especially poor ones, to get a fair shake. And as we continue to lock people up longer, faster and with fewer safeguards, we run an ever greater risk that justice is routinely not being served.

David Feige is trial chief of the Bronx Defenders, a nonprofit law firm that serves indigent clients.

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