September 18, 2002
We write regarding Ramesh Ponnuru's recent commentary ("Bad List," September 16, 2002), as co-chairs of the Constitution Project's bipartisan Death Penalty Initiative.
As former judges and prosecutor, we take seriously the fundamental concept that a person is presumed innocent until proven guilty. An individual is considered to be innocent if acquitted at trial or if the prosecution has decided to drop all the charges.
The legal standard has never been, nor should it be, "probably guilty," which is the standard the author of your article uses in challenging the number of individuals exonerated from death row. And though the author says mere "technicalities" spared some individuals, these technicalities are really the Bill of Rights that we all hold dear.
It does not matter whether Americans are supporters or opponents of the death penalty (and members of the Constitution Project's Death Penalty Initiative are both). It does not matter whether we can agree on the exact number of former death-row inmates who have been exonerated. We are glad the author recognizes that capital convictions of the wrong person are caused by the "gross misconduct by prosecutors and police and the over reliance on the testimony of jailhouse snitches," but they are also the result of incompetent defense lawyers. The bipartisan Innocence Protection Act now pending in Congress, is a good start on reform and should be passed.
Surely we can agree that there have been too many erroneous convictions. There is little doubt that across the country, procedural safeguards and other assurances of fundamental fairness in the administration of capital punishment are deeply flawed. At the very least, the consensus reforms we recommend in Mandatory Justice: Eighteen Reforms to the Death Penalty must be adopted.
The Honorable Charles F. Baird, former Judge, Court of Criminal Appeals of the State of Texas; co-chair the Constitution Project's Death Penalty Initiative
The Honorable Gerald Kogan , former chief Justice, Supreme Court of the State of Florida, former Chief Prosecutor, Homicide and Capital Crimes Division, Dade County, Florida; co-chair the Constitution Project's Death Penalty Initiative