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Executing the Innocent Murderous Errors
Murderous Errors
by ELAINE CASSEL

But I am in
So far in blood that sin will pluck on sin:
Tear-falling pity dwells not in this eye.

Richard III

Since 1973, 111 people waiting execution on death row have been released because they are actually innocent. That means 111 could have been wrongly executed in our names. How many of the nearly 900 executed during these years have been innocent? We will never know for sure, though there is a long list of possibilities based on reporting by journalists and filings by attorneys.

A handful of federal judges are troubled by the thought of innocent people dying. But as welcome as it was to hear that Boston federal district court Judge Mark A. Wolf is troubled by this prospect, his refusal to act on his misgivings makes one wonder. What in the world has happened to "justice" in a country that will let one innocent man die? And think it is just fine?

According to a report in The New York Times, Wolf said, "In the past decade, substantial evidence has emerged to demonstrate that innocent individuals are sentenced to death, and undoubtedly executed, much more often than previously understood."

But…(and that there is a "but" is appalling), he said, "The day may come the when a court properly {emphasis supplied} can and should declare the ultimate sanction to be unconstitutional in all cases. However, that day has not yet come."

And what will it take for "that day" to come? Why, we, as a country, must decide "how large a fraction of the executed must be innocent to offend contemporary standards of decency."

The "offend contemporary standards of decency" line comes from the Supreme Court’s rationale for considering if a punishment is sufficient to fail the 8th Amendment’s constitutional protection against "cruel and unusual" punishment.

Is it cruel and unusual punishment to execute a retarded man? The Supreme Court said last year, by a slim 5-4 margin, that it was.

Is it cruel and unusual to execute someone who was a juvenile at the time of the offense? The Supreme Court has said it is not.

Is it cruel and unusual to execute an innocent man? The Supreme Court has said repeatedly that it is not concerned if innocent people die, as long as the state or federal government followed its laws and procedures.

Are you offended by that? Judge Wolf was not.

The case that gave rise to Wolf’s ruling has John Ashcroft’s dirty bootprints all over it. Gary Lee Sampson admitted to killing three men while he was hitchhiking in Massachusetts and New Hampshire in 2001. He offered to plead guilty to state murder charges in Massachusetts and receive the maximum punishment of life in prison without parole. The State of Massachusetts does not have the death penalty.

Enter John Ashcroft and his war on state’s rights, especially states with antipathy toward the death penalty. In his admitted effort to bring the death penalty to every state that does not have this sanction, Ashcroft directed the prosecutors to bring federal kidnapping charges against Sampson that would make him eligible for the federal death penalty. Ashcroft did this recently in Alexandria, Virginia, in the case of Jay Lentz. Not content to see Lenz tried for the murder of his ex-wife (this was a case with no body, no crime scene, and no weapon) in state court, Ashcroft had him charged with murder and kidnapping. Though the jury convicted Lentz, they sparred his life, much to the distress of Ashcroft and his prosecutors.

But Judge Gerald Bruce Lee threw out the conviction, saying there was no evidence at all of kidnapping to warrant the federal charge, let alone to support a conviction. Naturally, the government is appealing that decision.

Judge Wolf, a Reagan appointee and former federal prosecutor, noted that "juries have recently been regularly disagreeing with the attorney general’s contention that the death penalty is justified in the most egregious federal cases involving murder."

Wolf is right. The latest count shows that Ashcroft is 1 for 20 in his making a federal case out of murder just to get the defendant executed. The most recent acquittals were this month in Puerto Rico, which does not have the death penalty. The Lenz case, in which the jury rejected the death penalty, preceded that one. Virginians have no problem with the death penalty–their love for it is second only to George Bush’s Texas.

What does Ashcroft have to say about executing innocent people? As reported by The Times, a "Justice" spokesperson, Monica Goodling, said the Department has an obligation to ensure the fair and consistent application of the federal death penalty.

And what does that mean, pray tell? It means to kill everyone that is remotely eligible.

Ashcroft is a blight on America. State and federal governments kill in our name. We all have the blood of innocents on our hands.

How much blood is too much?

ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. She can be reached at: ecassel1@cox.net