Lethal injection is the wrong debate

By Ray Krone, director of communications for Witness to Innocence, an organization of exonerated former death row prisoners and their family members.
First published in SF Gate on 1/14/08

The U.S. Supreme Court heard oral arguments last week in Baze vs. Rees, which challenges the constitutionality of execution by lethal injection.

While the court wrestles with technical issues concerning the Eighth Amendment's prohibition on cruel and unusual punishment, there's a much larger reason our country is rethinking the death penalty: the possibility of sentencing to death and executing an innocent human being.

Unlike almost any American, I speak from experience.

I spent more than 10 years in Arizona prisons for a crime I didn't commit, including nearly three years on Death Row. In 1992, I was sentenced to death for killing a bartender, even though I was at home, asleep, when the murder was committed.

In 2002, through the tireless work of my attorneys, I was the 100th person to be exonerated and released from death row since the death penalty was reinstated in the United States. Despite DNA evidence that exonerated me, it took years before the prosecution grudgingly acknowledged it had no case against me. If it had been up to the state of Arizona, I'd be dead today.

Who knows how many more innocent people sit on death row today, guilty of nothing more than the fact that they couldn't afford a lawyer? And can anyone honestly say with certainty that of the nearly 1,100 people who have been executed in the past 30 years, not a single one wasn't innocent?

As my story illustrates, even with DNA testing there will always be a chance an innocent person will be sentenced to death and executed.

Recently, the New Jersey Legislature and governor showed courage and common sense when they abolished that state's death penalty. One of the primary reasons cited was the possibility of executing an innocent person.

New Jersey Sen. Raymond Lesniak, one of the bill's sponsors, recalled the case of Byron Halsey, who spent 22 years in prison for the murder and rape of two children before being released after DNA testing linked another man to the crime.

"There are hundreds of Byron Halseys throughout the United States who were wrongly convicted of murder," Lesniak said. "No doubt, some were sentenced to death and executed."

Meanwhile, in December, at the same time the bill to abolish the death penalty was making its way through the New Jersey legislature, three more former death row prisoners were released. Michael McCormick (Tennessee), Jonathon Hoffman (North Carolina) and Kenneth Richey (Ohio) had spent a combined total of more than 40 years on death row before being freed.

Sen. Lesniak summed the problem up best when he said, "It's impossible for human beings to devise a system free of the risk of human error."

The last time I checked, our criminal justice system was devised and run by human beings.

And instead of equal justice under the law, in far too many capital cases we see incompetent legal representation, racial discrimination and prosecutorial misconduct. These blemishes to our justice system are problematic, to say the least. But when a human life is at stake, such potentially fatal flaws are an embarrassment to a nation that considers itself the standard bearer for human rights.

So while the U.S. Supreme Court contemplates whether or not killing a person with a particular combination of chemicals is cruel and unusual punishment, all of us should recognize a much larger, more obvious fact: If sentencing to death and possibly executing an innocent person isn't cruel and unusual punishment, nothing is.

Quite literally, I'm living proof of that.