The Pitfalls of the Death Penalty

Thanks to everyone who came out to hear attorneys Dawn Deaner, Justyna Scalpone, and Kelley Henry speak about the pitfalls of the death penalty in Tennessee!  Here’s a brief summary of the event.  Read more about the panel in The Tennessean.

Photos by Rohan Quinby

Davidson County Public Defender Dawn Deaner explained that her office provides legal representation for defendants who cannot afford to hire their own attorneys.  But in the case of capital defendants, the resources for hiring mitigation specialists to examine whether it is appropriate to seek the death penalty in this particular case are not available until after the death penalty has been sought.  At that point, the trial becomes a “runaway train” and it is difficult to ensure that the defendant has a fair trial.  Not only are there fewer resources for poor people, but there are also racial biases in the system, and the jury selection process explicitly excludes anyone who is against the death penalty — so the odds are already against the defendant before the trial even begins.

Justyna Garbaczewska Scalpone, head of the Tennessee Office of the Post-Conviction Defender, explained what happens at the post-conviction level in capital cases.  The post-conviction office is meant to serve as a safety net to ensure that people are not falsely convicted or improperly sentenced.  After a sentence has been handed down, the post-conviction office reviews both the case and the trial process, checking for possible errors and constitutional violations such as ineffective assistance of counsel, jury misconduct, and Brady violations (in which prosecutors are found to have withheld evidence that could have benefited the defendant).  Scalpone reported that, in the past 3.5 years, 8 of the 10 death sentences reviewed by her office were overturned.  In 6 of these cases, the death sentence was reversed, and in the other 2 cases, a whole new trial was ordered.  She noted that more resources were needed at the trial court level to prevent factual and procedural errors, while still maintaining a robust safety net at the post-conviction level.

Finally, Federal Public Defender Kelley Henry spoke about her own work at the level of federal habeas review.  She recalled the feeling of elation when then-Governor Bredeson  commuted the death sentence of Gaile Owens to life imprisonment.   But not every client has been so fortunate. As an example, Henry recounted the case of Sedley Alley, in which prosecutors failed to disclose evidence that there was another suspect in the case, with material evidence suggesting that someone other than Alley committed the crime.  Alley’s attorney’s requested DNA evidence to rule out the possibility that Alley was falsely convicted.  But this request was denied.  There was also ample evidence that Alley had an intellectual disability, which would have disqualified him for execution.  But none of this prevented the state of Tennessee from executing Sedley Alley on June 28, 2006, for a crime he may not have committed.

At all three levels of the court system, underfunding for public defenders and a relative lack of accountability for prosecutors have resulted in wrongful convictions in the state of Tennessee.

Kelley Henry highlighted both the injustice of wrongful conviction and also the economic cost of using taxpayers’ money to incarcerate innocent people.  She noted that, across the US, 314 people have been exonerated through the work of The Innocence Project.  These people spent a total of 4202 days in jail, at a cost of about $30,000 per year.  In total, this amounts to $126 million of taxpayers’ money spent to incarcerate innocent people.

But dollar figures cannot begin to express the ethical harm of wrongful conviction – the loss of time, family connections, emotional well-being, and basic life chances that result from time spent behind bars on false charges.

The last word goes to Dawn Deaner, quoted by Brian Haas in his article for The Tennessean:

“Do we really want the death penalty?” Deaner asked. “Do we think that this is something that should be carried out on our behalf as citizens in this community, given the problems that exist?”



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