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Guest Commentary: June 29, 2001
Protecting the Innocent
The Honorable Russ Feingold
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The American people are becoming increasingly uncomfortable with the fact that our criminal justice system runs the very real risk of executing innocent people. Many believe that we have already executed innocent people. Since 1973, close to 100 people who were sentenced to death were later found innocent and released from death row. And the number of innocent people walking free keeps growing.
We know that one of the primary factors resulting in wrongful convictions across the country is the fact that all too often, incompetent counsel defend those needing the best legal representation, and at a very minimum, competent representation. It is clear, to even the most cursory observer of our nation's death penalty system, that the standards for competent counsel and the process for assigning counsel to capital cases is in dire need of repair. I hope the national attention brought to this issue by this hearing will do much to begin to repair that breach. ...
But Congress should do even more, and I think the American people expect more. A key part of the Innocence Protection Act focuses on the need for a national commission to develop standards for competent counsel in death penalty cases. I think this is such a good idea that I propose Congress go a step further. A national, blue ribbon commission can not only provide excellent guidance for counsel standards but can provide Congress and the American people with a thorough, top-to-bottom review of all the flaws in the administration of the death penalty at the state and federal levels. There are a number of additional issues that can be addressed by a commission - issues like racial disparities, geographic disparities and other questions of arbitrariness in the application of the death penalty, police or prosecutorial misconduct, and the fallibility of eyewitness testimony.
I hope my colleagues would agree that a matter as grave as the risk of executing innocent people should be reviewed at the highest levels of our government, with input from experts. An independent, blue ribbon commission could do just that.
Furthermore, if we are prepared to acknowledge that our death penalty system is broken, we should not go forward with executions. As most Americans have come to realize, a suspension of executions while a thorough study is undertaken is the fair and just approach. It is time we had a time-out on executions and review of why basic fairness and due process are sometimes ignored. Yes, we should consider legislation like the Innocence Protection Act but as part of a broader program that includes a thorough review of the death penalty system at the state and federal levels and a suspension of executions while it takes place. That is why I encourage my colleagues to join me on the National Death Penalty Moratorium Act.
Note: This column has been adapted from a statement Sen. Feingold delivered during a Senate Judiciary Committee hearing, June 27, 2001.
 How to contact Senator Russ Feingold (D-Wisconsin)
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