The Indelible Bonobo Experience

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• In fact, you could argue that the gravitational pull of legal precedent discourages judges from fixing their mistakes more than any other rule of politics or governance. The Constitution may not be a suicide pact, but it is closer to that than to an Etch-A-Sketch. Like politicians, judges who change their minds, who admit they once erred, often are roundly scorned. This is particularly true at the United States Supreme Court, where the justices, alone among government officials, have no one to answer to but their own consciences.
• But consider the Court and the death penalty. In the 35 years since the Court gave capital punishment back to the states, no fewer than three of its death penalty advocates eventually changed their minds about its efficacy and lawfulness. Justice Potter Stewart, the Kennedy appointee, came to regret his 1976 vote in Gregg v. Georgia. In 1994, Justice Harry Blackmun, the Nixon appointee, wrote in Callins v. Collins that he would “no longer tinker with the machinery of death.” And in 2008, in Baze v. Rees, Justice John Paul Stevens, the Ford appointee, called executions “pointless.”
• And consider the capital jurisprudence of another Republican appointee, Justice Anthony Kennedy. In the majority in Payne v. Tennessee, a 1991 decision which opened capital cases to victim impact testimony, Justice Kennedy in the past decade has consistently voted to limit the scope of the death penalty. In 2008, in Kennedy v. Louisiana, he wrote for a 5-4 Court that outlawed capital punishment in rape cases. In 2005, in Roper v. Simmons, he wrote for a 5-4 Court that spared juvenile offenders from execution. And in 2002, in Atkins v. Virginia, he voted against the death penalty for mentally retarded defendants.
• For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies (my emphasis). (Justice Blackmun)
• The tragedies are not limited to the exonerated defendants themselves, or to their families and friends. In most cases they were convicted of vicious crimes in which other innocent victims were killed or brutalized. Many of the victims who survived were traumatized all over again, years later, when they learned that the criminal who had attacked them had not been caught and punished after all, and that they themselves may have played a role in condemning an innocent person. In many cases, the real criminals went on to rape or kill other victims, while the innocent defendants remained in prison.
• Edward Carter, a 19-year-old African American man, was convicted of the rape of a pregnant woman in Detroit in 1974 and sentenced to life in prison. Carter’s conviction rested entirely on the cross-racial identification by the white victim.   Approximately 30 years later, he sought DNA testing through a Michigan innocence project. A search revealed that the biological evidence that was collected at the time of the crime had been destroyed, but a police officer who was involved in the search became curious.  He found fingerprints that had been lifted from the crime scene and on his own sent them to the FBI’s Automated Fingerprint Identification System. The prints were matched to a convicted sex offender who was in prison for similar rapes committed at about that time in the same area. Based on this new evidence, Carter was released in 2010, after more than 35 years in prison.
• Samuel R. Gross, a Michigan law professor and editor of the Registry, says this sort of randomness is just one reason why the group’s initial product is just a sliver of the story of error in our criminal justice system. “It is essential to put these numbers in context. No matter how tragic they are,” Gross wrote, “even 2,000 exonerations over 23 years is a tiny number in a country with 2.3 million people in prisons and jails. If that were the extent of the problem we would be encouraged by these numbers. But it’s not. These cases merely point to a much larger number of tragedies that we do not know about.”