The death penalty kills any margin for judicial error


June 30, 1993|By MIKE LITTWIN

If you believe in capital punishment, and most Americans do, then you believe Kirk Noble Bloodsworth should be a dead man right now.

There's no getting around that ugly little premise.

He was sentenced to death nine years ago. There's no good reason why he should be alive today.

Instead of being set free, as he was the other day, Bloodsworth should have already been executed. The DNA test that would prove his innocence should have come long after the fact.

Death fit the crime. If you're going to have a death penalty, this was the time to use it. When else? A jury said he raped and murdered a 9-year-old girl. The jury found he smashed her in the head with a rock and then strangled her.

There were no mitigating factors. What mitigating factors could there be in such a crime? How much worse can a crime get? Bloodsworth was convicted beyond any reasonable doubt. In fact, he would be convicted twice.

Imagine being the little girl's parents. Imagine what you'd want to do to this monster. The state felt the parents' pain and the people's pain and said Bloodsworth should be killed for his act.

Three years later, he got a retrial and was convicted again. But this time, Bloodsworth received consecutive life sentences instead of the death penalty. It seemed like a slap in the face to the people of Maryland whose death penalty never seems to get enforced. Nobody has died in the state's gas chamber since 1961.

Didn't Bloodsworth deserve to die?

Let's imagine that he had been executed. What would we be saying now that science has proven him innocent of a crime that 12 people, good and true, twice found him guilty of committing?

We'd say it was a mistake.

We'd say we were sorry.

We'd say people are human and humans are imperfect.

Maybe we'd say that the death penalty deters crime and that, if a mistake is made, no matter how regrettable, others will be saved by the law.

Maybe we'd say that when you make an omelet you have to break a few eggs.

But how many eggs?

According to the Death Penalty Information Center in Washington, Bloodsworth was the 21st person since 1980 to be convicted of a crime that could have brought the death penalty but was subsequently found innocent and released from prison. It's safe to guess there are others who have been wrongly convicted.

How many mistakes do we get to make before we become guilty of something?

We can argue all day about whether the death penalty is a deterrence to murder. I think you can show it's not. Let's take as an example the drug trade, which produces so many of our murders and, if you think about it, already has a death penalty in place.

Drug dealers routinely impose the death penalty on rival drug dealers -- with no judge, no jury, certainly no appeals -- and that doesn't seem to deter anyone. Innocent bystanders still get killed and the streets still remain hostage to those with the guns.

So, let's say it's revenge that motivates our desire for capital punishment. And, certainly, you can make the case that we shouldn't spend hundreds of thousands of dollars housing people who kill.

But what about the mistakes?

What about Kirk Noble Bloodsworth? What do you do about him?

The drumbeat for capital punishment grows louder each day. The length of the death-row appeals process is under attack everywhere. In Maryland, prosecutors want the average time of appeal cut to six years.

In a trial nine years ago, Bloodsworth was identified by several witnesses as being near the girl. He didn't have a very good alibi. There was some circumstantial evidence. It all added up to a guilty verdict. And so an innocent man was sentenced to death.

A mistake was made, but whose fault was it? Was it anybody's?

The prosecutors say that, given the same set of circumstances, they would proceed in the exact same manner. Maybe there's nothing else, absent the DNA test that wasn't yet available to them, they could have done. I don't know. I do know he was convicted twice.

But, years later, a lawyer took up his case. He asked for a DNA test, and, by a miracle of science, a semen stain on the little girl's underpants -- a stain that's 1/16th of an inch wide -- showed that Bloodsworth was innocent.

And because he wasn't executed, he's not only innocent. He's also alive.

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