UVA professor: Death penalty appeals should take time

March 03, 2011

Ron Wirsing offers a risky and implausible suggestion in his letter ("Limit death penalty appeals to three years," March 1). Death penalty appeals and habeas motions do take time. But unfortunately, that is because we have done so little to avoid the serious errors that continue to come to light many years after trial, and sometimes after all appeals have been exhausted. For example, Kirk Bloodsworth was sentenced to death in Maryland in 1985, but it took until 1993 for the results of DNA tests to conclusively prove his innocence. He was then exonerated. During those eight years, his case was thrown out on appeal once because the state had concealed evidence. Had it not been for the appeals process he might have been executed before DNA technology had become available.

Next month Harvard University Press will publish my book, "Convicting the Innocent: Where Criminal Prosecutions Go Wrong," studying the cases of the first 250 people exonerated by DNA testing. Seventeen of those people were innocent but had been sentenced to death. Those 250 innocent people waited an average of 15 years for the DNA tests that finally proved their innocence. A three-year limit on appeals would cut off relief to the innocent on death row, like Mr. Bloodsworth.

In general, appeals and habeas take much longer than three years to complete. A state law limiting all capital appeals to three years would also violate the U.S. Constitution, since it would arbitrarily cut off access to any court to hear claims that cannot be brought up in the first appeal — such as claims about inadequate defense lawyers and submission of new evidence of innocence that may have been concealed by the state.

Allowing judges to do their jobs, by patiently reviewing the records and new evidence of innocence, is the only way to ensure that the right people are punished and that justice is done.

Brandon L. Garrett, Charlottesville

The writer is a professor at the University of Virginia School of Law.

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