Ruling Reveals Growing Unease With Capital Punishment, Duke Law Professor Says

A ruling this week that the federal death penalty is unconstitutional -- the second such pronouncement by a federal judge in the past few months -- indicates growing concerns about how the U.S. legal system handles capital punishment cases, says a Duke University law professor.

"I think judges are beginning to get a little uneasy about how the system operates at a time during which more than 100 inmates have been found to be innocent while sitting on death row," said James Coleman, a law professor and senior associate dean of the Duke Law School. "I think some judges, including some on the U.S. Supreme Court, have become concerned that the system is too loose in regards to protecting those who are innocent."

The U.S. legal system is predicated on the presumption that the innocent will be protected, said Coleman, who teaches courses on the death penalty and wrongful convictions. He also advises the law school's Innocence Project, a pro-bono, student-driven initiative that works with convicted felons imprisoned in North Carolina who assert their innocence, and is chair of a special American Bar Association project established last year to implement the ABA's 1997 resolution calling for a moratorium on executions until the capital punishment system could be fixed.

"What has happened is the system has gotten a bit turned around in the past 20 years," he said. "In an effort to expedite executions, the ability of the system to protect defendants from a wrongful conviction has been undermined."

These rulings are not being made by "fringe" jurists, Coleman added. They are simply reflecting a recent shift in public attitudes toward the death penalty and the risk of putting innocent people to death. That attitude has been reflected in the public comments of Justices Ginsburg and O'Connor, as well as the Supreme Court's decision declaring unconstitutional the death penalty for mentally retarded offenders.

"These are not wacko judges. They are respected," he said.

The work by Duke and University of North Carolina at Chapel Hill law students on the Innocence Project, and similar efforts at other universities and colleges, have helped shift public and legal attitudes about capital punishment, Coleman said.

"We're not saying that we should abolish the death penalty," he explained of the Innocence Project. "But we are trying to get people to think about how unfair the system, as it is currently operating, can be. In that respect, this is an issue that should concern all of us."

Coleman can be reached at (919) 613-7057 (o); (919) 419-7156 (h).