In Herrera v. Collins, the late Chief Justice William Rehnquist wrote that the U.S. criminal justice system, “like the human beings who administer it,” will always be “fallible.” He wrote this in 1993, before the stream of DNA and other exonerations proved beyond a doubt that this country’s capital punishment system is not just fallible. It is broken. The debate is no longer just about the morality of capital punishment per se. It is about whether this country has the political will to fix the extensive flaws that afflict the system and if it doesn’t, whether we will have the courage to finally acknowledge that the risk of convicting and even executing the wrong people is too profound and we can no longer countenance it. 

In Mandatory Justice: The Death Penalty Revisited, the Constitution Project’s Death Penalty Committee issued a consensus report and recommendations for urgently needed systemic reforms. Committee members comprise both supporters and opponents of the death penalty, with experience in every aspect of the criminal justice system. Their very first, and most important, recommendation was that, for the sake of fairness, accuracy, and public confidence in the system, the government must provide capital defendants with experienced, fairly compensated lawyers if they cannot otherwise afford them. 

Study after study has demonstrated what happens when the government fails to do so. For example, according to “A Broken System,” a landmark, two-part Columbia University study released in 2000 and 2002, a stunning two-thirds of all state capital convictions from 1973 to 1995 were overturned in federal courts because of egregious constitutional errors. Some people who want to disparage these studies describe these errors as “mere technicalities.”  First, no constitutional violation should ever be considered a “technicality.”   Second, the errors went to the heart of a fair trial and an accurate result. 

Good defense lawyers are essential to make sure that egregious errors do not occur in the first place. They can, for example, make sure the case is properly investigated, discover the holes in the prosecution’s evidence, including critical exculpatory evidence that incompetent lawyers too often miss, identify prosecutorial misconduct, and challenge improper forensic claims. 

This country has known about this broken system, and has countenanced it, for too long. We countenance the destruction of innocent lives when we convict the wrong person. We countenance the agony of family members of crime victims who are forced to relive the most painful events of their lives if the right person is finally identified and another trial is held. We countenance the creation of new crime victims when we convict the wrong person and allow the true perpetrator to remain free to commit more crimes. 

We know not only what’s wrong, but what to do about it. We know that, at the very least, the government must provide defendants with competent, experienced, and adequately compensated defense lawyers if they cannot afford to hire their own.

Yet, as a conference the Constitution Project held last month at the Law Library of Congress demonstrated, experts from every part of the criminal justice system – including federal and state policymakers, prosecutors, judges, scholars, and defense lawyers -- are virtually unanimous that Strickland v. Washington, the 1984 landmark case creating standards to enforce the “right to the effective assistance of counsel,” has failed to achieve its goal. These experts described the dearth of expert public defender offices around the country, the defense lawyers struggling to defend their clients without adequate resources, experience, and training, and the resulting tragic mistakes and injustices. And if that weren’t enough, they condemned the courts, Congress, and state legislatures for creating the many procedural obstacles that prevent the system from ever correcting its errors. 

Strickland’s author, former Supreme Court Justice Sandra Day O’Connor, keynoted the conference. She acknowledged that the ruling produced "many years of additional litigation" and that "we have so many questions today" about how to provide effective lawyers for criminal defendants who cannot afford to hire their own. 

We know that prosecuting a capital case costs millions more than one in which the punishment is imprisonment.  We know how costly it is to retry a case when we discover we’ve convicted the wrong person. And we know that, instead, we could use these funds to provide badly-needed resources for our criminal justice system, including the courts, prosecutors, police, and victim assistance – as well as defense lawyers.

But it has long been clear that governments at the state and local levels are simply unwilling to provide the money for this most basic of constitutional rights, this most basic guarantee of a fair and accurate trial. Bryan Stevenson, another conference participant who is executive director of the Equal Justice Initiative in Alabama, said it best at the conference:  "The system treats you better if you are rich and guilty than if you are poor and innocent." 

It is time for Americans to be realistic. It is time for us to ask ourselves whether we will continue to countenance a system that inevitably creates the profound risk that we are convicting and executing the wrong people. This is the moral question we must face, and finally resolve.