Several exonerated men whose innocence of murder was proven years after they were sentenced to death are imploring Gov. Rick Scott (R-FL) not to sign a Florida bill that would set automatic timelines for imposing the death penalty, and likely would have resulted in the execution of these and other innocent people.

The bill, known as the “Timely Justice Act,” was passed last month amid legislator sentiments that “timely justice” is more important than “guilt or innocence,” with one legislator saying, “Only God can judge. But we can sure set up the meeting.”

Now, as the deadline approaches for Gov. Scott to sign the bill, former inmates who escaped the death penalty are coming forward to demonstrate the extraordinary costs of the law’s passage, in a state with the highest number of exonerations, and more people on death row than any state but California.

“If Governor Scott would just sit with me and others like me, I know he will veto this bill that, if it had been law, would have ended my life – I am innocent,” said Seth Penalver, who sat on death row for 18 years before exonerating evidence emerged. “If he signs this bill into law, I fear other people who are innocent like me, will be unjustly executed by the State of Florida.”

Exoneree Juan Melendez wrote in the Huffington Post:

The “Timely Justice Act” would speed up a system we know has already sent innocent men, like myself, to death row. Some of these prisoners may be men like me, who have exhausted their legal appeals, yet keep trying to find a way to prove their innocence.

In multiple cases of current death row prisoners, we don’t know exactly what the legal claims are. Some of the men on Florida’s death row ran out of legal options simply because their attorneys missed filing deadlines.

In those instances, no court had the opportunity to evaluate the claims and determine whether they have merit. How can we possibly justify speeding up the execution of prisoners in those cases?

According to logic of the “Timely Justice Act,” any prisoner who has exhausted his appeals and been through a clemency process has had every opportunity and is ready for an execution date, regardless of the specific questions and issues that surround his case.

I am living proof that each case is unique and that the system must allow ample time for the truth to emerge.
Given Florida’s troubling track record on wrongful convictions, this legislation ensures the unthinkable — the execution of an innocent person.

Although the final version of the bill eliminated timelines for filing appeals and post-conviction motions, it would require the governor to issue an execution warrant to those who have exhausted their legal remedies within 30 days, and require execution within 180 days of the warrant. The problem is that when it comes to the death penalty, cases are reopened years later when new evidence finally emerges or defendants obtain the resources to uncover new evidence. In several recent instances, crucial errors in FBI analysis were not revealed until years after hundreds of individuals’ cases had been completed and decided.

Just this week in Florida, a man who was sentenced to death in 2006 is just now requesting a retrial, after he obtained lawyers in 2011 that secured testing of crucial DNA evidence.

In 2008, Montez Spradley was convicted for the murder of a grandmother shot dead in Center Point, Alabama. Although the jury recommended a sentence of life in prison without parole, an Alabama trial judge rejected the recommendation and sentenced Spradley to death. But that death sentence was struck down along with the conviction, when an appeals panel deemed the trial so error- and bias-ridden that it was a “miscarriage of justice.”

Now, as Spradley’s case enters the early stages of retrial, the ACLU has uncovered even more potentially damning evidence about prosecutors’ handling of his case, revealing yet another way in which commonplace prosecutor misconduct can lead to improper sentences to death. Spradley’s ex-girlfriend testified this week that she was offered a $10,000 reward in exchange for testifying against Spradley, and that prosecutors threatened to take away her children and prosecute her for perjury if she did not do so. AL.com reports:

At the court hearing today Alisha Booker testified that she lied at the 2008 trial that Spradley had confessed to her in a church about killing Jason.

Booker testified that after having denied any knowledge of the murder to police in 2004, she stepped forward later to tell police that Spradley had admitted it because she was mad at him. She said that at the time she stepped forward she was pregnant with her and Spradley’s third child. She said she learned he was cheating on her.

“I just felt he was doing me wrong at the moment,” Booker said.

As she began to testify that she had lied in her 2008 testimony, Wallace asked her if she knew that she could possibly be charged with perjury. After meeting in the judge’s office with her attorney for a few minutes she returned to the stand and continued her testimony. [...]

Booker said she had told law enforcement that she had lied and didn’t want to testify. She said they told her it was too late and that she had to stick to the story or she could go to jail for a long time and her kids put in foster homes. She said the detectives had told her she was a single mother and should take the reward money.

A prosecutor and the lead detective in the homicide case denied the allegations during today’s hearing.

The rewards offered to Booker were part of two local programs to incentivize witnesses to come forward with information about the crime. These rewards programs can be a helpful crime-fighting resource, when used properly. But they also create perverse incentives to provide false information, particularly when a witness merely provides testimony that is not corroborated by others or accompanied by physical evidence. Because prosecutors maintain primary control over access to this and other crucial information about a case, they are constitutionally required to divulge to defendants the existence of such a reward, or of any other exculpatory evidence, even though it may undercut prosecutors’ case. In this case, prosecutors dispute many facts, but they do not dispute that Booker was given a reward, nor that they failed to disclose that reward.

The under-appreciated U.S. Supreme Court decision that articulated this prosecutor obligation celebrated its 50th anniversary this week, but punishment for prosecutors who fail to comply with Brady v. Maryland remains largely non-existent, meaning those inclined to withhold evidence are still unlikely to be deterred by the law, and perhaps even less likely to be discovered.  This is one of several cases to reveal these blatant Brady violations even in instances where a defendant’s life is at stake, and in which judges subject to the politics of re-election use a dangerous Alabama policy to “override” jury decisions about the death penalty. And while Spradley earned a retrial, another judge exercising judicial override could once again sentence him to death.

Earlier this week, a Mississippi man escaped death by just a few hours when the state Supreme Court agreed to block his execution, scheduled for that Tuesday evening. Although hair sample evidence was available for testing, and Willie Manning’s conviction had hinged on unreliable jailhouse informant testimony, the court had just a week earlier refused to order DNA testing, and was prepared to allow the execution to go forward. It was only after the FBI revealed that its own analysis of key evidence was unscientific and invalid just days before Manning’s conviction that a court agreed, without comment, to block his execution.

Now, in another murder case involving similar FBI error, a man who spent 32 years in prison for a Maryland murder has been granted a new trial after DNA testing performed in March discredited key FBI statements that linked him to hair samples at the crime scene, and refuted statements about the origins of both the bullets and the gun used at the crime scene. The Washington Post reports:

The genetic testing contradicted testimony by an agent with the FBI Laboratory who said that he found [John Norman] Huffington’s hair in the bed where one victim was killed, claiming an accuracy rate of 99.98 percent.

“Due to the substantial weight given to the microscopic hair analysis by the jury . . . as well as the results of the DNA test . . . there is a significant possibility that the outcome of Petitioner’s case may have been different,” Dwyer wrote in a May 1 order that Huffington’s lawyers received Wednesday. […]

Huffington’s case was among those featured in a series of articles last year in The Washington Post, which reported that government officials knew for years that flawed forensic testimony and false hair matches may have led to hundreds of wrongful convictions. […]

Huffington’s lawyers said they did not know of specific problems with the FBI hair examination until informed by The Post that in July 1997, [Prosecutor] Cassilly considered and then rejected having the FBI review the case because the hair expert involved, FBI Special Agent Michael P. Malone, had been discredited.

Huffington was initially sentenced to death, before an appeals court lowered the punishment to two life sentences. The conviction hinged on both the FBI’s flawed data and the testimony of Huffington’s friend that he said he intended to use his gun to commit the crime. Huffington says he went home before the violent shooting and stabbing occurred.

Huffington’s case is one of potentially hundreds of cases in which prosecutors relied upon flawed evidence, according to a 2012 Washington Post investigation. Even in those cases in which the Department of Justice had already determined the FBI analysis was flawed, it only disclosed that fact to the defendants in 30 of 137 cases. Following the Washington Post report, the DOJ expanded the scope of its review to thousands of FBI analyses, and revealed the critically flawed evidence in Manning’s and Huffington’s cases. Only after the DOJ’s review did the FBI commit to testing Huffington’s DNA evidence. It is still unknown whether Manning’s DNA evidence will be tested.
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Hours before his scheduled execution at 6 p.m. today, the Mississippi Supreme Court has issued a stay to Willie Jerome Manning, whose death sentence was upheld in a 5-4 court ruling last week even though the state refused to test available DNA evidence, and the FBI deemed major pieces of evidence in the case “unscientific” and “invalid.” As a consequence, Manning will not be executed tonight and will have more time to continue arguing his case.

Late Tuesday afternoon, an 8-1 majority granted Manning’s last-ditch motion, which included new letters from the Department of Justice describing how crucial hair samples were improperly tested, and testimony improperly linked bullets near Manning’s home to bullets at the crime scene. Manning was convicted in the 1992 abduction and murder in part based on testimony that the hair samples were likely his because both he and the hair strands were African American. The trial also featured testimony from a jailhouse informant, which studies have shown is particularly unreliable.

Mississippi is set to execute a man Tuesday night without testing available DNA evidence from a hair sample in his case. ThinkProgress reported last week that a 5-4 court upheld the decision not to test the evidence, in spite of a prosecutor’s inconclusive logic linking the hair sample to Willie Jerome Manning simply because they were both deemed African American. Now, as the Atlantic’s Andrew Cohen reports, the Department of Justice has intervened to point out that even prosecutors’ conclusion that the hair sample was African American was unscientific and invalid. A letter Manning’s lawyers filed in court reads:

We have determined that the microscopic hair comparison analysis testimony or laboratory report presented in this case included additional statements that exceeded the limits of science and was, therefore, invalid. In response to inquiries regarding whether the errors identified in the notification letter had any bearing on the examiner’s opinion regarding the racial classification of the hair, the FBI states the following: The scientific analysis of hair evidence permits an examiner to offer an opinion that a questioned hair possesses certain traits that are associated with a particular racial group. However, since a statistical probability cannot be determined for classification of hair into a particular racial group, it would be error for an examiner to testify that he can determine that the questioned hairs were from an individual of a particular racial group. Thus, an examiner cannot testify with any statement of probability whether the hair is from a particular racial group, but can testify that a hair exhibits traits associated with a particular racial group.

By not testing available DNA evidence using new scientific techniques that were not available at the time of his 1994 trial, Mississippi is choosing to ignore readily available scientific evidence in favor of flawed conclusions based on shaky racially charged testimony, as well as jailhouse informant testimony, which studies have found is particularly susceptible to manipulation. But as Cohen points out, there’s something else the DNA would do. If it is not Bryant’s, it is likely somebody else’s and that person will be identified only by testing the hair sample. Failure to do so reflects the deep institutional government interest in preserving the integrity of completed convictions, even at the expense of finding a different dangerous perpetrator or sparing an innocent person’s life. Manning is still awaiting word on whether Gov. Phil Bryant will grant clemency, and a court could still respond to the most recent motions by Manning’s lawyers.

Maryland became the 18th state to abolish the death penalty Thursday, as Gov. Martin O’Malley (D) signed the bill he vied for into law. The law will not affect five prisoners currently on death row, but O’Malley will consider whether to commute their sentences, according to the Associated Press.

While Maryland is the sixth state to eliminate the penalty in as many years and the first to do so south of the Mason Dixon line, other southern states are headed in the opposite direction. Florida just passed a bill (not yet signed into law) to speed up the death penalty, with legislators saying, “this is not about guilt or innocence,” while Mississippi is slated to execute an inmate next week without having tested available DNA from the crime scene. Nonetheless, the general trend away from the death penalty may have constitutional implications.

Mississippi has set an execution date for Willie Jerome Manning next week, without ever having tested readily available DNA from the scene of the abduction and murder in which Manning was convicted. In a 5-4 decision Thursday, the Mississippi Supreme Court said DNA testing was not necessary due to the “overwhelming evidence in his case.”  The Innocence Project provides background about the nature of that evidence:

Manning was convicted of the abduction and murder of Jon Steckler and Tiffany Miller in 1992 on mostly circumstantial evidence, including the testimony of a jailhouse informant who had previously given a statement implicating another person. No physical evidence has ever linked him to the crime, and he has consistently maintained his innocence. He has been seeking post-conviction DNA testing for years, insisting that technological strides made in the past 20 years could prove him innocent of the crime.

During trial, the prosecutor reasoned that a hair sample found in the victim’s car belonged to Manning because both Manning and the hair sample were African American. Dissenting Justice Leslie King pointed out, ”Should a DNA test demonstrate that the African-American hairs found in Miller’s cart did not belong to Manning, then the infirmity in the prosecution’s emphasis on the importance of the evidence would be exposed. And it would certainly raise reasonable questions regarding Manning’s guilt.” But the majority nonetheless held such testing would not change the outcome of the case, disregarding the substantial evidence that informant testing is susceptible to bias and manipulation, and that the death penalty system is fraught with racial bias.

Even though DNA would supplant the prosecutor’s speculation about the hair sample with definitive scientific evidence, both the majority in Thursday’s ruling and the U.S. Supreme Court have refused to stand up for defendants’ right to raise the most robust defense possible. In a 2009 decision, the U.S. Supreme Court ruled 5-4 that a defendant who was willing to pay for a DNA test at his own expense was not entitled to the test, because allowing William Osburne to prove his potential innocence risks “unnecessarily overthrowing the established system of criminal justice.”

Manning’s inability to access evidence in his own case is alarmingly common. Because it is law enforcement officers who investigate crimes, prosecutors are the gatekeepers to evidence that should be equally available to both parties, and they are institutionally positioned to block evidence that might threaten the convictions they’ve secured. Nonetheless, some states and law enforcers recognize that it is in everybody’s best interests to have all available evidence. Nine states have laws granting defense lawyers access to a national DNA database. And even Texas’ conservative attorney general recently came out in support of mandatory DNA testing. Manning’s execution is now scheduled for May 7, but his attorney has filed another motion asking the Supreme Court to reconsider its decision.

The Florida legislature passed a bill this week to impose new obstacles on challenging the death penalty in a state with the greatest number of exonerations. The bill’s intent was to shorten the time inmates wait for execution by imposing time limits for appeals and post-conviction motions, but DNA and other evidence often emerges years after a crime is committed – a concern that didn’t seem to faze Republican proponents of the bill who said swift justice is “not about guilt or innocence”:

“Is swift justice fair justice?” asked Democratic party Senator Arthenia Joyner, a Tampa attorney who voted against the bill. “We have seen cases where, years later, convicted people were exonerated,” she said. […]

But Republican Senator Rob Bradley said, “this is not about guilt or innocence, it’s about timely justice.” Frivolous appeals designed only for delay are not fair to victims and their families, he said. [...]

“Only God can judge,” Matt Gaetz, a Republican who sponsored the bill in the House of Representatives, said last week during House debate. “But we sure can set up the meeting.”

Florida has more people on death row than any other state except California. Since the state reinstituted the death penalty in the 1970s, one fourth of those sentenced to death were later exonerated. The initial bill set strict timelines for post-conviction motions and appeals that would have likely led to the execution of many of these exonereees, who were facing a death sentence for well over ten years before new evidence emerged in their case. But after several amendments, the most recent version passed by both houses states only that capital cases should be resolved “as soon as possible.” The changes may have been motivated by concerns over a legal challenge. A similar 2000 law was struck down by the state Supreme Court as a violation of separation of powers. Perhaps more alarming than the text of the final version is the intent of the legislators who proposed it to facilitate quick deaths without regard to guilt or innocence, particularly in a system rife with error and racial bias.

The Constitution forbids executing intellectually disabled people. As the Supreme Court explained in Atkins v. Virginia, using an unfortunate and antiquated term, “death is not a suitable punishment for a mentally retarded criminal.” Moreover, Georgia death row inmate Warren Lee Hill is intellectually. disabled. At least, that’s what all seven mental health professionals who evaluated Hill have said about him. Yet, thanks to a federal law enacted in large part for the purpose of making it easier for states to kill people, a federal appeals court held yesterday that Hill may be executed.

Courts previously deemed Hill’s death sentence valid based on the testimony of several experts who claimed he was not, in fact, intellectually disabled. Yet, as Judge Rosemary Barkett explains in a dissenting opinion, “all three experts who previously testified for the state of Georgia in 2000 that Hill did not meet the criteria for mental retardation have recently come forward and said they made a grievous mistake. They explained that their earlier conclusions were unreliable and that it is now their professional opinion that Hill is mentally retarded.” So Hill’s death sentence is rooted in unreliable evidence that has since been overcome by new information, and he asked the United States Court of Appeals for the Eleventh Circuit to overturn the death sentence that mentally health experts now unanimously agree is unconstitutional.

Except that there’s one big problem, a 1996 law known as the Antiterrorism and Effective Death Penalty Act (AEDPA) generally does not allow what are known as a “second or successive habeas corpus application,” meaning that a prisoner typically gets one chance to challenge their conviction or sentence in federal court, and that’s it. Prior to when the witnesses against him recanted their testimony, Hill sought a federal court order invalidating his death sentence on the grounds that he is intellectually disabled, and lost. And, while AEDPA does contain an exception for newly discovered information establishing a prisoner’s innocence, this exception does not allow a guilty person to challenge an unconstitutionally excessive sentence based on new evidence.

As Andrew Cohen explains, there are some aspects of the court’s analysis that are highly doubtful, even if the court ultimately reads AEDPA correctly to say that it more important to prevent someone from challenging their death sentence twice than it is to halt unconstitutional executions. Cohen also points to what may be the most stunning statement in the court’s majority opinion:

If all that was required to reassert years later a previously rejected claim was a change in testimony, every material witness would have the power to upset every notion of finality by simply changing his testimony. And, as this case illustrates, opinion testimony can be changed with great ease (indeed, even without seeing Hill in 13 years, administering any new tests, or reviewing new documents, three witnesses pivoted their positions 180 degrees). Moreover, there is no reason to limit the change in evidence theory to changes in testimony of previous witnesses. New witnesses could be rounded up, and every new witness would transform the same old claim into a brand new one (citations omitted by me).

The first sentence of this passage is simply breathtaking. Imagine, the court demands, how terrible the world would be if death sentences could be overruled just because the facts supporting those sentences turn out to be false!

At the end of the day, we can have a justice system that favors truth, or we can have a justice system that favors finality. AEDPA forces us to choose the later.

Boston bombing suspect Dzhokhar Tsarnaev has only been in custody a few days, and at least two U.S. senators have already called for him to face the death penalty. It is difficult indeed to imagine a crime more deserving of society’s most severe sanction than the one allegedly committed by Tsarnaev and his brother. The brothers built bombs, targeted a public event packed with spectators, and, as a final cruelty, attacked the finish line of a marathon — guaranteeing that many of their victims would be too exhausted to flee after just completing a 26 mile run. One of their victims will not see his ninth birthday. Another victim, who they allegedly murdered during their failed effort to escape justice, had barely begun his career as a police officer. We still do not know what motivated the Tsarnaevs to such meaningless destruction, but it’s hard to see their actions as anything other than pure evil.

So Dzhokhar Tsarnaev may present one of the strongest possible cases for the death penalty. And yet, even in this case, the argument for pursuing a death sentence against Tsarnaev does not hold up.

The best argument for the death penalty is that it deters people from committing homicides in the first place, an argument that suggests we should execute far more people than just Dzhokhar Tsarnaev. If you think the death penalty is about deterrence, then you need to have it as an available option for all crimes you want to deter with it.

The deterrence argument, however, is doubtful at best. According to Dartmouth University statistician John Lamperti, “an overwhelming majority among America’s leading criminologists [have concluded that] that capital punishment does not contribute to lower rates of homicide.” While some studies do claim a deterrent effect, these studies are based on tiny data samples that yield doubtful results. As Yale Law Professor John Donohue explains, death sentences are “applied so rarely that the number of homicides it can plausibly have caused or deterred cannot reliably be disentangled from the large year-to-year changes in the homicide rate caused by other factors.” Murder rates in states without the death penalty are consistently lower than those in states that do sentence people to die.

Meanwhile, few institutions expose the hazards inherent in government-mandated punishment more nakedly than the death penalty. Capital cases are difficult and incredibly expensive for prosecutors. As a consequence, the wealthy and privileged, who have the resources to hire outstanding legal counsel, are very rarely executed. The people that are convicted, by contrast, tend to be poor and disproportionately non-white. Nor is such arbitrariness limited to the way we distinguish among defendants, as the way we dole out death sentences also gives the lie to any claim that America values all human life equally. According to one study, defendants who kill high-status white people with college degrees are six times more likely to be sentenced to die than defendants who kill black victims closer to the margins of society.

Indeed, there is simply no escaping the role that race plays in determining death sentences. To take one demonstrative statistic from an ocean of them, six percent of murders in Alabama involved black defendants and white victims, but ten times that percentage of black death row inmates were convicted of murdering whites.

The death penalty also kills innocent people. Roughly 139 death row inmates have been exonerated since 1973, 61 percent of whom were people of color. At least ten innocent people that we know of have been executed — and these are only the ones that we know of.

These three realities — the impact of wealth, the disparate treatment based on race, and the risk of killing innocents — are themselves reasons why the death penalty should not exist. But are they arguments against applying it, so long as it does exist, in the most heinous of cases? Though Tsarnaev may well face prejudice on the basis of his religion, the fact that this is such a high profile case means he will likely receive excellent legal counsel, and his guilt is hardly in doubt. Though not quite as “hard” a case for anti-death penalty advocates as, say, Aurora shooter James Holmes — who was white, wealthy, and also almost certainly a mass murderer — Tsarnaev is one of the cases where the death penalty appears most likely to be applied fairly and justly.

The Boston Marathon bombing is as horrible a crime as one can imagine, so Tsarnaev’s case raises the difficult question of whether America can limit executions to only the most heinous crimes — at least under circumstances where the defendant’s guilt isn’t in question and there’s no evidence that his trial will be conducted unfairly in any fashion. Can we limit death sentences only to people as evil as Tsarnaev appears to be?

The simplest answer to this question is that we are a nation of laws, and our most fundamental law says we cannot create a brutal, rarely applied punishment targeting just a handful of crimes. The Constitution forbids “cruel and unusual punishments. So as a punishment becomes more “unusual” — or, in the Supreme Court’s words, as it no longer can be squared with “evolving standards of decency that mark the progress of a maturing society” — it stands on increasingly weaker constitutional ground.

Indeed, it is likely that the death penalty is already unconstitutional under this rule. The number of death sentences has been on the decline in the United States, but not principally because of legal reforms limiting the death penalty to a small number of cases: it’s a combination of full legal abolition in some jurisdictions and the spread of anti-death penalty norms among citizens and prosecutors in others. 60 percent of U.S. counties have stopped seeking the death penalty entirely as a punishment for any crime. One study of death sentences and executions from 2004-2009 discovered that just 10 percent of counties returned a single death sentence, and only 1 percent of counties produced more than one death sentence. Just four states made up 65 percent of national new death penalty convictions. In 2011, there were an estimated 14,612 murders in the United States, but only 43 executions. These data strongly suggests that executions no longer comport with our “evolving standards of decency.” We are increasingly uncomfortable with death sentences, and unwilling to execute people.

But beyond the cold language of the law, there is a deeply personal reason why we should not preserve the death penalty simply for the most heinous criminals like Tsarnaev. If you think the death penalty is a just response to murder or important to provide victims’ families with closure, then trying to limit it to a small number of multiple murders makes no sense. Why does taking one life not merit death, while taking two, three, or any other arbitrary number does? Why is the pain of one victim’s family any less important to address than the pain of families whose loved one was part of a multiple murder? There are many families that deserve the satisfaction of knowing their loved one’s murderer received society’s stiffest sanction for their crime, and it’s far from clear that the death penalty fills that need better than life without parole — indeed, it may even prolong a families’ grief. Yet the moment we say one victim, or set of victims, must be avenged by death, we lose the ability to consistently limit the death penalty’s application to rare cases — and the uncertainty and arbitrariness that plagues capital sentencing generally comes flooding back. When life without parole is the harshest penalty our courts dole out, such a sentence will stamp everyone who receives it as among the very worst criminals without opening the door to an unjust and unconstitutional policy.

So the death penalty is arbitrary. It discriminates on the basis of race and income. It kills the innocent. It is unconstitutional. And it may even deepen the wounds of families already grieving from the most terrible tragedy imaginable.