We're Not Executing the Innocent
By Paul G. Cassell
Copyright 2000 Wall Street Journal
June 17, 2000
On Monday avowed opponents of the
death penalty caught the attention of Al Gore among others when they
released a report purporting to demonstrate that the nation's capital
punishment system is "collapsing under the weight of its own mistakes."
Contrary to the headlines written by some gullible editors, however, the
report proves nothing of the sort.
At one level, the report is a dog-bites-man story. It is well known that
the Supreme Court has mandated a system of super due process for the death
penalty. An obvious consequence of this extraordinary caution is that
capital sentences are more likely to be reversed than lesser sentences are.
The widely trumpeted statistic in the report -- the 68% "error rate" in
capital cases -- might accordingly be viewed as a reassuring sign of the
judiciary's circumspection before imposing the ultimate sanction.
Deceptive Factoids
The 68% factoid, however, is quite deceptive. For starters, it has
nothing to do with "wrong man" mistakes -- that is, cases in which an
innocent person is convicted for a murder he did not commit. Indeed,
missing from the media coverage was the most critical statistic: After
reviewing 23 years of capital sentences, the study's authors (like other
researchers) were unable to find a single case in which an innocent person
was executed. Thus, the most important error rate -- the rate of mistaken
executions -- is zero.
What, then, does the 68% "error rate" mean? It turns out to include any
reversal of a capital sentence at any stage by appellate courts -- even if
those courts ultimately uphold the capital sentence. If an appellate court
asks for additional findings from the trial court, the trial court
complies, and the appellate court then affirms the capital sentence, the
report finds not extraordinary due process but a mistake. Under such
curious scorekeeping, the report can list 64 Florida postconviction cases
as involving "serious errors," even though more than one-third of these
cases ultimately resulted in a reimposed death sentence, and in not one of
the Florida cases did a court ultimately overturn the murder
conviction.
To add to this legerdemain, the study skews its sample with cases that
are several decades old. The report skips the most recent five years of
cases, with the study period ostensibly covering 1973 to 1995. Even within
that period, the report includes only cases that have been completely
reviewed by state appellate courts. Eschewing pending cases knocks out
one-fifth of the cases originally decided within that period, leaving a
residual skewed toward the 1980s and even the 1970s.
During that period, the Supreme Court handed down a welter of decisions
setting constitutional procedures for capital cases. In 1972 the court
struck down all capital sentences in the country as involving too much
discretion. When California, New York, North Carolina and other states
responded with mandatory capital-punishment statutes, the court in 1976
struck these down as too rigid. The several hundred capital sentences
invalidated as a result of these two cases inflate the report's error
totals. These decades-old reversals have no relevance to contemporary
death-penalty issues. Studies focusing on more recent trends, such as a
1995 analysis by the Criminal Justice Legal Foundation, found that reversal
rates have declined sharply as the law has settled.
The simplistic assumption underlying the report is that courts with the
most reversals are the doing the best job of "error detection." Yet courts
can find errors where none exist. About half of the report's data on
California's 87% "error rate" comes from the tenure of former Chief Justice
Rose Bird, whose keen eye found grounds for reversing nearly every one of
the dozens of capital appeals brought to her court in the 1970s and early
1980s. Voters in 1986 threw out Bird and two of her like-minded colleagues,
who had reversed at least 18 California death sentences for a purportedly
defective jury instruction that the California Supreme Court has since
authoritatively approved.
The report also relies on newspaper articles and secondhand sources for
factual assertions to an extent not ordinarily found in academic research.
This approach produces some jarring mistakes. To cite one example, the
study claims William Thompson's death sentence was set aside and a lesser
sentence imposed. Not true. Thompson remains on death row in Florida today
for beating Sally Ivester with a chain belt, ramming a chair leg and
nightstick into her vagina and torturing her with lit cigarettes (among
other depravities) before leaving her to bleed to death.
These obvious flaws in the report have gone largely unreported. The
report was distributed to selected print and broadcast media nearly a week
in advance of Monday's embargo date. This gave ample time to orchestrate
favorable media publicity, which conveniently broke 24 hours before the
Senate Judiciary Committee began hearings on capital-sentencing issues.
The report continues what has thus far been a glaringly one-sided
national discussion of the risk of error in capital cases. Astonishingly,
this debate has arisen when, contrary to urban legend, there is no credible
example of any innocent person executed in this country under the modern
death-penalty system. On the other hand, innocent people undoubtedly have
died because of our mistakes in failing to execute.
Real Mistakes
Collen Reed, among many others, deserves to be remembered in any
discussion of our error rates. She was kidnapped, raped, tortured and
finally murdered by Kenneth McDuff during the Christmas holidays in 1991.
She would be alive today if McDuff had not narrowly escaped execution three
times for two 1966 murders. His life was spared when the Supreme Court set
aside death penalties in 1972, and he was paroled in 1989 because of prison
overcrowding in Texas. After McDuff's release, Reed and at least eight
other women died at his hands. Gov. George W. Bush approved McDuff's
execution in 1998.
While no study has precisely quantified the risk from mistakenly failing
to execute justly convicted murderers, it is undisputed that we extend
extraordinarily generosity to murderers. According to the National Center
for Policy Analysis, the average sentence for murder and non-negligent
manslaughter is less than six years. The Bureau of Justice Statistics has
found that of 52,000 inmates serving time for homicide, more than 800 had
previously been convicted of murder. That sounds like a system collapsing
under the weight of its own mistakes -- and innocent people dying as a
result.
Mr. Cassell is a professor of law at the University of Utah.
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