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The Death Penalty Has Resulted In The Death Of Innocent People

Death-Penalty-Peri-Lithwick-horizontal-570x376

A new study concludes that 1 out of every 25 people on Death Row in the United States are most likely innocent:

WASHINGTON (AP) — Science and law have led to the exoneration of hundreds of criminal defendants in recent decades, but big questions remain: How many other innocent defendants are locked up? How many are wrongly executed?

About one in 25 people imprisoned under a death sentence is likely innocent, according to a new statistical study appearing in the Proceedings of the National Academy of Sciences. And that means it is all but certain that at least several of the 1,320 defendants executed since 1977 were innocent, the study says.

From 1973 to 2004, 1.6 percent of those sentenced to death in the U.S. — 138 prisoners — were exonerated and released because of innocence.

(…)

Gross and three other researchers, including a biostatistics expert, looked at the issue using a technique often used in medical studies called survival analysis. Yale University biostatistics expert Theodore Holford, who wasn’t part of the study, said the work done by Gross “seems to be a reasonable way to look at these data.”

Because of nvarious assumptions, it might be best to use the margin of error in the study and say the innocence rate is probably between 2.8 percent and 5.2 percent, said University of South Carolina statistics professor John Grego, who wasn’t part of the study.

The study is the first to use solid and appropriate statistical methods to address questions of exoneration or false convictions, an important subject, said Columbia Law School professor Jeffrey Fagan, who also is a professor of epidemiology at the Mailman School of Public Health. The research combines data from three independent sources, a rigorous approach used by few studies on capital punishment, he said.

The research produced an estimate of the percentage of defendants who would be exonerated if they all remained indefinitely on death row, where their cases would be subject to intense scrutiny for innocence.

The study concluded that the number of innocent defendants who have been put to death is “comparatively low. … Our data and the experience of practitioners in the field both indicate that the criminal justice system goes to far greater lengths to avoid executing innocent defendants than to prevent them from remaining in prison indefinitely.”

This isn’t entirely surprising, of course. Thanks to the work of groups such as The Innocence Project we have come to know of many, many cases of people who were wrongfully convicted of crimes that landed them in prison, and in many cases on Death Row. In many cases, these exoneration happened because of DNA testing that was unavailable at the time of their trial. In far too many, however, there was also some sort of misconduct involved that tainted the trial such as witnesses who were obviously biased, improper testimony regarding forensic evidence such as in the Cory Maye case, or sometimes just pure racial bias against a young, African-American male Defendant.

Incompetent counsel is also a serious problem, especially in states that are very aggressive about pursuing the death penalty. Sometimes, it’s simply the fact that the public defenders appointed in these cases are overworked, underpaid, and not exactly experienced in defending capital murder cases. Too often, though, there are cases of seemingly deliberate incompetence by attorneys, or attorneys who believe their clients are guilty and don’t feel like wasting much time on the case. In one particularly egregious case, a man on trial in Texas for capital murder had an attorney who fell asleep during the trial. It took nineteen years of appeals until the Supreme Court finally upheld a lower court ruling that granted the man a new trial based on this rather obvious case of attorney misconduct and dereliction of duty, and that only happened because the defendant in question managed to get appellate attorneys who pursued his case as far as possible. Not everyone is that lucky, especially in a state such as Texas.

Because of these flaws, it is inevitable that innocent men have been executed in the United States, some of them disturbingly recently. Perhaps the most well known such case is that of Cameron Todd Willingham, a Texas man executed in 2004 for the 1991 deaths of his children due to a fire that prosecutors claimed that he deliberately set. During Willingham’s trial, fire investigators working for the state testified that the fire had been deliberately started. Willingham’s attorney did not present any alternative expert testimony at trial, most likely because Willlingham himself could not afford the cost of such an expert and because, at least at that time, the state generally did not fund expert fees as part of court-appointed defense. Five years after he was executed, though, the case was reviewed by an independent expert hired by the Texas Forensic Science Commission and this expert determined that the evidence simply did not support the conclusions reached by the state’s experts and that, at the very least, it was equally if not more plausible based on this evidence that the fire that killed Willingham’s children was started accidentally. These findings, as well as the circumstances surrounding Willingham’s trial, are covered in detail in a 2009 New Yorker article by David Grann. In addition to the Willingham case, there is also substantial evidence that Texas executed another innocent man in early December 2000, only weeks before George W. Bush resigned as Governor after being elected President of the United States. There are just two examples that we happen to know of, but their very existence suggests that the 1 out of 25 number that this study’s authors came up with may, if anything, be understated.

William Blackstone, the great British legal commentator whose work is still considered insightful and persuasive authority by lawyers and legal scholars today, is credited with the adage that ‘it is better than ten guilty men go free, than that one innocent man goes to prison.’  This idea is supposed to be at the core of our criminal justice system and the protections that it offers for people accused of crimes. Sometimes, those protections mean that someone who actually committed a crime will go free, but that is a small price to pay if it also means that it helps to ensure that those who are innocent or unjustly accused are protected. Like any human institution, though, our criminal justice system is not perfect. Mistakes will be made, and sometimes wrongs will be committed. That’s why we need attorneys and groups like The Innocence Project. Recognizing these flaws, though, and keeping in mind Blackstone’s words, it strikes me that there is no rational or moral justification for allowing that imperfect system to have the power of life or death over human beings. The costs of making a mistake are far too high, and the alternative of keeping someone alive in prison for the rest of their life is far preferable. At least in that case, when we do discover that someone has been wrongfully convicted, there will be something we can do about it. In cases like that of Cameron Todd Willingham, it’s far too late to do anything.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Jeff says:

    William Blackstone, the great British legal commentator whose work is still considered insightful and persuasive authority by lawyers and legal scholars today, is credited with the adage that ‘it is better than one guilty man goes free, than that ten innocent men go to prison.’

    10 < 25

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  2. it is better than one guilty man goes free, than that ten innocent men go to prison.

    I believe the numbers were reversed in the original version.

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  3. Ron Beasley says:

    The problem is that prosecutors are frequently political animals and that law enforcement authorities want to close a case as soon as possible. Then of course there is the bigotry issue. Here in Oregon most DAs don’t even ask for the death penalty anymore because it costs too much money for the appeals so they plea bargain for life without the possibility of parole. Our current governor has said there will be no executions on his watch and that includes someone who wanted to be executed. Life in a small cell with little or no contact with other people should be punishment enough. And your point is a good one – you can’r do reverse an execution..

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  4. Scott says:

    Better that ten guilty persons escape than that one innocent suffer

    Which is why I am absolutely against the death penalty, no matter what heinous scenarios get thrown at me. To have an innocent person put to death is nothing more than state-sponsored murder.

    Like or Dislike: Thumb up 7 Thumb down 0

  5. Rafer Janders says:

    William Blackstone, the great British legal commentator whose work is still considered insightful and persuasive authority by lawyers and legal scholars today, is credited with the adage that ‘it is better than one guilty man goes free, than that ten innocent men go to prison.’

    No, it’s “it is better that ten guilty men go free, than that one innocent man go to prison.”

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  6. Rafer Janders says:

    @Ron Beasley:

    Here in Oregon most DAs don’t even ask for the death penalty anymore because it costs too much money for the appeals so they plea bargain for life without the possibility of parole.

    The irony is that, if you’re innocent, you should probably reject life without parole and opt for the death penalty instead, because if you’re on Death Row, then there will often be anti-death penalty pro bono attorneys and organizations willing to take your case and support you in multiple appeals. If you’re sentenced to life, though, everyone just ignores you.

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  7. Ron Beasley says:

    @Rafer Janders: There probably is some truth to that. But the reality is you can’t undo the death penalty – when you are dead you are dead.

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  8. @Rafer Janders:

    Yikes yea that is my mistake. Fixing.

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  9. Tony W says:

    Republicans == Pro Life, but only until they are born.

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  10. beth says:

    @Tony W: It’s one of the few things I do admire about the Catholic Church. While they are anti-abortion (a position I don’t agree with) at least they are also vehemently anti-death penalty too. They believe in the sanctity of every moment of someone’s life and actively fight for it.

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  11. matt bernius says:

    Thanks for posting this Doug.

    I am continually astounded when I hear populist conservatives — i.e. the ones who distrust government — defend the death penalty. From an intellectual consistency perspective, it seems like one issue where Tea Party types could pair with progressives to institute change.

    Sadly, I doubt that this data will change any pro-death penalty advocates. After all, this is far from the first study to reveal that we have and continue to execute individuals for crimes that they did not commit.

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  12. Tyrell says:

    I tend to agree with this. Too many mistakes are coming out. DNA is freeing a lot of convicted criminals. It is also convicting a lot also. But mistakes can still be made. Even though emotionally it is hard not to want a child abuser and murderer to be executed and have a painful one at that. Maybe if the death penalty was abolished criminals would be brought to trial a lot quicker.
    Look at this: the famous Lindbergh kidnapping trial – done in a matter of months ( there are still lingering questions about that one; that guy had something to do with it, but probably not alone), the trial of the century at Nuremberg – again less than a year, but the most feared man in history never got to trial: Heinrich Himmler, probably killed so he could not talk about his secret negotiations and involvement to remove Hitler. The infamous Booth conspirators trial – a matter of weeks; but on that one it was clearly a farce – a military trial of civilians who were blindfolded and never allowed to talk (we can easily figure out why). Al Capone’s trial – a few short months to convict one of the most dangerous killers in history.
    I just wonder how long it took to convict that Dr. Lecter guy. I would have loved to have seen that trial. Of course we never got to see a trial of Lee Oswald – that was part of the plan from the beginning and I remember a lot of people saying that he would not live long enough for a trial; someone made sure of that long before Nov. 22.

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  13. KM says:

    How absolute horrifying. Can you imagine? You’ve done nothing wrong but are grabbed by the police. You are charged with a terrible crime you know you didn’t commit but no one will listen to your pleas of innocence. The law utterly fails you, due process turned against you, the whole system actively out to get you. And then they ask for the worst…. and get it. You are incarcerated, locked away from your loved ones with your life utterly ruined. You beg and try to prove your innocence but no one will listen. Then you are taken to the place where the State will murder you knowing there’s no escape, no reprieve and that people are cheering for your death. Your last minutes in unfair misery and terror, blatant injustice the last thing you ever see while your life is stolen. And the true killer remains unpunished, the family has no justice, the crime unsolved with no true closure. The State and all involved have innocent blood on their hands – murderers just like those they seek to punish.

    This is why I oppose the death penalty. To get it wrong is to commit a truly tragic crime you can never take back.

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  14. Rafer Janders says:

    @Ron Beasley:

    But the reality is you can’t undo the death penalty – when you are dead you are dead.

    Yes, but the reality is that, except in a few anomalous cases, you also can’t undo a life sentence without parole — you won’t be able to find anyone to care enough about your case to take it. You’ll die in prison, but you’ll spend a few decades longer waiting to die.

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  15. DrDaveT says:

    The Death Penalty Has Resulted In The Death Of Innocent People

    You can’t really be saying that you didn’t already know this, right?

    Our criminal justice system is not designed to determine the truth. It is designed to obtain as many convictions as possible per dollar expended. Truth is expensive.

    It is theoretically possible to have a rational discussion of when the death penalty might be justified. The factors to consider are the probability of false conviction, the recidivism of violent criminals (and to what extent that can be changed), the cost to the public of lifetime imprisonment or other alternatives to execution, the possibility of requiring a higher standard of evidence in capital crimes, and the relative weight to be given to Type 1 and Type 2 errors.

    In practice, that debate can’t happen. At least not at present.

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  16. Franklin says:

    Geez, well I just don’t see how this is a problem. At least executions are never botched, right? Right?

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  17. bill says:

    the willingham case isn’t a good one to bring up, he was dirty. the innocence project is good at giving facts they want you to see- they’ve done good work but not in this case.

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  18. Matt Bernius says:

    @bill:

    the willingham case isn’t a good one to bring up, he was dirty.

    Based on which reading of the evidence?

    The Wikipedia page has a good overview of the case and its controversies. It is not so much a question of whether Willingham was or wasn’t guilty. The evidence had proven convoluted enough that is should have raised enough doubts to, at the very least, not put the man to death.
    http://en.wikipedia.org/wiki/Cameron_Todd_Willingham

    Still leaving Willingham aside, the fact remains that evidence continues to point to the execution of people who *did not* commit the crimes they were sentenced to death for. That’s the ultimate point. Why are people still supporting state sanctioned killings while evidence continues to mount that the state gets it wrong and people die.

    Seriously 4 people die in Benghazi and the entire right wing erupts. We execute people for crimes they didn’t commit and crickets. Please explain that logic.

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  19. anjin-san says:

    Seriously 4 people die in Benghazi and the entire right wing erupts. We execute people for crimes they didn’t commit and crickets.

    Don’t try to understand it. 4 people die in Benghazi, and they are batshit insane over it. 4k+ die in Iraq and we get a blasé “this is war, men die.”

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  20. DrDaveT says:

    Because of various assumptions, it might be best to use the margin of error in the study and say the innocence rate is probably between 2.8 percent and 5.2 percent

    I forgot to make this point earlier, but there is every reason to believe that the distribution of the innocent among the convicted is not random. Some of the errors being made are systematic, even deliberate. Which means that certain subpopulations are seeing rather more than 5% false convictions…

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  21. Grewgills says:

    @DrDaveT:

    Which means that certain subpopulations are seeing rather more than 5% false convictions…

    I’m guessing wealthy, white, Christian men

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  22. bill says:

    @Matt Bernius: the wiki page points to minor flaws in the initial arson findings. it does nothing to refute the behavior of him as the fire burned down his home with his kids inside or his actions afterwards.

    http://www.clarkprosecutor.org/html/death/US/willingham899.htm

    benghazi has little do do with 4 of our best dying- it’s the cover up/talking points that are in the cross hairs.putting some idiot film maker in jail was a new low for the admin.

    the death penalty is reserved for the worst our society has to offer, you will never agree that anyone deserves to die so there’s no point in arguing something that’s “moot” to you.

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  23. DrDaveT says:

    you will never agree that anyone deserves to die

    I’m sure there are people out there who would never agree that anyone deserves the death penalty, but I suspect there are fewer of them in this discussion than you think. The problem everyone is pointing at is that we are really not very good at all at identifying the ones who deserve to die.

    (Aside: there seems to be a divide along party lines on just how easy it is to spot the guilty. Recent DNA evidence has, if anything, strengthened my belief that we don’t get it right nearly as often as we think we do.)

    I am perfectly comfortable with the death penalty for certain crimes — IF I can be certain I am executing the right person, and IF there is no bias in the system that leads to disproportionate enforcement. At present, neither of those conditions holds very often at all.

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  24. Matt Bernius says:

    @bill:

    the death penalty is reserved for the worst our society has to offer, you will never agree that anyone deserves to die so there’s no point in arguing something that’s “moot” to you.

    It’s not that I don’t think people deserve to die. It’s that I’m deeply uncomfortable with the fact that we so regularly get “who deserves to die” incorrect and have put the wrong people to death.

    Since you seem to admit that the system is not infallible, you are saying that it’s worth occasionally sacrificing “innocent” people in order to fulfill your desire for revenge. Especially when there are alternative options (after all, isn’t life in prison without the possibility of parole the worlds slowest “death penalty?”).

    How can that possibly be a moral position?

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