We're Not Executing the Innocent
By Paul G. Cassell
The Wall Street Journal
Friday, June 16, 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.
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
post-conviction 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
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.
Colleen 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