Ronald Eisenberg
Deputy District Attorney

"Innocence" and the death penalty

Death penalty opponents have been very successful in recent months in getting out their message that capital punishment is "unfair." They have relied on three connected strategies: 1) the availability of DNA evidence to look for "innocent" capital defendants, 2) the Liebman study about alleged "error" in death penalty cases (by a "professor" who in reality is an active criminal defense lawyer), and 3) calls for "moratoriums" on executions.

Typically, none of these tactics will give rise to actual legal challenges to individual capital sentences. However, because of the continuing efforts of anti-capital punishment advocates to influence citizens and judges, it is important for prosecutors handling capital cases to understand the issues presented by the latest publicity campaign.

DNA legislation

Contrary to loose characterizations in the press, there is presently no case in which an executed capital murderer has been proven innocent, by DNA evidence or otherwise. Death penalty opponents argue, however, that we must be executing innocent people, because the system does not let them present newly-discovered evidence such as DNA testing. The truth is that criminal defendants already can put forward new evidence of innocence, either in the courts or through requests for clemency and pardons.

Nonetheless, death penalty opponents are pushing for federal legislation to "fix" the supposed problem in the states. Senator Leahy has introduced a bill that would entitle convicted criminals to reopen their cases, even if they previously turned down DNA testing when it counted at their trial, and even if it wouldn’t now prove them innocent. The bill tries to punish law enforcement by cutting off federal grants, and by authorizing defendants to sue prosecutors personally. At the same time it rewards criminal defense attorneys in capital cases by setting up a new federal bureaucracy to protect them, and by requiring states to pay them at legal "market" rates — often $200-$300 an hour.

Senator Hatch has proposed more balanced legislation. His bill would also let defendants reopen their cases, but would require at least a minimal showing that favorable DNA testing would actually establish their innocence, and is not inconsistent with their previous assertions about the crime. Unlike the Leahy bill, the Hatch legislation does not seek to penalize states that do not agree with the Senator’s views on criminal justice and capital punishment; instead, it gives a meaningful incentive by offering federal grant funding to increase the amount of DNA testing that state and local governments can afford.

At its summer meeting this year, the National District Attorneys Association passed a unanimous resolution supporting the Hatch DNA bill and opposing the Leahy bill.

Liebman study

The Liebman study contends that most capital cases wind up being overturned on appeal – two thirds, he claims. According to Liebman, this means that death penalty verdicts are unreliable, and that capital murderers are actually innocent victims of the system.

But the truth is that, after examining literally thousands of cases, Liebman could not find a single one in which he could show that the defendant was innocent. All of his supposed statistics about "error" rates simply cover up that fact.

First, it is clear that Liebman’s numbers are significantly inflated.

For example, he counts cases thrown out when the United States Supreme Court overturned all existing death penalties in the 1970’s. He also counts cases that were reversed on appeal, even if that reversal was itself reversed on further appeal, reinstating the original conviction. Obviously, none of these reversals says anything about the fairness of the current administration of capital punishment.

Second, aside from his miscounting, Liebman’s basic notion is wrong – in fact he turns reality on its head. Whatever the exact numbers are, it is clear that capital murder cases are reversed much more than non-capital murder cases – perhaps three or four times as often. But do judges and lawyers believe that there are really three or four times more errors in murder trials that result in a death penalty than in murder trials that don’t? Certainly Liebman and his supporters make no such claim.

Nor could they. Murder cases are tried by the same prosecutors and defense lawyers and judges whether they ultimately wind up with a capital verdict or not. It’s only at the end that we find out from the jury what the sentence will be. So if capital cases are reversed at a much higher rate, of course it is not because they have more errors; it is because judges are more willing to reverse in death penalty cases.

If the Liebman study means anything, it means this: that the courts are already quite favorable to appeals by capital murderers. For years we have been hearing from capital punishment opponents that judges were politically motivated to ignore death penalty errors, and that restrictions on habeas corpus would eliminate any chance for successful appeals. The Liebman study is actually an admission that those claims were all untrue.


Death penalty opponents have long argued that capital punishment is immoral, even for the very worst murders. The large majority of American citizens, however, continue to disagree. As a result, many of the opponents now say that they are not against capital punishment "in theory," but that the system is flawed. They contend that we should put a "temporary" hold on all executions, while we study them. They understand that this would have the practical effect of abolishing capital punishment, but that the idea of a "moratorium" sounds more palatable.

The moratorium strategy received a huge push forward when the governor of Illinois, George Ryan, declared that he was blocking all further executions in that state. The governor has been under federal investigation for a bribery scheme, and the moratorium has diverted some attention from the scandal. But the legal authority for the governor’s action is unclear: the Illinois Supreme Court had recently issued a ruling rejecting a move to impose a moratorium as a matter of law, and in most states the governor does not have the power on his own to refuse to schedule lawful executions without issuing a reprieve or pardon.

The factual basis for the Illinois moratorium is even more suspect. Governor Ryan claims that, more than half the time, Illinois capital defendants were actually innocent: twelve men executed; thirteen freed. But in reality there have been 247 death-sentenced defendants in Illinois, not just 25. Of the thirteen "innocents," five were acquitted on retrials — which means not that they were really innocent, but that they were not proven guilty beyond all reasonable doubt. In the other eight cases, prosecutors dismissed charges without a retrial because of evidence problems. Only one of the thirteen has been clearly established to be innocent.

Questions about the Illinois moratorium, however, obscure a more fundamental problem with the moratorium movement: we already have a moratorium, in fact hundreds of them, in each and every death penalty case.

Every capital verdict is held up for years, often for decades, while the case is studied and restudied and studied again in the courts, in all its individual detail. The only defendants who would benefit from a general moratorium are those whose appeals have been rejected every time — in other words, the capital murderers who least deserve more years of delay.