The Rationality Syndrome
Statistics fail activists

January 2001

In pursuing their ideology at the expense of honest reporting, many journalists and political activists have perpetuated a number of myths about the death penalty, riddling the debate with shoddy statistics.

The most recent perversion came from Columbia University, which published a study titled "A Broken System: Error Rates in Capital Cases, 1973-1995," claiming that there was a 68 percent "error rate" in capital punishment cases. The study concluded that capital punishment is "collapsing under the weight of its own mistakes."

But the media failed to mention that what Columbia Law Professor James Liebman meant by "error rate" was not that 68 percent of people on death row were found to be innocent. On the contrary, Liebman and his co-authors were unable to find a single case in the 23 years they reviewed in which an innocent person had been executed.

Writing in the Wall Street Journal, professor of law Paul G. Cassell revealed that the 68 percent figure "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."

Cassell goes on to explain that if on appeal, an appellate court simply requested additional findings from the trial court, the Columbia study marked an error.

Likewise, the 1-in-7 ratio, commonly purported to expose the egregious level of errors made in death penalty cases, is misleading. Disseminators of the statistic say that for every 7 people executed, 1 has his sentence overturned. MIT professor of management science, Arnold Barnett, called the ratio "meaningless" because it does not constitute an error rate as many people had ignorantly assumed.

An error rate is computed by dividing the number of innocent persons executed by the total number executed. Reporting how many people were not executed "yields no insight," according to Barnett, simply because it does not necessarily represent a flaw in the system. It instead shows that the system corrected itself, not that any execution was or has been incorrectly performed.

Another common misconception is that the murderers and rapists sitting on death row are in actuality the victims of racism. Unfortunately for anti-death penalty activists, the Bureau of Justice Statistics shows that convicted white murderers are more likely to be sentenced to death than their black counterparts.

Looking for another means of pushing their agenda, capital punishment opponents have argued that black murderers with white victims are more likely to get the death penalty than white murderers with black victims. The numbers are easily distorted because 80 % of the United States population is white and only 13 % is black.

As a result, if murderers selected their victims at random, for every 10 murders committed by white people, only one victim would be black, whereas for every 10 murders committed by black people, 8 victims would be white.

Rather than confront the ethical questions of retributive justice, many activists instead argue that the death penalty is just too expensive, saying that it costs more than simply giving convicts life sentences. Currently, however, the added expense of executing people is not the result of added due process, but of unnecessary delays in federal courts. Writing in the National Review, former Arizona Assistant Attorney General Andrew Thomas observes, "Between 1977 and 1996, the average time that a condemned prisoner sat on death row almost tripled, from just over four years to over 11 years."

Also, the positive consequences that the death penalty has in reducing crime should not be forgotten. During the last 10 years, as the number of executions has increased, the number of murders has simultaneously dropped. Political Commentator William Tucker, in the National Review Online, remarks that even more interesting is the fact that "the most dramatic decline in murders over the last decade has been precisely in those regions that have had the most executions .... Since 1990, (Texas, Oklahoma, Louisiana and Arkansas) have performed half the nation's executions ... (and) murder rates in these 4 states have fallen faster than anywhere else in the country."

Obviously reasonable people may disagree as to what burden of proof ought to be required for criminal conviction and what measures, such as DNA testing, may be enlisted, to assess guilt. The ethical debate over whether capital punishment should exist is entirely different and should not be confused so easily with its practical implementation, as all criminal cases face such questions. The death penalty is not any different in this respect, except in that once it is carried out, it cannot be reversed.

This does not, however, undermine its legitimacy because in erecting a criminal justice system, one must concede some level of imperfection, as the courts, just like human beings, are fallible. Rather than have an innocent person go to jail, society must be willing to tolerate a certain multiple number of guilty persons escaping punishment. But instead of freeing guilty men in excess of this multiple, society has assessed that the harm to it is less than allowing that multiple to go without punishment, because the victims of these men were innocent too.

JAIME SNEIDER, Columbia University Daily Spectator