"Indeed, the decision that capital punishment may be the appropriate sanction in
extreme cases is an expression of the community's belief that certain crimes are
themselves so grievous an affront to humanity that the only adequate response
may be the penalty of death."
-- Supreme Court of the United States
INNOCENCE ISSUES -- THE DEATH PENALTY
by Dudley Sharp
A thorough review finds that death penalty opponents have lied, extensively,
regarding the numbers of innocents sentenced to death, that such risk is
extraordinarily low and that the cessation of executions will put many more
innocents at risk.
I. Innocents Released from Death Row: A Critical Review of the Claims
Death penalty opponents claim that "Since 1973, 102 (now 114) people in 25
states have been released from death row with evidence of their innocence,"
(1)
That is a blatantly false claim.
The foundation for these claims begins in 1993, when a study, released by US
Rep. Don Edwards, purported to find that 48 innocents had been released from
death row since 1973 (2). Rep. Edwards concluded that "Under the law, there
is no distinction between definitively innocent and those found innocent
after a trial."
Rep. Edwards was wrong.
The law recognizes the specific distinction between those legally innocent
and those actually innocent, just as common sense dictates. Yes, there is a
difference between the truly "I had no connection to the murder" cases and
"I did it but I got off because of legal error" cases.
Rep. Edwards and other death penalty opponents combine these two conflicting
groups to increase their "innocents" number. This is a continuation of a
pattern of deception by death penalty opponents, that had been obvious for
years.
In addition, Rep. Edwards selected an anti death penalty group, The Death
Penalty Information Center (the DPIC), to conduct the study, thereby
negating objective confidence in the results.
The source for the updated 102 innocent number is also the DPIC (3). Richard
Dieter, head of the DPIC, has confirmed, again, what their "innocent" means:
". . . according to death penalty opponents, who say they make no
distinction between legal and factual innocence because there is no
difference between the two under the law and because there is no objective
way to make such a determination. 'They're innocent in the eyes of the law,'
Dieter says. 'That's the only objective standard we have.' " (4)
What nonsense.
As this public policy debate is only about the actually innocent, we know
why the DPIC fails to make that obvious distinction -- they wish to,
deceptively, expand their "innocents" claims.
Furthermore, for many years, the United States' courts have repeatedly
enforced the obvious, common sense, important distinction between the
actually innocent and the legally innocent (5). Mr. Dieter and all of those
active in this debate are well aware of this. Death penalty opponents have
chosen to be deceptive. (also see Sections IV. OK to Execute the Innocent?
and VI. The Innocent Executed, below). This is hardly surprising.
As Dieter and other death penalty opponents make no distinction between the
actually innocent and the legally innocent, why don't they claim that over
2500 innocents have been "exonerated" from death row? That is the number of
legally and actually innocent released from death row since 1973 (6). The
answer is obvious. They hoped that the media and others might just assume
that the 102 (and the previous lesser numbers) were actually innocent and
not ask any questions. And that is exactly what has happened -- a successful
deception, aided by the poor fact checking standards of the media. The 2500
number, even for the media, is just too large a number for such blind
acceptance.
As this deception has begun to unravel, Dieter "clarifies" that all 102
former death row inmates on the innocence list have been exonerated in one
of three ways.
"A defendant whose conviction is overturned by a judge must be further
exonerated in one of three ways: he must be acquitted at a new trial, or the
prosecutor must drop the charges against him, or a governor must grant an
absolute pardon." (7)
Dieter is consistent.
None of those exoneration categories establishes, or even suggests, actual
innocence.
Acquittal, which is a "not guilty" verdict, means that the state was unable
to meet the necessary burden of proof, in establishing guilt beyond a
reasonable doubt. It has nothing to do with establishing actual innocence.
In a case that has been overturned on appeal, the prosecution may drop the
charges because of many reasons, the least likely being actual innocence
(insert citation). For example, appellate courts may rule that evidence or
testimony was constitutionally inadmissible, thereby removing the specific
evidence of actual guilt from any prospect of a new trial and, thereby,
precluding another trial.
And an absolute pardon may have nothing to do with actual innocence.
Just recall all the uproar over the pardons granted by President Clinton on
the eve of his leaving office. I recall only one of those many cases wherein
the defendant claimed actual innocence, and I don't recall any appellate
judge giving any support to such a claim. Or recall ex-President Richard
Nixon, pardoned by President Gerald Ford? Does anyone doubt that President
Nixon was actually guilty of obstructing justice? Of course not.
Once again, we have example after example, whereby Dieter tells us that the
DPIC standards have nothing to do with actual innocence. And this is simply
back peddling on his part. As more and more people observe the extent of the
fraud within the innocence claims of death penalty opponents, Dieter and
other opponents will continue to change their definitions to justify their
deceptive numbers.
And the "innocence" standards get worse.
Death penalty opponents have " . . . included supposedly innocent defendants
who were still culpable as accomplices to the actual triggerman." (8). The
law often finds such criminal accomplices legally guilty for their
involvement in murders, even if they, themselves, didn't "pull the trigger".
For example: Does anyone think that Bin Laden was innocent in the 9/11 World
Trade Center bombings?
The DPIC, and other opponents, allegedly so devoted to legal standards in
one circumstance -- presumption of innocence -- abandon a legal standard --
the law of parties -- when doing so can further increase their false
"innocents" claims.
What "standards" will death penalty opponents create next to deceptively
raise their innocence claims?
As the innocence frauds of death penalty opponents continue to unravel, they
are now changing their definitions, as if they never meant that all the
cases were actually innocent. In other words, they are just piling lie upon
lie.
The evidence is overwhelming that some death penalty opponents were stating
that the 102, nationwide, were actually innocent people, who had no
connection to the murders. They lied.
Now they are stating it was just some function of release, as related above,
or that they were only speaking of the "presumption of innocence", the legal
standard for defendants, during trial. They have always been lying about the
collective innocence claims, now they deceptively change the definitions, as
their previous claims are imploding.
The DPIC's newest standard?
"There may be guilty persons among the innocents, but that includes all of
us." (9). Good grief. DPIC wishes to apply collective guilt of capital
murder to all of us. Or maybe DPIC is about to declare all those sentenced
to death and executed as innocent. Take your pick, they could go either way.
A final mea culpa?
Dieter states: "I don't think anybody can know about a person's absolute
innocence." (Green). In other words, Dieter won't assert absolute innocence
in 1, 102 or 350 cases. Not today, anyway.
Or, Dieter will declare all innocent: "If you are not proven guilty in a
court of law, you're innocent." (Green) By this all inclusive (and
ridiculous) standard, Dieter would call Hitler and Stalin innocent.
So no one deludes themselves, the innocence concern has always been about
convicting the actually innocent -- the "I had no connection to the murder"
cases -- and what risk that represents for executing an actually innocent
person.
Even Dieter has always known (and never disputed, so far) that we don't
execute legally innocent people.
Death penalty opponents wrongly state the burden of proof for "innocents" is
not theirs to make -- that defendants are "innocent until proven guilty".
This is pure sophistry. The "innocent until proven guilty" is a legal
standard, that only applies to fact finders in a criminal case. The
"innocent" claims by death penalty opponents are part of a public policy
debate which, allegedly, is concerned with the actually innocent sent to
death row and how that may result in an actually innocent executed.
What is the real number of actual innocents released from death row?
A review of the DPIC 102 case descriptions finds that only about 32 claim
actual innocence, with alleged proof to support the claim. 12 of those 32
are DNA cases. That is 32 cases out of about 7300 death sentences since
1973, or 0.4%. National Review's Senior Editor Ramesh Ponnuru,
independently, came up with the same number for his "Bad List" article (10).
When reviewing various case descriptions by DPIC and then comparing them to
the actual record, there is an obvious pattern of inaccuracy (11). This
provides little doubt that many of the remaining 32 case descriptions by
DPIC are also inaccurate. No responsible, objective party would depend upon
the DPIC case descriptions.
Furthermore, Northwest U. Law Prof. Lawrence Marshall, a death penalty
opponent, who organized the National Conference on Wrongful Convictions and
the Death Penalty in Chicago 1998, stated that, "In a good half of these 75
[now 102] cases, the exoneration is so complete that it erases any doubt
whatsoever," (12). Prof. Marshall's uncorroborated claims find proof of
factual innocence in 38 cases.
Why do death penalty opponents claim that they have proof for half their
innocent claims, then claim twice that number as innocent?
This claim is consistent with the 13 innocents/exonerations from Illinois.
There appears to be some doubt about an innocence claim in about half of
those cases. (13)
California Assistant Attorney General Ward Campbell finds that at least 68
of the DPIC 102 cases do not belong on the innocence list. He has not
conceded that all the remaining 34 do belong on the list. (14).
"On July 1, 2002, in the case of United States v. Quinones, 205 F.Supp.2d
256 (S.D.N.Y. 2002) the United States District Court for the Southern
District of New York declared that the Federal Death Penalty Act (was)
unconstitutional."
"The federal court based its decision in part on the DPIC List. The federal
court itself analyzed the List and applied undefined “conservative criteria”
to conclude that 40 defendants on the List were released on grounds
indicating “factual innocence.” However, 23 of the names on the Quinones’
List are names which (Ward Campbell's) study submits should be eliminated
from the DPIC List."
"If the Quinones court's analysis of the DPIC List is combined with this
critique's (Campbell's) analysis, only 17 defendants should be on the List,
not the 102 defendants currently listed." (14A).
Furthermore, the Judge in that Quinones case, Rakoff, has since stated that
the innocence number might be 30, not the 40 he stated during the case,
indicating the combined numbers are, now, most certainly, lower than 17.
Of those 102 DPIC "innocent" cases, 24 have been identified by the DPIC as
being from the state of Florida. The Florida Commission on Capital Cases
conducted a thorough review of those 24 cases. The Commission found that 4
of those might have a credible claim of actual innocence. (15).
That reveals an 83% error by the DPIC in their Florida case descriptions. If
the DPIC has a consistent error rate, nationwide, that would indicate that
there is evidence for claiming 17 actual innocents within their 102
innocents claim -- or 0.2% of the 7400 sentenced to death since 1973.
It is hardly a coincidence that the same number of likely actual innocents
-- 17 -- is also found when combining the Campbell and Quinones lists.
Based upon those three reviews, 17 is the most credible number for actual
innocents released from death row since 1973. And 83% seems to be the common
error rate for "innocents" claims by death penalty opponents.
SPECIFIC CASES
See "The Innocence Fraud of Death Penalty Opponents"
Another case on the DPIC list is James Creamer, who was never subject to
execution (17). The jury gave him a death sentence, even though there was no
death penalty option, because the Furman v Georgia case (1972) had voided
all death penalty statutes then in existence Even so, Creamer was sentenced
to death on 2/4/73 and then was resentenced to life on 9/28/73. He is still
on the DPIC innocents released from death row list (No. 5, as of 6/3/02).
Death penalty opponents (and the media) gave much play to that "100th case"
- Ray Krone. It is an instructive example.
He was not on death row, at the time he was found innocent via DNA testing.
His death sentence was overturned in 1995. He was retried and given a life
sentence in 1996 (18). Inmates released from prison sentences, because of
innocence evidence, are not "released from death row with evidence of their
innocence." which is the DPIC "standard" to be on the list. Death penalty
opponents do what they can to fraudulently raise their numbers.
Certainly a "100" could be considered a milestone. What few realized (or
cared to investigate) is that it was a milestone of deception by death
penalty opponents.
At least 11 of the cases were not even on death row at the time of their
"innocence" discovery. 6 of the DPIC listed cases were not on death row when
released and were prosecuted prior to 1973, in the pre Furman v Georgia
(1972) era and, therefore, have no place in a modern era discussion of
"innocents" released from death row (19).
And, at least four of the post 1973 convictions, Henry Drake, Jay Smith,
Kirk Bloodsworth and Ray Krone, were not on death row when they won their
freedom. Krone, the now famous 100th case, had not been on death row for 7
years, when he was found innocent via DNA.
None of those 11 are death row exonerations. They are prison exonerations.
Therefore, the 32 cases becomes the 21 "released from death row with
evidence of their innocence." And, obviously, no one can depend on the DPIC
case descriptions regarding how many more of the 102 (or the 21) cases were
not on death row at the time they were "released from death row with
evidence of their innocence." Nor should anyone blindly accept the
uncorroborated claims of death penalty opponents that all of those 21 are
actually innocent.
Professor Marshall stated that "the exoneration is so complete that it
erases any doubt whatsoever." If true, where is the independent, objective
study which removes all doubt in 21-32 cases? It doesn't exist. Can death
penalty opponents present, at least, a review wherein 21-32 cases have a
consensus of opinion, whereby the evidence, the prosecutors, defense counsel
and the appellate courts agree on the actual innocence issue? If so, it is
no where to be found.
How many of those sentenced to death since 1973 have subsequently been
released from death row because of actual innocence? It is likely between 15
and 30. 17 being the most realistic number, as it reflects findings in the
three most thorough reviews -- Rakoff/Quinones, Campbell and the Florida
Commission.
The 102 number means nothing, except as a ruse to fool the press and the
public.
In a joint press release, dated May 7, 2002, the National Coalition to
Abolish the Death Penalty and the Texas Coalition to Abolish the Death
Penalty stated:
"More than 100 people have now been released from death row due to actual
innocence." (20)
Are such comments part of an organized deception or do they reflect willful
ignorance?
THE MEDIA
With remarkably few exceptions, neither the media nor public policy makers
have required death penalty opponents to support their claims or to define
their standards.
In fact, the rule is that the media repeats exactly what anti death penalty
sources tell them, without question and passes it along to their audience.
This may be one of the worst "no fact checking" examples in journalistic
history.
As previously suggested (21), possibly, in the future, both the media and
policy makers may inquire:
-- For how many of these claims is there proof of actual innocence?
---Were those "innocents" completely unconnected to the murder?
---Were they on death row at the time their innocence was proven?
---Can you provide confirmable, independent support of these claims?
---What are the opinions by the district attorneys and the appellate courts
for these claims?
All reasonable and necessary questions to ascertain the veracity of the
claims.
Isn't it better to be clear and specific? As opposed to unclear, unsure and
nebulous?
Does the number matter? Only if accuracy and truth are important in public
policy decisions and media reports.
(NOTE -- The DPIC list is now over 102. Their claims are so misleading we
have stopped updating at 102.)
II. The Risk to Innocents if We Don't Execute
We have overwhelming proof that living murderers harm and murder again, in
prison, after improper release and, as we so recently experienced, after
escape. No one disputes that living murderers are infinitely more likely to
harm and murder again than are executed murderers. And, there is no proof of
an innocent executed within the US since 1900.
Some supporters of a moratorium and death penalty opponents claim that a
concern for innocents is why they want to halt executions. Yet, history and
reason confirm that an end to executions will result in more innocents
harmed and murdered.
Furthermore, any assertion that the death penalty is not a deterrent is
false. Those studies not finding for deterrence do not say it doesn't exist.
Those studies finding for deterrence state that is does. A statutory
challenge caused a temporary halt to executions in Texas, in 1996. The
result? "The [Texas] execution hiatus, therefore, appears to have spared
few, if any, condemned prisoners while the citizens of Texas experienced a
net 90 [up to 150) additional innocent lives lost to homicide. Politicians
contemplating moratoriums may wish to consider the possibility that a
seemingly innocuous moratorium on executions could very well come at a heavy
cost." (22)
This is not surprising, as history, reason, common sense and the social
sciences all support that the potential for negative consequences deters or
alters the behavior of many, if not most.
Recently, at least three innocent people were murdered by escaped murderers.
That is three more than we have proof for innocents executed since 1900.
At least 8% of those on death row had committed one or more murders prior to
the murder(s) which put them on death row (23), suggesting that with 7,300
sentenced to death, since 1973, that those sent to death row had murdered at
least 600 additional innocents after we failed to properly restrain them
after their previous murder(s). Justice Department studies suggest that it
is likely that some 2 million innocents have been harmed, 100,000 murdered,
since 1973, by criminals while "supervised" by US criminal justice systems
(parole, probation, mandatory release, furloughs, pre trial releases, etc.)
(24).
In any review of criminal justice practices and their failings, we are
looking at errors in judgment and procedure. Yet, with such catastrophic
harm to innocents, coming from other criminal justice shortcomings, some
have chosen to pursue a moratorium on executions -- a criminal justice
practice lacking proof of an innocent killed, at least since 1900. Is the
priority to protect innocent lives or to get rid of the death penalty? A
review of criminal justice realities makes that an obvious question.
It currently takes nearly 12 years to execute those sentenced to death (25).
And some elected officials are debating a moratorium on executions. Yet,
under all debated scenarios, halting executions will put more innocents at
risk.
III. Due Process and The Risk to Innocents
Protecting innocent defendants/inmates
Is there any other criminal sanction, anywhere in the world, where one might
find a 99.6% guilt accuracy rate, after 30 years of biased, unverified
review by opponents of that sanction, wherein all those allegedly innocents
had been secured from their punishments by post conviction review?
The US Supreme Court has stated that those subject to the death penalty in
the US receive super due process. It is easy to see why. From 1973-2001,
7096 people were sent to death row. 2523 of those cases, or 35.4%, were
overturned on appeal or had their sentence commuted. 749, or 10.6%, were
executed (26), after an average of over 10 years on death row (27). The time
between sentencing and execution has risen from an average of 8 years in
1989 to nearly 12 years in 2001 (28).
Consideration of error, be it the actually innocent convicted or procedural,
is why we have appeals and the commutation/clemency process. The system
anticipates error and provides remedy. While the actually innocent convicted
is a horrible result, in the subject cases, none have been executed.
Few dispute that death penalty cases have the greatest level of due process
protections. Therefore, if your objection to execution is the possibility of
irreversible error, such due process concludes that it is much more likely
that an innocent sentenced to a life term will die, as an innocent in
prison, than it is that an innocent will be executed. Both irreversible
error, but one much more likely than the other.
It appears that the US death penalty is that criminal justice sanction which
is the least likely to find the innocent guilty and the most likely to
correct those rare errors upon post conviction review.
Sacrificing the innocent
The due process protections of the US death penalty are so extraordinary,
that we have released over 2500 people from death row since 1973. Although
no known study of the harm committed by those so taken off death row has
been performed, there is no doubt that many innocents have been murdered or
otherwise harmed by those so released.
One group of released death row inmates has been subject to limited review.
When the US Supreme Court found in Furman v Georgia, in 1972, that the death
penalty, as it was then enforced, was unconstitutional, all death row
inmates had their death sentences commuted. It appears that some 12
innocents have been murdered by those Furman releasees, through 1987, in
addition to other horrendous crimes committed by that same group. (still
finalizing confirmation). We are unaware of any updated review covering the
next 15 years, through 2002.
This is not an argument against super due process, but a recognition of one
reality of it.
Such due process provides unparalleled protection for the actually innocent,
extraordinary generosity to guilty murderers -- relief that turns into
suffering for those innocents harmed by those spared murderers.
IV. OK to Execute the Innocent?
Some death penalty opponents have wrongly interpreted that the US Supreme
Court decision in Herrera v Collins (113 S. Ct. 853, 870{1993}) found that
executing the innocent was quite all right.
"Justice [Sandra Day] O'Connor's concurring opinion makes clear that Herrera
does not stand for that proposition. Justice O'Connor stated, I cannot
disagree with the fundamental legal principal that executing the innocent is
inconsistent with the Constitution and the execution of a legally and
factually innocent person would be a constitutionally intolerable event. As
Justice O'Connor stated, the Court assumed for the sake of argument that a
truly persuasive demonstration of actual innocence would render any such
execution unconstitutional and that federal habeas relief would be warranted
if no state avenue were open to process the claim. Id., at 874. That is the
holding in Herrera, and any claim to the contrary is simply not correct."
(Kenneth S. Nunnelley's Congressional testimony, July 23, 1993)
V. Future innocence considerations
The DPIC alleges that 12 of their 102 "innocents" were proven actually
innocent because their DNA screenings were negative. Based upon the DPIC's
standards, we cannot be sure of all such innocent claims because, in some of
the cases, "Non-matching DNA is consistent with the prosecution's theory of
multiple perpetrators" (29) and, therefore, may not signify innocence.
In any future cases, where DNA is determinative of guilt or innocence, any
such innocent cases will never go to trial. For many reasons, including DNA
testing, the US death penalty, is much safer today than it has ever been.
As the best predictor of future performance is past performance, what will
the future risk to innocents be?
Based upon the evidence we have today, using anti death penalty standards
and their uncorroborated claims, with the next 7300 death sentences given,
nationwide, we may sentence 3-18 actually innocent persons to death, or
about 0.2%, (30) and the alleged innocent will all be taken off death row
via post conviction review or, otherwise, not be executed. What this doesn't
take into account is that many jurisdictions have, for quite some time,
already raised the qualification level for defense counsel and prosecutors
and some also require two defense attorneys to be appointed in capital
cases.
Almost without exception, those few highly publicized death penalty cases,
which have caused great public rancor, were prosecuted 15-25 years ago. More
recent cases are much less likely to provoke controversy or false claims of
innocence. Why? There is a higher quality of prosecution and defense in
these cases and new death penalty law, which began after Furman v Georgia
(1972), is more settled than it had been from 1973-1987.
Finally, a review of many of those earlier highly publicized cases revealed
that many of the anti-death penalty claims were and are either false or
deceptive. (31)
VI. The Innocent Executed
It is not at all uncommon for death penalty opponents to make false claims
about innocents executed. As of 1/1/03, The National Coalition to Abolish
the Death Penalty (NCADP) claims that "Twenty three (23) innocent people
have been mistakenly executed (in the US) this (the 20th) century." (32)
This is a common false claim, even though the authors of that 1987 study, in
response to a deconstruction of their work, stated, in 1988, that "We agree
with our critics that we have not proved these (23) executed defendants to
be innocent; we never claimed that we had." (33). The NCADP is well aware of
this, yet it doesn't stop their deception.
Barry Scheck, cofounder of the Innocence Project and featured speaker at the
National Conference on Wrongful Convictions and the Death Penalty
(11/13-15/98), stated that he had no proof of an innocent executed (in the
US since 1976) (34).
Not even the nation's leading, biased source for anti death penalty
information, the DPIC, says there is proof of an innocent executed. They
list 5 "doubt" cases (35): Gary Graham, Joseph O'Dell, Roger Keith Coleman,
Leo Jones and David Spence. A review shows how deceptive the DPIC case
descriptions are (36) and how lacking any proof of innocence is.
The Texas case of Lionel Herrera, like others, nationally, has been labeled,
by many death penalty opponents, as an innocent executed. I believe that
Herrera, once upon a time, was also included in a previous incarnation of
the DPIC list. A comment from Supreme Court Justice O'Connor. "[T]he proper
disposition of this case is neither difficult nor troubling . . . The record
overwhelmingly demonstrates that petitioner [Herrera] deliberately shot and
killed Officers Rucker and Carrisalez the night of September 29, 1981;
petitioner's new evidence is bereft of credibility. Indeed, despite its
stinging criticism of the Court's decision, not even the dissent expresses a
belief that petitioner might possibly be actually innocent." Herrera v.
Collins, 506 US 390, 421(1993) (O'Connor, J., concurring)
Of all the world's social and governmental institutions, that do put
innocents at risk, I am aware of only one, the US death penalty, that has no
proof of an innocent killed since 1900. Can you name another?
VII. Conclusion
No one disputes that an innocent sentenced to death is a horrible result.
Appeals and commutation/clemency deliberations are an integral and
inescapable part of a criminal justice system that both anticipate error and
provide remedy. Both sides of the death penalty debate are equally concerned
about the moral implication of executing an innocent. Those of us who
support execution recognize that any innocents sentenced to death or
executed injure our position.
A concern for the innocent will result in a rejection of a moratorium and
more support for executions. Either by a moratorium, or by outright repeal,
stopping executions will always put many more innocents at risk. Death
penalty opponents knows this. Their alleged concern for innocents is but
another distortion based campaign to end the death penalty.
When reason and all the facts prevail, support for executions will rise.
copyright 1998-2004 Dudley Sharp
