The Wrong Man?
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12/4/99

To: Letters to the Editor
Editors, Atlantic Monthly
Re: The Wrong Man, Atlantic Monthly, 11/99 at http://www.theatlantic.com/issues/99nov/9911wrongman.htm 

 

While unbalanced presentations by anti-death penalty sources are quite common, Alan Berlow's article is, wonderfully, over the top (The Wrong Man, Atlantic Monthly, 11/99).

Berlow makes a fundamental error in his presentation. He states that "since the Supreme Court reinstated the death penalty, in 1976, more than eighty death-row inmates have been freed from prison, their convictions overturned by evidence of innocence." This is simply untrue.

Historically, we must begin with the 1993 study (1) released by Rep. Don Edwards' House Judiciary Subcommittee which purports to find that 48 innocents had been released from death row since 1976. Rep. Edwards concludes that "Under the law, there is no distinction between definitively innocent and those found innocent after a trial." His report, thus, reflects the proposition that there is no need to distinguish between the factually innocent and the legally innocent.

What's the difference? Factual innocence is he/she didn't do it. Period. Legal innocence, for released death row inmates, can be many things. Example: A case is overturned on appeal because of improperly obtained evidence. Because that evidence of factual guilt is now unavailable for retrial, a new trial results in a not-guilty verdict or the prosecutor may choose not to retry at all. That is known as legal innocence. Not only would such a case not reflect proof of factual innocence, it may well support the opinion of a factually guilty murderer who is legally innocent and, therefore, free. 

So begins the history of such claims in the modern era of the death penalty - claims which now assert, as fact, that "...more than eighty death-row inmates have been freed from prison, their convictions overturned by evidence of innocence."

Berlow mentions the important case of Northwest University students efforts in freeing an innocent death row inmate. However, he overlooks the comments of Northwestern University Professor Lawrence Marshall, who organized the National Conference on Wrongful Convictions and the Death Penalty in Chicago (11/13-15/98). Marshall finds that "In a good half of these 75 (now 80 PLUS) cases, the exoneration is so complete that it erases any doubt whatsoever." (2)  Marshall's claims include the understood revelation that there are doubts regarding innocence in the other 40 or so cases. This directly conflicts with Berlow's assertions.

The Death Penalty Information Center (DPIC) presents a brief case description of all 80 PLUS of these "innocent" cases on their website. The DPIC is one the leading anti-death penalty organizations in the country. They have been quite active in gathering material on these cases and were, in fact, the organization which Rep. Edwards looked to in putting together the 1993 study referenced, above. (1)

DPIC's case descriptions reveal that only about 25 claim factual innocence, while also claiming to have the necessary evidence to back up that assertion. One looks in vain for support to confirm Berlow's assertion that ". . . more than eighty death-row inmates have been freed from prison, their convictions overturned by evidence of innocence."

Let's generously assume that there is clear and convincing evidence that 40 factually innocent inmates have been released from death row, " their convictions overturned by (such) evidence of innocence". . That represents 0.6% of the approximately 6,500 sentenced to death row since 1973 (3). Is there any other criminal sanction, anywhere in the world, that can show 99.4% factual guilt accuracy, after 26 years of critical review, by opponents of that sanction, wherein all those "innocent" imprisoned have been released? Unlikely. 

Berlow never challenges anti-death penalty claims that 80 plus death row inmates have been released from death row because of evidence of innocence . For him, it is, apparently, a given, not subject to review. The question is why? No independent reviewer would automatically accept the claims of any advocacy group, even an anti-death penalty one. And, in fact, I am unaware of any independent verification of Professor Marshall's findings, either. One wonders if Berlow ever investigated how many of these cases actually were overturned because of factual innocence.

There is reason to be skeptical about claims by the anti-death penalty movement, particularly those dealing with innocence. In 1987, Professors Bedau and Radelet, both leading anti-death penalty activists, published an article in the Stanford Law Review which many claimed to have proven that 23 innocents had been executed in the US since 1900. In 1988, an article highly critical of the accuracy of their work, was also published in the Stanford Law Review. Bedau and Radelet stated, "We agree with our critics that we have not proved these executed defendants to be innocent; we never claimed that we had." (4) In 1998, University of Utah Law Professor Paul Cassell (one of the authors of that 1988 critique, along with current Michigan Supreme Court Justice Stephen Markman) stated, of this 1987 article, "Bedau and Radelet's catalogue of 'innocents' ignores physical evidence of guilt, mis-cites sources that in fact indicated the defendants' guilt, includes works of fiction as proving innocence, and contains other serious flaws. More recent work by the same authors is even worse." (5) Yet, such doesn't stop many anti-death penalty groups, including those as respected as Amnesty International, from continuing to claim that 23 innocents have been executed.

Not surprisingly, there is a different view of post conviction review than that presented by Berlow. For example, 34% of all death penalty cases are overturned on appeal. Those sentenced to death are 5 times more likely to get off death row by means other than execution (appeals, clemency, other death). Even with the recent changes in habeas corpus procedure, at both state and federal levels (AEDPA), death row inmates still have 16 levels of post conviction review available. The average time on death row prior to execution is about 9 years. Because of the extreme backlog of longer serving death row inmates, it is likely that, for quite some time, such average will get longer, not shorter. For the past few years the average has been about 11 years.

If your objection to execution is the irreversible error of an innocent dying, please consider: No one disputes that death penalty cases have the greatest level of due process., what is, in fact, known as "super due process". Therefore, it is much more likely that an innocent sentenced to a life term is more likely to die, as in innocent in prison, than it is that an innocent is likely to be executed. Both irreversible error, but one much more likely than the other.

Regrettably, there are, of course, cases of irresponsible and illegal activities by government officials. Such cases should be roundly condemned and, whenever possible, prosecuted fully. There is little doubt but that all parties to this ongoing debate are, equally, morally concerned about the risk to innocents. However, from a strictly practical standpoint, an innocent executed would harm those of us who support capital punishment and benefit those opposed. 

In discussing the risk of innocents dying and errors within the criminal justice system, it should be noted that those released on parole and probation injure an astonishing number of innocents. In one average 15 (correction 17) month period alone, in the US, those so released committed at least 218,000 violent crimes, including 13,200 murders and 12,900 rapes (more than half of the rapes against children) (6). Recently, Barry Scheck, defense attorney for O.J. Simpson, co-founder of the Innocence Project, and featured speaker at the National Conference on Wrongful Convictions and the Death Penalty in Chicago (11/13-15/98), stated that there was no proof of an innocent executed (in the US). (7).

If the concern was about protecting the innocent from errors within the criminal justice system, and not just about getting rid of the death penalty, where do you think the focus would be? Amnesty International has no office opposing parole and probation, yet they have a major one opposing US executions. And in 1998, the United Nations issued a very misleading report on the death penalty in the US. Neither organization even whispers about the most significant human rights violation within the criminal justice system, that being the early release of violent offenders back into a society when we know that a significant percentage will rob, maim and/or murder, again. A realistic estimate would be that 10,000 murders have been committed by those who have murdered before, since 1970, and that the United States now has some 500,000 murderers walking the streets. (8)

The death penalty debate is one of the most contentious in the country. However, when one fully reviews both sides of this debate, the evidence falls firmly in the corner of supporting executions.

  1. "Innocence and the Death Penalty: Assessing the Danger of Mistaken Executions". Staff Report, by Rep. Don Edwards (Ca.), Chairman, Subcommittee on Civil and Constitutional Rights, House Judiciary Committee, 103d Congress, 1st Session, October 21, 1993. Also see "INNOCENCE AND THE DEATH PENALTY: The Increasing Danger of Executing the Innocent", a report by The Death Penalty Information Center (DPIC), July 1997, which is a continuation of their work on that 1993 report.
  2. Newsweek 11/9/98
  3. While SCOTUS, via Gregg v Georgia, in 1976, gave states the right to execute again, the states had begun sentencing murderers to death, again, in 1973.
  4. Stanford Law Review, 11/88
  5. Paul Cassell, "The Guilty and the 'Innocent': An Examination of Alleged Cases of Wrongful Conviction from False Confessions", 4/8/98 Draft, forthcoming, 22 Harvard Journal of Law and Public Policy.
  6. John J. DiIulio, Jr, "Prisons Are a Bargain by Any Measure", New York Times, 1/16/97, A 17:2.
  7. NBC's Today Show, 11/13/98, Matt Lauer interview
  8. See John DiIulio's comments within http://www.commentarymagazine.com/9804/gelernter.html 

 

NOTES:

There were many issues which I could have addressed in this article, the de-funding of the PCDO's, death eligible juries, some of the individual cases mentioned, (particularly Coleman and Herrera), the issue of the poor and legal representation, etc., but because of self imposed space constraints, I stuck to the general issue of innocence. There is almost no subject addressed by Berlow that does not reflect a strong anti-death penalty bias, which prevents a balanced review of the many issues addressed. A specific example: Mr. Berlow claims that political fear results in a dearth of gubernatorial commutations of death sentences. - thereby putting more innocents at risk. About 150 commutations have occurred during a period of time when we have had nearly 600 executions. We commute death row inmates at 25% of the rate we execute them. That appears to be quite a high record for mercy and care.  

Governor Bush of Texas commuted the most notorious serial killer on Texas' death row - Henry Lee Lucas. Such commutation was based more on a consideration of possible innocence, than on actual proof. At the time, Bush was already considering his presidential prospects.  Governor Carnahan of Missouri, already an acknowledged candidate for the federal senate, commuted a triple murderer's death sentence based on an appeal from the Pope. Possible innocence had nothing to do with the case.  

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