Wall Street Journal, June 16, 2000 Editorial
By Paul G. Cassell. Mr. Cassell is a professor of law at the University
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 --
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 postconviction 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
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 issues.
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
Collen 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.
Copyright 2000 Dow Jones & Company, Inc.