The Ethical Elephant in the Death Penalty Room
by Michael Keane
2008. The American Journal of Bioethics 8(10):45

Studies: Death Penalty Discourages Crime

Monday , June 11, 2007  Associated Press

Anti-death penalty forces have gained momentum in the past few years, with a moratorium in Illinois, court disputes over lethal injection in more than a half-dozen states and progress toward outright abolishment in New Jersey.

The steady drumbeat of DNA exonerations — pointing out flaws in the justice system — has weighed against capital punishment. The moral opposition is loud, too, echoed in Europe and the rest of the industrialized world, where all but a few countries banned executions years ago.

What gets little notice, however, is a series of academic studies over the last half-dozen years that claim to settle a once hotly debated argument — whether the death penalty acts as a deterrent to murder. The analyses say yes. They count between three and 18 lives that would be saved by the execution of each convicted killer.

The reports have horrified death penalty opponents and several scientists, who vigorously question the data and its implications.

So far, the studies have had little impact on public policy. New Jersey's commission on the death penalty this year dismissed the body of knowledge on deterrence as "inconclusive."

But the ferocious argument in academic circles could eventually spread to a wider audience, as it has in the past.

"Science does really draw a conclusion. It did. There is no question about it," said Naci Mocan, an economics professor at the University of Colorado at Denver. "The conclusion is there is a deterrent effect."

A 2003 study he co-authored, and a 2006 study that re-examined the data, found that each execution results in five fewer homicides, and commuting a death sentence means five more homicides. "The results are robust, they don't really go away," he said. "I oppose the death penalty. But my results show that the death penalty (deters) — what am I going to do, hide them?"

Statistical studies like his are among a dozen papers since 2001 that capital punishment has deterrent effects. They all explore the same basic theory — if the cost of something (be it the purchase of an apple or the act of killing someone) becomes too high, people will change their behavior (forego apples or shy from murder).

To explore the question, they look at executions and homicides, by year and by state or county, trying to tease out the impact of the death penalty on homicides by accounting for other factors, such as unemployment data and per capita income, the probabilities of arrest and conviction, and more.

Among the conclusions:

• Each execution deters an average of 18 murders, according to a 2003 nationwide study by professors at Emory University. (Other studies have estimated the deterred murders per execution at three, five and 14).

• The Illinois moratorium on executions in 2000 led to 150 additional homicides over four years following, according to a 2006 study by professors at the University of Houston.

• Speeding up executions would strengthen the deterrent effect. For every 2.75 years cut from time spent on death row, one murder would be prevented, according to a 2004 study by an Emory University professor.

In 2005, there were 16,692 cases of murder and nonnegligent manslaughter nationally. There were 60 executions.

The studies' conclusions drew a philosophical response from a well-known liberal law professor, University of Chicago's Cass Sunstein. A critic of the death penalty, in 2005 he co-authored a paper titled "Is capital punishment morally required?"

"If it's the case that executing murderers prevents the execution of innocents by murderers, then the moral evaluation is not simple," he told The Associated Press. "Abolitionists or others, like me, who are skeptical about the death penalty haven't given adequate consideration to the possibility that innocent life is saved by the death penalty."

Sunstein said that moral questions aside, the data needs more study.

Critics of the findings have been vociferous.

Some claim that the pro-deterrent studies made profound mistakes in their methodology, so their results are untrustworthy. Another critic argues that the studies wrongly count all homicides, rather than just those homicides where a conviction could bring the death penalty. And several argue that there are simply too few executions each year in the United States to make a judgment.

"We just don't have enough data to say anything," said Justin Wolfers, an economist at the Wharton School of Business who last year co-authored a sweeping critique of several studies, and said they were "flimsy" and appeared in "second-tier journals."

"This isn't left vs. right. This is a nerdy statistician saying it's too hard to tell," Wolfers said. "Within the advocacy community and legal scholars who are not as statistically adept, they will tell you it's still an open question. Among the small number of economists at leading universities whose bread and butter is statistical analysis, the argument is finished."

Several authors of the pro-deterrent reports said they welcome criticism in the interests of science, but said their work is being attacked by opponents of capital punishment for their findings, not their flaws.

"Instead of people sitting down and saying 'let's see what the data shows,' it's people sitting down and saying 'let's show this is wrong,'" said Paul Rubin, an economist and co-author of an Emory University study. "Some scientists are out seeking the truth, and some of them have a position they would like to defend."

The latest arguments replay a 1970s debate that had an impact far beyond academic circles.

Then, economist Isaac Ehrlich had also concluded that executions deterred future crimes. His 1975 report was the subject of mainstream news articles and public debate, and was cited in papers before the U.S. Supreme Court arguing for a reversal of the court's 1972 suspension of executions. (The court, in 1976, reinstated the death penalty.)

Ultimately, a panel was set up by the National Academy of Sciences which decided that Ehrlich's conclusions were flawed. But the new pro-deterrent studies haven't gotten that kind of scrutiny.

At least not yet. The academic debate, and the larger national argument about the death penalty itself — with questions about racial and economic disparities in its implementation — shows no signs of fading away.

Steven Shavell, a professor of law and economics at Harvard Law School and co-editor-in-chief of the American Law and Economics Review, said in an e-mail exchange that his journal intends to publish several articles on the statistical studies on deterrence in an upcoming issue.

Dead Family Walking:

The guru of death row inmates, Sister Helen Prejean, wrote a book Dead Man Walking. One of the victims' family has finally answered her in DEAD FAMILY WALKING. available from the publisher www.deadfamilywalking.com.

Sister Helen Prejean is a fountain of misinformation; all taken as fact because of course a nun wouldn't lie. (They can be deceived, naive and gullible, however) She has never answered why the murderers get more support than the victims or their families. She says this is not her intent, but it is the end result.

Death Penalty and Deterrence: Let's be clear
by Dudley Sharp, Justice Matters, 0104

The Death Penalty as a Deterrent - Confirmed - Seven Recent Studies
Dudley Sharp, Justice Matters, updated 11/12/04

Death Penalty Cases v. Equivalent Life Sentence Cases
by Dudley Sharp, Justice Matters
 

The REAL Death Penalty in the United States: A Review
Dudley Sharp, Justice Matters

U.S. Supreme Court undermines the People of Missouri.

Read the Supreme Court's Decision in Roper v. Simmons (Juvenile Executions) True Judicial Activism Please Read Justice Scalia's Dissent

US wins in World Court - US Courts handling Vienna Convention Properly

By: Dudley Sharp, Death Penalty Resources  e-mail sharpjfa@aol.com

The International Court of Justice ruled Wednesday that the United States "should provide by means of its own choosing meaningful review of the conviction and sentence'', presiding Judge Shi Jiuyong said.

This is precisely what the US had been doing all along, in accordance with the US's admitted violation of the Vienna Convention.

The finding that the US had violated the Convention was not the major issue, as all parties had conceded to that fact. In 51 of the 52 Mexican national cases, the US failed to notify the detained foreign nationals that they had the right to contact the Mexican consulate, as required by the Convention.

The important issue was: What were the remedies for such a violation.

All US jurisdictions have reviewed those issues and all have found, on final appeal, that the notification violation of the Vienna Convention should not overturn those cases.

The US has provided "meaningful review" in the past and will continue to do so in the future. The International Court has confirmed that the US is handling this appellate issue in accordance with international law.

It should be noted that if any detained foreign national or their counsel had ever sought to contact the detained parties consulate, they would have been allowed to do so.

Read the latest article by Kent Scheidegger - Criminal Justice Legal Foundation
Smoke and Mirros on Race and the Death Penalty

OPED: CONGRESS PREPARES TO FUND THE ANTI-DEATH-PENALTY LOBBY.

By Ramesh Ponnuru
Why is a Republican Congress considering a bill to fund anti-death-penalty activists? A bill that could result in murderers going free? A bill that was initially introduced to hurt George W. Bush? Beats me. But that's exactly what Congress is doing.
 
In early 2000, Democrats were portraying George W. Bush's Texas as a third-world hellhole where the water was dirty, the churches were filled with guns, and the streets ran red with the blood of unlucky defendants. A few anecdotes in which public defenders really had been lax in capital murder cases were extrapolated into a critique of law enforcement in the state. At around this time, Senator Patrick Leahy of Vermont and Representative William Delahunt of Massachusetts, both Democrats, introduced the "Innocence Protection Act." Supposedly, the bill was going to keep innocents from getting put on death row by, among other things, providing for better legal defenses for accused capital murderers.
 
In a modified form, the bill has been made part of the "Advancing Justice Through DNA Technology Act of 2003." Sponsors of the bill include Orrin Hatch and James Sensenbrenner, the chairmen of the House and Senate judiciary committees. The House Judiciary Committee voted for the bill 28-1. Conservative Jeff Flake was the only dissenter.
http://www.nationalreview.com/script/printpage.asp?ref=/ponnuru/ponnuru200310290831.asp

NINTH CIRCUIT ISSUES MAJOR DEATH PENALTY RULING

    Conflict with Other Circuits Means Likely Supreme Court Review

The United States Court of Appeals for the Ninth Circuit decided today that the Supreme Court's 2002 ruling against Arizona's capital sentencing system will apply retroactively to cases that have already been affirmed on appeal to the Arizona Supreme Court. 

The Arizona Attorney General estimates that the decision will affect 89 death penalty cases, unless it is reversed by the Supreme Court.

Today's ruling is contrary to decisions by two other federal Courts of Appeals and the Arizona Supreme Court. 

 "This conflict makes it nearly certain that the U. S. Supreme Court will review this issue in the near future," said Kent Scheidegger, Legal Director of the Criminal Justice Legal Foundation.

The decision came in the case of Arizona murderer Warren Summerlin.  The Ninth Circuit's previous decision in this case described the crime:  "On April 29, 1981, petitioner Warren Wesley Summerlin killed Brenna Bailey when she went to his residence on behalf of her employer to attempt to collect a delinquent debt.  Summerlin bashed in Ms. Bailey's head and skull, probably with a hatchet, wrapped her partially nude body in a bedspread, and discarded her remains in the locked trunk of her car.  He was arrested a few days later, charged, and convicted under Arizona law of first-degree murder and sexual assault, and sentenced ... to death."

In capital murder cases, at least one additional factor beyond the elements of murder must be found before a sentence of death can be considered.  In Summerlin's case, the trial judge found two factors:  that he had previously been convicted of a violent felony and that Summerlin committed the murder in "an especially heinous, cruel, or depraved manner."

From the restoration of capital punishment in 1976 until recently, the Supreme Court has repeatedly held that the finding of an "aggravating circumstance" may be made by either a judge or a jury.  In 2000, the court decided in Apprendi v. New Jersey that any fact other than a prior conviction that increases the maximum allowable punishment must be found by a jury. 

In the 2002 case of Ring v. Arizona, the high court extended this reasoning to the findings of aggravating circumstances in capital cases, so that these factors must now be found by the jury.  The Ring decision overruled a 1990 Supreme Court decision which had upheld Arizona's law on exactly this point.

In a pair of decisions in 1987 and 1989, the Supreme Court decided that new rules it creates would be applied retroactively in all cases that have not yet been affirmed on appeal, but, with rare exceptions, new rules of procedure would not be applied to overturn affirmed judgments. 

Under this framework, courts throughout the country have uniformly held that the Apprendi decision is not retroactive.  Applying the same reasoning, the Arizona Supreme Court and the Atlanta-based Eleventh Circuit Court of Appeals have held that the Ring decision is also not retroactive.  The Denver-based Tenth Circuit Court of Appeals has also held that Ring is not different from Apprendi in this regard.

In its last term, the Supreme Court reviewed 10 cases from the Ninth Circuit in criminal and crime-related cases.  That is more than all other circuits combined, even though the Ninth Circuit comprises only one-fifth of America's population.  The high court reversed all 10 Ninth Circuit decisions it reviewed, two of them summarily.

"Regrettably, a court with a clear agenda to block the enforcement of capital punishment has issued yet another clearly wrong decision," said Scheidegger.  "We expect that this error will be corrected by the Supreme Court."

CJLF Attorney Kent S. Scheidegger is available for comment at (916) 446-0345.

Note:  Case is currently pending in the U.S. Supreme Court. 

Re: the Pennsylvania Supreme Court Commission's report on racial bias in capital sentencing

The Commission made many errors in analysis. Had they made a thorough and scientifically credible report, then the data may have been the basis for reasoned discussion and review. Unfortunately, that is not what the Commission produced.

Please review my brief analysis of racial issues, below. I hope that it will give you and idea as to how the Commission went astray.

I would be happy to discuss any issues, further, should you so desire.

Sincerely, Dudley Sharp, Resource Director, Justice For All

RACE: A Death Penalty Primer
Dudley Sharp, Justice For All
contact info below

5 studies are reviewed, herein

1) For emphasis, population count is TOTALLY irrelevant, regarding any consideration of class or race/ethnicity bias in the application of the death penalty. The ONLY relevant factors in such a review is class, race/ethnic distribution of murderers and their victims in capital murders, as well as criminal history and the specific circumstances of the crime(s).

2) Drs. Stephen Klein and John Rolph
, "Relationship of Offender and Victim Race to Death Penalty Sentences in California"(Jurimetrics Journal, 32, Fall 1991, aka The Rand Corporation Study), found that, "After accounting for some of the many factors that may influence penalty decisions, neither race of the defendant nor race of the victim appreciably improved prediction of who was sentenced to death . . . ".

3) Smith College Professors Stanley Rothman and Stephen Powers ("Execution by Quota?", The Public Interest, Summer 1994), found that legal variables, such as prior criminal history and the aggravated nature of the murder, are the proven basis for imposition of the death penalty. The black/white variation in sentencing has generally been reduced to zero when such legal variables are introduced as controls.

4) NO BIAS IN DEATH SENTENCING:
U of Maryland's Death Penalty Study (1)

The following are direct quotes from the Executive Summary of the U of Maryland study.

Race of the victim

"The race of the victim effect does not hold up, however, at the decision of the state's attorney to advance a case to penalty trial and at the decision of the judge or jury to impose a death sentence given that a penalty trial has occurred." p 27

In other words, the victim's race has no impact on seeking or
giving death sentences.

"The race of the victim does not appear to matter when the decision is to advance a case to the penalty phase or to sentence a defendant to death after a penalty phase
hearing." page 29

In other words, the victim's race has no impact on seeking or
giving death sentences

"Among the subset of cases where the case actually does reach a penalty trial, the victim's race does not have a significant impact on the imposition of a death sentence." page 35

In fact, the study fails to demonstrate that there is any race of the victim effect in death sentencing in Maryland.

"When the prosecuting jurisdiction is added to the model the effect for the victims race diminishes substantially, and is no longer statistically significant." page 32

In other words, when you look at the capital murder cases, from each, separate jurisdiction, individually, any alleged race of the victim effect cannot be found.

" . . . any attempt to deal with any racial disparity in the imposition of the death penalty in Maryland cannot ignore the substantial variability that exists in different state's attorney's offices in the processing of death cases." p 34

In other words, it is important to look at how each jurisdiction handles their capital cases, because each jurisdiction is different. And when that is done, no bias in death sentencing is found.

Race of victim and defendant

"There is no race of the offender / victim effect at either the decision to advance a case to penalty hearing or the decision to sentence a defendant to death
given a penalty hearing." page 30

In other words, neither the race of the defendant nor the race of the victim have an impact on seeking or giving death sentences.

Race of the defendant

" . . . there is no evidence that the race of the defendant matters at any stage once case characteristics are controlled for." page 26

" . . . we found no evidence that the race of the defendant matters in processing of capital cases in the state." p 26

In other words, Maryland is not looking at race, but is concentrating on the nature of the murders.

(1) Executive Summary:
An Empirical Analysis of Maryland's Death Sentencing System with Respect to the Influence of Race and Legal Jurisdiction, www.urhome.umd.edu/newsdesk/pdf/exec.pdf

5) No Racial Bias in the New Jersey Death Penalty System

New Jersey
For release: February 11, 2003
For further information contact
Winnie Comfort, AOC
(609) 292-9580
Report on Proportionality Released

Trenton, N.J.

The 2002 report essentially mirrors the findings contained in the 2001 report, and may be summarized as follows:

--There is no sustained, statistically significant evidence that the race of the defendant affects which cases advance to penalty trial. Although bivariate analysis reveals that a greater proportion of death-eligible white defendants than African-American defendants advance to the penalty phase, that finding is not supported by regression studies and application of case-sorting techniques. There is no sustained, statistically significant evidence that the race of the defendant affects which cases result in imposition of the death penalty. Again, although bivariate analysis reveals that a greater proportion of death-eligible white defendants are sentenced to death than African-American defendants, that finding is not supported by regression studies and application of case-sorting techniques.
--There is statistically significant evidence that white victim cases are more likely than African-American victim cases to advance to penalty trial, but that finding is eradicated when county variability is taken into account. A disproportionate number of minority victim cases are tried in counties with the lowest overall rates of progression to penalty trial, while less urban counties with a high concentration of white victim cases have higher rates of capital prosecutions. Although Judge Baime notes that county variability may itself be a problem, he offers no opinion on the subject because that issue is well beyond the contours of his report.
--There is no sustained, statistically significant evidence that white victim cases are more likely than minority victim cases to result in imposition of the death penalty

The New Jersey Supreme Court has accepted the 2002 annual report prepared by Judge David S. Baime, a retired Appellate Division judge, on the monitoring of proportionality review in capital punishment cases in New Jersey. The Supreme Court adopted a monitoring system in 2000 to determine whether racial discrimination played a role in the administration of New Jersey's capital cases.

In his capacity as a "special master," a role that requires extrajudicial expertise and work with court-appointed experts, Judge Baime prepared the "Report to the New Jersey Supreme Court: Systemic Proportionality Review Project 2001-2002 Term." .

Judge Baime was assisted by statistical analysts David Weisburd, a professor at The Hebrew University of Jerusalem and The University of Maryland, College Park, and Joseph Naus, a professor at Rutgers University. In an effort to provide the most accurate analysis possible, the monitoring system approved by the Court consists of three different statistical strategies: bivariate analyses, regression studies and case-sorting techniques. In order to establish systemic disproportionality, a defendant must relentlessly document the risk of racial disparity. This requires that the outcomes produced by the three modes of analysis substantially converge, or lead to the conclusion that racial discrimination plays a part in capital sentencing.

The three modes of analysis were applied to three separate decision points: death outcomes at penalty trials, death outcomes among all death-eligible cases, as determined by Judge Baime and the Administrative Office of the Courts (AOC), and advancement of death-eligible cases to penalty trials. Three identifiable groups--African-Americans, whites and Hispanics--were examined, and possible disparities in terms of the race or ethnicity of the defendant and the race or ethnicity of the victim were considered.

6)   Pro & Con: The Death Penalty in Black and White
by Dudley Sharp
Thursday, June 24, 1999
IntellectualCapital.com,  6/24/99.
stored at www.prodeathpenalty.com/racism.htm

I don't know about you, but when I get into a discussion about the death penalty, my first thoughts go to the victim and to the brutality of the murder. That is the foundation of the just nature of the death penalty.

Too often these days, however the death penalty is discussed in different terms. Inevitably, with the racial history of this country, the effect of race in the application of the death penalty has become a central part of the death-penalty discourse. This is particularly true as some politicians are making the case for a death-penalty moratorium, in part to consider whether the death penalty is inherently racist.

All too often, however, those arguments are spurious. In the death penalty debate, it should be the facts, and not the hype, that are in be black and white.

A closer look at the statistics

Often such discussion begins with the obvious: the race of the defendant. The Death Penalty Information Center (DPIC) reports that black murderers represent 35% of those executed, white murderers 56%. As the argument goes, this must be evidence of systemic racism, as blacks represent 12% of the population, whites 74%.

Fortunately, the United States does not execute people based on their population counts but on the murders they commit. As blacks represent 47% of murderers and whites 37%, we see that whites are twice as likely to be executed for committing murder as are their black counterparts.

Furthermore, the Bureau of Justice Statistics says that whites sentenced to death are executed 17 months more quickly than blacks. With 98% of all head prosecutors in the United States being white, according to DPIC, how is such a result possible? Maybe prosecutors, judges and juries are focusing on the crimes and not the race of the defendant.

That is not the case, say anti-death penalty groups, such as Amnesty International, and now the United Nations. If you adjust for the specific aggravating factors present within capital crimes, you find clear evidence of racism.

Death-penalty opponents note, for example, that the Supreme Court, in the famous race-based challenge to the death penalty (McCleskey v. Kemp), found in 1987 that those who murderer whites were 4.3 times more likely to be sentenced to death than those who murder blacks, under similar circumstances.

David Baldus, who did the statistical study on McCleskey's behalf, also completed a recent study in Philadelphia where it is was reported to show that black murderers were four times more likely to receive a death sentence than white murderers. With such results, how can anyone dispute the racist application of the death penalty?

Quite easily.

The Supreme Court, as well as many others, confused odds with multiples. The data reflect odds of 4-to-1, not four times more likely.

What difference does it make?

In Baldus' Philadelphia study, we find that if only 2% more white murderers had been sentenced to death and only 2.5% fewer black murderers had been sentenced to death, then each group would have been sentenced to death by juries at the same rate -- a far cry from the 400% differential stated within the incorrect interpretation of "four times"!

A punishment that fits the crimes

The next issue raised is the victim's race. While blacks and whites comprise about an equal number of murder victims, the ratio of white-to-black victims in death-penalty cases is about 7-to-1. This has given rise to the allegation that the "system" only cares about white murder victims. A horrible accusation, if true.

However, the ratio of white-to-black victims in the aggravated circumstances necessary for a capital murder conviction (rape, robbery, car-jacking, burglary, police murders, serial/multiple murders, etc.) is from 4-to-1 to 8-to-1 -- numbers consistent with the victim ratios on death row.

The final resting place for the racism charge lies within those cases where blacks have been executed for murdering whites and whites have been executed for murdering blacks. There have been 144 blacks and 10 whites executed under such circumstances, or a ratio of 14-to-1. As blacks are about 2.5 times more likely to murder whites than the other way around, there appears to be a huge disparity in such executions. Is racism the reason?

If we look at robbery, the aggravated crime found most often in capital cases, we find that when there is a robbery with injury, the ratio of black robber/white victims versus white robbers/black victims is 21-to-1.

Again, when looking at the circumstances consistent with capital crimes, we find no evidence of racial bias.

The determining factor for sentencing in death-penalty cases is what it should be -- the aggravating nature of the crimes. Both the Rand Corp. study of 1991 and the research presented by Smith College professors Stanley Rothman and Stephen Powers in 1994 confirm that finding. In other words, it appears that any racial variations present within the data are reflective of the crimes themselves and not racial bias within the system. A review of those studies, as well as of criminal-justice statistics, within the context of the aggravating circumstances present within capital murders and the related statutes, produces the same conclusion.

Don't assume the worst motives

There will always be some variables of race, ethnicity and class within any study of criminal-justice practices, and based on historic, as well as current prejudices, we can never lower our guard. Because all studies are subject to poor protocols, bias and misinterpretation, we must make reasoned judgments based on as many respected considerations as we may have at our disposal.

And even if criminal-justice statistics did not show the obvious correlation between crimes and the application of the death penalty, we should note what the Supreme Court stated in McCleskey: "Where the discretion that is fundamental to our criminal justice process is involved, we decline to assume that what is unexplained [by measured factors] is invidious." Sound ideas should not be eliminated based on misguided statistics.

In the case of the death penalty, the facts lead to only one conclusion. No moratorium is necessary.

Dudley Sharp, Resource Director, Justice For All,  e-mail  sharpjfa@aol.com,    phone 713-935-9300. pager 713-508-6979

ALL MEDIA CALLS --  Dianne Clements, President, Justice For All, e-mail  jfanet@msn.com, phone 713-935-9300. pager 713-508-6979

JUSTICE FOR ALL, PO Box 55159, Houston, Texas 77255

JUSTICE FOR ALL -- JFA is a criminal justice reform organization.  Our focus is solely on violent crime issues and what we can do, within the criminal justice and legislative systems, to lessen injury to the innocent and to prosecute the guilty.  To accomplish that goal, we are actively involved in community education, elections, legislation, victim's rights issues, including our involvement in many individual cases.

JFA websites
http://www.murdervictims.com/
http://www.jfa.net/
http://www.prodeathpenalty.com/

To: The Honorable Maryland Governor, Lt. Governor, Attorney General and all Maryland State Legislators

CC: Baltimore Sun, USA Today, Washington Post, Washington Times

THE DETERRENT EFFECT OF THE DEATH PENALTY
by Dudley Sharp, Justice For All
(contact info, below)

". . . (E)ach execution results, on average, in eighteen fewer murders . . . ".

Deterrence

The potential for negative consequences deters some behavior.  The most severe criminal sanction -- execution -- does not contradict that finding. Reason, common sense, history and the weight of the studies support the deterrent effect of the death penalty.  The death penalty protects innocent lives.

Is there any group, be they criminologists, historians, psychologists, economists, philosophers, physicians, journalists or criminals that does not recognize that the prospect of negative consequences constrains or deters the behavior of some?  Of course not -- not even fiction writers so speculate.  Even irrational people wear seat belts, choose not to smoke and do not rob police stations because of the potential for negative consequences.

I.  Recent Deterrence Studies-- The death penalty saves innocent lives

University of Houston Professors Dale Cloninger and Roberto Marchesini, found that death penalty moratoriums contribute to more homicides. They found: "The (Texas) execution hiatus (in 1996), therefore, appears to have spared few, if any, condemned prisoners while the citizens of Texas experienced a net 90 (to as many as 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." (1)

Emory University Economics Department Chairman Hashem Dezhbakhsh and Emory Professors Paul Rubin and Joanna Shepherd state that "our results suggest that capital punishment has a strong deterrent effect.  An increase in any of the probabilities -- arrest, sentencing or execution -- tends to reduce the crime rate. In particular, each execution results, on average, in eighteen fewer murders -- with a margin of error of plus or minus 10." (2) Their data base used nationwide data from 3,054 US counties from 1977-1996.

University of Colorado (Denver) Economics Department Chairman Naci Mocan and Graduate Assistant R. Kaj Gottings found "a statistically significant relationship between executions, pardons and homicide. Specifically each additional execution reduces homicides by 5 to 6, and three additional pardons (commutations) generate 1 to 1.5 additional murders." Their "data set contains detailed information on the entire 6,143 death sentences between 1977 and 1997. (3)

Their findings reflect the most obvious of common sense.  They write:

"According to the standard economic model of crime, a rational offender would respond to perceived costs and benefits of committing crime."  "Capital punishment is particularly significant in this context, because it represents a very high cost for committing murder (loss of life).  Thus, the presence of capital punishment in a state, or the frequency with which it is used, should unequivocally deter homicide." Furthermore, "an increase in pardons (commutations) implies a decrease in the probability of execution, which economic theory predicts should have a positive (increase) impact on murder rates." (4)

Pubic policy makers take note.  Stopping executions will sacrifice innocent lives.  Reinstating capital punishment will spare more innocent lives.

ll. Historical support

Reason, history and common sense all support that the potential for negative consequences deters or alters behavior. In short, incentives, negative or positive, matter. That is undisputed.

Numerous, previous studies have also supported a deterrence finding. And the studies that find a deterrent effect of other criminal sanctions give additional support to the deterrent effect of the death penalty, because, if lesser sanctions deter, then we know that more severe sanctions also deter. The studies that find a deterrent effect of 1. increased police presence, or any other levels of security; 2. arrest/arrest rates; 3. criminal sentencing/incarceration terms; and 4. the presence of rules, laws and statutes all provide additional, collateral support for the deterrent effect of the death penalty. And there are likely hundreds, if not thousands, of such studies and examples (database in progress).

lII.  Negative consequences matter

Many have discounted a deterrent effect because of the irrationality of potential and active criminals.  However, both reason and the evidence support that the potential for negative consequences does affect criminal behavior.

Criminals who try to conceal their crime do so for only one reason -- fear of punishment.  Likely, more than 99% of all criminals, including capital murderers, act in such a fashion.  Fear of capture does not exist without an expectation of punishment.

This doesn't mean that they sit down before every crime, most crimes or even their first crime, and contemplate a cost to benefit analysis of a criminal action.  Weighing negative consequences may be conscious or subconscious, thoughtful or instinctive.  And we instinctively know the potential negative consequences of some actions.  Even pathetically stupid or irrational criminals will demonstrate such obvious efforts to avoid detection.  And there is only one reason for that -- fear of punishment.

When dealing with less marginalized personalities, those who choose not to murder, such is a more reasoned group.  It would be illogical to assume that a more reasoned group would be less responsive to the potential for negative consequences.  Therefore, it would be illogical to assume that some potential murderers were not additionally deterred by the more severe punishment of execution.

As legal writer and death penalty critic Stuart Taylor observes: "All criminal penalties are based on the incontestable theory that most (or at least many) criminals are somewhat rational actors who try so hard not to get caught because they would prefer not to be imprisoned. And most are even keener about staying alive than about avoiding incarceration."  (5)

Based upon the overwhelming evidence that criminals do respond to the potential of negative consequences, reason supports that executions deter and that they are an enhanced deterrent over lesser punishments.

IV.  The pre trial, trial and death row evidence -  the survival effect

At every level of the criminal justice process, virtually all criminals do everything they can to lessen possible punishments.  I estimate that less than 1% of all convicted capital murderers request a death sentence in the punishment phase of their trial.  The apprehended criminals' desire for lesser punishments is overwhelming and unchallenged.

Of the 7300 inmates sentenced to death since 1973, 85, or 1.2% have waived remaining appeals and been executed. 98.8% have not waived appeals.  The evidence is overwhelming that murderers would rather live on death row than die.  Why?  The survival effect -- life is preferred over death and death is feared more than life.  Even on death row, that is the rule.

Even such marginalized personalities as capital murderers fear death more than imprisonment.  And that which we fear the most, deters the most. (kudos to Ernest van den Haag and many others)

It is logical to conclude that some of those less marginalized personalities, who choose not to murder, also, overwhelmingly, fear death more than life, and, we, thus, logically conclude that some are deterred from murdering because of the enhanced deterrent effect of execution.

The evidence for the survival effect in pretrial, trial and appeals is overwhelming and that weighs in favor of execution as a deterrent and as an enhanced deterrent over lesser sentences.

V.  If unsure about deterrence

Common sense, reason and history all support that the potential for negative consequences restricts the behavior of some.  But, if unsure of deterrence, we face the following dilemma -- If executions do deter, halting executions causes more innocents to be murdered and gives those living murderers the opportunity to harm and murder again.  If the death penalty does not deter, and we do execute, we punish murderers as the jury deemed appropriate and we prevent those executed murderers from harming or murdering again.

Oddly, death penalty opponents believe that the burden of proof is on those who say the death penalty is a deterrent.  Clearly it is not.  The weight of the evidence, within reason, history, common sense and the social sciences is that the potential for negative consequences restricts the behavior of some.  That is not in dispute.  Furthermore, if opponents cannot prove it is not a deterrent, which they never have and never will, then they are the ones who risk sacrificing innocents, both by absence of deterrence and reduced incapacitation.

Regardless of jurisdiction, under all debated scenarios, more innocents are put at risk when we fail to execute.  Any alleged concern for innocents weighs in favor of executions.

Vl.  The individual deterrent effect

The individual deterrent effect is represented by those who state that they were deterred from committing a murder only because of the prospects of a death sentence. Individual cases support the enhanced deterrent effect. (6)

One Iowa prisoner, who escaped from a transportation van, with a number of other prisoners, stated that he made sure that the overpowered guards were not harmed, because of his fear of the death penalty in Texas.  The prisoners were being transported through Texas, on their way to New Mexico, when the escape occurred.  Most compelling is that he was a twice convicted murderer from a non death penalty state, Iowa. In addition, he was under the false impression that Texas had the death penalty for rape and, as a result, also protected the woman guard from assault. (7)

New York Law School Professor Robert Blecker recorded his interview with a convicted murderer. The murderer robbed and killed drug dealers in Washington DC., where he was conscious that there was no death penalty.  He specifically did not murder a drug dealer in Virginia because, and only because, he envisioned himself strapped in the electric chair, which he had personally seen many times while imprisoned in Virginia. (8)

Logic requires that the individual deterrent effect cannot exist without the general deterrent effect.  Therefore, reason dictates that the general deterrent effect must exist. The question is not: "Does deterrence exist?"  It does. The issue is: "What is the quantifiable impact of deterrence?"

Individual cases support the individual deterrent effect and such cases insure that general deterrence must exist.  And, for both, the evidence also suggests that executions provide enhanced deterrence over incarceration.

VlI.  Conflicting studies

In reviewing 30 years of deterrence studies, the strongest statement one may make against deterrence is that there is conflicting data (9).

Yet, even when academic bias against capital punishment is overt, such as in the case of the American Society of Criminology -- the subtitle to their death penalty resources page is "Anti-Capital Punishment Resources" -- even they fail to state that the death penalty does not deter some potential murderers, only that "social science research has found no consistent evidence of crime deterrence through execution." (10) That is far from stating that executions do not deter.  And the criminologists are, very likely, that academic group most hostile toward the death penalty. What social science conflicts with the notion that the potential for negative consequences restrains the behavior of some? And most would agree that execution is the most serious negative consequence that a murderer may face.

Numerous studies find that executions do deter.  And there is a rational conclusion based upon common experience.  It appears that all criminal sanctions deter some.  It would be irrational to conclude that the most severe and publicized sanction -- execution -- does not deter some potential murderers.

Those studies which do not find deterrence say that they could not detect it, not that it doesn't exist.  Those studies which find for deterrence state such.

As Professor Cloninger states: " . . .  (Our recent) study is but another on a growing list of empirical work that finds evidence consistent with the deterrence hypothesis.  These studies as a whole provide robust evidence -- evidence obtained from a variety of different models, data sets and methodologies that yield the same conclusion. It is the cumulative effect of these studies that causes any neutral observer to pause." (11)

Conflicting studies and reason both weigh in favor of the death penalty as a deterrent and as an enhanced deterrent over lesser punishments.

VlII.  The brutalization effect of executions

Some, particularly death penalty opponents, find that the brutalization effect is more likely than the deterrent effect.  The brutalization effect finds that murders will increase because potential murderers will murder because of the example of state executions.

Why would potential and active murderers be so influenced by the state in such a deep philosophical manner, revealed by brutalization, but they wouldn't be more affected by the simple "you murder, we execute you?"

Death penalty opponents make an interesting about face on this issue.  They insist that criminals are so thoughtless and impulsive that they can't be affected by the potential of negative consequences but, then, those same opponents see criminals as so contemplative that their criminal actions increase BECAUSE those criminals follow the example of the state. One might ask those opponents: "Is there any other government action which influences criminals in such a fashion?"  Do criminals kidnap more BECAUSE the state increases incarceration rates?  Do criminals give money to potential victims BECAUSE the state donates to needy causes?

Murder rates and execution rates

Although deterrence is much more than a simple look at only execution rates and murder rates, we do find that as executions have risen dramatically, the murder rate has plunged.

>From 1966-1980, a period which included our last national moratorium on executions (June 1967- January 1976), murders in the United States more than doubled from 11,040 to 23,040. The murder rate also nearly doubled, from 5.6 to 10.2/100,000.  During that 1966-1980 period, the US averaged 1 execution every 3 years, with a maximum of two executions per year.  From 1995-2000 executions averaged 71 per year, a 21,000% increase over the 1966-1980 period.  The US murder rate dropped from a high of 10.2/100,000 in 1980 to 5.5/100,000 in 2000 -- a 46% reduction. The US murder rate is now at its lowest level since 1966 (12).

The Texas example -- The murder rate in Harris County (Houston), Texas has fallen 73% since executions resumed in 1982, through 2000, from 31/100,000 to 8.5/100,000 (13).  Harris County is, by far, the most active death penalty sentencing and execution jurisdiction in the US.  The Harris County murder rate dropped nearly 70% more than did the national murder rate, during similar periods. Texas' murder rate dropped 62% during that same period, or 41% more than the national average.

Potential murderers may have been affected by the example of the state of Texas but, likely, not in a manner consistent with brutalization. 

And "(t)he biggest decline in murder rates has occurred in states that aggressively use capital punishment." (14)

After a thorough review of deterrence studies, Professor Samuel Cameron observed, "The brutalization idea is not one the economists have given any credence." "We must conclude that the deterrence effect dominates the opposing brutalization effect." (15)

Reason, history, common sense and the studies weigh against the brutalization effect.

lX.  The incapacitation effect

The incapacitation effect states that executed murderers cannot harm or murder again.  Reason dictates that living murderers are infinitely more likely to harm and murder again than are executed murderers.

That obvious logic escapes death penalty opponents who say that we can have foolproof incarceration.  What hypocrisy.  This is the same group of folks who tell us that our system of justice is so fraught with error that we cannot possibly continue the death penalty.  Yet, the facts tell us that living murderers harm and murder again, in prison, after escape and after improper release.  Executed murderers do not.  In addition, the US death penalty appears to be that criminal justice sanction which is the least likely to convict the factually innocent and the most likely to remedy such rare error upon post conviction review.

Stuart Taylor: "Statistical studies and common sense aside, it's undeniable that the death penalty saves some lives: those of the prison guards and other inmates who would otherwise be killed by murderers serving life sentences without parole, and of people who might otherwise encounter murderous escapees". (16)

Under all circumstances, the execution of murderers will protect innocents at a higher rate than will incarceration.

X.  Death Penalty Opponents

Why is it that some death penalty opponents appear to laugh off any potential for a deterrent effect of executions?  Because to admit that executions deter some potential murderers would be to admit that, in reaching their goals, they will knowingly benefit murderers at the cost of sacrificing more innocent lives.  Of course, opponents will never prove it is not a deterrent and many will admit that executions do deter some.

How many would still oppose executions if they knew that the evidence supported the deterrent effect and that many more innocents are put at risk by not executing?

Stuart Taylor: "So those of us who lean against the death penalty must confront the very real possibility that abolishing it could lead to the violent deaths of unknown numbers of innocent men, women, and children. And those who are still skeptical that the death penalty deters any killings must also confront the risk-benefit calculus suggested by political scientist John McAdams of Marquette University: 'If we execute murderers, and there is, in fact, no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call.'  " (17)

Xl.  Conclusion

Those of us who support execution do so because it is a just punishment.  The moral foundation for all punishments is that they are deserved.  One cannot support a punishment based on deterrence alone.

Reason, common sense and history all fall on the side of deterrence.  Be it Sweden or Rwanda, Texas or Michigan, Singapore or Chile, England or Japan, whether high crime rates or low, the death penalty will always deter some potential murderers.  Regardless of jurisdiction, the potential for negative outcomes will always restrict the behavior of some.  And, the weight of the evidence clearly supports execution as an enhanced deterrent.

As Professor Rubin states, "Our evidence is that there are substantial benefits from executions and, thus, substantial costs of changing this policy (18).

We support execution as a just and appropriate forfeiture of lives which deserve to be taken.  We also support execution as a just and appropriate method to save lives which deserve to be saved.

1.  "EXECUTION MORATORIUM IS NO HOLIDAY FOR HOMICIDES", Dale O. Cloninger and Roberto Marchesini. go to   http://www.prodeathpenalty.com/Moratoriums.htm
based on the study "Execution and deterrence: a quasi-controlled group
experiment", Dale O. Cloninger (cloninger@cl.uh.edu), Roberto Marchesini (marchesini@cl.uh.edu), Applied Economics, 4/01, Vol 33, N 5, p569 -- p576
2.  "Does Capital Punishment Have a Deterrent Effect? New Evidence from Post-moratorium Panel Data", forthcoming, American Law and Economics Review. Hashem Dezhbakhsh, Paul H. Rubin, and Joanna M. Shepherd, contact Dezhbakhsh at econhd@emory.edu, Rubin at prubin@emory.edu and Shepherd at jmehlho@emory.edu , Located at
http://userwww.service.emory.edu/~cozden/Dezhbakhsh_01_01_paper.pdf
3)  "Pardons, Executions and Homicide", H. Naci Mocan (mmocan@carbon.cudenver.edu) and R. Kaj Gottings (rgitting@carbon.cudenver.edu), October 2001, located at
http://econ.cudenver.edu/beckman/kai.pdf
downloaded on 1/22/01
4)  "Pardons, Executions and Homicide", H. Naci Mocan (mmocan@carbon.cudenver.edu) and R. Kaj Gottings (rgitting@carbon.cudenver.edu), forthcoming Journal of Law and Economics. Online version located at
http://econ.cudenver.edu/beckman/kai.pdf
downloaded on 1/22/01
5)  "Does the Death Penalty Save Innocent Lives?", Stuart Taylor, National Journal. D.C. Dispatch, 5/31/02 at http://www.theatlantic.com/politics/nj/taylor2001-05-31.htm
6)  see paragraph 14,  Section B, "The Incapacitation and the Deterrence Effects", Death Penalty and Sentencing Information in the United States, 10/1/97, at http://www.prodeathpenalty.com/DP.html
7)  "Langley says Texas death penalty affected his actions during escape", by Stephen Martin, The Daily Democrat (Ft. Madison, Iowa), 1/8/97, pg 1.
8) Blecker book
9)  Section B, "The Incapacitation and the Deterrence Effects", Death Penalty and Sentencing Information in the United States, 10/1/97, at http://www.prodeathpenalty.com/DP.html
10)  "ASC RESOLUTION ON THE DEATH PENALTY", ASC Annual Meeting, Montreal, 1987, Anti-Capital Punishment Resources from the ASC's Critical Criminology Division, go to http://sun.soci.niu.edu/~critcrim/dp/dp.html
last viewed 12/2/01.
11)  "Execution and deterrence: a quasi-controlled group experiment", Dale O. Cloninger (cloninger@cl.uh.edu), Roberto Marchesini (marchesini@cl.uh.edu), Applied Economics, 4/01, Vol 33, N 5, p569 -- p576, located at  http://ideas.repec.org/a/taf/applec/v33y2001i5p569-76.html
12) i) Homicide trends in the U.S., Long term trends, Homicide victimization, 1950-99, Bureau of Justice Statistics,  Source: FBI, Uniform Crime Reports, 1950-2000
at http://www.ojp.usdoj.gov/bjs/homicide/tables/totalstab.htm
, Page last revised on January 4, 2001
      (ii) Crime in the United States --  2000, Section II --  Crime Index Offenses Reported, "Murder and non negligent homicide", FBI, Uniform Crime Reports at http://www.fbi.gov/ucr/cius_00/00crime2_3.pdf
(iii) "Number of persons executed in the United States, 1930-2001", Key Facts at a Glance, Executions
Bureau of Justice Statistics, Source: Capital Punishment 2000, December 2001 at
http://www.ojp.usdoj.gov/bjs/glance/tables/exetab.htm
13) Texas Department of Public Safety, Uniform Crime Reporting, Harris County data, from 1982 and 2000 database.
14)  Boston Globe, 10/28/97, p A12
15) "A Review of the Econometric Evidence on the Effects of Capital Punishment", The Journal of Socio-Economics, v23 n 1/2, p 197-214, 1994
16) 5)  "Does the Death Penalty Save Innocent Lives?", Stuart Taylor, National Journal. D.C. Dispatch, 5/31/02 at http://www.theatlantic.com/politics/nj/taylor2001-05-31.htm
17) 5)  "Does the Death Penalty Save Innocent Lives?", Stuart Taylor, National Journal. D.C. Dispatch, 5/31/02 at http://www.theatlantic.com/politics/nj/taylor2001-05-31.htm
18) "Death penalty deters scores of killings ", Paul H. Rubin, The Atlanta Journal-Constitution: 3/13/02, from http://www.accessatlanta.com/ajc/opinion/0302/0314death.html

Dudley Sharp, Resource Director, Justice For All,  e-mail  sharpjfa@aol.com,    phone 713-935-9200. pager 713-508-6979, JUSTICE FOR ALL, PO Box 55159, Houston, Texas 77255

FOR ALL -- JFA is a criminal justice reform organization.  Our focus is solely on violent crime issues and what we can do, within the criminal justice and legislative systems, to lessen injury to the innocent and to prosecute the guilty.  To accomplish that goal, we are actively involved in community education, elections, legislation, victim's rights issues, including our involvement in many individual cases.

JFA websites
http://www.murdervictims.com /
http://www.jfa.net
http://www.prodeathpenalty.com
 

To: LETTERS
New Orleans Times-Picayune

TP writer Gill believes that "In truth, innocent is innocent, no adverb required." ("Death-row sweep is likely to backfire", 1/15/03, Times-Picayune).

Mr. Gill doesn't think that we should make a distinction between actual innocence (The truly I had no connection to the murder)  and legal innocence (the got off because of legal error cases).

Readers have a right to responsible journalism, which includes making the obvious, substantial distinction between someone that commits a murder and someone that doesn't. 

And the law also thinks it is an important distinction.

Death penalty opponents claim that "102 inmates have been released from death row with evidence of their innocence". I think that the fact that this is an obvious deception and that independent studies indicate that the number may actually be 17-34 is important.

It is astounding that anyone, much less a journalist -- Gill -- would disagree -- publicly, no less.

Furthermore, I also believe that asking for proof -- and not blindly accepting false claims -- is preferable.

Mr. Gill can be a cheerleader for an anti death penalty deception if he likes, but, hopefully, responsible folks will act differently.

I may be old fashioned, but I really do think that having proof for claims is important and that clarity, not fog, is the best way for the media to present facts to their readers.

Ya know, Journalism 101.

NOTE    Some fact checking material, below

From:
Dudley Sharp, Resource Director, Justice For All
e-mail  sharpjfa@aol.com, phone 713-935-9300
JUSTICE FOR ALL, PO Box 55159, Houston, Texas 77255

THE DEATH PENALTY - INNOCENCE ISSUES
by Dudley Sharp, Justice For All, 11/1/02

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 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 opponent 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 about the actually innocent, we need not speculate as to why DPIC fails to make such an obvious distinction -- they wish to, deceptively, expand their "innocents" claims.

Furthermore, for many years, the United States' courts have repeatedly enforced the obvious 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).

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, The 2500 number, though, is just too large 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 exonerations 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.   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 the 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?
Well, death penalty opponents would call him innocent.

So, 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. 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". But the DPIC, and other opponents, so devoted to alleged legal standards, in one circumstance, abandons that standard when doing so can further increase their false "innocents" claims.

What "standards" will death penalty opponents create next to deceptively raise their innocence claims?

We already know.

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 death penalty opponents were stating that the 102, nationwide, were actually innocent people, who had no connection to the murders.

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 a defended, prior to conviction. They have always been lying about the collective innocence claims, now they deceptively change the definitions, as their previous claims are imploding.

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. We have always known that we don't execute legally innocent people.

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 (9).

When reviewing various case descriptions by DPIC and then comparing them to the actual record, there is an obvious pattern of inaccuracy (10). This, of course, leaves considerable doubt as to how many of the remaining 32 case descriptions by DPIC are accurate. 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," (11). Prof. Marshall's uncorroborated claims find proof of actual 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. (12)

What about independent reviews, not dependent upon the confirmed inaccuracies of death penalty opponents?

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. (13)

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 innocence. (14).

That reveals an 84% error by the DPIC in their Florida case descriptions. If the DPIC has a consistent error rate, nationwide, that would indicate that there were 17 actual innocents within their 102 innocents claim -- or 0.2% of the 7300 sentenced to death since 1973.

SPECIFIC CASES

"The DPIC itself removed one case from its list when it was pointed out that a supposedly innocent defendant, Clarence Smith, was convicted in federal court of charges which included the murder for which he had been acquitted in the Louisiana state court." (15).

Originally, the DPIC gave a description of that case which supported Smith's innocence. That means that their original presentation was either deceptive or reflected poor fact checking, or both. This is not surprising. The DPIC did not publicly acknowledge the Smith changes on their site until after we had publicly disclosed it. We simply don't know if there are more such cases which have not been disclosed by DPIC.

Another case on the DPIC list is James Creamer, who was never subject to execution (16). 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 (17). 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 (18).

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 we cannot 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. 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." (19)

Are such comments part of an organized deception or do they reflect willful ignorance? Guess.

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 (20), 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.

---balance of article snipped-----

1.   "Innocence and the Death Penalty", DPIC, located at http://www.deathpenaltyinfo.org/innoc.html
viewed on 12/30/02
2. "Innocence and the Death Penalty: Assessing The Danger of Mistaken Executions," Staff Report, Subcommittee on Civil & Constitutional Rights, Committee on the Judiciary, 103 Congress, 1st Session, 1993
3. "Cases of Innocence: 1973 - Present (last updated 4/9/02)", DPIC Website at http://www.deathpenaltyinfo.org/innoccases.html
reviewed 4/10/02, updated continuously by DPIC
4. "Death Knell for the Death Penalty?", ABA Journal, June 6, 2000, at www.abanet.org/journal/jun00/deathpenalty.html
5. for a full review of this topic, go to CRITIQUE OF DPIC LIST ("INNOCENCE:FREED FROM DEATH ROW"), by Ward Campbell, Section B The DPIC List: Miscarriages of Justice or Miscarriges of Analysis?, subsection 2. The Concept of Actual Innocence, at http://www.prodeathpenalty.com/DPIC.htm
6. "Prisoners sentenced to death and the outcome sentence, by year of sentencing, 1973-2001", Capital Punishment 2001, page 13, Appendix table 1. , Bureau of Justice Statistics, 2001. Located at
http://www.ojp.usdoj.gov/bjs/pub/pdf/cp01.pdf
7. "Rethinking Capital Punishment", by Richard Muti, The Bergen Record (Bergen County, NJ), 4/14/02, at
http://www.northjersey.com/cgi-bin/page.pl?id=3151867
viewed 4/19/02
8. CRITIQUE OF DPIC LIST ("INNOCENCE:FREED FROM DEATH ROW"), by Ward Campbell, 5th paragraph down, within Section A Background of DPIC List, subsection 3 The Cooley Article,  at
http://www.prodeathpenalty.com/DPIC.htm
9. ":Bad List", Ramesh Ponnuru, Senior Editor, National Review, 9/16/02 at
http://www.nationalreview.com/advance/advance091602.asp#title5
10. See      a) CRITIQUE OF DPIC LIST ("INNOCENCE:FREED FROM DEATH ROW"), by Ward Campbell at http://www.prodeathpenalty.com/DPIC.htm
Campbell found that at least 68 cases didn't belong on the list
             b) "Case Histories: A Review of 24 Individuals Released from Death Row", Florida Commission on Capital Cases, June 20, 2002, Revised September 10, 2002 at
http://www.floridacapitalcases.state.fl.us/Publications/innocentsproject.pdf
The Commission found that of the 24 claimed innocent (by DPIC) that 4 MIGHT be actually innocent. That represents an 84% error rate by DPIC
             c) ":Bad List", Ramesh Ponnuru, Senior Editor, National Review, 9/16/02 at
http://www.nationalreview.com/advance/advance091602.asp#title5
             d) "Not so Innocent", By Ramesh Ponnuru, Senior Editor, National Review, 10/1/02 at
http://www.nationalreview.com/ponnuru/ponnuru100102.asp
11. "JUSTICE: The Wrongly Condemned", by John McCormick, SOCIETY section, , Newsweek, 11/9/98, access avaiable through NEWSWEEK archive
12. "The Death Penalty Debate in Illinois", John J. Kinsella, J.D., DCBA Brief (Online), June 2000, at http://www.dcba.org/brief/junissue/2000/art010600.htm
13. 8. CRITIQUE OF DPIC LIST ("INNOCENCE:FREED FROM DEATH ROW"), by Ward Campbell,  at
http://www.prodeathpenalty.com/DPIC.htm
14. "Case Histories: A Review of 24 Individuals Released from Death Row", Florida Commission on Capital Cases, 6/20/02, at
http://www.floridacapitalcases.state.fl.us/Publications/innocentsproject.pdf
15. CRITIQUE OF DPIC LIST ("INNOCENCE:FREED FROM DEATH ROW"), by Ward Campbell, at Section B The DPIC List: Miscarriages of Justice or Miscarriges of Analysis?, subsection 2. The Concept of Actual Innocence, 8th paragraph down, at http://www.prodeathpenalty.com/DPIC.htm
NOTE: A discussion of the Clarence Smith case was located at the DPIC site, between cases 59 and 60, at "Cases of Innocence: 1973 - Present (last updated 4/9/02)", DPIC Website at http://www.deathpenaltyinfo.org/innoccases.html
reviewed 4/10/02 (DPIC has now removed the reference)
16. See James Creamer, at the "Cases of Innocence: 1973 - Present (last updated 4/9/02)", DPIC Website at http://www.deathpenaltyinfo.org/innoccases.html
reviewed 4/10/02 and also see the additional review at "Critique of the DPIC List", section 3. Cases, no. 5 and footnote no. 2 at http://www.prodeathpenalty.com/DPIC.htm
17.  "Death Penalty Foes Mark a Milestone", Los Angeles Times, April 10, 2002, page A 16, HOME edition
18.   Case (conviction date). Keaton (1971), Lee (1963), Pitts (1963), Johnson (1971), Richardson (1968), Limone (1968).  "Cases of Innocence: 1973 - Present (last updated 4/9/02)", DPIC Website at http://www.deathpenaltyinfo.org/innoccases.html
reviewed 4/10/02. NOTE: In a previous incarnation of the DPIC list, there was another pre 1972 case included on the list. It has since vanished.
19. "AGAINST THE STRENGTHENING TIDE: TEXAS EXECUTION RATE SOARS DESPITE DECLINING NATIONAL TREND", May 7, 2002, at  http://maelstrom.stjohns.edu/CGI/wa.exe?A2=ind0205&L=abolish&P=R22505
viewed 5/8/02
20.  " 'Exoneration' Hype Exaggerated", Dudley Sharp, The debate over wrongful convictions, within Taking Sides, ABCNEWS, 3/13/00. Second essay down at http://www.abcnews.go.com/sections/us/TakingSides/takingsides7.html

While all roundly and correctly condemn the FBI's inexcusable "mishandling" of documents in the McVeigh case, The Crimson uses that event as another excuse for their inaccurate condemnation of the US death penalty  (Staff editorial: "Fatal Errors", Harvard Crimson, 5/18/01).

The Crimson says "the death penalty does not deter crime". Really? Throughout history, few have been foolish enough to proclaim that the potential of negative consequences do not affect the behavior of some. Even those studies which find against deterrence refuse to proclaim executions deter none. And then there are those studies which find for deterrence. (1)

Then, The Crimson says the death penalty isn't administered fairly. Well, maybe. White murderers are twice as likely to be executed as are black murderers and white death row inmates are, on average executed 12 months more quickly than black inmates. And it appears, that any racial variations of defendants or their victim(s) in death row cases are a reflection of the actual circumstances of the crimes committed, not any racial bias within the system.  So say studies by Rand Corp. (1991) and Smith College (1994) and as supported by a review of criminal justice statistics. (1)

And, while all reasonably conclude that wealthier capital murderers should have a better opportunity to stay off death row than their poorer ilk, the systemic evidence for that conclusion is lacking. About 0.1% of all murderers in the US are executed. Strangely enough, there is no evidence that wealthier capital murderers are less likely to be executed, based upon their actual commission of capital crimes. 

The Crimson continues: "Since 1976, 94 individuals have been released after wrongful convictions in capital cases."

It appears that the Crimson has simply assumed, with willful ignorance, that those 94 are innocent.  What the Crimson failed to note, is that the anti death penalty movement, which is the source of that 94 number, fails to distinguish between the factually innocent (the "I truly wasn't involved" cases) and the legally innocent (the "I got off because of legal error"). Big difference. Unconfirmed anti death penalty claims find that about 30 factually innocent may have been sentenced to death since 1973. (1)

While no one is happy about those cases, it does reveal that around 99.5% of those sentenced to death are factually guilty and those 0.5% allegedly factually innocent have all been spared execution via post conviction review. (1)

Or, put another way, the US death penalty is likely the most accurate criminal justice sanction in the world, when considering its exactness in convicting the factually guilty and its thoroughness in identifying and remedying those cases of the truly innocent convicted.

It is revealing that death penalty opponents only look at innocents put at risk of execution, but fail to observe the other part of the equation -- the innocents put at risk if we don't execute.

There is no proof of an innocent executed in the US since 1900 and there is overwhelming proof that living murderers do harm and murder, again, in staggering numbers -- in prison, after escape and after improper release or no incarceration. Under every debated scenario, many more innocents will be put at risk if we don't execute.

Is the Crimson's moral opposition to the death penalty also based on such weak foundations?

1. support upon request

NO TO DEATH PENALTY MORATORIUM - INNOCENCE ISSUES
A thorough review finds that the risk of executing the innocent has been
significantly overstated by the anti death penalty movement, that the risk is
extraordinarily low and that the cessation of executions will, unnecessarily,
put more innocents at risk.

The Innocent Executed
Some death penalty opponents claim that 23 "innocents" have been executed in
the US since 1900. The authors of that 1987 study stated, in 1988, that "We
agree with our critics that we have not proved these executed defendants to
be innocent; we never claimed that we had."(1).

Barry Scheck, cofounder of the Innocence Project and featured speaker at the
Wrongfully Convicted on Death Row Conference in Chicago (11/13-15/98), stated
that he had no proof of an innocent executed (in the US since 1976) (2).

Not even the nation's leading source for anti death penalty information, the
Death Penalty Information Center (DPIC), says there is proof of an innocent
executed. They list 5 "doubt" cases (3): Gary Graham, Joseph O'Dell, Roger
Keith Coleman, Leo Jones and David Spence.  A review shows how deceptive the
DPIC case descriptions are (4) and how lacking any proof of innocence is.

The Texas case of Lionel Herrera, like others, nationally, has been labeled,
by some death penalty opponents, as an innocent executed.  I believe that
Herrera was 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.

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. Yet, supporters of a
moratorium claim that a concern for innocents is why they want to halt
executions.

Furthermore, any assertion that the death penalty is not a deterrent is
false. No one has proven or will prove the death penalty is not a deterrent.
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 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."(5)

Under all debated scenarios, halting executions will put more innocents at
risk.

In the past year, 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.(14). Such would mean 600
additonal murders by those sentenced to death since 1973. Justice Department
studies indicate that it is likely that upwards of 2 million innocents have
been harmed, 100,000 murdered, since 1973, by criminals "supervised" by the
US criminal justice system (parole, probation, mandatory release, furloughs,
pre trial releases, etc.) (6). 

It already takes 12 years to execute those sentenced to death. And our
elected officials are debating a moratorium on executions.

Innocents Sentenced to Death: A Critical Review of the Claims
Currently, anti death penalty groups present uncorroborated claims that 95
death row inmates have been released from death row after their innocence has
been proven.

The foundation for these claims is a 1993 study, released by US Rep. Don
Edwards, which purported to find that 48 innocents had been released from
death row since 1973 (7). Rep. Edwards concluded that "Under the law, there
is no distinction between definitively innocent and those found innocent
after a trial."

Although Rep. Edwards was free to make the obvious distinction between the
factually innocent (The truly "I didn't do it cases") and the legally
innocent (the "I got off because of legal error"), he chose not to.  Rep.
Edwards selected the anti death penalty group, DPIC, to conduct the study.

The source for the updated 95 innocent number is also the DPIC (8). Richard
Dieter, head of the DPIC, recently confirmed, again, that 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.'  " (9)

What nonsense. As this public policy debate is about the factually innocent,
we need not speculate as to why DPIC fails to make such an obvious
distinction -- they wish to expand their "innocence" claims.

Their standards get worse. If an accomplice doesn't actually commit the
murder, death penalty opponents consider them "innocent", as well (10). The
law often finds such criminal accomplices legally guilty for their
involvement in murders, even if they, themselves, didn't "pull the trigger". 
But the DPIC, so devoted to legal standards, in one circumstance, abandons
that standard when doing so can further increase "innocents" claims.

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. Possibly, in the future, both the media and policy makers
may inquire:
-- For how many of these claims is there proof of factual innocence, were
those innocents unconnected to the murder and what level of proof supports
those assertions?
-- How many of those factual innocence claims do the appellate courts and the
district attorneys agree with? (11)

A review of the DPIC 95 case descriptions finds that only about 30 claim
factual innocence, with alleged proof to support the claim. One would expect
them to post those cases in the most favorable light. That is 30 cases out of
about 7000 death sentences since 1973, or 0.4%. According to DPIC, one of
those "exonerated" has been removed from their list because he was
reconvicted for the relevant murder.

Furthermore, Northwest U. Law Prof. Lawrence Marshall, a death penalty
opponent, who organized the Wrongfully Convicted on Death Row Conference in
Chicago in 1998, stated that, "In a good half of these 75 (now 95) cases, the
exoneration is so complete that it erases any doubt whatsoever." (12). Prof.
Marshall's uncorroborated claims find proof of factually innocence in 38
cases.

Assuming that death penalty opponents continue a standard of having proof for
about 50% of its "innocent" claims, that would be about 48 out of those now
95 "innocent" cases, or about 0.7% of all death penalty cases since 1973.

Based on those uncorroborated claims, by these two anti-death penalty
sources, we might be looking at from 30-48 factually innocent.

However, 7 of the DPIC listed cases were prosecuted prior to 1973 and have no
relevance in a discussion of the modern death penalty and an eighth case,
Creamer, should not have been on the list because he was not sentenced to
death (13). So the 30-48 cases become the 22--40 "innocent" cases sentenced
to death since 1973, or 0.5%

Due Process and The Risk to Innocents
Is there any other criminal sanction, anywhere in the world, where one could
find a 99.5% guilt accuracy rate, after 28 years of biased review by
opponents of that sanction, wherein all those allegedly innocent had been
secured from their punishments by post conviction review?

The late US Supreme Court Justice Powell stated that those subject to the
death penalty in the US receive super due process. It is easy to see why.
>From 1973-1999, 6707 people were sent to death row. 2379 of those cases, or
35%, were overturned on appeal or had their sentences commuted. 598, or 9%,
were executed, after an average of nearly 10 years on death row. The time
between sentencing and execution has risen from an average of 8 years in 1989
to nearly 12 years in 1999. (14)

Error, be it the factually innocent convicted or procedural, is why we have
appeals and the commutation/clemency process. While the factually innocent
convicted is a horrible result, in the subject "innocent" death penalty
cases, all of those cases have been overturned.

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 such error when those circumstances occur.

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)

Future innocence considerations
The DPIC alleges that 10 of their 95 "innocents" were proven factually
innocent because their DNA screenings were negative. Based on the DPIC's
standards, we cannot be sure of all such innocent claims, because "
non-matching DNA is consistent with the prosecution's theory of multiple
perpetrators.."(15) 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 on the evidence we have today, using
anti death penalty standards, with the next 7000 death sentences given,
nationwide, we may sentence 12-30 (16) factually innocent persons to death,
or 0.3%, and the alleged innocent will all be taken off death row via post
conviction review. 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 attorneys
to be appointed in capital cases.

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 involve the same type of controversies. There are, at least, 3
reasons for that. We are seeing a higher quality of prosecution and defense
in these cases and much of the new death penalty law, which began after
Furman v Georgia in 1972, is more settled than it had been from 1973-1985.
Finally, a full review of many of those highly publicized cases revealed that
many of the anti-death penalty claims were and are entirely false or, at
best, highly deceptive.

Conclusion
No one disputes that an innocent sentenced to death is a horrible result.
Appeals and commutation/clemency are an integral part of a criminal justice
system that anticipates error and provides remedy. Both sides of the death
penalty debate are equally concerned about the moral implication of executing
an innocent. In addition, those of us who support execution recognize that
any innocents sentenced to death or executed injure our position. 

Based upon a review of the facts, 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.

Dudley Sharp, Director of Death Penalty Resources, Justice For All, Houston,
Texas, ph.713-935-9300, pager 713-508-6979
If all the footnotes don't come through, please let us know
1.  Bedau & Radelet, The Myth of Infallibility: A Reply to Markman and
Cassell, 41 Stanford Law Review. 161, 264,1988
2.  .Matt Lauer interview, Today Show, 11/13/98
3."Executed despite doubts about guilt" list
www.deathpenaltyinfo.org/innocothers.html#executed
4. See Joseph O'Dell & Roger Keith Coleman within "McGinn Execution Tomorrow:
DNA Confirmed Guilt--Typical in Capital Cases", Criminal Justice Legal
Foundation, 9/26/00 at www.cjlf.org/releases/McGinn.htm .  See Gray Graham
case, "Hollywood, Murder and Texas" at   www.prodeathpenalty.com/graham.htm .
See David Spence within case 57, Muneer Deeb, fn 10
5.  "EXECUTION MORATORIUM IS NO HOLIDAY FOR HOMICIDES", Dale O. Cloninger and
Roberto Marchesini at www.prodeathpenalty.com/Moratoriums.htm
6.  "Prisons are a Bargain, by Any Measure", John J. DiIulio, Jr., The New
York Times, !/16/96
7.  "Innocence and the Death Penalty: Assessing The Danger of Mistaken
Executions," Staff Report, Subcommittee on Civil & Constitutional Rights,
Committee on the Judiciary, 103 Congress, 1st Session, 1993
8.  "Cases of Innocence: 1973 - Present", DPIC Website, last updated 2/27/01,
at http://www.deathpenaltyinfo.org/innoccases.html
9.  "Death Knell for the Death Penalty?", ABA Journal, June 6, 2000, at        
        www.abanet.org/journal/jun00/deathpenalty.html
10.  "Critique of the DPIC List",  www.prodeathpenalty.com/DPIC.htm.
11. " 'Exoneration' Hype Exaggerated", Dudley Sharp, The debate over wrongful
convictions, within Taking Sides, ABCNEWS, 3/13/00. Second essay down at
www.abcnews.go.com/sections/us/TakingSides/takingsides7.html
12. "Wrongly Condemned to Death", Newsweek, 11/9/98
13. "Critique of DPIC List", at www.prodeathpenalty.com/DPIC.htm
14. "Capital Punishment 1999", Bureau of Justice Statistics, 2000
15  ibid, 4.A., above
16. from the previously calculated 22-40 allegedly factually innocent minus
the 10 DNA cases

To :    Editors
        Letters to the Editor
        Washington Post

Regarding the risk of executing the innocent, Richard Cohen states that "You
can tinker all you want with the death penalty, but two things will never
change: Mistakes will happen and it's irrevocable. ("One Fatal Mistake Not
Made", 2/15/01, p A23).

I think Cohen may have missed some additional considerations.

The anti-death penalty movement has hugely exaggerated the alleged risk of
executing  innocents and the media has failed to investigate such.

Anti-death penalty sources alleged that 90 inmates have been exonerated on
death row since 1973. But what the media has failed to recognize (or report)
is that exonerated is not factually innocent (the honest "I didn't do it
cases"). The anti death penalty movement includes both the factually innocent
and the legally innocent (the "I got off because for legal issues") in those
90 cases. Big difference.

Depending on various anti-death penalty sources, they may be claiming from
20-40 factually innocent sentenced to death. All have been discovered and
none executed. I state "may", because even many of these are uncorroborated
anti-death penalty claims.

Therefore, from anti-death penalty sources, their claims find that about 0.4%
of the nearly 7000 sentenced to death may have been factually innocent. Based
on the factually guilty convicted and the alleged factually innocent
identified.  I doubt there is a more accurate criminal justice sanction
anywhere in the world.

In addition, Cohen fails to look at the fatal mistakes if we don't execute.

There is no proof of an innocent executed in the US since 1900. There is
overwhelming proof that living murderers harm and murder again, often, in
prison, after escape, and after improper release. In fact, reason dictates
that living murderers are infinitely more likely to harm and murder again
than are executed murders.

There is no doubt that we can make the death penalty safer. But there is also
no doubt that a concern for innocents will result in a safer death penalty
system and more executions.

Under all debated scenarios, doing away with executions will always increase
the risk against innocents and will result in more innocents harmed and
murdered. 

Dudley Sharp
Director of Death Penalty Resources
Justice For All
Houston, Texas

Position: Mr. Sharp  was Vice President, Political Director and member of the
Board of Directors of JFA from July 1993, when JFA was founded, through
January 2000. He opposed capital punishment until December 1995.

Mr. Sharp's e-mail  sharpjfa@aol.com

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