Death Penalty Study Suggests Errors

A disproportionately high percentage of death sentences tend to be reversed in states where death verdicts are rendered the most often, according to a comprehensive study released today.

All but one of the 10 states with the highest death-sentencing rates had overall reversal rates that exceeded 68%--the national average--according to the review of more than 5,000 capital cases over 23 years by Columbia University law professor James S. Liebman, assisted by criminologists and statisticians.

“Heavy and indiscriminate use of the death penalty creates a high risk that mistakes will occur,” said Liebman, who has argued on behalf of defendants in several death penalty cases at the U.S. Supreme Court.

The study is being released at a time when support for capital punishment has diminished significantly in national polls, with legislation being introduced at the state and federal level to reform the death penalty process, and even two Supreme Court justices--Sandra Day O’Connor and Ruth Bader Ginsburg--having recently expressed doubts about whether the process is working fairly.

In a speech last summer, O’Connor said, “If statistics are any indication, the system may well be allowing some innocent defendants to be executed.” Ginsburg said last April that in dozens of instances where she has reviewed requests for stays of executions on the high court, she has yet to see one “in which the defendant was well represented at trial.”

Sen. Patrick J. Leahy, (D-Vt.), who has introduced a package of capital punishment reforms, says Liebman’s study shows that “the death penalty is riddled with errors and inconsistencies nationwide.”

“When the legal machinery of the death penalty is broken, practice does not make perfect,” added Senate Judiciary Committee Chairman Leahy, commenting on the study’s finding that states which render the most death verdicts per 1,000 homicides appear to be the most error-prone.

Kent S. Scheidegger, executive director of the Criminal Justice Legal Foundation, a conservative group in Sacramento, blasted the study as biased.

“The fact that a large percentage of capital verdicts are overturned is not news,” he said. “The controversy is . . . whether that number reflects problems in the system for trying capital cases, as the anti-death penalty group contends, or whether it constitutes obstruction of valid, deserved sentences, as death penalty supporters have long contended.”

In a June 2000 study, Liebman and his colleagues found that state and federal courts nationwide were overturning death sentences in 68% of all capital cases. Only 18% of those who had their cases retried got the death penalty and a number of those were reversed again on appeal. Moreover, 9% of those retried were acquitted.

‘An Intolerable Risk’

In the new study, Liebman examined “why the high number of flawed capital verdicts poses an intolerable risk of seriously unreliable capital outcomes, including execution of the innocent.”

His research showed a significant correlation between high death sentencing rates and reversals.

Of the 10 states with the highest death sentencing rates, nine exceeded the national average reversal rate of 68%, with Mississippi leading at 92%.

The others were Idaho, Oklahoma, Arizona, Nevada, Arizona, Alabama, Montana, Florida and North Carolina.

With a 30% reversal rate, Delaware was the only one of the 10 with a lower rate than the national average.

Texas, which leads the nation in executions carried out, was slightly below average with 16 death sentences per 1,000 homicides and a 51% reversal rate.

More than 70% of the states that have death penalty laws executed fewer than 8% of the people they sentenced to die during the 1973 to 1995 study period.

The study does not contend that any specific innocent person has been executed.

However, the authors emphasized that thus far 99 people have been released from death rows around the country in the last 25 years after being exonerated.

Among the reasons for the wrongful convictions are prosecutorial misconduct, mistaken identification or newly discovered exculpatory evidence, including DNA tests that have led to 11 of the exonerations.

A review of the wrongful convictions raises questions about whether the nation’s courts provide an adequate safety net to discover these errors, Liebman said.

“In 63 of 99 exonerations the mistake was discovered only after the highest state court had upheld the capital verdict at least once,” the study explains. In 35 instances, the mistake was not discovered until after both a state and federal court had upheld the death sentence and in nine instances after there had been three levels of review.

One of the nine, Anthony Porter of Illinois, was only hours from execution in 1999 when he got an emergency reprieve after a judge concluded that he might be too retarded to comprehend why he was being executed for a double homicide.

During the time when Porter’s mental acuity was being reviewed, a group of Northwestern University journalism students, led by professor David Protess, tracked down a man named Alstory Simon who, five witnesses said, had killed the victims in a fight over drugs. Simon admitted being the killer to the students, pleaded guilty, and Porter was freed after 17 years on death row.

Porter’s original attorney had failed to interview the five witnesses, and before the dramatic turn of events several appellate courts had refused to consider what Porter’s new lawyers said about the five witnesses.

Two of those courts--one state and one federal--ruled that even though Porter’s trial lawyer had acted incompetently, his new attorneys had failed to show that he had been harmed by the negligence.

Moratorium Declared

Porter’s case, one of 13 death row exonerations in Illinois, played a key role in Republican Gov. George Ryan’s decision in February to declare a moratorium on executions in his state.

Liebman said the Porter case illustrates “just how high a bar” the nation’s appellate courts have set for an inmate to establish that there has been serious, reversible error in his case.

The largest number of exonerations--22--has come in Florida, which has the nation’s third-largest death row, trailing only California and Texas.

Three men have been released from California’s death row and seven from Texas’ after determinations that the convictions were invalid.

The study found higher percentages of reversible error in states where courts were underfunded, where the overall rate of solving crimes is low and where judges are elected.

The study also shows that only a small fraction of murders result in convictions, no less death sentences or executions. The winnowing process is striking.

There were 331,949 homicides during the study period but only a third of those--118,992--led to murder convictions. Just one in 20 of those convictions--5,826--led to a death sentence. Only 358 of those sentences were affirmed by the end of 1995, and 313 of those individuals were executed--meaning that just 5% of the death sentences were carried out.

Since the end of 1995, there have been 446 executions in the U.S. But the authors say tentative findings from the last six years indicate the trends in the study are unchanged.

The authors suggest a number of policy changes to help reduce the number of reversals. Prime among them is a recommendation that prosecutors seek the death penalty only in “very highly aggravated cases.”