Myths Aside, Death Row Isn’t Filled With Innocents

The recent conventional wisdom presumption that the nation’s death rows are packed with innocent men and women is dead wrong.

This “innocents in danger of execution” assertion comes from a warmed-over study issued in 1995 by defense lawyer and Columbia University professor James S. Liebman. In his study--reissued with new conclusions in 2000 and again this year as part of a campaign to discredit the death penalty--Liebman claims that the high rate of reversal in death penalty cases means a high likelihood of innocence.

It turns out, however, that the states with the highest reversal rates are also among the states that seek the death penalty the least and spend the most defending accused murderers. Oregon, with only 25 inmates on death row, is a good example. The Oregon Supreme Court has overturned a whopping 68% of death verdicts in the 18 years since Oregonians reauthorized the death penalty. Yet not a single reversal was for anything to do with innocence, police misconduct, prosecutorial misconduct or coerced confessions. Most were for “faulty jury instructions” or other hyper-procedural errors. One death sentence has been overturned twice solely because the victim’s family was allowed to describe the murder victims during the penalty phase of the trial.

The conventional wisdom also claims that Americans have had a major change of heart on the death penalty. Although a 2000 Gallup Poll claimed support for the death penalty had slipped from 77% to 63%, another poll, commissioned by Parade magazine in summer 2001 using more than 2,000 respondents, showed (before Sept. 11) that 82% of Americans supported capital punishment in some cases. It’s all in how the question is asked.

The conventional wisdom has the bloodthirsty prosecutor recklessly hurling innocent men onto death row, stopped only by the threadbare but plucky defense lawyer. Maybe in the alternate universe populated by David E. Kelley’s characters in “The Practice,” but not in real life. In the last quarter of a century, almost half a million murders have been committed in the United States. Slightly more than 7,000 of the murderers received death sentences and fewer than 800 have been executed. The death penalty is properly reserved for the worst of the worst.

When Liebman’s study was recycled in June 2000, it was met with healthy skepticism by many scholars who pointed to fuzzy math and counterintuitive conclusions. Liebman’s study shows the state with the “best” or lowest reversal rate to be Virginia, a state reviled by those who want the death penalty abolished because of the large number of people on its death row.

This month, the study was again trotted out, with no new data or research, just inflammatory assertions intended to further undermine confidence that the death penalty is being administered fairly. Meanwhile, the so-called Innocence Protection Act proposed by Sen. Patrick J. Leahy (D-Vt.) has failed to gain traction because, despite its catchy name, it contains provisions that would effectively prevent states from ever seeking the death penalty.

Sen. Dianne Feinstein (D-Calif.) has introduced a much better piece of legislation, the Criminal Justice Integrity and Innocence Protection Act of 2001, which has received relatively little notice. Although Leahy’s bill would allow virtually anyone convicted of a crime to demand a DNA test, Feinstein’s bill would restrict DNA testing to those for whom tests could establish innocence.

We have far more to fear from guilty people wrongly freed by the courts than from that tiny number wrongfully imprisoned and the even smaller number of them who actually are innocent.

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Joshua Marquis, the district attorney of Clatsop County in Astoria, Ore., is a member of the board of directors of the National District Attorneys Assn.