THE DEATH PENALTY - INNOCENCE ISSUES

by Dudley Sharp, July 2002

Dudley Sharp is Resource Director for Justice For All (see below)

A thorough review finds that the risk of executing the innocent has been significantly overstated by death penalty opponents, 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, 100 [now 101] people in 24 states have been released from death row with evidence of their innocence." (1) This is a 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."

Although Rep. Edwards was free to make the obvious distinction between the actually innocent (The truly "I had no connection to the murder" cases) and the legally innocent (the "I got off because of legal error" cases), he chose not to. Furthermore, there is no finding of innocent for a defendant after trial. The finding is not guilty, which means that the state has not met their burden of proving the defendant guilty beyond a reasonable doubt. It says nothing about actual innocence. It appears that Rep. Edwards, a death penalty opponent, simply wanted to increase the innocents number. 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 100 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 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. (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 some 2500 innocents have been released from death row? That is the number of legally and actually innocent released from death row since 1973 (5A). The answer is obvious. They hoped that the media and others might just assume that the 100 were actually innocent and not ask any questions. It has been a successful deception. The 2500 number, though, is just too large for such blind acceptance. 

In an attempt at clarification, Dieter establishes that all 100 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." (6) 

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 factual 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. 

So, once again, we have example after example, whereby Dieter tells us that the DPIC standards have nothing to do with actual innocence. 

And the "innocence" standards get worse. Death penalty opponents have "... included supposedly innocent defendants who were still culpable as accomplices to the actual triggerman." (7). 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? 

What is the real number?

A review of the DPIC 100 case descriptions finds that only about 32 claim actual innocence, with alleged proof to support the claim. That is 32 cases out of about 7300 death sentences since 1973, or 0.4%. 

And, at least one "innocent", Clarence Smith, has since been removed from the DPIC "innocents" released list because he was reconvicted in connection to the relevant murder (8). We say at least, because 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. 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. This is not surprising. 

When reviewing various case descriptions by DPIC and then comparing them to the actual record, there is an obvious pattern of inaccuracy (9). This, of course, leaves considerable doubt as to how many of their remaining 32 claims 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 in 1998, stated that, "In a good half of these 75 [now 101] cases, the exoneration is so complete that it erases any doubt whatsoever," (10). Prof. Marshall's uncorroborated claims find proof of factual innocence in 38 cases.

This is unique. If death penalty opponents claim that they have proof for half their innocent claims, why do they claim twice that number as innocent? 

And this claim is consistent with the claims that 13 innocents have been found innocent in Illinois. There appears to be some doubt about an innocence claim in about half of those cases. (10A) 

Assuming that some death penalty opponents continue a standard of allegedly having proof for 50% of their "innocent" claims, that would be 50 out of those now 101 "innocent" cases, or about 0.7% of all death penalty cases since 1973.

These two anti-death penalty sources make uncorroborated claims that from 32-50 inmates have been released from death row because of proof of their innocence.

Most recently, death penalty opponents are giving 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 (11). Inmates released from prison sentences, because of innocence evidence, are not "released from death row with evidence of their innocence." Death penalty opponents do what they can to fraudulently raise their numbers. 

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 (12).

Another case, James Creamer was never sentenced to death (13). He is still on the DPIC innocents released from death row list (No. 5, as of 6/3/02).

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 32-50 cases become the 21--39 "released from death row with evidence of their innocence." And we cannot depend on the DPIC case descriptions regarding how many more of the 100 cases were not on death row at the time they were "released from death row with evidence of their innocence."

Professor Marshal 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 just those 21-39 cases? It doesn't exist. Can death penalty opponents present, at least, a review wherein just those 21-39 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? Based upon the claims of death penalty opponents, it is likely between 15 and 39. The 101 number means nothing, except as a ruse to fool the press and the public. 

Of those 101 cases, 23 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 23 cases. The Commission found that 4 of those might have a credible claim of innocence. (13A). That reveals an 83% 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 101 innocents claim -- or 0.2% of the 7300 sentenced to death. 

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." (14) 

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

Virtually all the media parrot this fraud. 

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 they repeat exactly what anti death penalty sources tell them, without question. 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? (15) 

All reasonable and necessary questions to ascertain the veracity of the claims.

Does the number matter? Only if accuracy and truth are important in public policy decisions and media reports.

II. 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, some supporters of a moratorium and death penalty opponents claim that a concern for innocents is why they want to halt executions. Yet, history and reason confirm that an end to executions will result in more innocents harmed and murdered. 

Furthermore, any assertion that the death penalty is not a deterrent is false. Those studies not finding for deterrence do not say it doesn't exist. Those studies finding for deterrence state that is does. 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 (up to 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." (16) 

This is not surprising, as history, reason, common sense and the social sciences all support that the potential of negative consequences deters or alters the behavior of most. 

Recently, 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 (17), suggesting that with 7,000 sentenced to death, since 1973, that those sent to death row had murdered 600 additional innocents after we failed to properly restrain them after their previous murder(s). Justice Department studies suggest that it is likely that some 2 million innocents have been harmed, 100,000 murdered, since 1973, by criminals while "supervised" by US criminal justice systems (parole, probation, mandatory release, furloughs, pre trial releases, etc.) (18). 

In any review of criminal justice practices and their failings, we are looking at errors in judgment and procedure. Yet, with such catastrophic harm to innocents, coming from other criminal justice shortcomings, some have chosen to pursue a moratorium on executions -- a criminal justice practice lacking proof of an innocent killed, at least since 1900. Is the priority to protect innocent lives or to get rid of the death penalty? A review of criminal justice realities makes that an obvious question. 

It currently takes over 11 years to execute those sentenced to death (19). And some elected officials are debating a moratorium on executions. Yet, under all debated scenarios, halting executions will put more innocents at risk.

III. Due Process and The Risk to Innocents

Protecting innocent defendants/inmates

Is there any other criminal sanction, anywhere in the world, where one might find a 99.5% guilt accuracy rate, after 29 years of biased, unverified review by opponents of that sanction, wherein all those allegedly innocents had been secured from their punishments by post conviction review? 

The US Supreme Court has stated that those subject to the death penalty in the US receive super due process. It is easy to see why. From 1973-2000, 6930 people were sent to death row. 2401 of those cases, or 35%, were overturned on appeal or had their sentence commuted. 683, or 9.9%, were executed (20), after an average of over 10 years on death row (21). The time between sentencing and execution has risen from an average of 8 years in 1989 to over 11 years in 2000 (22).

Consideration of error, be it the actually innocent convicted or procedural, is why we have appeals and the commutation/clemency process. The system anticipates error and provides remedy. While the actually innocent convicted is a horrible result, in the subject cases, none have been executed.

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 those rare errors upon post conviction review. 

Sacrificing the innocent

The due process protections of the US death penalty are so extraordinary, that we have released over 2500 people from death row since 1973. Although no known study of the harm and murder committed by those so taken off death row has been performed, there is no doubt that many innocents have been murdered or otherwise harmed by those so released.

One group of released death row inmates has been subject to limited review. When the US Supreme Court found in Furman v Georgia, in 1972, that the death penalty, as it was then enforced, was unconstitutional, all death row inmates had their death sentences commuted. It appears that some 15 innocents have been murdered by those Furman releasees, through 1987, in addition to other horrendous crimes committed by that same group. We are unaware of any updated review covering the next 15 years, through 2002.

Footnotes:

1. "Innocence and the Death Penalty", DPIC, located at http://www.deathpenaltyinfo.org/innoc.html, viewed on 4/10/02 

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

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 paragraph 2. The Concept of Innocence, section B. Analysis of the DPIC List , within CRITIQUE OF DPIC LIST, at http://www.prodeathpenalty.com/DPIC.htm

5A. Capital Punishment 2000, page 13, Appendix table 1. "Prisoners sentenced to death and the outcome sentence, by year of sentencing, 1973-2000", Bureau of Justice Statistics, 2001. Located at http://www.ojp.usdoj.gov/bjs/pub/pdf/cp00.pdf and viewed 4/14/02

6. "Rethinking Capital Punishment", by Richard Muti, The Bergen Record (Bergen County, NJ), 4/14/02, at http://www.bergen.com/cgi-bin/page.pl?id=3151867 viewed 4/19/02 

7. "Critique of the DPIC List", 7th paragraph down within section A. Background of DPIC List, at www.prodeathpenalty.com/DPIC.htm.

8. A discussion of the Clarence Smith case is 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 and at "Critique of the DPIC List", www.prodeathpenalty.com/DPIC.htm.

9. Review both the case descriptions at the "Critique of DPIC List", at www.prodeathpenalty.com/DPIC.htm and as referenced in the 5 "doubt" cases of execution from The Innocents Executed section, above, within this report.

10. ."Wrongly Condemned to Death", Newsweek, 11/9/98

10A."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
11. "Death Penalty Foes Mark a Milestone", Los Angeles Times, April 10, 2002, at http://www.latimes.com/new on 4/10/02.

12. 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.

13. 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 www.prodeathpenalty.com/DPIC.htm.

13A. "Case Histories: A Review of 23 Individuals Released from Death Row", Florida Commission on Capital Cases, 6/20/02, at http://www.floridacapitalcases.state.fl.us/OPPAGA/Deathrow.pdf

14. "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

15. " '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

16. "EXECUTION MORATORIUM IS NO HOLIDAY FOR HOMICIDES", Dale O. Cloninger and Roberto Marchesini at www.prodeathpenalty.com/Moratoriums.htm and published as "Execution and deterrence: a quasi-controlled group experiment", Dale O. Cloninger; Roberto Marchesini, Applied Economics, 569 -576 Volume 33 Number 5, April 2001

17. Capital Punishment 2000, page 10, Table 9, "Criminal history profile of prisoners under sentence of death, by race and Hispanic origin, 2000", Bureau of Justice Statistics, 2001, Located at http://www.ojp.usdoj.gov/bjs/pub/pdf/cp00.pdf and viewed 4/14/02

18. "Prisons are a Bargain, by Any Measure", John J. DiIulio, Jr., The New York Times, !/16/96

19. Capital Punishment 2000, page 11, Table 12. "Time under sentence of death and execution, by race, 1977-2000", Bureau of Justice Statistics, 2001. Located at http://www.ojp.usdoj.gov/bjs/pub/pdf/cp00.pdf and viewed 4/14/02

20. Capital Punishment 2000, page 13, Appendix table 1. "Prisoners sentenced to death and the outcome sentence, by year of sentencing, 1973-2000", Bureau of Justice Statistics, 2001. Located at http://www.ojp.usdoj.gov/bjs/pub/pdf/cp00.pdf and viewed 4/14/02

21. Capital Punishment 2000, page 11, Table 12. "Time under sentence of death and execution, by race, 1977-2000", Bureau of Justice Statistics, 2001. Located at http://www.ojp.usdoj.gov/bjs/pub/pdf/cp00.pdf and viewed 4/14/02

22. ibid

23. "Critique of the DPIC List", at www.prodeathpenalty.com/DPIC.htm

24.. from the previously calculated 21-39 uncorroborated factually innocent minus the 12 DNA cases and minus the 5 additional cases, Gladish, Greer, Keine, Smith and Beemon, who were prosecuted under statutes that no longer exist, as per the "Critique of the DPIC List", ibid.

24A. One of the most recent and definitive examples of anti-death penalty deception has been provided by Amnesty International in the case of Mumia Abu Jamal. "USA: A Life In The Balance: The Case of Mumia Abu-Jamal", Amnesty International USA, February 2000, http://www.amnestyusa.org/abolish/reports/mumia/content.html