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Not So Innocent
The death penalty: an argument continued.


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Ramesh Ponnuru

Over the last three decades, more than 100 innocent people have been released from death row. That’s the claim that the Death Penalty Information Center makes, and it’s gotten a lot of people, from liberal senators to conservative columnists, to buy it.

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Death-penalty supporters have sometimes responded to this figure by saying that it shows that the system works. It does, in fact, prevent people from being wrongfully executed. But that response minimizes the horror of making an innocent man spend years with a death sentence hanging over him.

Besides, there is a more important reason to reject the over-100 claim: It’s not true. DPIC counts people as “innocent” when they were released from death row for reasons wholly unrelated to any belief that they did not commit the crime charged. A man could be convicted of murder and sentenced to death, have his conviction overturned because of a technicality, and then walk free because witnesses had died in the interim. According to DPIC, he would be an “innocent” who was “exonerated.” Only a minority of the people on DPIC’s list are innocent in any normal sense of the word.

I made this point about DPIC’s list in an article for NR’s Sept. 16 issue. My report drew a letter from Richard Dieter, the head of DPIC, in the following issue (with a reply from me). It has now drawn another letter from Charles Baird and Gerald Kogan, who are respectively a former Texas court-of-criminal-appeals judge and a former chief justice of the Florida supreme court. They are also, more pertinently, the cochairmen of the Constitution Project’s Death Penalty Initiative.

(I’ve also received lengthy critiques of DPIC’s list from Dudley Sharpe, who runs prodeathpenalty.com, and from Ward Campbell, who works for the state of California in death-penalty appeals. Their critiques helped steer me to some of the information on which I draw in what follows.)

Both Dieter’s letter and that of Baird and Kogan make the same basic argument: By suggesting that many of these “exonerated” defendants may very well have been guilty of the crimes that got them on death row, I am trampling over — to quote Baird and Kogan — “the fundamental concept that a person is innocent until proven guilty.” They add, “An individual is considered to be innocent if acquitted at trial or if the prosecution has decided to drop all the charges.”

As the critics would have it, there is thus no distinction between the case of a man who was wrongly convicted of a crime that someone else committed and then cleared, and the case of a man who was eventually acquitted for wholly different reasons. Whether the man may actually have committed the crime, in other words, is beside the point.

The critics are fighting common sense here. They are also up against a legal system that is, in fact, perfectly capable of seeing that a person may not be legally guilty beyond a reasonable doubt of a crime without being actually innocent of it either. See, for instance, the Supreme Court’s remark in Bousley v. United States (1998) distinguishing between “factual innocence” and “mere legal insufficiency.”

Or consult the case of Jay Smith, one of DPIC’s “innocents.” Smith was convicted and sentenced to death for killing a woman and her two children for money. Because the prosecution failed to disclose the existence of two grains of sand that might have lent credence to a farfetched defense theory, the Pennsylvania Supreme Court overturned the sentence — and found that no retrial was permissible under state law. Smith then sued the state for wrongful imprisonment. The appeals court ruled against him: “Our confidence in Smith’s convictions for the murder of Susan Reinert and her two children is not the least bit diminished. . .” Other DPIC “exonerees” have seen their lawsuits and financial claims against states treated similarly. (Notably Jeremy Sheets, whose case I reviewed in my original article.)

Death-penalty opponents themselves used to be capable of seeing that acquittal does not an innocent make. DPIC’s list has its roots in a series of law-review articles and books by philosopher Hugo Adam Bedau and sociologist Michael Radelet, two death-penalty opponents. In their original 1987 article for Stanford Law Review, they wrote: “[W]e are primarily concerned with wrong-person mistakes — the conviction and execution of the factually ‘innocent’ — and not with the erroneous conviction of those who are legally innocent (as in cases of killing in self-defense). . . . We also do not consider a defendant innocent simply because he can demonstrate that, in a case of homicide, it was not he but a co-defendant who fired the fatal shot.”

In a 1998 article, they conceded that “[p]rosecutors sometimes fail to retry [a] defendant after a reversal not because of doubt about the accused’s guilt, much less because of belief that the defendant is innocent or that the defendant is not guilty ‘beyond a reasonable doubt,’ but for reasons wholly unrelated to guilt or innocence (for example, the prosecution’s chief witnesses may have died or disappeared).”

DPIC is less scrupulous than Bedau and Radelet were. Dieter’s group counts as “innocent” people who get off death row based on self-defense claims (including one case where a Native American successfully argued that, given his cultural heritage, it was reasonable to assume that a police officer would kill him if he didn’t shoot first). It counts people who got off death row because, while they were clearly involved in the murders for which they were charged, there is some dispute over who pulled the trigger. It counts every prosecutorial failure to retry after a reversal as an “exoneration.” It counts people who pled to a lesser crime on retrial as innocent, too. And all of this is just fine as far as Messrs. Baird and Kogan are concerned.

It’s important to remember the context for this debate about the meaning of the “presumption of innocence.” I am not trying to put any of the people who have gotten off death row back on it. I am not saying that they should be held liable for monetary damages to the families of the victims of the crime even though they were acquitted (although such an outcome is by no means foreign to the law, as O. J. Simpson could tell you). I am not even saying that Dieter, Baird, or Kogan should be less than thrilled if one of their “innocents” were to move in next door.

DPIC is trying to use these cases to show that we have come close to executing innocent people. For this critique to make any sense, the claim has to be that we came close to executing people who were “innocent” in the naïve, common sense of the term (i.e., people who did not actually commit the crime for which they were charged). All I am saying is that it is not evidence for this claim every time someone on death row leaves it. When someone leaves death row, it is not evidence that an injustice was done when he was put on it. Supporters of the death penalty may well think, in some of these cases, that the injustice was done when he was allowed off it. It follows from this possibility that the DPIC list does not prove what it purports to prove.

DPIC’s critique would have no political force if it were not misleading. The over-100 claim shocks people’s consciences because they think that it represents death-row inmates who were innocent or may well have been. If they were told that “over 100 people who were on the death row have been removed from it, some because they were innocent and others because they benefited from technicalities,” nobody would much care. If “over 100″ such cases were considered too many, the problem could be solved by simply refusing to take people off death row any more.

At the end of their letter, Baird and Kogan say that the exact number of erroneous convictions doesn’t really matter. Numbers, schnumbers. Kogan has already demonstrated that he is basically indifferent to piddling questions of accuracy, having made claims even more outlandish than any DPIC makes. He said in 1998 that 75 people had been released from death row in the previous twelve years because DNA evidence cleared them, which is not even close to being true.

If all Baird and Kogan are saying is that there are problems in the administration of the death penalty and that things would be much better if we collected more data on its racial impact and had racially diverse juries — to mention two of their vaunted recommendations — then they should have written a letter in response to a different article. If their point was to support the federal Innocence Protection Act, which I criticized in my article, they should neither have wasted time defending the DPIC list nor rested their case for the act on two unsupported assertions.

If the numbers really don’t matter, here’s a piece of advice for Baird, Kogan, Dieter, and other death-penalty abolitionists and reformers: Stop using misleading ones.



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