The death-penalty debate goes on. After a piece that I wrote about the debate last week, National Review’s Charles C. W. Cooke wrote a response, followed later by a much stronger attack by the Washington Post’s Radley Balko.
Cooke’s response was philosophical and drew a distinction between killing someone in self-defense and using the death penalty, though given the evidence that the death penalty deters murders and thus saves lives, that distinction isn’t as clear as he thinks.
Balko, a blogger/reporter for the Washington Post, based his reply on empirical evidence. He puts a lot of faith in studies by death-penalty opponents. Let me address his major points in turn:
‐“It’s important to factor in the severity of the crime. And when a black defendant and a white defendant are convicted of murders with similar aggravating circumstances, the black defendant is significantly more likely to get the death penalty.”
Over the period from 1977 to 2011, the rate of aggravating circumstances for murders was higher for black defendants for murder than it was for whites. Yet, despite that and with whites accounting for fewer murders than blacks (whites commit about 46.8 percent of all murders committed by whites and blacks), whites account for 57 percent of the white and black prisoners sentenced to death for murder.
Finally, even after being sentenced to death at a higher rate than blacks, whites on death row over the decades have had a significantly higher probability of actually being executed than blacks. Over the years from 1977 to 2011, 65 percent of the total number of whites and blacks who have been executed have been white.
This last point is particularly important, since everyone on death row has been convicted of murder with aggravating circumstances. If there is any bias, it is in the opposite direction that Balko claims.
‐“DNA testing has shown that the criminal justice system is flawed — more flawed than most of the public had probably thought. Lott tries to dismiss these concerns, and it’s here that his statistics really get screwy. . . . I don’t know where Lott gets the number 34. I can’t find it anywhere at the Innocence Project link he provides. The actual number of people convicted of murder who were later exonerated by DNA testing is 104.”
If someone has trouble finding a number, the easiest thing to do is to contact the person who provided the number. Balko had time to reach out to the Innocence Project to discuss my numbers, and he and I have e-mailed each other in the past. However, when writing this recent attack on me, he didn’t contact me before declaring that he couldn’t figure out where the number 34 came from.
Thirty-four is the number of people charged with the death penalty for murder who were later cleared because of DNA evidence. As to the source of the figure, it is right at the top of the page that I linked to, though it does require addition: “18 of the 316 people exonerated through DNA served time on death row. Another 16 were charged with capital crimes but not sentenced to death.” 34 = 18 + 16.
If you wanted to look at all murders, not just those where the death penalty was sought, the number of convictions reversed since 1989 is 53, not 104. Since then there have also been about 260,000 convictions for murder. Of course, it isn’t fair to compare the 53 reversals with all murder convictions, because DNA evidence wasn’t available to exonerate people in all cases.
Using the claim that DNA evidence is available for about 4.5 percent of murder cases, 53 exonerations out of 12,000 cases gives an error rate of 0.44 percent.
‐“Lott also mistakenly assumes that we’ve already reviewed all of those 12,000 murder cases for which DNA evidence was relevant. We haven’t. We continue to find new exonerations from years past.”
It is true that the DNA evidence in all 12,000 cases has not been examined, but that is misleading. First, very few of those convicted of murder even ask for their DNA evidence to be re-examined. Presumably they don’t ask because they know what the evidence will show.
Even more telling, only 5 of those 53 exonerations have been for convictions since 2000. The already small error rate has dropped dramatically.
But Balko is simply wrong when he writes: “Even Lott’s own 0.3 percent would represent 10 people. Maybe he’s comfortable with 10 innocent people getting executed.” All these numbers provided by Balko and myself are for convictions, not executions. There is no DNA evidence proving that the wrong person has ever been executed.
‐“A recent study by a group of researchers led by Samuel Gross, a law professor at the University of Michigan Law School, conservatively estimated the figure at 4 percent for death-penalty cases. They estimate that it’s higher for non-capital murder cases.”
But just because a conviction is overturned doesn’t mean that the conviction was a mistake on the merits. Convictions are overturned regularly for many reasons, including technical ones. Many times guilty people go free because evidence that was used at trial is later determined during an appeal to have been improperly obtained. The paper co-authored by Gross defined “exoneration” as occurring when someone was removed from death row by a “legal action by courts or executive officials.”
‐“I think the far more troubling measure of the death penalty and race is the influence of the race of the victim. In most states, defendants convicted of killing white people are quite a bit more likely to be sentenced to death than defendants convicted of killing black people.”
This claim is extremely misleading. These estimates account for nothing other than race. But if you have two drug gangs that get into a fight and one of the members of a gang dies, you aren’t going to get the same push for the death penalty as you would when a small businessman is killed in a robbery. The race results disappear as soon as you account for even simple variables such as income or occupation.
But, as much as Balko might like it, the debate isn’t only about innocent people being executed or about racism. Innocent people’s lives are saved thanks to the death penalty. Most peer-reviewed studies by economists, as I show in my book Freedomnomics, find that each execution saves roughly 15 to 18 potential murder victims.
editor’s note: This article has been amended since its initial publication.