Capital Punishment: Part Two

June 28, 2000

Capital punishment has been in the news in part because of a report just published by James Liebman entitled A Broken System: Error Rates in Capital Cases 1973-1995. The report tracks every death sentence case that went through the legal system following the 1972 Supreme Court decision that re-instituted the death penalty. Of the 4,578 death sentences that were adjudicated completely, the study found serious error in an astonishing 68 percent of the cases!

Yesterday I talked about the fact that analysis of the report is starting to come in that questions some of its assumptions. Law professor Paul Cassell writing in a recent Wall Street Journal argues that we are not executing the innocent. He believes that there is not one case of a “wrong man” mistake in which an innocent person is executed for a murder he did not commit. Frankly, that seems like an extreme statement, but I suppose it shows how far apart proponents and opponents are when it comes to the basic facts.

Professor Cassell says that the 68 percent error rate actually includes any reversal of a capital sentence at any stage by any court even when the court ultimately upholds the death penalty. In other words, if an appellate court asks for additional findings from the trial court, and the appellate court then affirms the capital sentence, the report calls it a mistake rather than an extraordinary act of due process. He also points out that half of California’s “error rate” comes from Justice Rose Bird who was notorious for reversing capital appeals until she and two other colleagues were voted out of office.

The current debate about capital punishment will be better served by considering all the facts and evaluating them carefully.