Of the 50 or so death row inmates I have represented, I have serious doubts about the guilt of three or four — that is, 6 to 8 percent, about what scholars estimate to be the percentage of innocent people on death row.Is Dow right about how "to erode support for capital punishment in America"? It's hard to get ordinary people excited about procedure. The main way of getting people to care is to create anxiety that an innocent man will be executed. Even if, as a matter of fact, nearly everyone convicted is guilty, people do have a very intense feeling about the risk of executing the innocent. I think if Americans believed that every 20th person executed was innocent, they would reject the death penalty.
In 98 percent of the cases, however, in 49 out of 50, there were appalling violations of legal principles: prosecutors struck jurors based on their race; the police hid or manufactured evidence; prosecutors reached secret deals with jailhouse snitches; lab analysts misrepresented forensic results. Most of the cases do not involve bogus claims of innocence, like the one that swirled for 15 years around Roger Coleman, but the government corruption that the federal courts overlook so that the states can go about their business of executing.
The House case will make it hard for abolitionists to shift their focus from the question of innocence, but that is what they ought to do. They ought to focus on the far more pervasive problem: that the machinery of death in America is lawless, and in carrying out death sentences, we violate our legal principles nearly all of the time.
And we ought to care about the problems of procedure whether we have the death penalty or not. Paradoxically, the death penalty may cause people to care about procedural problems that they wouldn't pay attention to if those who were unfairly convicted were quietly serving their long sentences in prisons.
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At least Dow is being honest: it's all about his personal moral beliefs and not so much about guilt or innocence.
I'm personally very suspicious of the 5% innocent number. I also disagree with the prof's characterization of "appalling violations of legal principles". I've worked on a couple of hundred habeas petitions at a trial court level as a clerk, though very few death penalty. Monday morning quarterbacking and any halfway creative lawyer can find something not right with any jury trial. If nothing else, cry "ineffective assistance of counsel". After all, counsel must have been ineffective, because the accused was convicted. I 've worked on cases where habeas counsel argued that the trail attorney should have disregarded the defendant's protestations of innocence and conducted a defense at odds with those assertions. On the other hand, where a defense attorney works hard to obtain and convince a defendant to plead guilty because s/he doesn't believe protestations of innocence, then counsel was ineffective and only wanted to cut a quick deal. "Appalling violations" are rare and have, in my experience, led to the overturning of convictions where actual innocence was not a question. I agree with Yetanotherjohn, that consensus will come with emphasizing discovery of those actually innocent.
Is there any evidence that innocent people are, in fact, being executed? With all the time and research done after conviction, and with the regular (it seems) rate of numerous convictions overturned, I wonder if there is any actual proof, rather than feelings, that, within recent times--i.e., under current law and practice--innocent people are being executed.
I'm not trying to be contentious here--I really don't know and would like to hear.
The Public has always enjoyed a goog hanging. We have worries over an innocent man swinging but are infuriated over dismissals due to procedurial deviancy. Fury is more powerful than worry.
ahhh, that would be a good hanging
Well Scalito signaled just yesterday that procedural violations are A-Okay!
Dow should get with the program.
Ann says: "Paradoxically, the death penalty may cause people to care about procedural problems that they wouldn't pay attention to if those who were unfairly convicted were quietly serving their long sentences in prisons."
The key word in that sentence is "unfairly." It's not synonymous with "without procedural errors." Prof. Dow's complaint obscures that basic difference, and it is quite possible that he rejects it entirely. In all events, it is helpful to remember that "fairness" is a two-way street, since there are always two parties to every case -- including every criminal case. Just as a defendant is entitled to a fair trial, the prosecution is entitled to have the judgment rendered after a trial respected unless there are real reasons requiring it to be set aside.
The federal courts have struggled with that basic distinction. Countless cases use the mantra that every accused is entitled to a "fair trial, not a perfect or error-free trial." In trying to determine whether any procedural error resulted in an accused's receiving less than a "fair trial," the federal courts have fashioned a host of tests and criteria. If the error goes to the fundamentals of the trial process itself -- the accused was not afforded the opportunity to have counsel at every stage of the proceeding, or defense counsel was not actually admitted as an attorney, or the trial judge was under a duty to recuse for some objective reason (thinking that the defendant was guilty is not such a reason), or a juror was bribed, etc. -- the accused generally need only prove that such an error occurred, and any resulting conviction will be automatically reversed. But for almost all other alleged errors that do not implicate the fairness of the trial as a whole, but are merely errors in the way the trial was conducted, the accused must prove (1) that there was some legal error made, and (2) that any such error was not harmless, meaning that, in light of the trial as a whole and the evidence viewed in its totality, there is an objectively reasonable chance that the jury would have acquitted the accused if the alleged error had not occurred. Additionally, if the alleged error was not raised with the trial court, a defendant can raise it on appeal only if it constituted "plain error" (e.g., in charging the jury as to the elements of the crime, the judge left one of them out). Most states apply some version of these same standards.
Harmless error analysis applies on direct review. When a state court judgment is being reviewed by a federal habeas court, there is a whole list of other requirements that must be met.
The fact of the matter is that most criminal cases are not particularly close, and the evidence of guilt is frequently overwhelming. The NYTimes op-ed more of less concedes as much, in saying that even from the perspective of the defense attorney writing that op-ed, there was not even a question about guilt or innocence in the great majority of cases. When that attorney claims that "in 49 out of 50, there were appalling violations of legal principles," it is also best to take that claim with a large bucket of salt. The examples he gives -- Batson challenges that were evidently not made or if made overruled; and gripes about the quality of the other sides's witnesses (the "jailhouse snitch") or other evidence ("forensic results" and supposedly fabricated evidence) -- are often claimed by defense attorneys and rarely proved. The bias of a "jailhouse snitch" is not hard to show to a jury -- it's a standard part of any cross -- and deficiencies in the forensic work by experts comes up in every case, civil and criminal, where they testify. Most of those claims about the quality of the prosection's evidence, including any basis for the assertion that it was fabricate, are typically just matters for the lawyers to argue to the jury in summation.
Having tried a lot of cases over the years, I have no doubt that any defense lawyer would be delighted if there were some basis in the evidence to argue to a jury that the prosecutor or the police were fabricating or hiding evidence. Such arguments are, of course, often made in summation, and they are just as often rejected by the jury because the only thing supporting them is the defense counsel's imaginative take on the evidence. If a jury ever forms the view that the prosecutor or the police have fabricated evidence or lied about something that matters, as a defense lawyer in a criminal case you are well on your way to an acquittal.
Thus, Prof. Dow's notion that innocence is a "distraction" makes sense only if you reject (1) the idea that a defendant is entitled to a "fair trial, not a perfect or error-free" trial, and (2) the harmless error analysis that the courts have adopted to implement that principle. It's not surprising to me that the person making that argument is a professor.
As a person who is opposed to the death penalty, I find this argument lousy. First of all, I'm unconvinced of his anecdotal 98% of cases in which cops were crooked or DA's broke the law. If cops and prosecuters break laws, they should be prosecuted themselves. These problems don't, in and of themselves, mean we shouldn't execute people. He even concedes that most of his clients were guilty of the crimes they are accused of. I struggle to have much sympathy for them.
The notion of someone's possible innocence is what will motivate most people to change these laws. To quote Unforgiven "It's a hell of a thing killin a man. You take away all he's got and all he's ever gonna have." At least with a life sentence, you can provide some restitution to someone wrongly convicted. This is the sole reason I'm opposed to the death penalty in general.
If you are wanting to find other reasons to chip away at the death penalty you could start with states that allow executions of minors and the mentally ill, but that is another discussion entirely.
I kind of agree. The death penalty should be designed to as a revenge or justice for the whole community. If we are not willing to have public executions, we should forgoe the death penalty...
On the other hand, if I lived in Iraq I would be all for the death penalty because you cannot guarantee that some quack, who comes to power 10 years later, won't release all the prisoners, thus putting all the victims and those associated with the cases at serious risk of harm.
Maybe we should worry about that happening in this country. Who can guarantee that if the Left comes to power in America they won't start releasing and pardoning prisoners? Can we guarantee they won't? The death penalty would eliminate this risk.
Sloanasaurus said...
Maybe we should worry about that happening in this country. Who can guarantee that if the Left comes to power in America they won't start releasing and pardoning prisoners?
I'm confused are you saying that Democrats are like some despot who comes to power in a middle eastern country? Just trying to nail down exactly what you mean here. Do you have similar concerns with anti-death penalty republicans?
Besides, your theory would only work if "we" executed everyone who is on death row and ever will be.
Who can guarantee that if the Left comes to power in America they won't start releasing and pardoning prisoners?
The same person who can guarantee those being executed are innocent? Killing off prisoners just so some future lefty who may or may not exist doesn't release them in the future seems a tad extreme to me.
Why is it extreme? If someone is guilty of a nasty crime, putting them to death guarantees that they will never be released from life in prison.
Sloanasaurus said...
Why is it extreme?
Since your position is so moderate I'm sure you will soon have loads of people here and polititians nationwide promoting your idea. In fact I think this proposal would be great for the Republicans in the '06 midterms and beyond. Once gay marriage, flag burning, and the 'cut and run' discussions are over, what will you guys have to talk about until November? I think your idea is a prime candidate and I suggest you write your congressman and senator.
Hop to...
I think what Professor Dow really intends is that innocence is a distraction when arguing against the policy of the death penalty. Death penalty defense is often motivated and funded by groups that are ideologically opposed to the death penalty. These folks have spent the last 20 years trying to convince the public that there is a great danger of an innocent person being put to death. Apparently, not enough have been convinced.
This Op-Ed may signal a change in tactics by those opposed to the death penalty from “innocent” to “not given a fair shake.”
"Is Dow right about how "to erode support for capital punishment in America"?"
Um, no. In fact, this is one of the most glaring examples of ivory tower idiocy I've ever seen. Not only does the public not give a rats ass about procedure if the defendant is guilty - a defendant getting off because of entirely legitimate procedural obstructions, commonly referred to as "technicalities", is the most infuriating thing about the criminal justice system for most of the public. I hope I'm misunderstanding his point, because the professor would have to be one of the most ignorant people alive to believe his argument would work.
Dow almost seems to be suggesting that "appalling violations of legal principles" are a particular problem with capital cases. That seems an odd assertion to me. Not impossible, but odd.
It's the kind of rhetoric you get from hyperpartisan types, where if you do the wrong thing, then they'll invariably say you did it in the wrong way, you did it incompetently and for venal reasons, you're stupid, your suit doesn't fit, your breath stinks, and your mother is ugly (all this having never seen your mother, nor smelled your breath). So if the death penalty is immoral, then everything in any way associated with capital cases must be bad morally, legally, technologically, aesthetically, or in resistance to torsion and shear stresses.
But if 98% of all cases involve "appalling violations of legal principles", why focus on the death penalty cases? What percentage of all cases are those? Yes, most people would consider the death penalty worse than ten years in prison, but we've an incomprably greater number of people being sentenced to ten years. Does focusing only on injustices in death penalty cases get you the maximum bang per buck? Er... no pun intended. If 98% of our trials are unacceptably flawed (while at the same time reliably convicting the guilty (?!)), then we don't have a problem with the death penalty, we have a problem with our entire system of justice from the ground up, and Dow's blindered focus on capital cases is surreally inappropriate.
And of course there's also the real possibility that Dow's minimum standard for an acceptable trial is a higher than human beings are capable of meeting better than eighty or ninety percent of the time.
a defendant getting off because of entirely legitimate procedural obstructions, commonly referred to as "technicalities", is the most infuriating thing about the criminal justice system for most of the public.
I agree. It also shows the ignorance of most of the public. A lot of the posts addressing "procedure"(not Richard Dolan's) treat it as though it's just some annoying hoop that prosecutors have to jump through, that has no real bearing on whether someone is guilty or not. The reality of whether someone committed the crime or not is not the issue. The issue is, would they be adjudged legally guilty if the "mere" procedural errors were not there? That's why we have the harmless error test. Procedure is there to protect YOU, as buck turgidson pointed out.
Of course, most of the public thinks they know best,even about things about which they know very little. So it never surprises me to see someone express outrage or worry about someone they "know" is guilty getting off on a "technicality."
Oops. I seem to have missed the last paragraph in the post when I first read it. Coulda saved myself some typing. Oh, well.
In my previous comment, I should have been more careful to point out that, if an accused proves a significant error occurred during his trial, the burden shifts to the prosecution to prove that the error was harmless. Any lawyer would have known that, but the many non-lawyers who read this site probably don't. That burden-shifting just acts as an additional protection for the procedural rights of the accused. Harmless error analysis will thus sweep away almost all procedural errors (assuming any are shown) where there is no question about the guilt of the accused. By the same token, the harmless error rule properly imposes a high burden on the prosecution when the proof of guilt is less than overwhelming, particularly in the small percentage of cases where there is a real question about guilt. In that sense, the harmless error rule is nicely calibrated to do substantial justice, by weeding out cases where the verdict was clearly right and focusing on those cases where there is a basis to question whether it was. In all events, concerns about guilt or innocence are hardly a "distraction," but instead quite properly at the center of the inquiry.
No, "scholars" don't estimate that 6 or 8 percent of people put on death row are innocent.
That's, in fact, a higher number than even the political activists claim.
Of a bit over 7,000 people put on death row since the moratorium in the 70s, perhaps 35-40 were factually innocent.
And there is no good evidence that any innocent person has actually been executed in the last 40 years.
If death penalty opponents can't make their case honestly, maybe it's because they have a poor case.
MadisonMan quoted Sloanasaurus:
Who can guarantee that if the Left comes to power in America they won't start releasing and pardoning prisoners?
<<<<<<<<<<
Well, the evidence seems to go both ways on this; it was a republican governor who commuted the sentences in Illinois, but a Democrat president who provided a nosegay of pardons to some fairly sleazy people.
An old professor told me, "When you can no longer say, 'You shall go from hence to the place from whence you came, & from thence to the place of execution, & there hang till you be dead, and may God have mercy on your soul,' and mean it, then all that matters is the number of breaths. No matter how many breaths you took away from others, there's no reason to take any from you." To an actual believer, one whose faith scalds, death's a minor penalty and one we all pay. We have a social duty not to impose it unjustly, but imposed it will be, and if wrongly so, the soul remains unslain.
"I agree. It also shows the ignorance of most of the public"
Fine. Once the entire population has a law degree, maybe they'll agree with Dow, but I doubt it. His point, if I understand him correctly, is that emphasis on procedure will erode public support for the DP more than emphasis on finding innocent death row inmates. I can't imagine what sort of cocoon he lives in to believe that - I suspect even most anti-DP activists would regard that position as insane.
P. Froward said:
"of course there's also the real possibility that Dow's minimum standard for an acceptable trial is a higher than human beings are capable of meeting better than eighty or ninety percent of the time."
For those readers here who aren't lawyers, please bear in mind that Dow is expressing an extreme activist position that has little relation to what actually happens in a real criminal court. To assert that he found "apalling violations of legal principles" in 98% of the cases he reviewed means, in effect, that Dow believes that ANY conviction in a capital case is a miscarriage of justice.
Any litigator would say that no matter how well prepared the case, things can happen at trial that nobody anticipated. Since the trial is unfolding in real time, the lawyers must respond and the judge must make rulings without the benefit of the hours of legal research that might be needed to reach a perfect result. Prof. Dow might not be satisfied, but "apalling violations of legal principles" are relatively rare. And when these do occur, they are effectively redressed by the harmless error analysis ably described above in Richard Dolan's posts.
What tjl said...
Dow is an advocate whose positions are extreme for a purpose. That purpose may be because he is sincere and passionate about his cause. It also may be to lay out an extreme moral marker to get attention.
I think it is probably closer to the latter.
I also think the notion that innocence is a distraction is simple minded crap. If a person is found guilty of a crime that person in fact committed which is heinous enough that the death penalty is a
permitted penalty, it is unlikely that much sympathy will be forthcoming from any but zealots like Dow.
Luckily, I don't think most Americans have yet reached the level of Professor's Dow sophistication -- paraphrasing, accepting the deaths of innocents as part of the process. That was Governor Ryan's concern in Illinois (and it's somehow always easier to act on your core beliefs when you are facing indictment and have nothing to lose. Strange world, eh?)
Outside academic circles, I agree with the commenters who say Average America is concerned more with the result -- did they convict the right guy? -- than the process. That's just the way it is.
I live in Texas, a state that regularly imposes the death penalty. I am a lawyer so I care about substance and procedure in the death penalty debate. Finally, I support the death penalty as a means to deter criminal acts, to punish, and to prevent those convicted of heinous acts from committing additional crimes. In sum, I am a strong supporter of the death penalty. If you can convince me to support the abolition of the death penalty, you can probably convince anyone.
You can convince me that the death penalty should be abolished by doing the following:
1. Impose serious jail time for serious offenses;
2. Abolish early release and parole. Those who are convicted will serve all the time in their sentence.
3. Maintain jails that are habitable but not comfortable or filled with perks;
4. Require that prisoners work (and work hard) while they are in jail;
5. Return the prisons to institutions where the guards are in charge and can protect themselves and the prisoners from prison gangs.
drj-
I've done criminal defense in Harris County, Texas, for 20 years. It's safe to say that while our criminal courts are far from perfect, Prof. Dow's op-ed piece is a hysterical distortion of the facts in support of his activist agenda.
That said, I've never taken a capital case and never intend to. In theory, I agree that there are certain crimes so heinous that they deserve the ultimate penalty. I will go further and say that my experience with a broad range of defendants has proven to me that there are certain rare individuals who can truly be called evil, too evil to walk free in the world ( even after due allowance is made for poverty, deprivation, bad childhoods, poor education, etc.).
However, even the best-intentioned system of justice must rely on fallible human beings for its operation. Even the best-intentioned witnesses, police officers, lawyers, and judges err, sometimes in ways that may lead to an unjust conviction. While the number of innocent prisoners on death row is certainly not what Prof. Dow claims it is, we can't say with confidence that it's zero.
Finally, the death penalty is damaging to the justice system in several unintended ways. Activists like Prof. Dow have absolutely no qualms about distorting the facts or even making them up to promote their agenda. The activists can always count on the suppport of the media to give them a platform and focus public attention and sympathy on the "wrongfully convicted" inmate du jour. The result is that a series of killers like Gary Graham, Mumia, etc., become glamorized by the reverential media attention they receive. Their crimes are trivialized, their victims forgotten, and respect for the law is further eroded.
All of these problems could be reduced, if not eliminated, by replacement of the death penalty with life without parole.
and the doohs, clearl
sorry about that last line - poor editing job & I don't want to redo the comment.
"too evil to walk free in the world ( even after due allowance is made for poverty, deprivation, bad childhoods, poor education, etc.)"
An interesting aside. If someone truly is too evil to walk free, why does it matter what made them that way?
I thought this topic was exhausted, but John in Nashville's comment was too tempting to pass up:
"Given the number of executions in Texas and Florida during the relevant time periods, it is fair to say that the Bush family has killed more people than the Corleone family ever dared think of killing."
Imagine the surprise of the prosecutors, judges, and juries who took part in capital cases, not to mention the many generations of state legislators who adopted and revised the penal code, to find that the evil aand all-powerful Bush family was solely and exclusively responsible for all Texas and Florida executions.
Not to complicate things, but I'm curious about one thing.
What happens to the question of innocence if a person is convicted (falsely) of murder A and faces the death penalty because of it — but who is actually guilty (though unconvicted) of murder B?
My hunch is that for some people, murder becomes a lifestyle in the sense that uncontrolled violence becomes their routine way of dealing with other people who stand in their way. What then?
tlj: kudos to you - and to virtually all of the commenters in this thread, with few exceptions, for keeping it civil as you jump all over Prof. Dow.
A few comments.
- Bush didn't put anyone to death. He cruelly and vilely refrained from exercising his constitutional power to withdraw many, many lawfully (but perhaps horribly unjustly) imposed death sentences, and his reactions were appalling.
How many minutes is a human life worth? None, perhaps, if you are callous and it's not in your backyard. But if your *job* is to determine whether a death should occur according to law, in the jurisdiction you govern, or not - how long? 30 seconds? Should a Christian laugh as he allows a criminal to be put to death?
To the commenter who said that there's been no credible evidence of a factually innocent person put to death - really? I thought we had at least one credible case of a factually innocent (if not morally - see theology) person put to death *this year*. Got any reputable statistics - i.e., not put out by a conservative thinktank - which agrees with your belief, not mine?
As to all the folks attacking Dow for "98%" - some of you did not read carefully.
Dow said that in a small number, out of the small number he was involved with, they didn't do it. Wrong suspect. May have been there, may have not, but didn't do the deed.
He also said that in many cases where they did did it [sic], there was misconduct. He identified several types.
Not one of you makes a sensible, let alone credible, argument that there doesn't have to be a really horrendous amount of misconduct, whether it be investigative, prosecutorial, or otherwise, to convict someone of a capital crime.
What would it take to convict you? A jailhouse snitch? If there was a snitch saying you'd confessed, would there be a deal for his testimony? Such deals are unethical if not disclosed, but are immoral regardless - and snitch testimony is one of the most unreliable, most likely to be manufactured, most dangerous kinds of evidence out there.
Snitch testimony is like torture testimony. Reliable, if it's right. Otherwise, it'll bite you, and you'll deserve it if you obtain it or rely on it.
The 98% figure did not reflect all trials, or all defendants. It reflected his observation of an unsurprising fact. The police are aggressive in getting, and prosecutors aggressive in convicting and getting sentenced, guilty defendants. Rules get broken. We all lose, as a result.
Oh, and it's "USA Today" Op-Ed, not NY Times.
Eh: "He cruelly and vilely refrained from exercising his constitutional power to withdraw many, many lawfully (but perhaps horribly unjustly) imposed death sentences, and his reactions were appalling."
Don't you know that under Texas law, the governor can only act on the recommendation of the Board of Pardons?
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