People are Asking…
Popular culture plays up the notion that people “get off on a technicality,” but it is more likely that an execution will go forward on a technicality – because legal barriers prevented the courts from hearing new evidence, or because a lawyer missed a filing deadline or didn’t make an objection at the right time.
One 2007 execution went forward because a judge decided to close the court at 5pm on the night of the execution, even though past practice was to stay open on execution days to consider final appeals.1 A 2012 Alabama appeal was almost denied because of a mix-up in the mailroom.2
Such “technicalities” should never get in the way of someone getting their fair day in court, but in a case of actual innocence they are downright terrifying. Consider the Missouri case of Joe Amrine. The prosecutor told the judge that even if Amrine was factually innocent, he should be executed because the legal process should not drag on and on. Courts actually refused to hear evidence of Amrine’s innocence because they said his original trial lawyer should have known the information – and therefore it didn’t count as “new.” It took 18 years for Amrine to be exonerated and freed.
But in recent years, several cases have come to light where there is strong evidence of innocence. A 2012 report called “The Wrong Carlos” details the case of Carlos DeLuna, who was executed for a crime that was likely committed by Carlos Hernandez.3 The two look alike, but at the time of the trial prosecutors claimed that Carlos Hernandez was a made-up phantom, despite his long criminal record. Cameron Todd Willingham was executed for setting fire to his home and killing his three children, but eight different arson experts now say that the forensic testimony used to convict him was based on junk science and that there is no evidence that the fire was set intentionally.4 And Troy Davis was executed in 2012 after nearly a million people worldwide spoke up that there was too much doubt in the case to proceed.
None of these cases are definitive. It is nearly impossible to prove a negative so long after the fact. And few lawyers can afford to spend time and resources trying to prove the innocence of an executed person when there are so many people with strong claims of innocence still living on death row.
Here is what we do know: 156 people have been exonerated from death rows around the country. In many of those cases, the exoneration came after a long legal battle and thanks to the extraordinary efforts of people working outside the system. Any one of the 156 death row exonorees could have just have easily been executed.
In most cases, there is simply no DNA to test. They instead must continue to rely on those other kinds of evidence – and those other types of evidence aren’t very reliable at all. The National Academy of Sciences (NAS), the nation’s premier institution of scientific advisors, have declared that most of the common categories of forensic evidence – including fingerprints, bitemarks, hair, and ballistics – are unreliable in connecting crime scene evidence to specific people.6
Even when there is DNA to test, it can be tainted or misused. Innocent people have been convicted of serious crimes on the basis of DNA evidence that was analyzed incorrectly or even fraudulently.7 Any scientific evidence is only as good as the human beings conducting the tests – and human beings can’t be right 100% of the time. Even with scientific advances, there is simply no way to create a death penalty system that always gets it right.
But in most cases, there is simply no DNA to test, so most cases must continue to rely on those other kinds of evidence. More importantly, any scientific evidence is only as good as the human beings conducting the tests – and human beings can’t be right 100% of the time. Even with scientific advances, there is simply no way to create a death penalty system that always gets it right.
Days after being violently raped, Jennifer Thompson-Cannino identified Ronald Cotton as the man responsible. Cotton was given a life sentence, based largely on her testimony. Nine years later DNA testing showed that another man was responsible for the rape and Cotton was innocent. Now Jennifer speaks out against the death penalty across the country. She was 100% certain she had the right guy – and she was wrong.
Ray Krone was given a death sentence after forensic experts said that bitemarks on a victim matched his and proved he was guilty. Krone was sentenced to death. It took ten years before DNA evidence exonerated him. Bitemark evidence has since been largely discredited by the National Academy of Sciences.
In Maryland a death sentence can only be imposed in cases where there is biological evidence, a videotape that links a defendant to a murder, or a videotaped confession. This is the narrowest death penalty in the nation but a report by 39 legal experts and former prosecutors outlined numerous cases of innocence where the restrictions would not have helped. And the extra procedures involved has made Maryland’s death penalty trials longer and more complicated, which prolongs the pain for the families of murder victims and adds even more costs to an already expensive system.8
Even in life without parole cases, for example, a single lawyer is considered sufficient (death penalty cases require two because they are much more complicated), and juries don’t have to be screened for their opposition to incarceration the way they do with the death penalty. The penalty phase of a death penalty case simply doesn’t exist for non-death penalty cases. None of these requirements would apply to other types of cases, even if the death penalty were off the table.
The experiences of states without the death penalty confirm this. New York eliminated the death penalty in 2007 and left life without parole as the highest sentence. In the years since then, life without parole cases have been treated more like second degree murder cases than death penalty cases. There have been no new procedures or extended appeals put into place.
In Massachusetts, which also has no death penalty, lawyers are certified, screened, and paid in the same way whether the case is a first or second degree murder case. Both life without parole and second degree murder cases take about the same length of time, and about ten times less than the estimated time of a death penalty case in Maryland, for example. Even when life without parole cases get appealed in these states, the results are similar to other murder cases. The appeals are not taken as seriously as death penalty appeals, they are shorter, there are fewer of them, and they have a much smaller success rate.9
Most other sentences can begin instantly – the day the defendant leaves the courtroom. They fade from the front pages and into irrelevance from the public arena. Surviving loved ones are no longer tied to the person who committed the murder. The court process is over and the struggle to rebuild their lives can begin.
Study after study has found that death penalty cases cost up to 10 times more than comparable non-death penalty cases. The most rigorous cost study in the country found that a single death sentence in Maryland costs almost $2 million more. Maryland spent $186 million extra to carry out just five executions.11
Study after study has found that death sentences cost up to 10 times as much as just locking someone up for life. The most rigorous cost study to date found that a single death sentence in Maryland costs almost $2 million more than the costs of a comparable non-death penalty case, even including the cost of prison terms.12 Other states including Florida, North Carolina, California, New York, New Jersey, Kansas, Indiana, and Texas have found the same thing.
Many of the extra costs are legally mandated to reduce the risk of executing an innocent person. And even these safeguards are not enough – at least 156 people have been exonerated from death row after waiting years or decades for the truth to come out. Cutting appeals would virtually guarantee that some of these innocent men and women would be dead today, executed for crimes they did not commit.
These studies come from all kinds of states – those that use the death penalty a lot like Texas and Florida, those that use it very little like Maryland and Kansas, and those in the middle like Tennessee and California. There is no reason to believe that a study in any other state will find they somehow manage to do it any cheaper.
It has long been said that a budget is a moral document, because the choices we make about how to spend our precious resources are a reflection of what we think is important as a society.
Paying for the death penalty means choosing a failed policy that makes irreversible mistakes, monopolizes our courts, and delays justice for families of murder victims. Our resources are finite, so that choice is made at the expense of proven gang prevention programs, desperately needed grief counseling and financial assistance to families of murder victims, training or better equipment that would keep police officers safer, proper staffing that would keep our prisons safer, evidence-based crime prevention programs that would keep our neighborhoods safer, and many other things that would not only save lives, but also improve lives.
The 156 innocent people who were sentenced to die and later released had to fight long legal battles before the truth was finally heard. In many cases luck was a big factor in their release – another crime that happened to reveal the person actually responsible, for example, or even journalism students uncovering evidence as part of a class project. Those exonerated will tell you they were not freed because of the system, they were freed in spite of it.
If the death penalty deterred, one would expect the South – where executions are frequent, to have lower murder rates than other regions, and for states with the death penalty to be safer than those states without. In fact, the opposite is true. Regions with the most executions also have the highest murder rates.13 And states without the death penalty actually have lower murder rates than those with the death penalty.14
This isn’t surprising: to the extent someone with a deadly weapon in a rage is going to be deterred from anything, the real prospect of spending a lifetime in prison is at least as persuasive as the small chance of getting executed. There is simply no correlation between murder rates and the death penalty, and nearly two-thirds of Americans and 88% of criminologists agree that the death penalty is not an effective deterrent.15
A recent batch of studies have come out claiming that the death penalty does deter. These studies have come under intense attack in the research world for their faulty methods, missing data, misleading categorization, and a host of other problems that make the data completely unreliable.
In 2012, the National Research Council reviewed all of the deterrence studies from all sides of the issue and found there was no credible evidence that the death penalty deters murder.16
Sadly, many victims’ families learned this lesson the hard way: they wanted the death penalty at the time of their loved ones’ murder but then saw firsthand how the process prolonged their pain. Families still processing the shock of a murder are in no position to evaluate how the long process will effect them years down the road.
We owe it to families of murder victims to have in place a system of justice that is swift and sure, and to provide them with meaningful services to help them heal and recover from the trauma of murder. The death penalty has proven time and again to fail on every one of those counts.
People serving life sentences have more incentive than others to follow prison rules, because they must make prison their homes for life. Breaking the rules can jeopardize the few privileges they can secure in the prison world, and they must stay on the good side of guards who will control their every move until the day they die. For those few individuals who do break rules, corrections officers will tell you that it is always possible to make life more difficult for an inmate – including isolation, which can be much more agonizing than the prospect of an execution.
The best way to keep police officers safe is to ensure proper staffing, equipment, and training to officers and to implement crime prevention programs that work. The death penalty is a distraction from those concrete needs, diverting millions of law enforcement dollars that could be used to keep police and the public safe.
Law enforcement agree that the death penalty is ineffective at reducing violent crime. A full 99% of police chiefs said that other changes such as reducing drug abuse or improving the economy were more important than expanding the death penalty in reducing violent crime.18
The best way to keep police officers safe is to ensure proper staffing, equipment, and training to officers and to implement crime prevention programs that work. The death penalty is a distraction from those concrete needs, diverting millions of law enforcement dollars that could be used to keep police and the public safe.
Terrorism is not an ordinary crime that can be addressed with standard law enforcement tools and resources at the local level. It requires a complex solution that integrates law enforcement with intelligence, defense, diplomacy, and foreign policy considerations. The death penalty often gets in the way of the effort to balance these considerations, especially at the state level.
Terrorism is not an ordinary crime that can be addressed with standard law enforcement tools and resources at the local level. It requires a complex solution that integrates law enforcement with intelligence, defense, diplomacy, and foreign policy considerations. The death penalty often gets in the way of the effort to balance these considerations, especially at the state level.
Many states use the death penalty infrequently. But execution gaps – even if they are indefinite – do not provide any mechanism for addressing the death penalty’s flaws. If the state did suddenly resume executions, innocent people would still be at risk and the process for determining sentencing would still be arbitrarily and unfairly applied.
And even if the state never resumes executions, this kind of limbo creates other problems. The death penalty system woud continue to drag victims’ families through the agonizingly long and complicated process, promising an execution that would probably never happen. Millions would be wasted prusuing death sentences that would never be carried out. And thousands of hours of court and law enforcement time would be spent chasing executions instead of solving scores of other crimes.
Taking a break from executions is not a permanent solution. The only way to address the death penalty’s serious flaws is to end it.
A moratorium is different from repealing the death penalty because it brings together people on all sides of the issue, including those who support the death penalty, to take an objective look at how the system is working and what can be done about it.
- Judge Sharon Keller of the Texas Court of Criminal Appeals, was eventually reprimanded by the State Commission on Judicial Conduct for her role in the execution of Michael Wayne Richards.
- Supreme Court Justice Samuel A. Alito Jr. described what had happened to death row inmate Corey Maples as “a veritable perfect storm of misfortune.”
- James Liebman et al, Los Tocayos Carlos.
- David Grann, “Trial by Fire. Did Texas Execute an Innocent Man?” The New Yorker, September 7, 2009.
- “Non-DNA Exonerations,” Innocence Project.
- National Research Council of the National Academies, “Strengthening Forensic Science in the United States: A Path Forward,” 2009.
- See, for example, the cases of Josiah Sutton, Timothy Durham, and Gilbert Alejandro.
- “Maryland’s Death Penalty. Still Here, Still Unfair. More Arbitrary and Costly.” Maryland Citizens Against State Executions, 2012.
- Ibid.
- James S. Liebman et al, A Broken System: Error Rates in Capital Cases, 1973-1995, Columbia Law School Journal, 2000.
- John Roman et al, The Cost of the Death Penalty in Maryland, Urban Institute, 2008. In California, a 2011 study showed that death penalty cases are 20 times more expensive. That state has spent over $4 billion on the death penalty since 1978. Judge Arthur L. Alarcon and Paula M. Mitchell, “Executing the Will of the Voters?: A roadmap to mend or end the California legislature’s multi-billion dollar death penalty debacle,” 44 Loyola of Los Angeles Law Review S41, Special Issue, 2011.
- John Roman et al, “The Cost of the Death Penalty in Maryland,” Urban Institute, 2008.
- Murder rates based on the years 2001 to 2011. FBI’s Uniform Crime Reports, cited by the Death Penalty Information Center.
- Ibid.
- Michael Radelet and Traci Lacock, “Do Executions Lower Homicide Rates? The Views of Leading Criminologists,” Journal of Law and Criminology, 2008. General public’s views taken from Gallup poll, 2011. 64% of those polled say the death penalty is not a deterrent.
- National Research Council of the National Academies, “Deterrence and the Death Penalty,” 2012.
- Law enforcement murder rates based on the years 2002-2011. “Law Enforcement Officers Feloniously Killed, Table 1,” FBI Uniform Crime Report, 2011.
- National Survey of Police Chiefs Report in Smart on Crime Death Penalty Information Center.