Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“At least once every human should have to run for his life, to teach him that milk does not come from supermarkets, that safety does not come from policemen, that news is not something that happens to other people.”     Robert A. Heinlein,    The Number of the Beast

May 2, 2014

One Out of 25 Prisoners on Death Row is Innocent

by Stephen Littau

Benjamin Franklin once argued: “It is better 100 guilty persons should escape than that one innocent person should suffer.” The purpose of courts as drafted in the Constitution was to minimize the occurrences innocent people from “suffering” via an adversarial system in which the accused is considered innocent until proven guilty to a jury of his or her peers.

Regardless of these lofty goals, the question must be asked: how well has this system worked?

If the standard is that of Franklin’s (i.e. less than 1%), then the idea that a rate of 1 in 25 death row convicts are likely innocent is clearly unacceptable. According to a study by the National Academy of Sciences, to the best the researchers were able to determine, this about what the rate is.

Pete Yost for the Associated Press reports:

From 1973 to 2004, 1.6 percent of those sentenced to death in the U.S. — 138 prisoners — were exonerated and released because of innocence.

But the great majority of innocent people who are sentenced to death are never identified and freed, says professor Samuel Gross of the University of Michigan Law School, the study’s lead author.

The difficulty in identifying innocent inmates stems from the fact that more than 60 percent of prisoners in death penalty cases ultimately are removed from death row and resentenced to life imprisonment. Once that happens, their cases no longer receive the exhaustive reviews that the legal system provides for those on death row.
[…]
Because of various assumptions, it might be best to use the margin of error in the study and say the innocence rate is probably between 2.8 percent and 5.2 percent, said University of South Carolina statistics professor John Grego, who wasn’t part of the study.
[…]
“The high rate of exoneration among death-sentenced defendants appears to be driven by the threat of execution,” says the study. “But most death-sentenced defendants are removed from death row and resentenced to life imprisonment, after which the likelihood of exoneration drops sharply.” The study estimates that if all defendants sentenced to death remained in that status, “at least 4.1 percent would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.”

I have to say that, even as a fierce opponent of the death penalty, I would have never guessed the number of innocent individuals on death row to be this high. I was horrified by the notion that 1 in 100 or even 1 in 1,000 such individuals could be killed by the state, but 1 in 25?

This brings me to my question for those who support state sanctioned killing: is this an acceptable error rate to you? How many innocent people are we willing to sacrifice in order to kill the most heinous of individuals? Based on this study, the current policy is that we are apparently at peace with the idea of killing 4 innocent people to kill 96 guilty.

This is a price that a free and just country should be unwilling to pay.

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2 Comments

  1. I’m with you on this, Stephen. I posted on G+ about it here.

    The cost of being wrong is an innocent human being’s life.

    The benefit of the death penalty is unclear — some suggest it is a deterrent, others suggest not. The other benefit is society’s desire for retribution.

    Perhaps those benefits could justify the cost if the numbers were 1 in 1,000 or 1 in 10,000. It’s not a libertarian argument that they do, of course, but some could make that argument.

    But at 1 in 25? Not a chance. There’s no rational argument that can justify retaining the death penalty if 1 in 25 who receive it are innocent.

    Comment by Brad Warbiany — May 2, 2014 @ 11:32 am
  2. What makes it worse is that few of these cases are due to witness misidentification or laboratory error (incorrect DNA match or incorrect fingerprint match). Almost all the cases are due to misconduct by prosecutors and/or law enforcement agents. The former tamper with evidence, mostly by failing to share exculpatory evidence with the defense. The latter commit perjury to convict the wrong man.

    Comment by MingoV — May 2, 2014 @ 2:28 pm

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