Innocents on death row? Justice Blackmun is convinced that innocent people are likely to be executed. Where is the evidence? - Questioning Capital Punishment

National Review, Sept 12, 1994 by Stephen Markman

IN ANNOUNCING earlier this year that he would "no longer tinker with the machinery of death" by voting to sustain capital punishment, Justice Harry Blackmun relied not only upon an understanding of the Constitution informed more by his own curious conscience than by the text or history of that document but also upon his belief that "innocent persons have been executed ... and will continue to be executed under our death-penalty scheme."

In making this assertion, Justice Blackmun cited a study published several years ago in the Stanford Law Review by two longtime opponents of capital punishment, Hugo Bedau and Michael Radelet. The authors purported to identify "350 cases in which defendants convicted of capital or potentially capital crimes in this century, and in many cases sentenced to death, have later been found to be innocent." This finding was widely heralded in national press releases issued by the American Civil Liberties Union.

Lest such a pseudo-fact gain permanent currency in the capital-punishment debate, Paul Cassell and I, both with the Department of Justice at the time, undertook to study these same cases. Since our findings, also published in the Stanford Law Review, were unaccountably overlooked by Justice Blackmun, I feel compelled to summarize them in order to place the ongoing debate in its proper historical context.

The danger of executing an innocent person, as well as the uniquely irremediable nature of such a mistake, can hardly be denied by even the most committed proponent of the death penalty. The overwhelming majority of Americans who support the death penalty do not imagine that society is able to administer it with "Godlike perspicacity," in Walter Berns's phrase. Rather, they support it because, through a combination of deterrence, incapacitation, and the imposition of just punishment, the death penalty serves to protect a vastly greater number of innocent lives than are likely to be lost through its erroneous application. Some may further believe that a society would be guilty of a suicidal failure of nerve if it were to forgo the use of an appropriate and deserved punishment simply because it is not humanly possible to eliminate the risk of mistake entirely.

Indeed, the Bedau-Radelet study is remarkable not (as Justice Blackmun seems to believe) for demonstrating that mistakes involving the death penalty are common, but rather for demonstrating how uncommon they are. Indeed, to make the finer point, this study--the most thorough and painstaking analysis ever on the subject--fails to prove that a single such mistake has occurred in the United States during this century.

Where Is the Evidence?

ONE cannot state categorically that mistakes never have been made, but the burden properly belongs with those who have endorsed the proposition that innocent persons have been executed with some degree of regularity in this country. Such a burden lies with Justice Blackmun and his allies because in every capital case a unanimous jury of 12 citizens concluded beyond a reasonable doubt that an individual had committed a capital crime, usually first-degree murder. Further, in every one of these cases a trial judge and an assortment of appellate judges concluded both that the trial was fair and that the 12 jurors had acted reasonably in their determination. While such procedures do not give iron-clad assurances that innocent people have not been convicted, they place the burden of proof squarely upon the opposition.

Given that the Bedau-Radelet study has been relied upon by a Supreme Court Justice to demonstrate something relevant to the matter of wrongful executions, it does not seem picky to inquire whether or not wrongful executions are anywhere in evidence. The figure of "350" cases (since increased to 416), which was highlighted by the ACLU in its press releases, does not refer to 350 Americans wrongfully executed. In the majority of these cases, the death penalty either was not available or was not the sentence given. The number includes cases of people who were charged with capital crimes but convicted of lesser offenses, such as second-degree murder or manslaughter; people who were convicted of capital crimes but sentenced to imprisonment rather than death; and people who were convicted of capital crimes but who had their convictions overturned on appeal. Only 200 of the allegedly wrongful convictions in the Bedau-Radelet study involve first-degree murders in which capital punishment was an option, and in only 139 of these 200 cases were the defendants actually sentenced to death. In only 23 of these 139 cases were the death sentences actually carried out.

So, if there were wrongful executions, it is with regard to these 23 cases, not with regard to those cases in which, as Bedau and Radelet put it, "relatively adventitious factors" occurred to prevent the execution of allegedly innocent people. But appellate review, the exercise of judicial discretion in sentencing, and legislative decisions not to prescribe capital sanctions for crimes falling short of first-degree murder are not "relatively adventitious factors." Focusing on trial-court dispositions alone completely ignores the procedural protections against erroneous convictions that are built into the system. "Relatively adventitious' factors have, in fact, interceded in 94 per cent of all those cases in which Bedau and Radelet concluded that innocent people were convicted of capital offenses.