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"Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death."
-- Supreme Court of the United States

INNOCENCE ISSUES -- THE DEATH PENALTY

A thorough review finds that death penalty opponents have lied, extensively, regarding the numbers of innocents sentenced to death, that such risk is extraordinarily low and that the cessation of executions will put many more innocents at risk.

I. Innocents Released from Death Row: A Critical Review of the Claims

Death penalty opponents claim that "Since 1973, 102 (now 114) people in 25 states have been released from death row with evidence of their innocence," (1)

That is a blatantly false claim.

The foundation for these claims begins in 1993, when a study, released by US Rep. Don Edwards, purported to find that 48 innocents had been released from death row since 1973 (2). Rep. Edwards concluded that "Under the law, there is no distinction between definitively innocent and those found innocent after a trial."

Rep. Edwards was wrong.

The law recognizes the specific distinction between those legally innocent and those actually innocent, just as common sense dictates. Yes, there is a difference between the truly "I had no connection to the murder" cases and "I did it but I got off because of legal error" cases.

Rep. Edwards and other death penalty opponents combine these two conflicting groups to increase their "innocents" number. This is a continuation of a pattern of deception by death penalty opponents, that had been obvious for years.

In addition, Rep. Edwards selected an anti death penalty group, The Death Penalty Information Center (the DPIC), to conduct the study, thereby negating objective confidence in the results.

The source for the updated 102 innocent number is also the DPIC (3). Richard Dieter, head of the DPIC, has confirmed, again, what their "innocent" means:

". . . according to death penalty opponents, who say they make no distinction between legal and factual innocence because there is no difference between the two under the law and because there is no objective way to make such a determination. 'They're innocent in the eyes of the law,' Dieter says. 'That's the only objective standard we have.' " (4)

What nonsense.

As this public policy debate is only about the actually innocent, we know why the DPIC fails to make that obvious distinction -- they wish to, deceptively, expand their "innocents" claims.

Furthermore, for many years, the United States' courts have repeatedly enforced the obvious, common sense, important distinction between the actually innocent and the legally innocent (5). Mr. Dieter and all of those active in this debate are well aware of this. Death penalty opponents have chosen to be deceptive. (also see Sections IV. OK to Execute the Innocent? and VI. The Innocent Executed, below). This is hardly surprising.

As Dieter and other death penalty opponents make no distinction between the actually innocent and the legally innocent, why don't they claim that over 2500 innocents have been "exonerated" from death row? That is the number of legally and actually innocent released from death row since 1973 (6). The answer is obvious. They hoped that the media and others might just assume that the 102 (and the previous lesser numbers) were actually innocent and not ask any questions. And that is exactly what has happened -- a successful deception, aided by the poor fact checking standards of the media. The 2500 number, even for the media, is just too large a number for such blind acceptance.

As this deception has begun to unravel, Dieter "clarifies" that all 102 former death row inmates on the innocence list have been exonerated in one of three ways.

"A defendant whose conviction is overturned by a judge must be further exonerated in one of three ways: he must be acquitted at a new trial, or the prosecutor must drop the charges against him, or a governor must grant an absolute pardon." (7)

Dieter is consistent.

None of those exoneration categories establishes, or even suggests, actual innocence.

Acquittal, which is a "not guilty" verdict, means that the state was unable to meet the necessary burden of proof, in establishing guilt beyond a reasonable doubt. It has nothing to do with establishing actual innocence.

In a case that has been overturned on appeal, the prosecution may drop the charges because of many reasons, the least likely being actual innocence (insert citation). For example, appellate courts may rule that evidence or testimony was constitutionally inadmissible, thereby removing the specific evidence of actual guilt from any prospect of a new trial and, thereby, precluding another trial.

And an absolute pardon may have nothing to do with actual innocence.

Just recall all the uproar over the pardons granted by President Clinton on the eve of his leaving office. I recall only one of those many cases wherein the defendant claimed actual innocence, and I don't recall any appellate judge giving any support to such a claim. Or recall ex-President Richard Nixon, pardoned by President Gerald Ford? Does anyone doubt that President Nixon was actually guilty of obstructing justice? Of course not.

Once again, we have example after example, whereby Dieter tells us that the DPIC standards have nothing to do with actual innocence. And this is simply back peddling on his part. As more and more people observe the extent of the fraud within the innocence claims of death penalty opponents, Dieter and other opponents will continue to change their definitions to justify their deceptive numbers.

And the "innocence" standards get worse.

Death penalty opponents have " . . . included supposedly innocent defendants who were still culpable as accomplices to the actual triggerman." (8). The law often finds such criminal accomplices legally guilty for their involvement in murders, even if they, themselves, didn't "pull the trigger". For example: Does anyone think that Bin Laden was innocent in the 9/11 World Trade Center bombings?

The DPIC, and other opponents, allegedly so devoted to legal standards in one circumstance -- presumption of innocence -- abandon a legal standard -- the law of parties -- when doing so can further increase their false "innocents" claims.

What "standards" will death penalty opponents create next to deceptively raise their innocence claims?

As the innocence frauds of death penalty opponents continue to unravel, they are now changing their definitions, as if they never meant that all the cases were actually innocent. In other words, they are just piling lie upon lie.

The evidence is overwhelming that some death penalty opponents were stating that the 102, nationwide, were actually innocent people, who had no connection to the murders. They lied.

Now they are stating it was just some function of release, as related above, or that they were only speaking of the "presumption of innocence", the legal standard for defendants, during trial. They have always been lying about the collective innocence claims, now they deceptively change the definitions, as their previous claims are imploding.

The DPIC's newest standard?

"There may be guilty persons among the innocents, but that includes all of us." (9). Good grief. DPIC wishes to apply collective guilt of capital murder to all of us. Or maybe DPIC is about to declare all those sentenced to death and executed as innocent. Take your pick, they could go either way.

A final mea culpa?

Dieter states: "I don't think anybody can know about a person's absolute innocence." (Green). In other words, Dieter won't assert absolute innocence in 1, 102 or 350 cases. Not today, anyway.

Or, Dieter will declare all innocent: "If you are not proven guilty in a court of law, you're innocent." (Green) By this all inclusive (and ridiculous) standard, Dieter would call Hitler and Stalin innocent.

So no one deludes themselves, the innocence concern has always been about convicting the actually innocent -- the "I had no connection to the murder" cases -- and what risk that represents for executing an actually innocent person.

Even Dieter has always known (and never disputed, so far) that we don't execute legally innocent people.

Death penalty opponents wrongly state the burden of proof for "innocents" is not theirs to make -- that defendants are "innocent until proven guilty". This is pure sophistry. The "innocent until proven guilty" is a legal standard, that only applies to fact finders in a criminal case. The "innocent" claims by death penalty opponents are part of a public policy debate which, allegedly, is concerned with the actually innocent sent to death row and how that may result in an actually innocent executed.

What is the real number of actual innocents released from death row?

A review of the DPIC 102 case descriptions finds that only about 32 claim actual innocence, with alleged proof to support the claim. 12 of those 32 are DNA cases. That is 32 cases out of about 7300 death sentences since 1973, or 0.4%. National Review's Senior Editor Ramesh Ponnuru, independently, came up with the same number for his "Bad List" article (10).

When reviewing various case descriptions by DPIC and then comparing them to the actual record, there is an obvious pattern of inaccuracy (11). This provides little doubt that many of the remaining 32 case descriptions by DPIC are also inaccurate. No responsible, objective party would depend upon the DPIC case descriptions.

Furthermore, Northwest U. Law Prof. Lawrence Marshall, a death penalty opponent, who organized the National Conference on Wrongful Convictions and the Death Penalty in Chicago 1998, stated that, "In a good half of these 75 [now 102] cases, the exoneration is so complete that it erases any doubt whatsoever," (12). Prof. Marshall's uncorroborated claims find proof of factual innocence in 38 cases.

Why do death penalty opponents claim that they have proof for half their innocent claims, then claim twice that number as innocent?

This claim is consistent with the 13 innocents/exonerations from Illinois. There appears to be some doubt about an innocence claim in about half of those cases. (13)

California Assistant Attorney General Ward Campbell finds that at least 68 of the DPIC 102 cases do not belong on the innocence list. He has not conceded that all the remaining 34 do belong on the list. (14).

"On July 1, 2002, in the case of United States v. Quinones, 205 F.Supp.2d 256 (S.D.N.Y. 2002) the United States District Court for the Southern District of New York declared that the Federal Death Penalty Act (was) unconstitutional."

"The federal court based its decision in part on the DPIC List. The federal court itself analyzed the List and applied undefined “conservative criteria” to conclude that 40 defendants on the List were released on grounds indicating “factual innocence.” However, 23 of the names on the Quinones’ List are names which (Ward Campbell's) study submits should be eliminated from the DPIC List."

"If the Quinones court's analysis of the DPIC List is combined with this critique's (Campbell's) analysis, only 17 defendants should be on the List, not the 102 defendants currently listed." (14A).

Furthermore, the Judge in that Quinones case, Rakoff, has since stated that the innocence number might be 30, not the 40 he stated during the case, indicating the combined numbers are, now, most certainly, lower than 17.

Of those 102 DPIC "innocent" cases, 24 have been identified by the DPIC as being from the state of Florida. The Florida Commission on Capital Cases conducted a thorough review of those 24 cases. The Commission found that 4 of those might have a credible claim of actual innocence. (15).

That reveals an 83% error by the DPIC in their Florida case descriptions. If the DPIC has a consistent error rate, nationwide, that would indicate that there is evidence for claiming 17 actual innocents within their 102 innocents claim -- or 0.2% of the 7400 sentenced to death since 1973.

It is hardly a coincidence that the same number of likely actual innocents -- 17 -- is also found when combining the Campbell and Quinones lists.

Based upon those three reviews, 17 is the most credible number for actual innocents released from death row since 1973. And 83% seems to be the common error rate for "innocents" claims by death penalty opponents.

SPECIFIC CASES

See "The Innocence Fraud of Death Penalty Opponents"

Another case on the DPIC list is James Creamer, who was never subject to execution (17). The jury gave him a death sentence, even though there was no death penalty option, because the Furman v Georgia case (1972) had voided all death penalty statutes then in existence Even so, Creamer was sentenced to death on 2/4/73 and then was resentenced to life on 9/28/73. He is still on the DPIC innocents released from death row list (No. 5, as of 6/3/02).

Death penalty opponents (and the media) gave much play to that "100th case" - Ray Krone. It is an instructive example.

He was not on death row, at the time he was found innocent via DNA testing. His death sentence was overturned in 1995. He was retried and given a life sentence in 1996 (18). Inmates released from prison sentences, because of innocence evidence, are not "released from death row with evidence of their innocence." which is the DPIC "standard" to be on the list. Death penalty opponents do what they can to fraudulently raise their numbers.

Certainly a "100" could be considered a milestone. What few realized (or cared to investigate) is that it was a milestone of deception by death penalty opponents.

At least 11 of the cases were not even on death row at the time of their "innocence" discovery. 6 of the DPIC listed cases were not on death row when released and were prosecuted prior to 1973, in the pre Furman v Georgia (1972) era and, therefore, have no place in a modern era discussion of "innocents" released from death row (19).

And, at least four of the post 1973 convictions, Henry Drake, Jay Smith, Kirk Bloodsworth and Ray Krone, were not on death row when they won their freedom. Krone, the now famous 100th case, had not been on death row for 7 years, when he was found innocent via DNA.

None of those 11 are death row exonerations. They are prison exonerations. Therefore, the 32 cases becomes the 21 "released from death row with evidence of their innocence." And, obviously, no one can depend on the DPIC case descriptions regarding how many more of the 102 (or the 21) cases were not on death row at the time they were "released from death row with evidence of their innocence." Nor should anyone blindly accept the uncorroborated claims of death penalty opponents that all of those 21 are actually innocent.

Professor Marshall stated that "the exoneration is so complete that it erases any doubt whatsoever." If true, where is the independent, objective study which removes all doubt in 21-32 cases? It doesn't exist. Can death penalty opponents present, at least, a review wherein 21-32 cases have a consensus of opinion, whereby the evidence, the prosecutors, defense counsel and the appellate courts agree on the actual innocence issue? If so, it is no where to be found.

How many of those sentenced to death since 1973 have subsequently been released from death row because of actual innocence? It is likely between 15 and 30. 17 being the most realistic number, as it reflects findings in the three most thorough reviews -- Rakoff/Quinones, Campbell and the Florida Commission.

The 102 number means nothing, except as a ruse to fool the press and the public.

In a joint press release, dated May 7, 2002, the National Coalition to Abolish the Death Penalty and the Texas Coalition to Abolish the Death Penalty stated:

"More than 100 people have now been released from death row due to actual innocence." (20)

Are such comments part of an organized deception or do they reflect willful ignorance?

THE MEDIA

With remarkably few exceptions, neither the media nor public policy makers have required death penalty opponents to support their claims or to define their standards.

In fact, the rule is that the media repeats exactly what anti death penalty sources tell them, without question and passes it along to their audience. This may be one of the worst "no fact checking" examples in journalistic history.

As previously suggested (21), possibly, in the future, both the media and policy makers may inquire:

-- For how many of these claims is there proof of actual innocence?
---Were those "innocents" completely unconnected to the murder?
---Were they on death row at the time their innocence was proven?
---Can you provide confirmable, independent support of these claims?
---What are the opinions by the district attorneys and the appellate courts for these claims?

All reasonable and necessary questions to ascertain the veracity of the claims.

Isn't it better to be clear and specific? As opposed to unclear, unsure and nebulous?

Does the number matter? Only if accuracy and truth are important in public policy decisions and media reports.

(NOTE -- The DPIC list is now over 102. Their claims are so misleading we have stopped updating at 102.)

II. The Risk to Innocents if We Don't Execute

We have overwhelming proof that living murderers harm and murder again, in prison, after improper release and, as we so recently experienced, after escape. No one disputes that living murderers are infinitely more likely to harm and murder again than are executed murderers. And, there is no proof of an innocent executed within the US since 1900.

Some supporters of a moratorium and death penalty opponents claim that a concern for innocents is why they want to halt executions. Yet, history and reason confirm that an end to executions will result in more innocents harmed and murdered.

Furthermore, any assertion that the death penalty is not a deterrent is false. Those studies not finding for deterrence do not say it doesn't exist. Those studies finding for deterrence state that is does. A statutory challenge caused a temporary halt to executions in Texas, in 1996. The result? "The [Texas] execution hiatus, therefore, appears to have spared few, if any, condemned prisoners while the citizens of Texas experienced a net 90 [up to 150) additional innocent lives lost to homicide. Politicians contemplating moratoriums may wish to consider the possibility that a seemingly innocuous moratorium on executions could very well come at a heavy cost." (22)

This is not surprising, as history, reason, common sense and the social sciences all support that the potential for negative consequences deters or alters the behavior of many, if not most.

Recently, at least three innocent people were murdered by escaped murderers. That is three more than we have proof for innocents executed since 1900.

At least 8% of those on death row had committed one or more murders prior to the murder(s) which put them on death row (23), suggesting that with 7,300 sentenced to death, since 1973, that those sent to death row had murdered at least 600 additional innocents after we failed to properly restrain them after their previous murder(s). Justice Department studies suggest that it is likely that some 2 million innocents have been harmed, 100,000 murdered, since 1973, by criminals while "supervised" by US criminal justice systems (parole, probation, mandatory release, furloughs, pre trial releases, etc.) (24).

In any review of criminal justice practices and their failings, we are looking at errors in judgment and procedure. Yet, with such catastrophic harm to innocents, coming from other criminal justice shortcomings, some have chosen to pursue a moratorium on executions -- a criminal justice practice lacking proof of an innocent killed, at least since 1900. Is the priority to protect innocent lives or to get rid of the death penalty? A review of criminal justice realities makes that an obvious question.

It currently takes nearly 12 years to execute those sentenced to death (25). And some elected officials are debating a moratorium on executions. Yet, under all debated scenarios, halting executions will put more innocents at risk.

III. Due Process and The Risk to Innocents

Protecting innocent defendants/inmates

Is there any other criminal sanction, anywhere in the world, where one might find a 99.6% guilt accuracy rate, after 30 years of biased, unverified review by opponents of that sanction, wherein all those allegedly innocents had been secured from their punishments by post conviction review?

The US Supreme Court has stated that those subject to the death penalty in the US receive super due process. It is easy to see why. From 1973-2001, 7096 people were sent to death row. 2523 of those cases, or 35.4%, were overturned on appeal or had their sentence commuted. 749, or 10.6%, were executed (26), after an average of over 10 years on death row (27). The time between sentencing and execution has risen from an average of 8 years in 1989 to nearly 12 years in 2001 (28).

Consideration of error, be it the actually innocent convicted or procedural, is why we have appeals and the commutation/clemency process. The system anticipates error and provides remedy. While the actually innocent convicted is a horrible result, in the subject cases, none have been executed.

Few dispute that death penalty cases have the greatest level of due process protections. Therefore, if your objection to execution is the possibility of irreversible error, such due process concludes that it is much more likely that an innocent sentenced to a life term will die, as an innocent in prison, than it is that an innocent will be executed. Both irreversible error, but one much more likely than the other.

It appears that the US death penalty is that criminal justice sanction which is the least likely to find the innocent guilty and the most likely to correct those rare errors upon post conviction review.

Sacrificing the innocent

The due process protections of the US death penalty are so extraordinary, that we have released over 2500 people from death row since 1973. Although no known study of the harm committed by those so taken off death row has been performed, there is no doubt that many innocents have been murdered or otherwise harmed by those so released.

One group of released death row inmates has been subject to limited review. When the US Supreme Court found in Furman v Georgia, in 1972, that the death penalty, as it was then enforced, was unconstitutional, all death row inmates had their death sentences commuted. It appears that some 12 innocents have been murdered by those Furman releasees, through 1987, in addition to other horrendous crimes committed by that same group. (still finalizing confirmation). We are unaware of any updated review covering the next 15 years, through 2002.

This is not an argument against super due process, but a recognition of one reality of it.

Such due process provides unparalleled protection for the actually innocent, extraordinary generosity to guilty murderers -- relief that turns into suffering for those innocents harmed by those spared murderers.

IV. OK to Execute the Innocent?

Some death penalty opponents have wrongly interpreted that the US Supreme Court decision in Herrera v Collins (113 S. Ct. 853, 870{1993}) found that executing the innocent was quite all right.

"Justice [Sandra Day] O'Connor's concurring opinion makes clear that Herrera does not stand for that proposition. Justice O'Connor stated, I cannot disagree with the fundamental legal principal that executing the innocent is inconsistent with the Constitution and the execution of a legally and factually innocent person would be a constitutionally intolerable event. As Justice O'Connor stated, the Court assumed for the sake of argument that a truly persuasive demonstration of actual innocence would render any such execution unconstitutional and that federal habeas relief would be warranted if no state avenue were open to process the claim. Id., at 874. That is the holding in Herrera, and any claim to the contrary is simply not correct." (Kenneth S. Nunnelley's Congressional testimony, July 23, 1993)

V. Future innocence considerations

The DPIC alleges that 12 of their 102 "innocents" were proven actually innocent because their DNA screenings were negative. Based upon the DPIC's standards, we cannot be sure of all such innocent claims because, in some of the cases, "Non-matching DNA is consistent with the prosecution's theory of multiple perpetrators" (29) and, therefore, may not signify innocence.

In any future cases, where DNA is determinative of guilt or innocence, any such innocent cases will never go to trial. For many reasons, including DNA testing, the US death penalty, is much safer today than it has ever been.

As the best predictor of future performance is past performance, what will the future risk to innocents be?

Based upon the evidence we have today, using anti death penalty standards and their uncorroborated claims, with the next 7300 death sentences given, nationwide, we may sentence 3-18 actually innocent persons to death, or about 0.2%, (30) and the alleged innocent will all be taken off death row via post conviction review or, otherwise, not be executed. What this doesn't take into account is that many jurisdictions have, for quite some time, already raised the qualification level for defense counsel and prosecutors and some also require two defense attorneys to be appointed in capital cases.

Almost without exception, those few highly publicized death penalty cases, which have caused great public rancor, were prosecuted 15-25 years ago. More recent cases are much less likely to provoke controversy or false claims of innocence. Why? There is a higher quality of prosecution and defense in these cases and new death penalty law, which began after Furman v Georgia (1972), is more settled than it had been from 1973-1987.

Finally, a review of many of those earlier highly publicized cases revealed that many of the anti-death penalty claims were and are either false or deceptive. (31)

VI. The Innocent Executed

It is not at all uncommon for death penalty opponents to make false claims about innocents executed. As of 1/1/03, The National Coalition to Abolish the Death Penalty (NCADP) claims that "Twenty three (23) innocent people have been mistakenly executed (in the US) this (the 20th) century." (32) This is a common false claim, even though the authors of that 1987 study, in response to a deconstruction of their work, stated, in 1988, that "We agree with our critics that we have not proved these (23) executed defendants to be innocent; we never claimed that we had." (33). The NCADP is well aware of this, yet it doesn't stop their deception.

Barry Scheck, cofounder of the Innocence Project and featured speaker at the National Conference on Wrongful Convictions and the Death Penalty (11/13-15/98), stated that he had no proof of an innocent executed (in the US since 1976) (34).

Not even the nation's leading, biased source for anti death penalty information, the DPIC, says there is proof of an innocent executed. They list 5 "doubt" cases (35): Gary Graham, Joseph O'Dell, Roger Keith Coleman, Leo Jones and David Spence. A review shows how deceptive the DPIC case descriptions are (36) and how lacking any proof of innocence is.

The Texas case of Lionel Herrera, like others, nationally, has been labeled, by many death penalty opponents, as an innocent executed. I believe that Herrera, once upon a time, was also included in a previous incarnation of the DPIC list. A comment from Supreme Court Justice O'Connor. "[T]he proper disposition of this case is neither difficult nor troubling . . . The record overwhelmingly demonstrates that petitioner [Herrera] deliberately shot and killed Officers Rucker and Carrisalez the night of September 29, 1981; petitioner's new evidence is bereft of credibility. Indeed, despite its stinging criticism of the Court's decision, not even the dissent expresses a belief that petitioner might possibly be actually innocent." Herrera v. Collins, 506 US 390, 421(1993) (O'Connor, J., concurring)

Of all the world's social and governmental institutions, that do put innocents at risk, I am aware of only one, the US death penalty, that has no proof of an innocent killed since 1900. Can you name another?

VII. Conclusion

No one disputes that an innocent sentenced to death is a horrible result. Appeals and commutation/clemency deliberations are an integral and inescapable part of a criminal justice system that both anticipate error and provide remedy. Both sides of the death penalty debate are equally concerned about the moral implication of executing an innocent. Those of us who support execution recognize that any innocents sentenced to death or executed injure our position.

A concern for the innocent will result in a rejection of a moratorium and more support for executions. Either by a moratorium, or by outright repeal, stopping executions will always put many more innocents at risk. Death penalty opponents knows this. Their alleged concern for innocents is but another distortion based campaign to end the death penalty.

When reason and all the facts prevail, support for executions will rise.

Executions by Year
YEAR 1976 1977 1978 1979
Executions 0 1 0 2
YEAR 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989
Executions 0 1 2 5 21 18 18 25 11 16
YEAR 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999
Executions 23 14 31 38 31 56 45 74 68 98
YEAR 2000 2001 2002 2003 2004 2005
Executions 85 66 71 65 59



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