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Over 4% of US Death Row Prisoners Are Innocent, Finds Study

By Countercurrents

29 April, 2014

A new study – “Rate of false conviction of criminal defendants who are sentenced to death” – estimated that no less than four percent of the approximately 3,000 US prisoners waiting to be put to death are in fact innocent of the crimes they committed.

The study report observed: “The number of innocents waiting for death is shocking, and it’s far less than the inmates who are freed before execution.”

Researchers and legal experts from Pennsylvania, Michigan, and other areas around the US examined the so-called “dark figure” that underscores the death penalty debate: how many of the people sentenced to die for their crime are actually innocent?

The result published by the Proceedings of the National Academy of Sciences of the United States, is described as a “deliberately conservative” number, which makes clear that wrongful convictions are not as uncommon as many would like to believe.

Authors of the study (published online before print April 28, 2014, doi: 10.1073/pnas.1306417111, PNAS April 28, 2014) are: Samuel R. Gross of the University of Michigan Law School, Ann Arbor; Barbara O’Brien, Michigan State University College of Law, East Lansing; Chen Hu, American College of Radiology Clinical Research Center, Philadelphia; and Edward H. Kennedy, Department of Biostatistics and Epidemiology, University of Pennsylvania School of Medicine, Philadelphia. The report was edited by Lee D. Ross of Stanford University.

The report said:

Legal teams determined that if all of those wrongfully convicted had their sentences cleared, the exoneration rate would jump from its current 1.6 percent to no less than 4.1 percent. The 4.1 percent is higher than previous estimates, although the researchers are confident that their method of “survival analysis” research was effective.

By that logic, around 340 prisoners should have been released over the 30 years analyzed in the study, whereas only 138 were exonerated in that time.

“This is a disturbing finding,” Samuel Gross, a law professor at the University of Michigan law school and the lead author of this study, told the Guardian. “There are a large number of people who are sentenced to death, and despite our best efforts some of them have undoubtedly been executed.”

“If you look at the numbers in our study, at how many errors are made, then you cannot believe that we haven’t executed any innocent person – that would be wishful thinking,” said Smith.

Statisticians investigating the matter were unable to accurately determine how many innocent men and women were executed, yet they took exception with a claim from US Supreme Court Justice Antonin Scalia, who previously suggested that criminal convictions have an “error rate of 0.27% - or, to put it another way, a success rate of 99.973%.”

“That would be comforting, if true,” the study authors wrote. “In fact, the claim is silly.”

Richard Dieter, executive director of the Death Penalty Information Center, told journalist Ed Pilkington that “every time we have an execution, there is a risk of executing an innocent person. The risk may be small, but it’s unacceptable.”

Gross and his fellow academics said more prisoners than the number who were executed seem to have fallen between the cracks. In the years from 1993 to 2004 about 2,675 people were taken off death row when questions about their conviction were raised. That total represents more than one-third (36 percent) of all people sentenced to death over those three decades.

Instead of being exonerated, though, many of those thousands of people were given new sentences (more often than not life without parole) that will ensure their death behind bars anyway. Their situation is in some ways even more precarious because no longer being under threat of execution means they are no longer seen as a priority in the system, either by judges, prisoner advocate groups, or the department of corrections itself.

“The best efforts of the judicial system are only devoted to prisoners when they faced execution,” Gross explained. “In many cases when people are released from death row, little or nothing is done to deal with the equally bad injustice they now faced – that they will spend the rest of their lives in prison for a crime they didn’t commit.”

The researchers said:

“The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place. As a result, very few false convictions are ever discovered, and those that are discovered are not representative of the group as a whole.

“In the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to death. This makes it possible to use data on death row exonerations to estimate the overall rate of false conviction among death sentences.

“The high rate of exoneration among death-sentenced defendants appears to be driven by the threat of execution, but most death-sentenced defendants are removed from death row and resentenced to life imprisonment, after which the likelihood of exoneration drops sharply.

The researchers used survival analysis, and estimated that “if all death-sentenced defendants remained under sentence of death indefinitely, at least 4.1% would be exonerated.” Thus they concluded that “this is a conservative estimate of the proportion of false conviction among death sentences in the United States.”

The report said:

In the past few decades a surge of hundreds of exonerations of innocent criminal defendants has drawn attention to the problem of erroneous conviction, and led to a spate of reforms in
criminal investigation and adjudication. All the same, the most basic empirical question about false convictions remains unanswered: How common are these miscarriages of justice?
False convictions, by definition, are unobserved when they occur: If we know that a defendant is innocent, he is not convicted in the first place. They are also extremely difficult to detect after the fact. As a result, the great majority of innocent defendants remain undetected. The rate of such errors is often described as a
“dark figure”, an important measure of the
performance of the criminal justice system that is not merely unknown but unknowable.

However, there is no shortage of lawyers and judges who assert confidently that the number of false convictions is negligible.

The researchers quoted Judge Learned Hand. Judge Hand said in 1923:

“Our [criminal] procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream”.

They also quoted Justice Antonin Scalia. In 2007, Justice Scalia wrote in a concurring opinion in the Supreme Court that American criminal convictions have an “error rate of [0].027 percent or, to put it another way, a success rate of 99.973 percent”.

This, the researchers said, would be comforting, if true. In fact, the claim is silly. Scalia’s ratio is derived by taking the number of known exonerations at the time, which were limited almost entirely to a small subset of murder and rape cases, using it as a measure of all false convictions (known and unknown), and dividing it by the number of all felony convictions for all crimes, from drug possession and burglary to car theft and income tax evasion.

They said:

The rate of exonerations among death sentences in the United States is far higher than for any other category of criminal convictions. Death sentences represent less than one-tenth of 1% of
prison sentences in the United States, but they accounted for about 12% of known exonerations of innocent defendants from 1989 through early 2012, a disproportion of more than 130 to 1.

The study report said: “The vast majority of criminal convictions are not candidates for exoneration because no one makes any effort to reconsider the guilt of the defendants. Approximately 95% of felony convictions in the United States are based on negotiated pleas of guilty (plea bargains) that are entered in routine proceedings at which no evidence is presented. Few are ever subject to any review whatsoever. Most convicted defendants are never represented by an attorney after conviction, and the appeals that do take place are usually perfunctory and unrelated to guilt or innocence.”

It added: “The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. We use survival analysis to model this effect, and estimate that if all death-sentenced defendants remained under sentence of death indefinitely at least 4.1% would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.”

The study report said: “[F]alse convictions are far more likely to be detected among those cases that end in death sentences than in any other category of criminal convictions.”

The study report said: “The high exoneration rate for death sentences suggests that a substantial proportion of innocent defendants who are sentenced to death are ultimately exonerated, perhaps a majority.”

It said: “[T]he proportion of death-sentenced inmates who are exonerated understates the rate of false convictions among death sentences because the intensive search for possible errors is largely abandoned once the threat of execution is removed.”

The study report said: “We know that 7,482 defendants were sentenced to death in the United States from January 1973 through December 2004, and we know when (if ever) each defendant was removed from death row by execution, death by other means, or legal action by courts or executive officials. In the study period, 4% died of suicide or natural causes.”

It said: “If the pattern for death sentences from 1973 through 1995 holds, over two-thirds of prisoners sentenced to death will have the judgments against them overturned. The majority will remain in prison for life.”

As example, the report cited the case of Ronald Williamson sentenced to death in Oklahoma in 1988. Ronald was awarded a new trial in 1997 because of constitutionally inadequate representation by his trial lawyer. He was exonerated by DNA testing 2 y later, in 1999, while awaiting a retrial at which he might have been sentenced to death again. His exoneration was under threat of execution.

The report said: “[A]ll prisoners who are sentenced to death do ultimately die in prison. They all start out on death row, some stay there until death by execution by other means, and the rest eventually are moved to the general prison population where they remain until they die.”

It said: “The most charged question in this area is different: How many innocent defendants have been put to death?”

It added: “In general, American courts are reluctant to reverse or even reconsider the guilt of convicted defendants.”




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