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Follow-up of Major Death Penalty Study Examines Causes
of Error in Capital Cases
(available at the address:
http://www.law.columbia.edu/brokensystem2/)
A new
report released today (Feb. 11) by Columbia University, "A Broken
System, Part II: Why There is So Much Error in Capital Cases, and What Can
be Done About It," explains the factors that lead to errors in death
penalty cases. The study uses
a variety of statistical techniques to identify factors explaining why some
states and counties have more capital error than others.
The principal finding of the study is that the high rate of mistakes
in death penalty cases is related to aggressive overuse of the punishment.
Instead of using the death penalty for the "worst of the worst"
cases, other influences related to race and political pressure lead to an
error-prone expansion of capital punishment.
"What our study shows is that aggressive death sentencing is a
magnet for serious error," said Professor James Liebman, the leading
researcher for the study. The report is a follow-up to a June 2000 study, "A
Broken System, Error Rates in Capital Cases 1973-1995," which revealed
that 68% of all capital judgments were reversed by the courts due to
serious error.
Race, Politics Blamed for U.S. Death Penalty Errors
Feb
11
By Sue Pleming
WASHINGTON
- Innocent people are more likely
to be sentenced to die in America in areas that zealously use the death
penalty, have higher black populations and where judges face political
pressure, according to a study released Monday.
Taking a range of risk factors into consideration,
Florida, Georgia, Texas and Alabama are among the most likely states to
make serious mistakes in capital cases while Connecticut and Colorado are
low risk, said Colombia Law School Professor James Liebman, the study's
lead researcher.
While race, politics and an overburdened legal system
play a strong role, Liebman said areas that relied heavily on the death
penalty as punishment, even in weaker cases, were most likely to impose a
flawed capital sentence.
"What our study shows is that aggressive death
sentencing is a magnet for serious error," Liebman told Reuters.
The study, which looks at why mistakes occur in
capital cases, follows a report by Liebman in 2000 which found that 68
percent of all death verdicts reviewed from 1973-1995 were reversed by
courts due to serious error.
Of those reversals, 82 percent ended in less harsh
sentences, and 9 percent of those people were found not guilty and
eventually freed.
Since the death penalty was reintroduced in America in
1973, 99 death row inmates have been exonerated, raising questions about
its validity and leading to mounting pressure among opponents for it to be
scrapped or at least suspended.
"If you have a scattershot death penalty policy,
you are going to miss most of the time," said Liebman, a strong
opponent of the death penalty."
EXECUTION ONLY FOR "WORST OF WORST" CASES
The researchers found broad differences from one area
to another within the same state. For example, in Lexington County in South
Carolina, the death sentence was imposed in 93 per 1,000 homicides. In
Richland County, just a couple of miles away, the rate was 9 per 1,000
homicides.
What the study showed said Liebman, was that the death
penalty should be reserved only for the "very worst of the worst"
cases.
The study estimated when death sentences increased
from a quarter of the national average to the highest rate, the predicted
increase in reversal rates was sixfold to about 80 percent.
The more aggravating circumstances found in a case --
such as multiple victims, a defendant who has a long history of prior
violent behavior or physical torture -- the less likely a mistake would be
made.
"As you add those aggravating circumstances, the
likelihood of reversal goes way down," said Liebman.
Looking at particular cases, researchers identified
three key errors that often led to reversals -- incompetent legal counsel,
police or prosecutors who suppressed evidence and judges who gave jurors
the wrong instructions.
High capital reversal rates were also more likely in
densely populated states and in areas where the risk of homicide was higher
for whites and in those areas with a weak record of catching and
imprisoning serious criminals.
Another trend was that the more often state trial
judges were subject to election and the more partisan those elections, the
higher the error rate.
The report suggested 10 reforms, including proof
beyond any doubt that a defendant committed a capital crime, barring the
death penalty for defendants with obvious extenuating circumstances such as
for juveniles and the mentally ill.
Other suggestions included making life imprisonment
without parole an alternative to death, making all police and prosecution
evidence available to the jury, insulating sentencing judges from political
pressures and the appointment of competent defense counsel.
For the most part, Liebman said little if any
compensation was given to people wrongly sentenced to death.
"In all of these cases, it's a case of wasted
lives, time and money," he said.
Heavy Use of Death Penalty Studied
Feb
11
By ANNE
GEARAN,
WASHINGTON
- When jurors choose a death sentence
in cases that are not among the "worst of the worst," the
sentence is more likely to be overturned on appeal, a study spanning 23
years of court records found.
Overall, states and counties where juries or judges
impose the death penalty most often also tend to have the highest number of
cases overturned because of errors or problems at trial, says the study
being released Monday.
All but one of the 10 states with the highest
death-sentencing rates had those sentences reversed as often or more often
than the average rate nationally, said James Liebman, a Columbia University
law professor and the study's lead author.
Death sentences are most often overturned because
lawyers performed poorly at trial, prosecutors kept legitimate evidence out
of the trial or judges gave flawed instructions to the jury, Liebman said
his research showed.
The report found a state or federal court threw out a
conviction or death sentence in 68 percent of the cases it studied in which
at least one round of appeals had been completed. The study looked at 5,760
cases in the 34 states where the death penalty is actively applied.
Other researchers attacked findings in an earlier
study on reversals by the same authors, and one review concluded that death
sentences were really only overturned in 52 percent of cases or less.
The Criminal Justice Legal Foundation took issue with
Liebman's central premise that errors are responsible for overturned
sentences.
It's not new or surprising that a large percentage of
capital verdicts are overturned, the foundation said. It said the issue is
whether that happens because of mistakes, as death-penalty opponents
contend, or because of unreasonable obstructions placed in the way of such
sentences, as advocates of capital punishment assert.
Liebman's study does not take a position on whether
the death penalty is ever appropriate. But in an interview, he said his
research shows that if they are imposed at all, death sentences should be
reserved for the worst cases.
"Imposing the death penalty in cases that are not
the worst of the worst is a recipe for unreliability and error," the
report said.
The greater the number of what courts call aggravating
factors in a given capital crime, the less likely it is that a death
sentence will be overturned, Liebman said. Aggravating factors can include
whether the victim was a police officer, for example, or whether the
killing was especially gruesome.
The reverse is also true, Liebman said. The more
factors that tend to lessen the severity of a crime, the more likely it is
that any death sentence imposed will be overturned.
At the final stage of court review, Liebman found that
for each additional aggravating factor, the likelihood of reversal dropped
15 percent.
All states that allow the death penalty have laws
making an appeal automatic. South Carolina, however, allows defendants to
waive the right to appeal.
There have been 759 executions since they resumed in
1977 after a Supreme Court moratorium. Courts have ordered the release of
99 wrongly convicted death row inmates.
Death Penalty Reversals Studied
By Brooke A. Masters
February 11, 2002;
A Columbia University study has found that judges are
more likely to overturn death sentences in states and counties that use
capital punishment most frequently, prompting the authors to suggest that
narrowing the use of executions would cut down on mistakes.
The study, the second part of a comprehensive national
review, was an attempt to explain why the courts sent back 68 percent of
all death penalty cases between 1973 and 1995 for new trials or sentencing
hearings.
The authors, led by law professor James Liebman,
determined that less aggravated cases -- a robbery-murder, for example --
were more likely to be thrown out than those involving defendants who
killed multiple victims or killed in especially horrid circumstances.
"The more you practice this particular form of
punishment, the more error you are likely to put into the system,"
Liebman said. "If you target the worst of the worst, you're going to
be more successful."
But supporters of capital punishment say that the
system has improved significantly since 1995 and that the high reversal
rates reflect the extraordinary scrutiny that capital cases receive from
appellate judges rather than a pattern of trial mistakes.
"Cases that would be affirmed if they involved
life sentences are often reversed if there's a death sentence," said
Joshua Marquis, an Oregon prosecutor and board member of the National
District Attorneys Association. "The reversals don't stand for the
proposition that these were sloppy trials or bad investigations."
The study found that states and counties with high
reversal rates tended to share key demographic and political traits:
� Jurisdictions that spent proportionally less per
capita on their court systems had a larger share of cases overturned. The
statistic bolsters the commonly held view that poorly paid and incompetent
court-appointed defense lawyers are a major source of error in capital
cases.
� States with large black populations also had
higher reversal rates. The authors said that statistic shows that
jurisdictions where fear of crime may be driven by racial factors may have
more trouble conducting fair trials.
� Reversals were more common in states where trial
judges are popularly elected and, the authors theorized, more subject to
community pressure.
"This system isn't self-correcting," Liebman
said. "Somebody besides the people who operate the system has to say,
'Stop it. Cool down. Let's use the death penalty less frequently.' "
Locally, the study singled out Baltimore County as an
example of a jurisdiction that may be overusing the death penalty. Nine of
the 13 men on Maryland's death row are from that suburban county, which had
a 100 percent reversal rate during the study period.
But Baltimore County State's Attorney Sandra O'Connor
and other prosecutors said that the study overstates the rate at which
sentences are overturned because it did not count the many cases that were
still moving through the multiple layers of review in 1995.
"These cases take 20 years. It's absurd to only
talk about the cases that have come to completion. . . . This is extremely
biased research presented in a way that makes prosecutors look bad,"
O'Connor said. She noted that four current cases have never been reversed.
The study found that Virginia prosecutors are
relatively sparing in their efforts to seek the death penalty, a factor
that Liebman said contributed to the commonwealth's lowest-in-the-nation
reversal rate during the study period.
"The death penalty is reserved for the vile of
the vile and the dangerous of the dangerous," said Paul B. Ebert,
commonwealth's attorney in Prince William County, which led Virginia with
eight people sent to death row during the study period. None of those cases
was reversed during the study period. Similarly, the cities of Danville and
Virginia Beach, with six cases each, had no cases sent back for retrial.
But those statistics also may not reflect the current
state of capital punishment. In the last three years, the U.S. and Virginia
Supreme Courts have reversed an unprecedented number of Virginia death
sentences.
LOS ANGELES TIMES
Death Penalty Study Suggests Errors
Executions:
States with the highest rates of capital punishment sentences also have the
highest rates of reversals, research finds.
HENRY
WEINSTEIN,
A disproportionately high percentage of death
sentences tend to be reversed in states where death verdicts are rendered
the most often, according to a comprehensive study released today.
All but one of the 10 states with the highest
death-sentencing rates had overall reversal rates that exceeded 68%--the
national average--according to the review of more than 5,000 capital cases
over 23 years by Columbia University law professor James S. Liebman,
assisted by criminologists and statisticians.
"Heavy and indiscriminate use of the death
penalty creates a high risk that mistakes will occur," said Liebman,
who has argued on behalf of defendants in several death penalty cases at
the U.S. Supreme Court. The study is being released at a time when support
for capital punishment has diminished significantly in national polls, with
legislation being introduced at the state and federal level to reform the
death penalty process, and even two Supreme Court justices--Sandra Day
O'Connor and Ruth Bader Ginsburg--having recently expressed doubts about
whether the process is working fairly.
In a speech last summer, O'Connor said, "If
statistics are any indication, the system may well be allowing some
innocent defendants to be executed." Ginsburg said last April that in
dozens of instances where she has reviewed requests for stays of executions
on the high court, she has yet to see one "in which the defendant was
well represented at trial."
Sen. Patrick J. Leahy, (D-Vt.), who has introduced a
package of capital punishment reforms, says Liebman's study shows that
"the death penalty is riddled with errors and inconsistencies
nationwide."
"When the legal machinery of the death penalty is
broken, practice does not make perfect," added Senate Judiciary
Committee Chairman Leahy, commenting on the study's finding that states
which render the most death verdicts per 1,000 homicides appear to be the
most error-prone.
Kent S. Scheidegger, executive director of the
Criminal Justice Legal Foundation, a conservative group in Sacramento,
blasted the study as biased.
"The fact that a large percentage of capital
verdicts are overturned is not news," he said. "The controversy
is . . . whether that number reflects problems in the system for trying
capital cases, as the anti-death penalty group contends, or whether it
constitutes obstruction of valid, deserved sentences, as death penalty
supporters have long contended."
In a June 2000 study, Liebman and his colleagues found
that state and federal courts nationwide were overturning death sentences
in 68% of all capital cases. Only 18% of those who had their cases retried
got the death penalty and a number of those were reversed again on appeal.
Moreover, 9% of those retried were acquitted.
'An Intolerable Risk'
In the new study, Liebman examined "why the high
number of flawed capital verdicts poses an intolerable risk of seriously
unreliable capital outcomes, including execution of the innocent."
His research showed a significant correlation between
high death sentencing rates and reversals.
Of the 10 states with the highest death sentencing
rates, nine exceeded the national average reversal rate of 68%, with
Mississippi leading at 92%.
The others were Idaho, Oklahoma, Arizona, Nevada,
Arizona, Alabama, Montana, Florida and North Carolina.
With a 30% reversal rate, Delaware was the only one of
the 10 with a lower rate than the national average.
Texas, which leads the nation in executions carried
out, was slightly below average with 16 death sentences per 1,000 homicides
and a 51% reversal rate.
More than 70% of the states that have death penalty
laws executed fewer than 8% of the people they sentenced to die during the
1973 to 1995 study period.
The study does not contend that any specific innocent
person has been executed.
However, the authors emphasized that thus far 99
people have been released from death rows around the country in the last 25
years after being exonerated.
Among the reasons for the wrongful convictions are
prosecutorial misconduct, mistaken identification or newly discovered
exculpatory evidence, including DNA tests that have led to 11 of the
exonerations.
A review of the wrongful convictions raises questions
about whether the nation's courts provide an adequate safety net to
discover these errors, Liebman said.
"In 63 of 99 exonerations the mistake was
discovered only after the highest state court had upheld the capital
verdict at least once," the study explains. In 35 instances, the
mistake was not discovered until after both a state and federal court had
upheld the death sentence and in nine instances after there had been three
levels of review.
One of the nine, Anthony Porter of Illinois, was only
hours from execution in 1999 when he got an emergency reprieve after a
judge concluded that he might be too retarded to comprehend why he was
being executed for a double homicide.
During the time when Porter's mental acuity was being
reviewed, a group of Northwestern University journalism students, led by
professor David Protess, tracked down a man named Alstory Simon who, five
witnesses said, had killed the victims in a fight over drugs. Simon
admitted being the killer to the students, pleaded guilty, and Porter was
freed after 17 years on death row.
Porter's original attorney had failed to interview the
five witnesses, and before the dramatic turn of events several appellate
courts had refused to consider what Porter's new lawyers said about the
five witnesses.
Two of those courts--one state and one federal--ruled
that even though Porter's trial lawyer had acted incompetently, his new
attorneys had failed to show that he had been harmed by the negligence.
Moratorium Declared
Porter's case, one of 13 death row exonerations in
Illinois, played a key role in Republican Gov. George Ryan's decision in
February to declare a moratorium on executions in his state.
Liebman said the Porter case illustrates "just
how high a bar" the nation's appellate courts have set for an inmate
to establish that there has been serious, reversible error in his case.
The largest number of exonerations--22--has come in
Florida, which has the nation's third-largest death row, trailing only
California and Texas.
Three men have been released from California's death
row and seven from Texas' after determinations that the convictions were
invalid.
The study found higher percentages of reversible error
in states where courts were underfunded, where the overall rate of solving
crimes is low and where judges are elected.
The study also shows that only a small fraction of
murders result in convictions, no less death sentences or executions. The
winnowing process is striking.
There were 331,949 homicides during the study period
but only a third of those--118,992--led to murder convictions. Just one in
20 of those convictions--5,826--led to a death sentence. Only 358 of those
sentences were affirmed by the end of 1995, and 313 of those individuals
were executed--meaning that just 5% of the death sentences were carried
out.
Since the end of 1995, there have been 446 executions
in the U.S. But the authors say tentative findings from the last six years
indicate the trends in the study are unchanged.
The authors suggest a number of policy changes to help
reduce the number of reversals. Prime among them is a recommendation that
prosecutors seek the death penalty only in "very highly aggravated
cases."
Heavy Use of Death Penalty Studied
Feb
11
By ANNE
GEARAN,
WASHINGTON
- When jurors
choose a death sentence in cases that are not among the "worst of the
worst," the sentence is more likely to be overturned on appeal, a
study spanning 23 years of court records found.
Overall, states and counties where juries or judges impose the death
penalty most often also tend to have the highest number of cases overturned
because of errors or problems at trial, says the study being released
Monday.All but one of the 10 states with the highest death-sentencing rates
had those sentences reversed as often or more often than the average rate
nationally, said James Liebman, a Columbia University law professor and the
study's lead author.Death sentences are most often overturned because
lawyers performed poorly at trial, prosecutors kept legitimate evidence out
of the trial or judges gave flawed instructions to the jury, Liebman said
his research showed.The report found a state or federal court threw out a
conviction or death sentence in 68 percent of the cases it studied in which
at least one round of appeals had been completed. The study looked at 5,760
cases in the 34 states where the death penalty is actively applied.Other
researchers attacked findings in an earlier study on reversals by the same
authors, and one review concluded that death sentences were really only
overturned in 52 percent of cases or less.The Criminal Justice Legal
Foundation took issue with Liebman's central premise that errors are
responsible for overturned sentences.It's not new or surprising that a
large percentage of capital verdicts are overturned, the foundation said.
It said the issue is whether that happens because of mistakes, as
death-penalty opponents contend, or because of unreasonable obstructions
placed in the way of such sentences, as advocates of capital punishment
assert.Liebman's study does not take a position on whether the death
penalty is ever appropriate. But in an interview, he said his research
shows that if they are imposed at all, death sentences should be reserved
for the worst cases."Imposing the death penalty in cases that are not
the worst of the worst is a recipe for unreliability and error," the
report said.The greater the number of what courts call aggravating factors
in a given capital crime, the less likely it is that a death sentence will
be overturned, Liebman said. Aggravating factors can include whether the
victim was a police officer, for example, or whether the killing was
especially gruesome.The reverse is also true, Liebman said. The more
factors that tend to lessen the severity of a crime, the more likely it is
that any death sentence imposed will be overturned.At the final stage of
court review, Liebman found that for each additional aggravating factor,
the likelihood of reversal dropped 15 percent.All states that allow the
death penalty have laws making an appeal automatic. South Carolina,
however, allows defendants to waive the right to appeal.There have been 759
executions since they resumed in 1977 after a Supreme Court moratorium.
Courts have ordered the release of 99 wrongly convicted death row inmates.
Race, Politics Blamed for U.S.
Death Penalty Errors
Feb
11
By Sue Pleming
WASHINGTON
- Innocent people are more likely
to be sentenced to die in America in areas that zealously use the death
penalty, have higher black populations and where judges face political
pressure, according to a study released on Monday.
Taking a range of risk factors into consideration, Florida, Georgia,
Texas and Alabama are among the most likely states to make serious mistakes
in capital cases while Connecticut and Colorado are low risk, said Colombia
Law School Professor James Liebman, the study's lead researcher. While
race, politics and an overburdened legal system play a strong role, Liebman
said areas that relied heavily on the death penalty as punishment, even in
weaker cases, were most likely to impose a flawed capital sentence.
"What our study shows is that aggressive death sentencing is a magnet
for serious error," Liebman told Reuters. The study, which looks at
why mistakes occur in capital cases, follows a report by Liebman in 2000
which found that 68 percent of all death verdicts reviewed from 1973-1995
were reversed by courts due to serious error. Of those reversals, 82
percent ended in less harsh sentences, and 9 percent of those people were
found not guilty and eventually freed. Since the death penalty was
reintroduced in America in 1973, 99 death row inmates have been exonerated,
raising questions about its validity and leading to mounting pressure among
opponents for it to be scrapped or at least suspended. "If you have a
scattershot death penalty policy, you are going to miss most of the
time," said Liebman, a strong opponent of the death penalty."
EXECUTION ONLY FOR "WORST OF WORST" CASES The researchers found
broad differences from one area to another within the same state. For
example, in Lexington County in South Carolina, the death sentence was
imposed in 93 per 1,000 homicides. In Richland County, just a couple of
miles away, the rate was 9 per 1,000 homicides. What the study showed said
Liebman, was that the death penalty should be reserved only for the
"very worst of the worst" cases. The study estimated when death
sentences increased from a quarter of the national average to the highest
rate, the predicted increase in reversal rates was sixfold to about 80
percent. The more aggravating circumstances found in a case -- such as
multiple victims, a defendant who has a long history of prior violent
behavior or physical torture -- the less likely a mistake would be made.
"As you add those aggravating circumstances, the likelihood of
reversal goes way down," said Liebman. Looking at particular cases,
researchers identified three key errors that often led to reversals --
incompetent legal counsel, police or prosecutors who suppressed evidence
and judges who gave jurors the wrong instructions. High capital reversal
rates were also more likely in densely populated states and in areas where
the risk of homicide was higher for whites and in those areas with a weak
record of catching and imprisoning serious criminals. Another trend was
that the more often state trial judges were subject to election and the
more partisan those elections, the higher the error rate. The report
suggested 10 reforms, including proof beyond any doubt that a defendant
committed a capital crime, barring the death penalty for defendants with
obvious extenuating circumstances such as for juveniles and the mentally
ill. Other suggestions included making life imprisonment without parole an
alternative to death, making all police and prosecution evidence available
to the jury, insulating sentencing judges from political pressures and the
appointment of competent defense counsel. For the most part, Liebman said
little if any compensation was given to people wrongly sentenced to death.
"In all of these cases, it's a case of wasted lives, time and
money," he said.
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