The Fatal Flaws
The New York Times
By BOB HERBERT
In the spring of 2000 a team of lawyers and criminologists at Columbia University released the first phase of the most far-reaching study of the death penalty in the United States. It showed that the system of capital punishment was riddled with unfairness and incompetence, with serious errors erupting with alarming frequency at every stage of the process. The study showed that of every three capital sentences reviewed, two were overturned on appeal. Those were cases in which at least some of the mistakes were caught. No one knows what percentage of the remaining cases were tainted. Today the team is releasing a massive second phase of the study, which focuses on why there are so many mistakes in death penalty cases and what can be done about them. The study describes the capital punishment system as "broken." When I asked the leader of the study team, law professor James S. Liebman, if he thought any innocent people had been executed, he said, "Our judgment is that there is a very high risk that that has happened." Problems with the administration of the death penalty have widespread consequences that are not limited to the danger of executing the innocent. The study said the errors that permeate the system also leave killers at large, exacerbate suffering, waste tax dollars and deprive citizens of the high quality of justice that they expect and deserve. The biggest problem appears to be the rush to impose the death penalty. The study recommends that if the death penalty is to be retained, it should be used only for the "worst of the worst" cases - those particularly heinous crimes in which there is no doubt that the defendant is guilty and there are no mitigating circumstances. The study found that "the more often officials use the death penalty, the wider the range of crimes to which it is applied, and the more it is imposed for offenses that are not highly aggravated, the greater the risk that capital convictions and sentences will be seriously flawed." "Most disturbing of all," the authors wrote, "we find that the conditions evidently pressuring counties and states to overuse the death penalty and thus increase the risk of unreliability and error include race, politics and poorly performing law enforcement systems."
The study shows for the first time that three-fourths of the reversals at the two appeal stages where data was available "were because defense lawyers had been egregiously incompetent, police and prosecutors had suppressed exculpatory evidence or committed other professional misconduct, jurors had been misinformed about the law, or judges and jurors had been biased."
The study found that:
ï "The closer the homicide risk to whites in a state comes to equaling or surpassing the risk to blacks, the higher the error rate."
ï "The higher the proportion of African-Americans in a state - and in one analysis, the more welfare recipients in a state - the higher the rate of serious capital error."
ï "The lower the rate at which states apprehend, convict and imprison serious criminals, the higher their capital error rates."
ï "The more often and directly state trial judges are subject to popular election, and the more partisan those elections are, the higher the state's rate of serious capital error."
These are not easy problems to remedy. The study offers several "policy options" that might help states limit the application of the death penalty to the most egregious cases. They include requiring proof beyond any doubt in capital cases; barring the death penalty for juveniles and others with inherently extenuating conditions, such as mental retardation or serious mental illness; making life imprisonment without parole an alternative to the death penalty, and clearly informing juries of that option; making all police and prosecution evidence that bears on guilt vs. innocence, and on aggravation vs. mitigation, available to the jury; and insulating judges in capital cases from political pressure. The authors found that the system of capital punishment is"collapsing" under the collective weight of the tremendous volume of errors. That being the case, they said: "The time is ripe to fix the death penalty. Or, if it can't be fixed,to end it."