A Criminal Enterprise

Do People Actually Care If the State Executes Innocent Defendants?

Posted in Uncategorized by Bidish J. Sarma on November 29, 2009

In October, Gallup released figures regarding its most recent poll on the death penalty.  The report is available on the Death Penalty Information Center website here.

The most cited figures from Gallup reflect two continuing trends: (1) “65% of Americans continue to support the use of the death penalty for persons convicted of murder (show[ing] little change over the last six years);” and (2) when posed with life imprisonment as an alternative to the death penalty for convicted murderers, “47% said they preferred the death penalty (48% favored life imprisonment).”  While these numbers are obviously important to people who care about the death penalty, I took a particular interest in a somewhat surprising and perverse related Gallup finding.

According to the Poll, “59% of Americans agree[] that within the last five years, ‘a person has been executed under the death penalty who was, in fact, innocent of the crime he or she was charged with.’”  As the report points out:

However, for many Americans, agreement with the assertion that innocent people have been put to death does not preclude simultaneous endorsement of the death penalty. A third of all Americans, 34%, believe an innocent person has been executed and at the same time support the death penalty. This is higher than the 23% who believe an innocent person has been executed and simultaneously oppose the death penalty.

In August, the Supreme Court of the United States granted an original writ for habeas corpus and ordered a District Court to hold an evidentiary hearing in Troy Davis’s innocence case.  Justice Scalia, joined by Justice Thomas dissented from the order.  In his dissent, Scalia suggested that the U.S. Constitution may not actually prohibit the execution of an innocent individual:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

Although his statement about the Court’s precedent is legally accurate, that Scalia might not find the execution of an innocent person constitutionally objectionable seemed to shock the consciousness of many members of the legal community (including Alan Dershowitz, Dahlia Lithwick, and other observers).

But, in this instance, the views of those offended in the legal profession may not accurately reflect the views of people in society at large.  Although I thought Scalia’s comments would generate more public outrage on a wide scale, people seemed relatively unmoved.  Could it really be that people who believe that the State executes innocent people support the death penalty nonetheless?  How could one simultaneously hold both beliefs?

Whatever the explanation, the Gallup numbers present anti-death penalty advocates with a serious dilemma.  Many anti-death penalty folks believed that a public understanding that the system fails to ensure that people who are executed were actually guilty of the crime for which they have been convicted would lead to a decline in support for capital punishment.  The Gallup numbers undercut the force of this assumption.  Indeed, the controversy surrounding Texas’s execution of Cameron Todd Willingham – though serious – has not yet generated a societal backlash against the death penalty.  The numbers also partly rebut the Marshall Hypothesis.  Former Supreme Court Justice Thurgood Marshall speculated that support for the death penalty would decline as people came to understand how the system breaks down at numerous points in the process.  The Gallup poll suggests that he may have been too hopeful.

All things considered, the recent Gallup poll may leave one to wonder what can be done… As always, I look for suggestions…

8 Responses

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  1. Jeff Gamso said, on November 29, 2009 at 6:16 am

    The Gallup numbers have been consistent for a while that most people think an innocent person has been executed in recent years and most of them still support the death penalty. Poll results also tend to show that eve people who believe it’s not much of a deterrent favor it. The problem, I suspect, is that the beliefs are intellectual and the support is visceral.

    The importance of the executed innocent guy (maybe Willingham) is to put a face on a statistic, to turn it from an intellectual idea to a human one. Stalin’s the one who said that a “single death is a tragedy. A million deaths is just a statistic.” Rick Perry’s effort to shut down, or at least bury, the Forensic Science Commission investigation of Willingham’s death is an implicit recognition of that. So was the effort of Virginia to prevent testing the DNA in Roger Coleman’s case, though that proved, from Virginia’s point of view, an unnecessary effort.

    So I think innocence does matter.

    And so does knowledge. The Marshall Hypothesis always struck me as naive, but he had more faith in the general good sense of the American people than I do. But I think there’s something to it that the studies and polls don’t show.

    Death sentences are down. It’s been some 20 months since a Virginia jury handed down a death sentence. There are many reasons, but juror discomfort with killing reflects, I think, some increased understanding of just what’s going on. That’s the Hypothesis at work.

  2. AnonW said, on November 29, 2009 at 11:27 am

    I am old enough to remember when the death penalty existed in the United Kingdom. There was and still is a large proportion in the UK, who think that the death penalty should have been retained. I am not one of them.

    I suspect too, that many of those in favour would say that the odd person who got executed by mistake wasn’t that serious, for any number of spurious reasons. I would of course disagree, as I am totally opposed to the death penalty in all circumstances.

    The death penalty was effectively abolished in the UK after a number of controversial cases, by a free vote in parliament. As in many difficult decisions for government they initially ducked the issue and left it to a private member or the Lords to introduce the legislation. So perhaps we abolished it because we have a flexible system and only one parliament rather than one for each state.

    But there is one big difference in miscarriages of justice in the UK. If you have served time in prison and are subsequently found innocent, then you receive compensation. This simple fact, means that these miscarriages are highlighted. I dread to think how much would be paid out in the case of the execution of an innocent.

    This compensation is one thing that helps to keep those that would restore the death penalty in check. It rarely rears its ugly head these days, although in truth it doesn’t matter, as it has effectively been outlawed in Europe under human rights legislation.

  3. Carlyle Moulton said, on December 1, 2009 at 1:18 pm

    “Do people actually care if the state executes innocent defendants?”

    The answer to your question is for many people from the respectable classes is NO!

    “Do people actually care if the state locks imprisons innocent defendants for many years?”

    Again the answer is NO! NO! Definitely NO!.

    The truth is that for a majority of the respectable classes the word “innocent” does not mean what human rights campaigners think that it means and the word “guilty” does not mean what politically correct intellectuals of the chattering cnasses think it means. For this majority of the respectable classes, innocence and guilt are properties of people, innocent people are born innocent and if the they accidentally get convicted of a crime as did Kenneth Lay of Enron, that is a mistake, and guilty people are born guilty and if they did not perform the actions of a particular crime of which they are convicted, that is irrelevant, because they have committed other crimes that have not been discovered or because if not convicted they would have gone on to commit such crimes or because their brothers or sisters or near neighbours have in the past or will in the future commit such crimes. The function of law is to match crimes with appropriate persons from the guilty classes, there is no requirement that the people chosen actually did the crime or indeed any crime. When Thomas Coleman of Tulia cocaine bust fame framed and rail roaded into prison 10% of the Negro population of Tulia Texas he was doing exactly what his superiors wanted him to do. Understand that if investigating crime required actually finding the real perpetrators that would require investigators with considerable intelligence and skill, but one cannot get such people with the low salaries society pays police. If one has detectives that are as thick as two planks one must allow them some leeway such as turning a blind eye to their beating confessions out of suspects, suborning perjury from snitches and planting evidence.

    You have to understand that the function of the law is not to protect everone but to respect a minority of the wealthy and to pretend to protect many of less wealth but respectable without actually doing so and to make life a misery for members of underclass who are poor and or of inferior races. The police and the law act as an army of occupation where Negroes and poor people live and they have no desire to protect these people from crime, they are there as in a preemptive war to prevent inhabitants of these ghettos harming the white children of the respectable classes. Locking up young blacks for marijuana offenses protects white school kids in Mayberry from the evil weed, even thought these white kids buy from white dealers or buy from white wholesalers who buy from white high level dealers and so on.

    The main purpose of the law is to carry out class and race war and prevent upward social mobility by those trapped in the underclass putting pressure on those who have achieved the American dream in the past. Numerous waves of white and honorary white refugees have entered the US, initially suffered discrimination but eventually escaped this and climbed the ladder of opportunity but in doing so have jumped the queue on members of the black underclass. Now the positional goods stolen from the native Americans have run out and further upward social mobility can occur only if there is also relative downward social mobility by some of the already comfortable. Current US criminal justice policies are effective agents of ethnic and social hygiene maintenance.

  4. Dudley Sharp said, on December 2, 2009 at 2:29 am

    Troy Davis: Both sides need to be told
    Dudley Sharp, contact info below

    Anyone interested in justice will demand a fair, thorough look at both sides of this or any case. Here is the side that the pro Troy Davis faction is, intentionally, not presenting.

    (1) Davis v Georgia, Georgia Supreme Court, 3/17/08
    Full ruling http://www.gasupreme.us/pdf/s07a1758.pdf
    Summary http://www.gasupreme.us/op_summaries/mar_17.pdf

    ” . . . the majority finds that ‘most of the witnesses to the crime who have allegedly recanted have merely stated that they now do not feel able to identify the shooter.’ “One of the affidavits ‘might actually be read so as to confirm trial testimony that Davis was the shooter.’ ”

    The murder occurred in 1989.

    (2) “THE PAROLE BOARD’S CONSIDERATION OF THE TROY ANTHONY DAVIS CASE” , 9/22/08, http://www.pap.state.ga.us/opencms/opencms/

    “After an exhaustive review of all available information regarding the Troy Davis case and after considering all possible reasons for granting clemency, the Board has determined that clemency is not warranted.”

    “The Board has now spent more than a year studying and considering this case. As a part of its proceedings, the Board gave Davisâ�� attorneys an opportunity to present every witness they desired to support their allegation that there is doubt as to Davisâ�� guilt. The Board heard each of these witnesses and questioned them closely. In addition, the Board has studied the voluminous trial transcript, the police investigation report and the initial statements of all witnesses. The Board has also had certain physical evidence retested and Davis interviewed.”

    (3) A detailed review of the extraordinary consideration that Davis was given for all of his claims,
    by Chatham County District Attorney Spencer Lawton http://tinyurl.com/46c73l

    Troy Davis’ claims are undermined, revealing the dishonesty of the Davis advocates . Look, particularly, at pages 4-7, which show the reasoned, thoughtful and generous reviews of Davis’ claims, as well a how despicable the one sided cynical pro Troy Davis effort is.

    (4) Officer Mark Allen MacPhail: The family of murdered Officer MacPhail fully believes that Troy Davis murdered their loved one and that the evidence is supportive of that opinion. http://www.markallenmacphail.com/

    Not simply an emotional and understandable plea for justice, but a detailed factual review of the case.

    (5) “Death and Dying”, by Cliff Green, LIKE THE DEW, 7/22/09,

    Dudley Sharp, Justice Matters
    e-mail sharpjfa@aol.com 713-622-5491,
    Houston, Texas

    Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS, VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O’Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.

    A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

  5. […] J. Sarma started the conversation, writing at A Criminal Enterprise that the recent Gallup numbers seem to suggest that even an clear-cut execution of an innocent […]

  6. Gritsforbreakfast said, on December 10, 2009 at 3:50 pm

    I agree these poll data show “innocence,” while important, is a poor strategy for death penalty abolitionists. In the Willingham case, folks like Mr. Sharp hijacked the discussion of flawed arson forensics to focus it on their favorite hobbyhorse, so the strategy not only failed but sabotaged other reform efforts, which is especially bad form.

    That said, jury behavior runs counter to the Gallup poll and even Texas juries are giving fewer death sentences. That makes me wonder if the simplistic, outdated tit-for-tat Gallup poll question adequately captures the complexities of the issue when it’s faced up close and personal as jurors see it.

  7. Jeff Gamso said, on January 8, 2010 at 3:57 pm

    Los Angeles Paralegal gets at my point. Innocence issues may not generate a broad change in policy, but they have some effect on individuals who – while they won’t become activists – may yet be wary of actually imposing death sentences. So the numbers drop.

  8. Eric Matthews said, on July 14, 2011 at 3:43 pm

    @Jeff Gamso: I completely agree. Many attribute the verdict of “Not Guilty” in the recent Casey Anthony trial to the prosecutorial push for capital punishment if convicted.

    This weight was heavily felt by the jurors and the standard of proof was adhered with much greater scrutiny than would have been if the death penalty had not been a factor to consider come post-conviction sentencing.

    Juries in possible death penalty cases have a human in front of them, instead of a statistic. This can and does give a better understanding of applied statistics when dealing with common perceptions of Americans regarding the death penalty

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