As long as there’s the possibility — no matter how remote — that an innocent person could be killed, nobody should be for the death penalty –Kirk Bloodsworth, exonerated ‘93

One of the most serious concerns with capital punishment is the fact that it is very possible an innocent person can be executed for crimes they did not commit while the actual guilty party remains free. This isn’t just an unwarranted worry. To date, 131 people have been exonerated after spending years on death row. Wrongful convictions are a fact.

So, where does sentencing the wrong person fit into the whole idea of justice? It doesn’t or at least, it shouldn’t. What these cases tell us, though, is that this system has serious flaws. Innocent people are sentenced to die. In fact, considering the population of death row nationally is around 3350, those 131 people represent a 3.8% error rate. If you apply that same error rate to the 1156 people who have been executed, it’s quite possible that 45 or so people have been murdered by our government in the name of justice.

Just 1 person dying for another’s acts undermines justice. Just 1–that’s all it takes. A 3.8 % error on this system means that innocent people have and will die. Those 131 exonerees are both tragic and lucky. The years they spent in prison cells being treated as subhuman scum by guards, by society and even by some of their friends and family who doubted them… Their name was sullied, their families ripped apart, their lives shattered. Tragic really doesn’t even begin to cover it. But, they are also lucky because someone, somewhere listened to their story and decided to fight with them. All too often that isn’t the case, I know that from advocating in this case. It’s rare that anyone listens much less cares about the people who have been convicted. They are stereotyped and categorized. Claims of innocence deflect off stone hearts. All too often, people chalk it up to some sort of ploy, game or trap…so that just means an error rate of 3.8% is quite possibly on the low end.

Even using just 3.8%, the implications are huge. 3.8 may seem fairly small, almost insignificant, but let’s look at it a different way. Every now and then you hear a news story about a case of medical malpractice involving an amputation performed on the wrong limb or body part. The very idea is horrific. Immediately, people, after hearing about this one instance, begin questioning the medical profession and hospitals.  They want safeguards to prevent such a tragedy. They want the responsible party to pay… Right now, there are approximately 1.7 million people in the U.S. who have had an amputation. If you applied that 3.8% to the population of amputees, then 64,600 people would have dealt with ‘wrongful amputations.’ * 3.8% adds up…so, where’s the public outcry for those ‘wrongly executed?’ Why aren’t more people demanding safeguards in this system or proposing the only guaranteed alternative of life without parole? Or, working in the current system, why can’t we limit these cases following Maryland’s new law to only those involving DNA evidence, a videotape of the crime, or a voluntary, videotaped confession?

I can’t imagine the desperation, the urgency, the sorrow involved in being convicted and sentenced to die for a crime you did not commit.  No money, powerless… I can’t imagine how terribly alone and without hope that person must feel… No one should ever have to endure that. We have the capabilities to ensure this, so why don’t we?

For more facts on those exonerated, please see www.witnesstoinnocence.com

*This is not a factual number but only a projection of a 3.8% error rate.

A pointing finger of blame has a powerful hold on even the most informed and intelligent of juries.

                                        –Dr. Elizabeth Loftus

It astounds me that anyone, especially in a court of law, can still put so much weight on eyewitness testimony. Our system recognizably puts incredible faith in the accuracy of a person to see, perceive, and recall events and people. The very thought is rather disturbing. With all the current information available about the fallibility of human memory, you would think people would recognize the need to take such testimony with a grain of salt. This simply isn’t what happens, though. In a mock trial study conducted by Dr. Elizabeth Loftus, mock jurors were presented with a murder case. In the first trial, prosecutors presented circumstantial evidence alone. Conviction rates were less than 20%. With the addition of an eyewitness, conviction rates increased to more than 70%. Even when that witness had 20/400 vision, which is far past the mark for legal blindness at 20/200, conviction rates were still 68%. That alone speaks volumes about the impact a witness can have, even an unreliable one. It is imperative, though, that juries recognize that misidentification can and does happen as a result of the imperfect processes of our memories. Without doing so, there is a clear danger that anyone can be wrongly convicted of a crime–an ending that can lead to tragic results.

One of the biggest problems here is that most of society has no real concept of how our memories operate. These misconceptions greatly impact a jury’s ability to fairly judge a trial in a court of law–especially in cases where the defendant’s life is on the line. We do not, as popular belief would have it, store images and events like a video recorder to be played back whenever we feel the urge or need to use a particular memory. Instead, long term memories are placed in mental drawers. These drawers are tightly packed and are constantly rifled through in search of this information or that. Things are unloaded, milled about, and replaced in no particular order. As Dr. Loftus states in her article Witness for the Defense: The Accused, the Eyewitness, and the Expert Who Puts Memory on Trial, “As new bits and pieces of information are added into long-term memory, the old memories are removed, replaced, crumpled up, or shoved into corners. Little details are added, confusing or extraneous elements are deleted, and a coherent construction of the facts is gradually created that may bear little resemblance to the original event.” Mistakes are inherent, too, because “we consciously fill in any gaps in the information with inferences to make the memory whole.”

Memories both diminish and grow. The initial perception fades. With each recalling or retelling of the information, the memory is changed. Each time later events are stored in the drawer on top of that initial memory, things change. According to Dr. Loftus, “We interpret the past, correcting ourselves, adding bits and pieces, deleting uncomplimentary or disturbing recollections, sweeping, dusting, tidying things up.” Memory, then, is not a permanently fixed part of our human processes. It is a constantly shifting and changing reality. Memories often hold a great power over us in this way even to the extent that we believe we saw something we did not.

Memory should also be understood to occur in 3 stages. Mistakes or errors can occur at each of these stages alone or in combination. The first stage involves perceiving and encoding the information to be stored. There are many factors which can greatly affect how we perceive, acquire, and encode information. Event factors have enormous power over perception. In terms of witnessing a crime, the lighting, distance between the witness and event, the duration of the viewing of the event, arousal/stimulation/stress levels, presence of a weapon, witness’ intake of prescription medications (e.g. Xanax), existence of prior expectations, personal biases and more affect the way the crime is perceived.

The second stage involves storage. The storage of information is affected by both decay and interference. Decay is just the natural loss of information over time. Memory is not static. Forgetting is fact. Interference occurs when new information replaces old information. This can be caused by misleading questions, suggestibility, and more. A study by Gorenstein and Ellsworth showed that the likelihood of an eyewitness correctly identifying faces was decreased after they viewed mugshots. Dr. Loftus also conducted a study in which participants viewed a car crash and were then asked several questions. One of these questions involved false information about a barn–there was no barn in the film. When questioned a week later, 17% of the participants remembered seeing a barn. Even the tiniest bit of new information has the power to corrupt and change a memory. Police questioning, when constructed the right way, can certainly alter the original memory leading to misidentification.

The third stage of memory is retrieval. This stage involves recalling the information we’ve stored in our memory drawers. Again, suggestive questions can have a great impact here as can feedback from investigators. Dr. Loftus conducted yet another study about memory in which participants were asked to view a film of an auto accident and were then asked to estimate the speed of the approaching vehicle. Some participants were asked how fast the car was going when the two vehicles ’smashed’ together while others were asked when the vehicles made contact. The first group answered an average of 40.8 mph while the others answered 31.8 on average. While this doesn’t seem like a great difference, depending on the speed limit in the area, that 9 mph difference could make or break the case in a civil trial or even possibly even a vehicular manslaughter case. Positive feedback can also change the memory. A study conducted by Wells and Bradfield asked participants to watch an 8 second security camera video taken at the scene of a real murder shows a male walking into a store. Right after he passes the field of the camera, he shoots and kills a security guard. The video was of bad quality but was slowed considerably to allow the viewers to intake as much as possible. Participants were then asked to identify the person in  a 5 photo lineup that did include pictures used during the actual investigation but not of the true perpetrator. All participants were told the gunman was in the photo lineup and each one layed finger on 1 of the 5 photos. The participants were divided into 3 groups–no feedback, negative feedback, and positive feedback. After identifying a suspect, each person was asked how sure they were of their choice and about how well they could see the perpetrator and make out the details of his face. The feedback was enough to alter information. Those who were given negative feedback were only certain of their choice about 15% of the time while 50% of the positive feedback group was certain they had identified the right man. Almost all the participants stated that the feedback had no effect on their certainty level, yet there is an obvious difference.

There are other factors too which can affect our memories. In a criminal investigation, we are affected by our own eagerness to please investigators. There is often a reward we gain from this and we attempt to obtain it even if that reward is simply thinking good of ourselves or gaining the respect of the investigator questioning you.  Even when the witness isn’t sure about an identification they will still try hard to make one and often choose a person who best fits their perception of the criminal. All too often, that choice is wrong. Also, when we’ve made an identification, even when wrong, there is very little chance that identification will be recanted. We have constructed a new memory and it has taken hold replacing the actual sequence of events. Unconscious transference is another issue. This occurs when a witness will identify a person they have seen previously or see regularly as the perpetrator in a crime. A study conducted by Robert Bukhout in 1974 shows how this occurs. An assault was staged in view of 141 observers. Several weeks later, these observers were asked to identify the person in a 6 photo lineup 60% chose the wrong person. Of those who misidentified the perp, over 60% chose someone else who was in the crowd at the scene.

It is or should be reasonably easy to see the flaws of relying on eyewitnesses in a case. Juries have historically put too much emphasis on this kind of evidence leading to far too many wrongful convictions. In a study of 65 such convictions performed by Edwin M. Borchard, 45% could be attributed to false identification. In another similar study by Arye Rattner in 1983, out of 200 erroneous convictions, 52.3% could be attributed to misidentification by eyewitnesses. Of course, it’s not saying that all or even most witnesses intentionally lie, but they are human and it’s accurate to say that human memories have high chances of being completely wrong. When you’re discussing cases involving the death penalty, it must be pointed out that a mistake by a witness can’t be reversed. The person doesn’t go to prison for a few years and return home. That person is strapped to a bed and injected with a combination of drugs which permanently stops the processes of life. A tragic end for them, for those that love them, and for the entire system as justice as tossed in the garbage.

So, how does all this relate to a case like Robert’s? As you’ve likely read in his story, the state’s case against him was almost solely based on the testimony of 5 inmate witnesses. For one, as we’ve related, each and every one of those witnesses were offered rewards for testifying. The obvious assumption here is that these 5 people lied in order to get ahead…to profit, persay, off the TDCJ’s focus on Robert. If, for one reason or another, that seems hard to believe, then simply look at the facts presented here. Take into consideraton that 1 of his accusers saw him commit the crime yet this person had obvious vision problems. He couldn’t identify Robert correctly to begin with, pointing, instead, at the attorney seated at the defense table. He couldn’t correctly identify Robert until he was about 5 feet away from him…I wouldn’t have counted on his ability to see the crime as it occurred and correctly identify the witness. He probably had no idea what he was looking at…if he saw anything at all. Knowing that any legitimate witness has a great likelihood of being wrong, how could anyone convict when no physical evidence can be found to link the suspect to the crime? It’s just one more thing that doesn’t add up.

Our decisions in this system depend on the collective votes of jury members, usually 12, at each trial. We expect this jury to make an informed, impartial decision. Jury trials are only good practice in theory, though, and for several reasons.

First, utilizing a working group of people to make a decision together is the same as asking just one person to do so. It is our tendency on a primitive level as social creatures to follow the herd, to conform. As Richard Dawkins states in his essay Trial by Jury, “juries are massively swayed by one or two vocal individuals.” We use multiple member juries hoping that the group will be able to hash out the topic together with more knowledge and understanding. But, that isn’t reality. Leaders speak and the herd follows. What you have, then, is not 12 independently reached assessments of the evidence, but rather one or two assessments which influence all the rest. It’s like putting these lives in the hands of just one person to do as they see fit. With the way the jury selection process is designed, that often means that the deck is stacked against the accused to start.

Juries are complicated even more because impartial decisions are impossible to obtain. The saying is that justice is blind, but that’s certainly a flawed assessment of reality. Each juror comes armed with biases, experiences, beliefs, perceptions, prejudices, and the like. Those factors, regardless of orders to be impartial, are sociologically proven to greatly influence an individual’s decisions–especially when strong leaders with strong beliefs and biases are taking charge of juries. All of this is proven in the arbitrary manner in which death is  handed out.

You will find discrepancies across the country among the offenders who are actually punished by death. Gender plays an important role in who does and does not get death. 1 in 10 murders are committed by women, but only 1 in 50 offenders given the death penalty are female. So, females represent 10% of all murderers bu only 2% of all persons given the death penalty.

Economic status also contributes to death sentences. More often than not, offenders facing a capital trial are poor. They certainly can’t afford their own attorney and are, instead, given court appointed attorneys who are often ill trained and definitely underpaid. Many of them are, assuredly, not the cream of the crop. In Texas, for example, 1 in 4 capital offenders were represented by attorneys who have either been reprimanded for their behavior or disbarred altogether.

Race is also an issue. 96% of the states which have studied race and the death penalty show an obvious link between race of the victim,  race of the offender, or both and punishment of death.  Looking at numbers strictly, it is more than obvious to even the average joe that the victim’s race is an issue. Whites represent about half of all murder victims-close to 50%. But, when looking at the victims of capital cases, whites were the victims in 80% of them. This means that juries tend to place more value on the lives of whites more than others races.

The area of the country seems to be a huge influencing factor as well. Since reinstatement, 1136 people have been killed (more now since Texas is on a roll this year once again). Of those 1136, the South is responsible for killing 922–well over half. And, most of those were executed by Texas…about half of that 922, actually.

On a final note (but certainly not the last of these issues), death as stated in so many publications is supposed to be reserved for heinous crimes, for offenders beyond repair who have committed crimes so atrocious that death is the only solution.  But, that doesn’t happen, either. Gary Ridgeway killed 48 people in the state of Washington over decades. He admitted it and led police to several bodies. Ridgeway, deemed the Green River Killer, was given life. He ‘helped’ police and was offered a life sentence in trade. Yet, in Texas, you don’t even have to kill someone to receive death and, in fact, there are several people on death row now because of the law of parties. All you have to do is be present at the crime scene with a connection to the actual killer. You don’t have to murder, wound, or even have an intent to kill.

Some things just do not add up if we’re talking about blind justice and impartial juries.

Justice should be fair and accurate especially when you’re discussing the death of another person no matter what that person is accused of doing. Accusations do not mean guilt and the evidence should be weighed without regard for specific characteristics. Giving any type of person a death sentence more often than others completely undermines the ideas of justice, fairness, and accuracy. Instead of being based on the crimes and the evidence, it seems (and studies show) that death is merely the whim of jurors. It depends more on their personal thoughts, beliefs, and experiences than an impartial weighing of the facts. Life is too meaningful to be extinguished so casually.

 A humane and generous concern for every individual, his health and his fulfillment, will do more to soothe the savage heart than the fear of state-inflicted death, which chiefly serves to remind us how close we remain to the  jungle.

          –Ramsey Clark

If you find yourself in a conversation about the death penalty, you are bound to hear some point about deterrence. To add to that, you’ll hear statements about saving lives, about punishing the offender by killing him in the same exact way he killed his victims, or maybe even public executions. Those statements are usually followed by something to the effect of…”then they’ll think twice before they kill somebody…”

Before you let such utterances spew forth from your person, you might want to be a little more informed first. You can read research studies on the deterrence factor which could favor either argument, but the same can be said of any issue. It all depends on the research method and the interpretations of the data, but numbers don’t lie. All you have to do is simply compare the murder rates of those states with the death penalty to other states or better yet, compare murder rates to the number of executions. Here’s what you’ll find…

The South has been responsible for the good majority of all executions since the death penalty was reinstated. 1153 executions have occurred. Of those, 921 were in the South. Going by region, the South also had the highest murder rate at 7.0 per 100,000 people in 2007. The region with the fewest executions since reinstatement? Yeah, they also had the lowest murder rates.

Getting more specific especially since much of this site is trying to raise awareness about freeing an innocent man on death row, let’s discuss Texas. Texas is responsible for almost half of the executions which have occurred in the South…literally almost half the executions which occurred in the entire nation since 1976. This year alone, 10 people have been killed by the state. That’s more than many other states have executed in 30 years…and Texas has done it in less than 3 months. But, here’s the kicker, Texas still has a high murder rate. The national rate for 2007 was 5.6. Texas ranked in at 5.9. So, here it is in black and white, folks… Our nation’s killing machine still has a murder rate above the nation’s average. And you can’t say it’s because death still really isn’t a threat there. People in Texas don’t sit on death row for decades. The average Texas death row inmate lives 6 1/2 years after being sentenced.

What’s even more interesting is that New York state, which doesn’t have the death penalty, doesn’t see the same types of crime rates as states which do, even states which utilize it often. When looking at homicide rates, New York rates pretty low on the list even with the highly populated NYC. And, the same can be said of other non death penalty states. States without the death penalty are few but do include: Alaska, Hawaii, Minnesota, North Dakota, West Virginia, Wisconsin, Iowa,  New Jersey, New Mexico, Maine, Massachusetts, Michigan, New York, Rhode Island, and Vermont. Also, D.C. Almost all of these states have a murder rate well below the national average while at least half of those states with the death penalty rank in above the national average. In fact, a NY times article found that in the last 20 years, death penalty states have had a murder rate 48-101% higher than states without it.

It’s quite easy to see the problem is most likely that people don’t want to see what’s right in front of them. Executions don’t deter murder. At all. Killing doesn’t stop killing. And, when it all boils down to it, many of the people that advocate capital punishment aren’t really concerned with deterrence. It just sounds more reasonable. The underlying motivator here is revenge. George Bush told us that it should never be about revenge; it’s about saving the lives of others. Well, W., that’s what life without the possibility of parole is for, I do believe. Have a good, deeply involved discussion with a group of people about capital punishment and listen to the statements about mirroring the crime as punishment, about going back to public executions, about torturing murderers…quartering them like in ‘the good ole days’….I’ve heard all of those and more. Those statements reek of revenge and blood thirst and nothing more….

The death penalty is wrong for 3 reasons. First, it is bad philosophy. Killing a killer to prove killing is wrong does not make sense.  Second, it is bad politics. America’s standing in the International community is hampered because most civilized nations no longer permit the death penalty. And it is not practical. It costs more to execute defendants than to imprison them. The death penalty is bad morals, politics, and economics.

-Kenneth Michael White, attorney

In every uninformed capital punishment discussion I’ve ever read, heard, or jumped into, at least one person has made statements regarding the financial aspect of executing offenders. Most of the time it’s about not wanting to waste tax dollars housing inmates in jail for life. This is exactly how you know that it’s an uninformed discussion.

Anyone who has looked at the research regarding the death penalty can tell you that it costs hundreds of thousands more dollars at the least to prosecute a death row offender, have a separate trial for sentencing, go through the appeals process, and to house a death row offender than it does to put him in prison for life without the possibility of parole. This is why several states have recently begun to look at abolishment from an economic standpoint. With the latest financial catastrophe, many states are facing serious revenue problems and see abolishment as a possible answer. It’s an issue that every state should consider (and not just for economic benefit). Here are some examples:

The California Commission on the Fair Administration of Justice estimated the annual costs of their death penalty system to exceed $130 million annually. To abolish capital punishment and replace death with life without parole, the annual cost projection is only $11.5 million. California could be saving over $100 million each and every year. Yet, this state refuses to fund community policing systems which are proven to reduce crime rates. Why? Government officials claim they have no money for it. 

The initial cost of a Federal capital trial is over $600,000 which is 8 times as much as a trial which avoids death and uses life without parole instead. This is only the trial and does not include cost projections for appeals and housing. Currently there are 44 inmates on Federal death row. Just considering those 44 people, the amount of money which could have been saved exceeds $23 million dollars. The fact of the matter is that there have been 162 Federal capital trials. The math here brings an astounding amount of money spent which could have been used elsewhere if life without were the punishment sought–over $85 million dollars on the trial alone. 

In Maryland, which just put strict limitations on imposing capital punishment, the costs to taxpayers for utilizing the sentence since 1978 will be $186 million more than life sentences would have cost. In cases seeking death, the average cost is 2 or 3 million more dollars than a non capital case. Just considering the 5 who have been executed and the 5 still waiting execution, that’s a savings, on the low end, of $20 million dollars. There were 106 cases in which death was sought but not used which have cost more than $70 million. 

New Jersey, which abolished last year, has spent more than $253 million since 1983, according to a Policy Perspectives report. No one was executed in the state during that time. That’s roughly $11 million annually that could have been spent elsewhere especially considering the sentence was never carried out. 

Tennessee death penalty trials cost taxpayers an average of 48% more than non capital cases. There are 102 people on death row in that state. 

A Kansas study found huge differences in costs. Investigation costs for death cases were 3 times as much. Capital trials cost 16 times non capital ones. Appeals in death penalty cases are 21 times greater. On the whole, capital cases are 70% more expensive averaging roughly $1.6 million while non capitals cost only $740,000. There are currently 9 on the row there.

Florida could save $51 million annually by eliminating capital punishment. Studies have shown that capital cases cost an average of 6 times the cost of non capital cases. 

Texas spends over $2 million on each capital case which is about 3 times as much as cases seeking life. With over 300 inmates on death row, the projected savings of a quarter billion dollars or so just on the cases which have ended in a death sentence translate into a lot of state revenue which could have been spent to more deserving programs such as those which attempt to protect citizens.

In each state utilizing capital punishment, the story remains the same. Millions of tax dollars are spent each and every year to kill inmates rather than put them in prison for life. Funds are pulled from education, crime prevention, other areas of corrections, and more. In Texas, other offenders only serve 20% of their sentences to pay for death. Florida has done the same; thousands of prisoners are released early every year. Inmates which rob, steal, injure, and even sexually assault others. Yet, we still believe political rhetoric. Each year, we hear about politicians who are taking a tough stance on crime. In doing so, they advocate death, death, and more death. And with this, they fool us. Advocating death as a measure of toughness is a ploy. The death penalty has yet to prove any sort of deterrence at all whatsoever. Study after study fails to show it as do statistics. Dollars are taken from programs that prevent crimes from ever occurring and are used in arbitrarily killing those offenders deemed worthy of receiving the needle–which can hardly be called fair, accurate, or balanced. There is no cost benefit. Instead, the dollars used to kill could be used to prevent victimization from the start. As Richard Dieter stated in his article, What Politicians Don’t Say About the High Costs of the Death Penalty, “In today’s depressed economy, the criminal justice system is breaking down for lack of funds while states pour money into the black hole of capital punishment expense.”

What we ultimately have is an extremely flawed system which focuses on punishment instead of prevention because death makes us seem tough. Politicians equate prevention with a soft on crime stance that is equivalent to political death. They would rather have, at the end of the day, our citizens be victimized so they may prove their intolerance of crime rather than propose our funds be used in alternative programs which protect us. And, people constantly fall for it. 

Unemployment rates are on the rise as we continue to see cutbacks–law enforcement and correctional guards are included in that. Criminals are back on the streets earlier and earlier. Taxes in local jurisdictions rise to meet the financial demands of a death trial. In order for our society to fuel it’s desire to kill in the name of, we end up with a great deal of unemployed, uneducated members who have no where to turn for help. Do I see a cycle being created here? Oh, yes. Yet, there is no benefit that counterweights this growing list of negatives. Not one–unless you count exacting a state sponsored revenge, an act of violence intended to counteract violence, as a benefit. 

Personally, I’m dumbfounded by the logic and I’d also much rather see my “tax dollars” being used to support someone in prison than to the drain that is capital punishment.