[Congressional Record Volume 146, Number 78 (Tuesday, June 20, 2000)]
[Extensions of Remarks]
[Page E1063]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                      DEATH PENALTY MISINFORMATION

                                 ______
                                 

                          HON. PHILIP M. CRANE

                              of illinois

                    in the house of representatives

                         Tuesday, June 20, 2000

  Mr. CRANE. Mr. Speaker, I submit a Wall Street Journal opinion piece 
titled ``We're Not Executing the Innocent'' for insertion into the 
Record.
  There is a lot of misinformation being circulated about the death 
penalty and Professor Cassell does a good job of setting the record 
straight.

                    We're Not Executing the Innocent

                          (By Paul G. Cassell)

       On Monday avowed opponents of the death penalty caught the 
     attention of Al Gore among others when they released a report 
     purporting to demonstrate that the nation's capital 
     punishment system is ``collapsing under the weight of its own 
     mistakes.'' Contrary to the headlines written by some 
     gullible editors, however, the report proves nothing of the 
     sort.
       At one level, the report is a dog-bites-man story. It is 
     well known that the Supreme Court has mandated a system of 
     super due process for the death penalty. An obvious 
     consequence of this extraordinary caution is that capital 
     sentences are more likely to be reversed than lesser 
     sentences are. The widely trumpeted statistic in the report--
     the 68% ``error rate'' in capital cases--might accordingly be 
     viewed as a reassuring sign of the judiciary's circumspection 
     before imposing the ultimate sanction.


                           Deceptive Factoids

       The 68% factoid, however, is quite deceptive. For starters, 
     it has nothing to do with ``wrong man'' mistakes--that is, 
     cases in which an innocent person is convicted for a murder 
     he did not commit. Indeed, missing from the media coverage 
     was the most critical statistic: After reviewing 23 years of 
     capital sentences, the study's authors (like other 
     researchers) were unable to find a single case in which an 
     innocent person was executed. Thus, the most important error 
     rate--the rate of mistaken executions--is zero.
       What, then, does the 68% ``error rate'' mean? It turns out 
     to include any reversal of a capital sentence at any stage by 
     a appellate courts--even if those courts ultimately uphold 
     the capital sentence. If an appellate court asks for 
     additional findings from the trial court, the trial court 
     complies, and the appellate court then affirms the capital 
     sentence, the report finds not extraordinary due process but 
     a mistake. Under such curious score keeping, the report can 
     list 64 Florida postconviction cases as involving ``serious 
     errors,'' even though more than one-third of these cases 
     ultimately resulted in a reimposed death sentence, and in not 
     one of the Florida cases did a court ultimately overturn the 
     murder conviction.
       To add to this legerdemain, the study skews its sample with 
     cases that are several decades old. The report skips the most 
     recent five years of cases, with the study period ostensibly 
     covering 1973 to 1995. Even within that period, the report 
     includes only cases that have been completely reviewed by 
     state appellate courts. Eschewing pending cases knocks out 
     one-fifth of the cases originally decided within that period, 
     leaving a residual skewed toward the 1980s and even the 
     1970s.
       During that period, the Supreme Court handed down a welter 
     of decisions setting constitutional procedures for capital 
     cases. In 1972 the court struck down all capital sentences in 
     the country as involving too much discretion. When 
     California, New York, North Carolina and other states 
     responded with mandatory capital-punishment statutes, the 
     court in 1976 struck these down as too rigid. The several 
     hundred capital sentences invalidated as a result of these 
     two cases inflate the report's error totals. These decades-
     old reversals have no relevance to contemporary death-penalty 
     issues. Studies focusing on more recent trends, such as a 
     1995 analysis by the Criminal Justice Legal Foundation, found 
     that reversal rates have declined sharply as the law has 
     settled.
       The simplistic assumption underlying the report is that 
     courts with the most reversals are the doing the best job of 
     ``error detection.'' Yet courts can find errors where none 
     exist. About half of the report's data on California's 87% 
     ``error rate'' comes from the tenure of former Chief Justice 
     Rose Bird, whose keen eye found grounds for reversing nearly 
     every one of the dozens of capital appeals brought to her 
     court in the 1970s and early 1980s. Voters in 1986 threw out 
     Bird and two of her like-minded colleagues, who had reversed 
     at least 18 California death sentences for a purportedly 
     defective jury instruction that the California Supreme Court 
     has since authoritatively approved
       The report also relies on newspaper articles and secondhand 
     sources for factual assertions to an extent not ordinarily 
     found in academic research. This approach produces some 
     jarring mistakes. To cite one example, the study claims 
     William Thompson's death sentence was set aside and a lesser 
     sentence imposed. Not true. Thompson remains on death row in 
     Florida today for beating Sally Ivester with a chain belt, 
     ramming a chair leg and nightstick into her vagina and 
     torturing her with lit cigarettes (among other depravities) 
     before leaving her to bleed to death.
       These obvious flaws in the report have gone largely 
     unreported. The report was distributed to selected print and 
     broadcast media nearly a week in advance of Monday's embargo 
     date. This gave ample time to orchestrate favorable media 
     publicity, which conveniently broke 24 hours before the 
     Senate Judiciary Committee began hearings on capital-
     sentencing issues.
       The report continues what has thus far been a glaringly 
     one-sided national discussion of the risk of error in capital 
     cases. Astonishingly, this debate has arisen when, contrary 
     to urban legend, there is no credible example of any innocent 
     person executed in this country under the modern death-
     penalty system. On the other hand, innocent people 
     undoubtedly have died because of our mistakes in failing to 
     execute.


                             Real Mistakes

       Collen Reed, among many others, deserves to be remembered 
     in any discussion of our error rates. She was kidnapped raped 
     tortured and finally murdered by Kenneth McDuff during the 
     Christmas holidays in 1991. She would be alive today if 
     McDuff had not narrowly escaped execution three times for two 
     1966 murders. His life was spared when the Supreme Court set 
     aside death penalties in 1972, and he was paroled in 1989 
     because of prison overcrowding in Texas. After McDuff's 
     release, Reed and at least eight other women died at his 
     hands. Gov. George W. Bush approved McDuff's execution in 
     1998.
       While no study has precisely quantified the risk from 
     mistakenly failing to execute justly convicted murderers, it 
     is undisputed that we extend extraordinarily generosity to 
     murderers. According to the National Center for Policy 
     Analysis, the average sentence for murder and non-negligent 
     manslaughter is less than six years. The Bureau of Justice 
     Statistics has found that of 52,000 inmates serving time for 
     homicide, more than 800 had previously been convicted of 
     murder. That sounds like a system collapsing under the weight 
     of its own mistakes--and innocent people dying as a result.





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