Creative Ideas

Case 5

Email Death Penalty Debate, copyright 2004 &endash; 2006

Daniel Brady

This is the text of a series of letters exchanged between myself, DB, and another, DS. DS initially asked how long my death - penalty arguments had been up. I replied to that query. I did not save those two letters, I call these letters "A" and "B". Some time later, he wrote another brief letter and I replied, I call these letters "C" and "D". Originally, I did not save either of those two letters, but when he wrote back again this time with eight letters, each containing his responses to parts of my letter "D", I was able to compile a collection of what was most likely contained in that letter and reconstruct it. This reconstructed letter is letter number two in the series since it was, originally a response to one of his.

In his letters I have changed "black" to African American. Also I have corrected spelling and some grammatical errors throughout.

This document then consists of the following:

Letter #2 written by DB responding to DS

Letter #3 written by DS responding to DB

Letter #4 written by DB responding to DS

Letter #5 written by DS responding to DB

Letter #6 written by DS responding to DB

Letter #7 written by DS responding to DB

Letter #8 written by DS responding to DB

Letter #9 written by DS responding to DB

Letter #10 ......written by DS responding to DB

I never received a reply after letter number 4. I had hoped to exchange letters all the way around, but that was not to be. Emails bounced back and so I left off. The remaining letters, those he had already sent to me, each begin with a few quotes DS extracted from my second letter and consist, in the main, of his refutation of their points. In these letters, my extracted quote is in blue, bold and italics. My further responses to his comments on those extracted quotes are in blue, bold text.

He marshals a great deal of resources and arguments so I have taken the time to reply to each one of them. I have also referenced web sites to balance those he selected

My design has been to go through the letters and reply to them both in quality and kind. My responses will be in blue, his will remain in black.

Dan Brady

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DB to DS Debate Letter #2

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These are the statements from my second letter. I extracted this text from the letters DS sent to me. I have put them here in the order of his letters, presumably that is also in the order in which they appeared in my letter. To some extent, there are references to his letter.

Interesting that the person writing this simply dismisses arguments that are valid, there is a racial imbalance in executions, innocent persons have been executed, deterrence has never been proven in the U.S., revenge is an insufficient motive, to many governments abuse their power to execute, and the justice system is flawed and fallible. Those are the facts of the matter.

That this writer dismisses them indicates that he has no intention of arguing logically, or from an established position, but rather is anxious to present his point of view, regardless of the truth.

The writer of the original article made his position clear. He did simply dismiss the arguments that I outlined. There are statistical proofs for the statements that follow: "African Americans are over represented on death row and in the numbers of those executed." The government provides such statistics. Innocent persons have been executed; it is a matter of historical fact. The justice system is therefore flawed. An absolute punishment cannot be dealt out by a system that is not absolutely flawless. Humans make mistakes; our justice system is not perfect therefore, the death penalty's existence is flawed. Many, many government do abuse their power and use their right to execute persons, for whatever reason.

"African Americans are over represented on death row and in the numbers of those executed." The government provides such statistics.

Innocent persons have been executed; it is a matter of historical fact. The justice system is therefore flawed. An absolute punishment cannot be dealt out by a system that is not absolutely flawless. Humans make mistakes; our justice system is not perfect therefore, the death penalty's existence is flawed. Many, many government do abuse their power and use their right to execute persons, for whatever reason.

In light of the fact that that innocents have found their way to death row, the first of those two statements repeats, by implication, that innocents are put to death, or have been, its just that the person being quoted has not seen the proof, strange when he just admitted that it happens.

The second says our system is the most accurate criminal justice sanction in the world, which it may be, even when it has an error rate that is extremely low. I am sure the low error rate is solace to someone who, in all his or her innocence, awaits his or her death.

An absolute punishment demands an absolute accuracy. We do not have absolute accuracy.

You make a statement to the effect that; no one will deny that there is racism in our society, which says it all. This pervasive condition is slowly being addressed, but until it is, and successfully, the social systems of our nation will have this, as well as other, built in biases. The bias exists and it is systemic. Then you proceed to debunk your own words with reports of studies:

Innocent persons have been executed; it is a matter of historical fact. The justice system is therefore flawed. An absolute punishment cannot be dealt out by a system that is not absolutely flawless. Humans make mistakes; our justice system is not perfect therefore, the death penalty's existence is flawed. Many, many government do abuse their power and use their right to execute persons, for whatever reason.

In light of the fact that it is admitted that innocents have found their way to death row, the first of the two statements repeats, by implication that innocents are put to death, or have been, its just that the person being quoted has not seen the proof, strange when he just admitted that it happens.

The second says our system is the most accurate criminal justice sanction in the world, which it may be, even when it has an error rate that is extremely low. I am sure the low error rate is solace to someone who, in all his or her innocence awaits his or her death.

An absolute punishment demands an absolute accuracy. We do not have absolute accuracy

There are two sets of states, those with and those without death penalties. The overall murder rate has risen and fallen over the decades. The murder rate between the two sets of states has had no significant difference during all that time. If the death penalty had some effect, this would have shown up in some detectable and significant differential in the rates between those two groups of states. There is not differential rate, there is no effect that is measurable

Yes, perhaps those who premeditate, not for the large majority for whom the death penalty had no bearing in their mind or spirit when they "did the deed."

Hundreds of studies, over decades, counterbalance the few studies that you mention.

Racism is a factor in our society. The justice system is part of our society and it has a racial factor, bias if you will, built into it, as a rule of thumb.

. . . the number of poor people on death row vastly outnumbers the number of rich. This is true for a reason: poverty is a factor in the justice system. Some can afford to mount an effective defense. The system allows this. And so, a rich person who murders someone is far less likely to be executed than an abysmally poor one. Just as this is true an African American who murders is far more likely to face the death penalty, all the more so if he or she is poor.

This simply is debatable. Many who write me about my stance on the death penalty claim that this is the reason they support it, to "kill the killer" as they say. One said, "It's no crime to kill a killer." And, logically speaking, I had a field day with that statement.

Many supporters of the death penalty quote the famous "Eye for an eye" quotation and, in their view, the justice system is merely the means to obtaining revenge. They say it all the time. You may not, or this writer may not, but the people who write me do, fervently, believe that revenge is, or should be, the purpose of the death penalty.

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DS to DB Debate Letter #3

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Thank you, Dan. I understand you wrote what was in blue. In reading your first reply, below, it could be said that "you are anxious to present your point of view, regardless of the truth. My response is in black.

Interesting that the person writing this simply dismisses arguments that are valid, there is a racial imbalance in executions, innocent persons have been executed, deterrence has never been proven in the U.S., revenge is an insufficient motive, to many governments abuse their power to execute, and the justice system is flawed and fallible. Those are the facts of the matter.

Not so fast. Or could it be that you have wrongly assumed those positions, without factual support?

That this writer dismisses them indicates that he has no intention of arguing logically, or from an established position, but rather is anxious to present his point of view, regardless of the truth.

Or that author was accurate.

Innocence Issues

Death Penalty opponents have proclaimed that 117 inmates have been "released from death row with evidence of their innocence", in the US, since the modern death penalty era began, post Furman v Georgia (1972). That number is a fraud. Those opponents have intentionally included both the factually innocent (the "I truly had nothing to do with the murder" cases) and the legally innocent (the "I got off because of legal errors" cases), thereby fraudulently raising the "innocent" numbers.

Death penalty opponents claim that 24 such innocence cases are in Florida. The Florida Commission on Capital Cases found that 4 of those 24 MIGHT be innocent -- an 83% error rate in death penalty opponents claims. If that error rate is consistent, nationally, that would indicate that 20 of the alleged 117 innocents MIGHT be actually innocent -- a 0.3% actual guilt error rate for the over 7500 sentenced to death since 1973. None were executed.

It is often claimed that 23 innocents have been executed in the US since 1900. Nonsense. Even the authors of that "23 innocents executed" study proclaimed "We agree with our critics, we never proved those (23) executed to be innocent; we never claimed that we had." While no one would claim that an innocent has never been executed, there is no proof of an innocent executed in the US, at least since 1900.

No one disputes that innocents are found guilty, within all countries.

However, when scrutinizing death penalty opponent's claims, we find that when reviewing the accuracy of verdicts and the post conviction thoroughness of discovering those actually innocent incarcerated, that the US death penalty process may be the most accurate criminal justice sanction in the world. Under every real world scenario, not executing murderers will always put many more innocents at risk, than will ever be put at risk of execution.

Deterrence Issues

Seven recent studies, all finding for deterrence.

One study, specifically, found that moratoriums on the death penalty sacrificed innocent lives. All of the other studies confirm that conclusion.

All the studies which have not found a deterrent effect of the death penalty have refused to say that it does not deter some. The studies finding for deterrence state such. Confusion arises when people think that a simple comparison of murder rates and executions, or the lack thereof, can tell the tale of deterrence. It cannot.

Both high and low murder rates are found within death penalty and non death penalty jurisdictions, be it Singapore, South Africa, Sweden or Japan, or the US states of Michigan and Delaware. Many factors are involved in such evaluations. Reason and common sense tell us that it would be remarkable to find that the most severe criminal sanction -- execution -- deterred none. No one is foolish enough to suggest that the potential for negative consequences does not deter the behavior of some. Therefore, regardless of jurisdiction, having the death penalty will always be an added deterrent to murders, over and above any lesser punishments.

Racial issues

White murderers are twice as likely to be executed in the US as are African Americans murderers and are executed, on average, 12 months more quickly than are African Americans death row inmates.

It is often stated that it is the race of the victim which decides who is prosecuted in death penalty cases. Although African Americans and whites make up about an equal number of murder victims, capital cases are 6 times more likely to involve white victim murders than African American victim murders. This, so the logic goes, is proof that the US only cares about white victims.

Hardly. Only capital murders, not all murders, are subject to a capital indictment. Generally, a capital murder is limited to murders plus secondary aggravating factors, such as murders involving burglary, car jacking, rape, and additional murders, such as police murders, serial and multiple murders. White victims are, overwhelmingly, the victims under those circumstances, in ratios nearly identical to the cases found on death row.

Any other racial combinations of defendants and/or their victims in death penalty cases, is a reflection of the crimes committed and not any racial bias within the system, as confirmed by studies from the Rand Corporation (1991), Smith College (1994), U of Maryland (2002), New Jersey Supreme Court (2003) and by a view of criminal justice statistics, within a framework of the secondary aggravating factors necessary for capital indictments.

The Death Penalty: Neither Hatred nor revenge

Death penalty opponents say that the death penalty has a foundation in hatred and revenge. Such is a false claim.

A death sentence requires pre existing statutes, trial and appeals, considerations of guilt and due process, to name but a few. Revenge requires none of these and, in fact, does not even require guilt or a crime.

The criminal justice system goes out of its way to take hatred and revenge out of the process. That is why we have a system of pre existing laws that limit punishments and prosecutions to specific actions in response to specific rules of evidence and procedure. And it is also, why those directly affected by the murder are not allowed to be fact finders in the case.

Calling executions a product of hatred and revenge is simply a way in which some death penalty opponents attempt to establish a sense of moral superiority. It is also a transparent insult which results in additional hurt to those victim survivors who have already suffered so much and who believe that execution is the appropriate punishment for those who murdered their loved one(s).

Those opposed to execution cannot prove a foundation of hatred and revenge for the death penalty any more than they can for any other punishment sought within a system such as that observed within the US.

The punishment of death can in no way be a balancing between harm and punishment, because the victim did not deserve or earn their punishment, whereas the murderer has earned their own, deserved punishment by the free will action of violating societies laws and an individuals life and, thereby, voluntarily subjecting themselves to that jurisdictions judgment.

Far from hatred and revenge, the death penalty represents our greatest condemnation for a crime of unequaled horror and consequence. Lesser punishments may suffice under some circumstances. A death sentence for certain heinous crimes is given in those special circumstances when a jury finds such is more just than a lesser sentence.

Sincerely, DS

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DB to DS Debate letter #4

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A reply to DS his comments are in black, mine are in blue.

Thank you, DB. I understand from you wrote what was in blue. In reading your first reply, below, it could be said, "you are anxious to present your point of view, regardless of the truth." My response is in black.

Interesting that the person writing this simply dismisses arguments that are valid, there is a racial imbalance in executions, innocent persons have been executed, deterrence has never been proven in the U.S., revenge is an insufficient motive, to many governments abuse their power to execute, and the justice system is flawed and fallible. Those are the facts of the matter.

Not so fast. Or could it be that you have wrongly assumed those positions, without factual support?

The writer of the original article made his position clear. He did simply dismiss the arguments that I outlined. There are statistical proofs for the statements that follow: "African Americans are over represented on death row and in the numbers of those executed." The government provides such statistics. Innocent persons have been executed; it is a matter of historical fact. The justice system is therefore flawed. An absolute punishment cannot be dealt out by a system that is not absolutely flawless. Humans make mistakes; our justice system is not perfect therefore, the death penalty's existence is flawed. Many, many government do abuse their power and use their right to execute persons, for whatever reason.

The writer of the article simply dismisses those realities

That this writer dismisses them indicates that he has no intention of arguing logically, or from an established position, but rather is anxious to present his point of view, regardless of the truth.

Or that author was accurate.

Or that the author was simply anxious to get into his own proof making polemics.

Innocence Issues

Death Penalty opponents have proclaimed that 117 inmates have been "released from death row with evidence of their innocence", in the US, since the modern death penalty era began, post Furman v Georgia (1972).

That number is a fraud.

Those opponents have intentionally included both the factually innocent (the "I truly had nothing to do with the murder" cases) and the legally innocent (the "I got off because of legal errors" cases), thereby fraudulently raising the "innocent" numbers.

Death penalty opponents claim that 24 such innocence cases are in Florida. The Florida Commission on Capital Cases found that 4 of those 24 MIGHT be innocent -- an 83% error rate in death penalty opponents claims. If that error rate is consistent, nationally, that would indicate that 20 of the alleged 117 innocents MIGHT be actually innocent -- a 0.3% actual guilt error rate for the over 7500 sentenced to death since 1973. None were executed.

It is often claimed that 23 innocents have been executed in the US since 1900. Nonsense. Even the authors of that "23 innocents executed" study proclaimed "We agree with our critics, we never proved those (23) executed to be innocent; we never claimed that we had." While no one would claim that an innocent has never been executed, there is no proof of an innocent executed in the US, at least since 1900.

No one disputes that innocents are found guilty, within all countries. However, when scrutinizing death penalty opponents claims, we find that when reviewing the accuracy of verdicts and the post conviction thoroughness of discovering those actually innocent incarcerated, that the US death penalty process may be the most accurate criminal justice sanction in the world. Under every real world scenario, not executing murderers will always put many more innocents at risk, than will ever be put at risk of execution.

Let me take the statement you used apart for you. The statement admits that "factually innocent" persons have been released from death row. Then two other quotes stand out, first, "no one would claim that an innocent has never been executed" and then you include, "the US death penalty process may be the most accurate criminal justice sanction in the world"

In light of the fact that it is admitted that innocents have found their way to death row, the first of the two statements repeats, by implication that innocents are put to death, or have been, its just that the person being quoted has not seen the proof, strange when he just admitted that it happens. The second says our system is the most accurate criminal justice sanction in the world, which it may be, even when it has an error rate that is extremely low. I am sure the low error rate is solace to someone who, in all his or her innocence awaits their death.

An absolute punishment demands an absolute accuracy. We do not have absolute accuracy.

Deterrence Issues: Seven recent studies, all finding for deterrence.

One study, specifically, found that moratoriums on the death penalty sacrificed innocent lives. All of the other studies confirm that conclusion.

All the studies which have not found a deterrent effect of the death penalty have refused to say that it does not deter some. The studies finding for deterrence state such. Confusion arises when people think that a simple comparison of murder rates and executions, or the lack thereof, can tell the tale of deterrence. It cannot.

There are two sets of states, those with and those without death penalties. The overall murder rate has risen and fallen over the decades. The murder rate between the two sets of states has had no significant difference during all that time. If the death penalty had some effect this would have shown up in some detectable and significant differential in the rates between those two groups of states. There is not differential rate; there is no effect that is measurable.

Both high and low murder rates are found within death penalty and non death penalty jurisdictions, be it Singapore, South Africa, Sweden or Japan, or the US states of Michigan and Delaware. Many factors are involved in such evaluations. Reason and common sense tell us that it would be remarkable to find that the most severe criminal sanction -- execution -- deterred none. No one is foolish enenough to suggest that the potential for negative consequences does not deter the behavior of some.

Yes, perhaps those who premeditate, not for the large majority for whom the death penalty had no bearing in their mind or spirit when they "did the deed."

Therefore, regardless of jurisdiction, having the death penalty will always be an added deterrent to murders, over and above any lesser punishments.

Hundreds of studies, over decades, counterbalance the few studies that you mention. Then too what you've said does not alter the simpler facts; murder is of several kinds, in the main, those committed when a person is not, for some reason, in their right mind.

Whether this is because of substance abuse, psychological dementia, or "emotional psychosis" meaning anger, rage, and the like, are all possibilities. For these cases, consequence is not in the picture. For those who premeditate a killing its "deterrent" value, if you want to call it that consists in motivating the perpetrator toward better planning. Then there are those that fall in the "accident" category, the criminal who kills during the course of a crime, the dispute that results in a death neither party intended, for example two men get into a fight and one is hit so hard he falls down and breaks his neck. Then too, there are those who have some racial, political, and now some religious cause to fight for. In these cases too, the death penalty is not part of the persons calculus when they make their decision, at least not in a way that deters them, terrorists, for example, don't care what happens to them after they've "made their point."

Racial issues

White murderers are twice as likely to be executed in the US as are African Americans murderers and are executed, on average, 12 months more quickly than are African Americans death row inmates.

It is often stated that it is the race of the victim which decides who is prosecuted in death penalty cases. Although African Americans and whites make up about an equal number of murder victims, capital cases are 6 times more likely to involve white victim murders than African American victim murders. This, so the logic goes, is proof that the US only cares about white victims.

Hardly. Only capital murders, not all murders, are subject to a capital indictment. Generally, a capital murder is limited to murders plus secondary aggravating factors, such as murders involving burglary, car jacking, rape, and additional murders, such as police murders, serial and multiple murders. White victims are, overwhelmingly, the victims under those circumstances, in ratios nearly identical to the cases found on death row.

Any other racial combinations of defendants and/or their victims in death penalty cases, is a reflection of the crimes committed and not any racial bias within the system, as confirmed by studies from the Rand Corporation (1991), Smith College (1994), U of Maryland (2002), New Jersey Supreme Court (2003) and by a view of criminal justice statistics, within a framework of the secondary aggravating factors necessary for capital indictments.

The first statement might well be true, but look at it this way, the number of poor people on death row vastly outnumbers the number of rich. This is true for a reason: poverty is a factor in the justice system. Some can afford to mount an effective defense. The system allows this. And so a rich person who murders someone is far less likely to be executed than an abysmally poor one. Just as this is true an African American who murders is far more likely to face the death penalty, all the more so if he or she is poor.

Racism is a factor in our society. The justice system is part of our society and it has a racial factor, bias if you will, built into it, as a rule of thumb. There are other biases as well, those of property rights, business interests, and religiosity, but they are not especially germane to this discussion.

The Death Penalty: Neither Hatred nor Revenge

Death penalty opponents say that the death penalty has a foundation in hatred and revenge. Such is a false claim.

This simply is debatable. Many who write me about my stance on the death penalty claim that this is the reason they support it, to "kill the killer" as they say. One said, "It's no crime to kill a killer." In addition, logically speaking, I had a field day with that statement.

A death sentence requires pre existing statutes, trial and appeals, considerations of guilt and due process, to name but a few. Revenge requires none of these and, in fact, does not even require guilt or a crime.

Many supporters of the death penalty quote the famous "Eye for an eye" quotation and, in their view, the justice system is merely the means to obtaining revenge. They say it all the time. You may not, or this writer may not, but the people who write me do, fervently, believe that revenge is, or should be, the purpose of the death penalty.

The criminal justice system goes out of its way to take hatred and revenge out of the process. That is why we have a system of pre existing laws that limit punishments and prosecutions to specific actions in response to specific rules of evidence and procedure. And it is also why those directly affected by the murder are not allowed to be fact finders in the case.

They can try to take it out of the system, but that is a whole different thing than taking it out of a survivor's heart, out of a family's mind and soul, or dealing with cultural values that instill a righteousness to those who "right wrongs." Mr. McVeigh was seeking revenge and so were some of the survivors of his horrid act. The system, if you will recall, is made up of persons, flawed, human persons whose feelings do effect how they act, react, and read evidence.

Calling executions a product of hatred and revenge is simply a way in which some death penalty opponents attempt to establish a sense of moral superiority. It is also a transparent insult which results in additional hurt to those victim survivors who have already suffered so much and who believe that execution is the appropriate punishment for those who murdered their loved one(s).

I don't believe that all death penalty cases involve revenge; I do not now offer that as a reason for challenging its legitimacy. I do say that many, many of its supporters voice revenge as being the primary reason why they support it. Say what you will about the detractors of the death penalty, but it is the persons who support it who do so because they want the system to exact revenge for murder.

Those opposed to execution cannot prove a foundation of hatred and revenge for the death penalty any more than they can for any other punishment sought within a system such as that observed within the US.

Dear sir, I have seen the proof. You can find the proof as well. Just go to a bar on a Friday night and start talking about the death penalty. You will hear, from its supporters that vengeance is a big part of their equation.

The punishment of death can in no way be a balancing between harm and punishment, because the victim did not deserve or earn their punishment, whereas the murderer has earned their own, deserved punishment by the free will action of violating societies laws and an individuals life and, thereby, voluntarily subjecting themselves to that jurisdictions judgment.

You are saying that the death penalty cannot balance harm and punishment because the victim did not earn their "consequence" while the perpetrator did. First I have to say that it bizarrely strange you call it the victim's suffering "punishment", I would have thought you'd not use that word there, it is so inappropriate, misleading, or, at the least, in error. Second, this is an old argument, saying that the perpetrator, in making a choice, has sealed his or her fate.

Pretty sentiments, but it is rather misleading for all that. As I said toward the beginning many classes of murderers do not make the choice to kill, indeed, many never considered the possibility that they'd kill. Many did not "intend" "mean" to kill. Yet, many of these are treated as if that is exactly what they did do.

Far from hatred and revenge, the death penalty represents our greatest condemnation for a crime of unequaled horror and consequence. Lesser punishments may suffice under some circumstances. A death sentence for certain heinous crimes is given in those special circumstances when a jury finds such is more just than a lesser sentence.

I have to repeat since you do, that revenge is a large portion of the reason why persons support the death penalty. I also feel that it is not the, as you put it, "greatest condemnation." I have other options in mind, ones that would, upon consideration, be far worse and have none of the drawbacks that capital punishment has. I believe in restitution and amelioration. In sum the person perpetrator lives until such time as they an repay damages to their victim, reimburse the state for the costs of their being found, and are forgiven in full by their victim's survivors, community or interested parties. There would be no such thing as parole for any murderer, at all, until those conditions would be met. The perpetrator would be available to their victim's survivors and have to face the consequences of their act. They'd be coerced to work to produce some measure of recompense to their victim's survivors and community.

This, not the death penalty, would be a true deterrent to crime, and for all the reasons that the death penalty is supposed to have, and with none of the drawbacks.

I have thought about this and written about it, but I prefer to argue against the death penalty and challenge it on its own ground, though I have to admit that a real "life without parole" has real merit.

Sincerely DB

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DS to DB Debate letter #5

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Thank you for the consideration of a reply. Your comments are in blue

"African Americans are over represented on death row and in the numbers of those executed." The government provides such statistics.

I believe this goes to your wrongful assumption. African Americans are not over represented on death row. People are put on death row based upon committing capital murder. I suspect your overrepresentation claim is based upon population counts.

In your letter you state,

You make a statement to the effect that; no one will deny that there is racism in our society, which says it all. This pervasive condition is slowly being addressed, but until it is, and successfully, the social systems of our nation will have this, as well as other, built in biases. The bias exists and it is systemic. Then you proceed to debunk your own words with reports of studies:

RACE: A Death Penalty Primer DS, Justice Matters contact info below

5 studies are reviewed, herein

1) For emphasis, population count is TOTALLY irrelevant, regarding any consideration of class or race/ethnicity bias in the application of the death penalty. The ONLY relevant factors in such a review is class, race/ethnic distribution of murderers and their victims in capital murders, as well as criminal history and the specific circumstances of the crime(s).

How could population count be irrelevant? When proportionate representation and or disproportionate representation in legislatures, schools, business, home ownership, as well as a raft of other societal measures have been used to prove and disprove bias, prejudice, and discrimination? They have been used to determine whether or not Gerrymandering has been done in representative districts. The disproportionate representation of ethnic minorities on death row is an indicator or social imbalance. So how can you say that class is not relevant? Is it possible that you do not know that minorities are over represented in the lower and lowest of classes? Simply, if class is relevant, race is relevant.

Then you say that the distribution of ethnicity when comparing the ethnicity of perpetrator versus victim is a relevant factor. You might be right but it would only weaken your argument no matter which way it proved out.

If it is proven, that one race is more the victim of the other that would only indicate the existence of prejudice, tension between races and such like. If there is no exceptional difference in the victims versus perpetrator ratios then it is simply irrelevant, if equal numbers of minorities kill majorities and visa versa.

2) Drs. Stephen Klein and John Rolph

"Relationship of Offender and Victim Race to Death Penalty Sentences in California"(Jurimetrics Journal, 32, Fall 1991, aka The Rand Corporation Study), found that, "After accounting for some of the many factors that may influence penalty decisions, neither race of the defendant nor race of the victim appreciably improved prediction of who was sentenced to death . . . ".

3) Smith College Professors Stanley Rothman and Stephen Powers ("Execution by Quota?" The Public Interest, Summer 1994), found that legal variables, such as prior criminal history and the aggravated nature of the murder, are the proven basis for imposition of the death penalty. The African American/white variation in sentencing has generally been reduced to zero when such legal variables are introduced as controls.

Look at what you quoted (see #1) as a means of supporting your claim that race does not matter: "For emphasis, population count is TOTALLY irrelevant, regarding any consideration of class or race/ethnicity bias in the application of the death penalty. The ONLY relevant factors in such a review are class, race/ethnic distribution of murderers and their victims in capital murders, as well as criminal history and the specific circumstances of the crime(s).

This quotation mentions class as being relevant. Since African Americans are more of one class than another, the classist effect is also simultaneously a racist one and view it this way if you want, we still have African Americans disproportionately being affected by death penalty laws.

Population counts comparing the proportionate representation of one race as opposed to another on death row do indicate bias. Just as such, comparisons have been used to determine the effect of systemic prejudice in other parts or institutions of our society, even if no singular event, person, or case can be proven. You cite five studies, when there are decades of civil rights actions, supreme court decisions, lawsuits, lower court decisions and even the flawed Affirmative Action laws which recognize such conditions as evidence for bias and use such statistics to prove a need for redress.

Systemic problems do exist and therefore population count is not irrelevant and it is, therefore, at least one indicator that the system is biased. It is also biased in favor of economic status. Given the "norms" or "betting expectations" that are evident one can clearly state the obvious: a poor African American man is more likely than a rich African American man of being found guilty and rich white man would be less likely than either of those to be convicted.

Also, in 96% of the states where there have been reviews of race and the death penalty there was a pattern of race-of-victim or race-of-defendant or both. (Professor David Baldus' report to the ABA, 1998)

It was a great relief, however, to learn that the excerpts you provided assured me that there is no absolutely no racial bias in the New Jersey justice system despite your commentary to the contrary. I am sure that those persons of color, residing in New Jersey, would overwhelmingly support your assertion, not.

Those items, #1, #2, and #3, are therefore, are belied by the facts mentioned above. There is systemic bias. Are we to believe that a biased system, investigating itself and then, subsequently, exonerating itself is to be a fair measure proving a lack of bias? Indeed, and especially, when so much would be at stake?

For the following items, #4 and #5, I offer these salient points:

Since 1973, over 100 people have been released from death row with evidence of their innocence. (Staff Report, House Judiciary Subcommittee on Civil and Constitutional Rights, Oct. 1993, with updates from DPIC).

In 2000, 8 inmates were freed from death row and exonerated; in 201 &endash; 2002 12 were freed; and in 2003, 12 were exonerated. In 2004, there were 6 exonerations.

According to information at http://www.deathpenaltyinfo.org/FactSheet.pdf, 99% of the chief district attorneys are white; only 1% are African American that is a substantial indicator of systemic bias.

Over 80% of the murder victims in cases resulting in an execution were white, even though, nationally, only 50% of the murder victims generally are white.

Putting these facts together we can say the following: since African Americans are disproportionately represented on death rows around the nation, since the system has a substantial error rate, (After the reinstatement of the death penalty about 1,000 have been executed and here we see evidence that more than 100 have been removed from death row producing an error rate in excess of 10%), since the teams leading the prosecution are almost exclusively white and there is a national trend indicating bias in the victim vis a via perpetrator, we have, as the astronauts once told Houston, "a problem"

It is simply irrational to expect an all to human system, beset by biases, which varied over the generations from those against race, religion, and economic status to those against political views, that it perform, as you claim, with absolute perfection. You have quoted others as saying that there is not one case of an innocent person being executed. This is, to me marvelous, not a single error in any state, at any time during the last 100 years? Even though in other letters you admit that persons were removed from the Death Row? Truly a quite remarkable statement of belief and evidence of a faith which once stated in this way shows itself to be not only unrealistic, but unreasonable as well.

4) NO BIAS IN DEATH SENTENCING:

University of Maryland's Death Penalty Study

(1) The following are direct quotes from the Executive Summary of the U of Maryland study.

Race of the victim

"The race of the victim effect does not hold up, however, at the decision of the state's attorney to advance a case to penalty trial and at the decision of the judge or jury to impose a death sentence given that a penalty trial has occurred." p 27

In other words, the victim's race has no impact on seeking or giving death sentences.

"The race of the victim does not appear to matter when the decision is to advance a case to the penalty phase or to sentence a defendant to death after a penalty phase hearing." page 29

In other words, the victim's race has no impact on seeking or giving death sentences

"Among the subset of cases where the case actually does reach a penalty trial, the victim's race does not have a significant impact on the imposition of a death sentence." page 35

In fact, the study fails to demonstrate that there is any race of the victim effect in death sentencing in Maryland.

"When the prosecuting jurisdiction is added to the model the effect for the victims race diminishes substantially, and is no longer statistically significant." page 32

In other words, when you look at the capital murder cases, from each, separate jurisdiction, individually, any alleged race of the victim effect cannot be found.

" . . . any attempt to deal with any racial disparity in the imposition of the death penalty in Maryland cannot ignore the substantial variability that exists in different state's attorney's offices in the processing of death cases." p 34

In other words, it is important to look at how each jurisdiction handles their capital cases, because each jurisdiction is different. And when that is done, no bias in death sentencing is found.

Race of victim and defendant

"There is no race of the offender / victim effect at either the decision to advance a case to penalty hearing or the decision to sentence a defendant to death given a penalty hearing." page 30

In other words, neither the race of the defendant nor the race of the victim have an impact on seeking or giving death sentences.

Race of the defendant

" . . . there is no evidence that the race of the defendant matters at any stage once case characteristics are controlled for." page 26

" . . . we found no evidence that the race of the defendant matters in processing of capital cases in the state." p 26

In other words, Maryland is not looking at race, but is concentrating on the nature of the murders.

(1) Executive Summary:

An Empirical Analysis of Maryland's Death Sentencing System with Respect to the Influence of Race and Legal Jurisdiction: www.urhome.umd.edu/newsdesk/pdf/exec.pdf

In response to #4 I have the following resources to offer the considerate reader of this debate:

In 2004 the "Innocence Protection Act" was passed. Part of its provisions were for DNA testing in capital cases. Part of success of this act was evidenced by the fact that of the more than 100 people exonerated from death row, more than a dozen were proven innocent via DNA testing.

See: This link: http://ccjr.policy.net/cjreform/ipa/

Regarding racial bias statistics, this brief article instructs:

http://ccjr.policy.net/proactive/newsroom/release.vtml?id=34201

This comprehensive study, which discovered racial and gender bias in many areas of the justice system, recommended a moratorium on executions in Pennsylvania, until the role of race in death-penalty cases can be examined.

This link below has a summary of the finding, a link to the actual study itself is also on that web page:

http://ccjr.policy.net/proactive/newsroom/release.vtml?id=33826

Poverty is a factor, here is a report from Georgia the title of which is "If you cannot afford a lawyer" despite the Georgia Supreme Court decision Gideon vs Wainwright, guaranteeing right to counsel, it simply is not happening for many individuals. Here is a link to the overview of the situation:'

http://ccjr.policy.net/proactive/newsroom/release.vtml?id=33828

Here is the link, a pdf file, which details facts and figures:

http://ccjr.policy.net/relatives/21303.pdf

5) No Racial Bias in the New Jersey Death Penalty System

New Jersey For release: February 11, 2003 For further information contact Winnie Comfort, AOC (609) 292-9580 Report on Proportionality Released Trenton, N.J.

The 2002 report essentially mirrors the findings contained in the 2001 report, and may be summarized as follows:

--There is no sustained, statistically significant evidence that the race of the defendant affects which cases advance to penalty trial. Although bivariate analysis reveals that a greater proportion of death-eligible white defendants than African-American defendants advance to the penalty phase, that finding is not supported by regression studies and application of case-sorting techniques. There is no sustained, statistically significant evidence that the race of the defendant affects which cases result in imposition of the death penalty. Again, although bivariate analysis reveals that a greater proportion of death-eligible white defendants are sentenced to death than African-American defendants, that finding is not supported by regression studies and application of case-sorting techniques.

--There is statistically significant evidence that white victim cases are more likely than African-American victim cases to advance to penalty trial, but that finding is eradicated when county variability is taken into account. A disproportionate number of minority victim cases are tried in counties with the lowest overall rates of progression to penalty trial, while less urban counties with a high concentration of white victim cases have higher rates of capital prosecutions. Although Judge Baime notes that county variability may itself be a problem, he offers no opinion on the subject because that issue is well beyond the contours of his report.

--There is no sustained, statistically significant evidence that white victim cases are more likely than minority victim cases to result in imposition of the death penalty

The New Jersey Supreme Court has accepted the 2002 annual report prepared by Judge David S. Baime, a retired Appellate Division judge, on the monitoring of proportionality review in capital punishment cases in New Jersey. The Supreme Court adopted a monitoring system in 2000 to determine whether racial discrimination played a role in the administration of New Jersey's capital cases.

In his capacity as a "special master," a role that requires extra judicial expertise and work with court-appointed experts, Judge Baime prepared the "Report to the New Jersey Supreme Court: Systemic Proportionality Review Project 2001-2002 Term."

Judge Baime was assisted by statistical analysts David Weisburd, a professor at The Hebrew University of Jerusalem and The University of Maryland, College Park, and Joseph Naus, a professor at Rutgers University. In an effort to provide the most accurate analysis possible, the monitoring system approved by the Court consists of three different statistical strategies: bivariate analyses, regression studies and case-sorting techniques. In order to establish systemic disproportionality, a defendant must relentlessly document the risk of racial disparity. This requires that the outcomes produced by the three modes of analysis substantially converge, or lead to the conclusion that racial discrimination plays a part in capital sentencing.

The three modes of analysis were applied to three separate decision points: death outcomes at penalty trials, death outcomes among all death-eligible cases, as determined by Judge Baime and the Administrative Office of the Courts (AOC), and advancement of death-eligible cases to penalty trials. Three identifiable groups--African-Americans, whites, and Hispanics--were examined, and possible disparities in terms of the race or ethnicity of the defendant and the race or ethnicity of the victim were considered.

In response to #5 I have the following resources to offer the considerate reader of this debate:

An Empirical Analysis of Maryland's Death Sentencing System With Respect to the Influence of Race and Legal Jurisdiction

When the race of the offender and victim are examined together, the study finds: Black offenders who kill blacks are significantly less likely to face the death penalty, while black offenders who kill whites are significantly more likely to face a death sentence than all other racial combinations. Prosecutors in different jurisdictions exhibit considerable variation in the extent to which they seek the death penalty

Here is the link to the summary of the finding:

http://ccjr.policy.net/proactive/newsroom/release.vtml?id=32881

Here is a link to a pdf file for the details:

http://ccjr.policy.net/relatives/21200.pdf

Report of Former Governor Ryan's Commission on Capital Punishment

Gov. Ryan submitted the recommendations to the state legislature for implementation. While some recommendations have been adopted, many still need to be addressed. Upon leaving office in 2003, Governor Ryan, believing that Illinois' system was still "broken," commuted the sentences of the remaining 167 people on death row.

The summary:

http://ccjr.policy.net/proactive/newsroom/release.vtml?id=39174

The recommendations:

http://www.idoc.state.il.us/ccp/ccp/reports/commission_report/summary_recommendations.pdf

In general there are a few sites that may come in handy:

http://www.deathpenaltyinfo.org/

http://ccjr.policy.net/cjedfund/pop/

http://www.capitaldefenseweekly.com/index.html

This "Capital Defense Weekly is a publication that details what is currently happening. It has news updates, reports on capital cases and more.

For a list of exonerations: http://deathpenaltyinfo.org/article.php?did=412&scid=6

In response the next section, #6, in general:

I have concerns for the victim as well. Persons who defend the death penalty are wont to say, "Well, what about the victim?" and "Why do you, (detractors of the death penalty) always focus on the perpetrator?"

To this I have to say the following: I have lost loved ones. I know how much it hurts. I would be loath to tell anyone how to feel or how to react upon discovering that someone they loved has been brutally murdered. I would sympathize immediately and offer condolences. I would help them however I could. I would care.

I would want justice were I to be the survivor of a victim.

The problem is that the death penalty itself makes new victims. Innocent people have been executed in this country. As I have shown, above, that at least 100 have been released from death rows and those are the ones that we know about. DNA evidence has been in the news recently because it has been used to prove the innocence of yet others who were, if not on death row, incarcerated for something, it turns out, they did not do.

The justice system is systemically flawed and cannot be trusted to hand out absolute punishments, which are by their nature irreversible. The point is, to spell it out clearly and simply, you cannot use a flawed system and expect it to make absolute decisions. To do so invites grievous errors and systematic injustice.

You have said elsewhere that some of those must have been released on technicalities and perhaps you guess that a good lawyer or an error by the prosecution might be responsible for those releases and not the merits or facts of the case being reviewed. Certainly that's the impression you give.

To that I say what of it? If a person is going to be executed, an absolute punishment, and the system is just there shouldn't be any such reversals, ever. You have quoted others as saying that there is not one case of an innocent person being executed; perhaps people' being released in this way is one reason for that? Perhaps there are others who were not so lucky and, with no on to tell the tale, well, there is no record of such a person is there? Would there be?

Indeed, the fact that even you admit that there have been reversals shows that the system for executing people is flawed and thus an absolute punishment being meted out by such a system is bound to produce grievous errors, and, in fact, has in all probability, produced such errors.

It is hardly likely however that a system so biased as to produce the results would have any interest in a complete and public opening of all executions, those whose cases had them wind up on death row, those who were exonerated and or prove innocent. It would be a good task to undertake, a comprehensive study of all capital cases in those categories.

6) Pro & Con: The Death Penalty in Black and White by DS, Thursday, June 24, 1999 Intellectual Capital.com, 6/24/99. stored at www.prodeathpenalty.com/racism.htm

I don't know about you, but when I get into a discussion about the death penalty, my first thoughts go to the victim and to the brutality of the murder. That is the foundation of the just nature of the death penalty.

Too often these days, however the death penalty is discussed in different terms. Inevitably, with the racial history of this country, the effect of race in the application of the death penalty has become a central part of the death-penalty discourse. This is particularly true as some politicians are making the case for a death-penalty moratorium, in part to consider whether the death penalty is inherently racist.

All too often, however, those arguments are spurious. In the death penalty debate, it should be the facts, and not the hype, that are in be black and white.

A closer look at the statistics

Often such discussion begins with the obvious: the race of the defendant.

The Death Penalty Information Center (DPIC) reports that African American murderers represent 35% of those executed, white murderers 56%. As the argument goes, this must be evidence of systemic racism, as African Americans represent 12% of the population, whites 74%.

Fortunately, the United States does not execute people based on their population counts but on the murders, they commit. As African Americans represent 47% of murderers and whites 37%, we see that whites are twice as likely to be executed for committing murder as are their African American counterparts.

Look again at the statistics quoted. 35% of those executed are African American, while they represent 12% of the population. Random chance would not allow for such a result. If the justice system were blind, if all the background factors ever associated with perpetrators, for example class, as you suggested, were equal such a result would be evidence for an inequitable system. The same logic then applies to whites, if they are 74% of the population and only account for 56% of the executions they are under represented.

You then cite the statistics that 35% of those executed are African Americans while 56% are white. You say that this proves that white perpetrators are more likely to be executed. I urge you to look at the figures:

If whites represent 74% of the population and yet 56% of those executed for the perpetration, they are very under represented, if all predisposing effects were equal. Then, and still, African Americans would be over represented in those executed vis a vis their proportion of the population.

Then we look at the perpetration statistic itself: if African Americans represent 47% of the perpetrators and yet only 12% of the population and

Whites 37% of the perpetrators and 74% of the population you seem to see this as evidence that Whites more likely than African Americans to be executed.

Whites seem to under represented by half and African Americans seem to be over represented by a factor of nearly four.

Furthermore, the Bureau of Justice Statistics says that whites sentenced to death are executed 17 months more quickly than African Americans. With 98% of all head prosecutors in the United States being white, according to DPIC, how is such a result possible? Maybe prosecutors, judges, and juries are focusing on the crimes and not the race of the defendant.

You put forth that since 98% of all head prosecutors in the United States are white, how is it possible that it takes longer, 17 months on average, to prosecute an African American than a White American? You sly ask: maybe prosecutors, judges and juries are focusing on the crimes and not the race of the defendant. How could that be? If all things were equal there would be no such differential. Maybe the system is being overly careful and is "trying to be careful" to avoid seeming racist. However this could be another bias in the system. From my point of view, any bias affecting the life or death dealings of the justices system is an argument against the Death Penalty. I would think you'd have to see that.

So, here again there is bias, and perhaps it is in favor of African Americans but again that should not be in a system which is supposed to be fair, balanced, and unbiased and, like I say, should be as absolutely correct in its decisions and operations as the punishment it metes out.

That is not the case; say anti-death penalty groups, such as Amnesty International, and now the United Nations. If you adjust for the specific aggravating factors present within capital crimes, you find clear evidence of racism.

Death-penalty opponents note, for example, that the Supreme Court, in the famous race-based challenge to the death penalty (McCleskey v. Kemp), found in 1987 that those who murderer whites were 4.3 times more likely to be sentenced to death than those who murder African Americans, under similar circumstances.

David Baldus, who did the statistical study on McCleskey's behalf, also completed a recent study in Philadelphia where it is was reported to show that African American murderers were four times more likely to receive a death sentence than white murderers. With such results, how can anyone dispute the racist application of the death penalty?

Quite easily.

The Supreme Court, as well as many others, confused odds with multiples. The data reflect odds of 4-to-1, not four times more likely.

What difference does it make?

In Baldus' Philadelphia study, we find that if only 2% more white murderers had been sentenced to death and only 2.5% fewer African American murderers had been sentenced to death, then each group would have been sentenced to death by juries at the same rate -- a far cry from the 400% differential stated within the incorrect interpretation of "four times"!

Indeed what difference does it make?

Another choice error: you point out that the Supreme Court, in the famous race-based challenge to the death penalty (McCleskey v. Kemp), found in 1987 that those who murderer whites were 4.3 times more likely to be sentenced to death than those who murder African Americans, under similar circumstances.

You state that David Baldus, who did the statistical study on McCleskey's behalf, also completed a recent study in Philadelphia where it is was reported to show that African American murderers were four times more likely to receive a death sentence than white murderers. With such results, how can anyone dispute the racist application of the death penalty? And you say that this is done, "quite easily"

You say the Supreme Court confused odds with multiples. The data reflect odds of 4-to-1, not four times more likely. So I ask you this which would you rather risk an unfavorable outcome rated against you at odds of 4 to 1, or just having the unfavorable outcome be 4 times more likely than the favorable one?

I don't think either choice is appealing, since the favorable outcome, in either case, is the least likely. I am sure you would agree.

You are saying if African American's had 2.5% fewer and Whites had 2%more they'd have been even. Putting those figures together you have a spread of 5%, which is statistically significant. Here again your own statistics prove your undoing. If the system were unbiased and justice truly blind, there would be no difference whatsoever at all, one way or the other!

A punishment that fits the crimes

The next issue raised is the victim's race. While African Americans and whites comprise about an equal number of murder victims, the ratio of white-to-African American victims in death-penalty cases is about 7-to-1. This has given rise to the allegation that the "system" only cares about white murder victims. A horrible accusation, if true.

However, the ratio of white-to-African American victims in the aggravated circumstances necessary for a capital murder conviction (rape, robbery, car-jacking, burglary, police murders, serial/multiple murders, etc.) is from 4-to-1 to 8-to-1 -- numbers consistent with the victim ratios on death row.

Here is the salient point against any such argument, first if all things were equal, if all criminal behavior were equally distributed between the races and justice were blind, there would be no differential between the races in these statistics you quote. To the extent that there is a difference is the extent to which the society has become dysfunctional. How so?

First, you state that the rate for "aggravated circumstances" is similar to the rate for African Americans in death-penalty cases &endash; and you state that because these two factors are consistent that there is no bias in the death penalty ratio. Well what if both those statistics are produced by the same biased system? What if both are a product of a social structure which penalizes one's poverty, has a disproportionate allocation of wealth, is classist in nature therefore and is known to have "built in" prejudices? The surprise would be if the proportions were not similar.

The final resting place for the racism charge lies within those cases where African Americans have been executed for murdering whites and whites have been executed for murdering African Americans. There have been 144 African Americans and 10 whites executed under such circumstances, or a ratio of 14-to-1. As African Americans are about 2.5 times more likely to murder whites than the other way around, there appears to be a huge disparity in such executions. Is racism the reason?

If we look at robbery, the aggravated crime found most often in capital cases, we find that when there is a robbery with injury, the ratio of African American robber/white victims versus white robbers/African American victims is 21-to-1.

Again, when looking at the circumstances consistent with capital crimes, we find no evidence of racial bias.

The determining factor for sentencing in death-penalty cases is what it should be -- the aggravating nature of the crimes. Both the Rand Corp. study of 1991 and the research presented by Smith College professors Stanley Rothman and Stephen Powers in 1994 confirm that finding. In other words, it appears that any racial variations present within the data are reflective of the crimes themselves and not racial bias within the system. A review of those studies, as well as of criminal-justice statistics, within the context of the aggravating circumstances present within capital murders and the related statutes, produces the same conclusion.

This is my favorite part, as if the other parts were not just as enjoyable:

You assert that final resting place for the racism charge lies within those cases where African Americans have been executed for murdering whites and visa versa. You say there have been 144 African Americans and 10 whites executed under such circumstances, or a ratio of 14-to-1. As African Americans are about 2.5 times more likely to murder whites than the other way around, there appears to be a huge disparity in such executions. Is racism the reason?

A rhetorical question from you is so cute. This is what you do when faced with a fact that flies in the face of your theory; you do a bait and switch and hope that no one notices. You say "If we look at robbery, the aggravated crime found most often in capital cases, we find that when there is a robbery with injury, the ratio of African American robber/white victims versus white robbers/African American victims is 21-to-1"

Well the aggravated crime stats sure look good but despite your saying "If we look at robbery, the aggravated crime found most often in capital cases we find. A ration of…. 21 to 1" Interesting but not related to the fact you were trying to disprove. Perhaps there is some overlap, perhaps not. "Found most often" is a vague phrase and you offer no proof that the 21 to 1 figure is related in detail to the 14 to 1 figure in the first paragraph. Your argument fails on the grounds of faulty substitution, or at least one that is contestable on a level of logic or reason.

However, ignore the fact that a differentiation between crime rates is a symptom of our society's systemic injustice and disproportionate poverty and its correlation with an inability to access legal aid, your statistics prove my point. If justice were blind, if poverty were not a factor, if classism and systemic lack of opportunity were not factors and each and every crime's perpetrator were given fair their due, there would be no differential, one way or the other in conviction rates between races. Your own facts provide the proof I need to make my point.

There is vast and systemic bias in the justice system, in the allocation of society's resources, and the differential you point out only exemplifies the symptomatic results of those causes.

Don't assume the worst motives

There will always be some variables of race, ethnicity, and class within any study of criminal-justice practices, and based on historic, as well as current prejudices, we can never lower our guard. Because all studies are subject to poor protocols, bias and misinterpretation, we must make reasoned judgments based on as many respected considerations as we may have at our disposal.

You end up with saying "there will always be some variables of race, ethnicity and class within any study of criminal-justice practices" You say we can never "lower our guard" Fine words, but they ring hollow in the light of the fact that your own statistics proved my point.

And even if criminal-justice statistics did not show the obvious correlation between crimes and the application of the death penalty, we should note what the Supreme Court stated in McCleskey: "Where the discretion that is fundamental to our criminal justice process is involved, we decline to assume that what is unexplained [by measured factors] is invidious." Sound ideas should not be eliminated based on misguided statistics.

Pardon me if I take exception to the quoted remark. They may "decline to assume that what is unexplained … is invidious" But that is hardly a scientific attitude, hardly rational when it comes to guaranteeing the rights of humans. In such vital circumstances one would want to be as certain as possible that what is not explainable is, to the best degree possible, not at all invidious.

In the case of the death penalty, the facts lead to only one conclusion. No moratorium is necessary.

Copyright 1998-2005, DS

Your facts lead me to only one conclusion that the only way to prevent innocent's from being executed, from alienating large subset of our population, from continuing the most egregious forms of miscarried justice that the moratorium on the death penalty should be immediate, complete and irreversible. We are guaranteed the right to life in this country. I think it is time we take that right and reaffirm it.

I close my arguments from A member of the Supreme Court:

If statistics are any indication, the system may well be allowing some innocent defendants to be executed…Serious questions are being raised about whether the death penalty is being fairly administered in this country. Perhaps it's time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used.

Sandra Day O'Connor 7/2/2001, speech to the Minnesota Women Lawyers group

*************************************************************

DS to DB Debate letter #6

************************************************************

Innocent persons have been executed; it is a matter of historical fact. The justice system is therefore flawed. An absolute punishment cannot be dealt out by a system that is not absolutely flawless. Humans make mistakes; our justice system is not perfect therefore, the death penalty's existence is flawed. Many, many government do abuse their power and use their right to execute persons, for whatever reason.

All punishments and all government institutions have flaws. There is no proof of an innocent executed in the US since 1900. The proof is overwhelming that living murderer harm and murder, again.

Your key word there is "flaw." If the system implementing the death penalty is flawed then there is, by your own admission, the possibility of a innocent being put to death. That there is no proof, yet, in your mind is not superfluous. Because it is a flawed system dealing out irrevocable sentences there is reason to suspect that innocents have been put to death, or that some will in the future. The logic is inescapable.

The system anticipates error and provides remedy. The rare occurrence of convicting innocent people to death is only the beginning of the process. Appeals are required in capital cases, but not in non-capital cases.

This argument here considers your own words, the system is fallible. It is not perfect, not as absolute as the punishment which it metes out. So the system of appeals which may "catch" an error may also not catch an error. That is the meaning of imperfect, or fallible or error prone.

ALL INNOCENCE ISSUES -- THE DEATH PENALTY

by DS, Justice Matters (contact info, below) no. 100904

A thorough review finds that death penalty opponents have lied, extensively, regarding the numbers of innocents sentenced to death, that such risk is extraordinarily low and that the cessation of executions will put many more innocents at risk.

Wonderful, the risks are extraordinarily low. How low is that? What level of innocent's dying is acceptable. Again, anything more than zero, for me, is not acceptable. My solution of real lifetime imprisonment with a program that helps make the perpetrator make some kind of recompense is far better.

I. Innocents Released from Death Row: A Critical Review of the Claims

Death penalty opponents claim that "Since 1973, 102 (now 116) people in 25 states have been released from death row with evidence of their innocence," (1)

That is a blatantly false claim.

The foundation for these claims begins in 1993, when a study, released by US Rep. Don Edwards, purported to find that 48 innocents had been released from death row since 1973 (2). Rep. Edwards concluded that "Under the law, there is no distinction between definitively innocent and those found innocent after a trial."

This is flat out wrong and Edwards knew it. There is no finding of innocent after a trial. A not guilty verdict means that the prosecution failed to prove guilt beyond a reasonable doubt.

Yes there is a finding of innocent after a trial. If a person shown to be incorrectly imprisoned for a crime they did not commit, then what do you call that? Ask Mr. Ernest Willis of Texas, see the following web page and the brief story:

http://deathpenaltyinfo.org/article.php?did=412&scid=6

There are some cases of innocent's being executed as well:

http://www.deathofinnocents.net/

The law recognizes the specific distinction between those legally innocent and those actually innocent, just as common sense dictates. Yes, there is a difference between the truly "I had no connection to the murder" cases and "I did it but I got off because of legal error" cases.

Among other improprieties, Rep. Edwards and other death penalty opponents combine these two conflicting groups to increase their "innocents" number. This is a continuation of a pattern of deception by death penalty opponents, that had been obvious for years, for anyone that cared to look.

Look again at that page, it lists over 100 persons who were exonerated since 1973. Exonerated means just this: "clear from accusation or blame"

In addition, Rep. Edwards selected an anti death penalty group, The Death Penalty Information Center (the DPIC), to conduct the study, thereby negating objective confidence in the results.

The source for the updated 102 innocent number is also the DPIC (3). Richard Dieter, head of the DPIC, has confirmed, again, what their "innocent" means:

" . . . according to death penalty opponents, who say they make no distinction between legal and factual innocence because there is no difference between the two under the law and because there is no objective way to make such a determination. ' They're innocent in the eyes of the law,' Dieter says. 'That's the only objective standard we have.' " (4)

What nonsense.

What do you mean what nonsense? If being "guilty in the eyes of the law" is enough to put some one to death, then "being innocent in the eyes of the law" should be good enough to release them; it is good enough to release them and to hold differently is to spout nonsense! Not that I personally agree with that but you seem to think the first part of the statement is true. If that is the case, then, quite logically, the second, being is logical reciprocal is also true. So as I say, to accept one and not the other is nonsense by your own terms.

As this public policy debate is only about the actually innocent, we know why the DPIC fails to make that obvious distinction -- they wish to, deceptively, expand their "innocents" claims.

Well, what I have to say is this: what of it? What if there is only a one in one hundred chance of the death penalty being exacted incorrectly, or a one in one thousand chance? That constitutes a monstrous injustice, one which is easily avoided by a real life imprisonment sentence.

Furthermore, for many years, the United States' courts have repeatedly enforced the obvious, common sense, important distinction between the actually innocent and the legally innocent (5). Mr. Dieter and all of those active in this debate are well aware of this. Death penalty opponents have chosen to be deceptive. (also see Sections IV. OK to Execute the Innocent? and VI. The Innocent Executed, below). This is hardly surprising.

As Dieter and other death penalty opponents make no distinction between the actually innocent and the legally innocent, why don't they claim that over 2500 innocents have been "exonerated" from death row? That is the number of legally and actually innocent released from death row since 1973 (6).

The answer is obvious. They hoped that the media and others might just assume that the 102 (and the previous lesser numbers) were actually innocent and not ask any questions. And that is exactly what has happened -- a successful deception, aided by the poor fact checking standards of the media. The 2500 number, even for the media, is just too large a number for such blind acceptance.

As this deception has begun to unravel, Dieter "clarifies" that all 102 former death row inmates on the innocence list have been exonerated in one of three ways.

"A defendant whose conviction is overturned by a judge must be further exonerated in one of three ways: he must be acquitted at a new trial, or the prosecutor must drop the charges against him, or a governor must grant an absolute pardon." (7)

Dieter is consistent.

None of those exoneration categories establishes, or even suggests, actual innocence.

Acquittal, which is a "not guilty" verdict, means that the state was unable to meet the necessary burden of proof, in establishing guilt beyond a reasonable doubt. It has nothing to do with establishing actual innocence.

Again if, as you persist in implying, that the system works and is fair, then so be it, and letting someone off, for any of a host of "legal reasons" is fair enough, since executing persons for any of a host of "legal reasons" is fair in your mind. You cannot say that the system is fair, and then disallow the argument that persons who are exonerated, acquitted or whatever cannot be counted by those opposing the death penalty because they are "unfairly included in their total." Either you defend the system as a whole, because you believe it is fair, that is to say the convictions, exonerations, acquittals and all the rest are just and right, or you don't. You cannot have it both ways. My humble opinion is that if someone is prosecuted for an offense for which the their life is put at stake, and they are found guilty, all such persons could be put in the statistical heap of cases to be studied in the "debate" over the death penalty. If any of those are found innocent, exonerated or otherwise released from the threat of death it proves the system to be faulty, as would any who, being found guilty and executed. The total universe of persons in the "capital punishment universe" should be included in the debate. Either you include all the persons effected by the process or you decide to pick and choose, Dieter may be more "inclusive" than I'd be but you are also clearly attempting to stack the deck.

In a case that has been overturned on appeal, the prosecution may drop the charges because of many reasons, the least likely being actual innocence (insert citation). For example, appellate courts may rule that evidence or testimony was constitutionally inadmissible, thereby removing the specific evidence of actual guilt from any prospect of a new trial and, thereby, precluding another trial.

And an absolute pardon may have nothing to do with actual innocence.

Just as persons who are actually innocent but are beyond the point of rescue by any proof of the fact can be executed and this has nothing to do with actual guilt.

Just recall all the uproar over the pardons granted by President Clinton on the eve of his leaving office. I recall only one of those many cases wherein the defendant claimed actual innocence, and I don't recall any appellate judge giving any support to such a claim. Or recall ex-President Richard Nixon, pardoned by President Gerald Ford? Does anyone doubt that President Nixon was actually guilty of obstructing justice? Of course not.

Once again, we have example after example, whereby Dieter tells us that the DPIC standards have nothing to do with actual innocence. And this is simply back peddling on his part. As more and more people observe the extent of the fraud within the innocence claims of death penalty opponents, Dieter and other opponents will continue to change their definitions to justify their deceptive numbers.

Perhaps Dieter and I part company, as I've mentioned before, but also, as I've said before anyone whose life is impacted by being prosecuted under the threat of death should be included in the statistics of the debate. Why would we exclude such? After all they are part of the effected population, those with a "concern" for the death penalty's application. Deceptive numbers? Hardly! On the other hand, you, by restricting the argument to just those who are absolutely innocent artificially restrict the debate to those. I think the debate could be framed in this way: We should look at how many people were placed on death row and how many were then taken off as opposed to how many were put on and executed. That ratio or figure would compare the effectiveness of the system by comparing the total number of those it selects as fit for execution and compares it to the number that are selected and yet still finds unfit for execution. Using your argument, the reason that supporters would not want to use that kind of figure is that it would clearly show that to high a proportion are placed there only to be removed. It would show the system to be flawed and would thus demolish their argument.

And the "innocence" standards get worse.

Death penalty opponents have " . . . included supposedly innocent defendants who were still culpable as accomplices to the actual triggerman." (8). The law often finds such criminal accomplices legally guilty for their involvement in murders, even if they, themselves, didn't "pull the trigger." For example: Does anyone think that Bin Laden was innocent in the 9/11 World Trade Center bombings?

The DPIC, and other opponents, allegedly so devoted to legal standards in one circumstance -- presumption of innocence -- abandon a legal standard -- the law of parties -- when doing so can further increase their false "innocents" claims.

What "standards" will death penalty opponents create next to deceptively raise their innocence claims?

As the innocence frauds of death penalty opponents continue to unravel, they are now changing their definitions, as if they never meant that all the cases were actually innocent. In other words, they are just piling lie upon lie.

The evidence is overwhelming that some death penalty opponents were stating that the 102, nationwide, were actually innocent people, who had no connection to the murders. They lied.

Now they are stating it was just some function of release, as related above, or that they were only speaking of the "presumption of innocence", the legal standard for defendants, during trial. They have always been lying about the collective innocence claims, now they deceptively change the definitions, as their previous claims are imploding.

Just as it may be said that the proponents of the death penalty must be lying when they say that the death penalty is clearly supported by research, acts as a deterrent, and is rational. It is none of those things.

The DPIC's newest standard?

"There may be guilty persons among the innocents, but that includes all of us." (9). Good grief. DPIC wishes to apply collective guilt of capital murder to all of us. Alternatively, maybe DPIC is about to declare all those sentenced to death and executed as innocent. Take your pick, they could go either way.

A society can be held responsible for its practices, they have been in the past. The US attack on Afghanistan is an example where we held a nation responsible for the actions of a resident accused of being a terrorist act and for which we never bothered to offer proof or take any kind of "legal" action. We can go to the The Nuremburg trials and the division and occupation of Germany for another example or the Treaty of Versailles, which ended WW1. One can go back to the the Civil War too, if you'd like for examples where society was held for collective guilt.

A final mea culpa?

Dieter states: "I don't think anybody can know about a person's absolute innocence." (Green). In other words, Dieter won't assert absolute innocence in 1, 102 or 350 cases. Not today, anyway.

Just the same, with the spate of cases where DNA and or other more common kind of evidence or evidence of systemic problems, as in Illinois, it seems more and more difficult to establish absolute guilt. And, as I've said before, an absolute punishment can only be just if it is absolutely correct. We don't have absolute correctness in the application of the death penalty, just as we may not have absolute certainty of someone's innocence - again your choice of words, in this case a quote, seems to, at best, not supportive of your cause.

Or, Dieter will declare all innocent: "If you are not proven guilty in a court of law, you're innocent." (Green) By this all inclusive (and ridiculous) standard, Dieter would call Hitler and Stalin innocent.

While you, on the other hand, would have it that anyone "proven guilty" by a biased, sometimes corrupt, inefficient and inequitable system is in fact guilty. When, as we have seen, many have been taken off death row.

So no one deludes themselves, the innocence concern has always been about convicting the actually innocent -- the "I had no connection to the murder" cases -- and what risk that represents for executing an actually innocent person.

Even Dieter has always known (and never disputed, so far) that we don't execute legally innocent people.

He should.

Death penalty opponents wrongly state the burden of proof for "innocents" is not theirs to make -- that defendants are "innocent until proven guilty." This is pure sophistry. The "innocent until proven guilty" is a legal standard, that only applies to fact finders in a criminal case. The "innocent" claims by death penalty opponents are part of a public policy debate which, allegedly, is concerned with the actually innocent sent to death row and how that may result in an actually innocent executed.

No, innocent until proven guilty is a fundamental principal in our concept of justice. It is more than a legal standard in many, many people's mind. It is, in fact, ingrained in western culture. If millions upon millions of people can quote anything about our justice system they can recognize and or report out something to that effect at least. I feel that the burden for proof, for guaranteeing that innocents are never executed lay with both sides. It is in the interests of both sides to guarantee that such horrific occurrences never happen in the present or the future. Those against capital punishment are doing their part, even if in a biased way, so where are those who are interested in supporting capital punishment? Are they investigating, demanding information about cases and the law? Hardly.

What is the real number of actual innocents released from death row?

A review of the DPIC 102 case descriptions finds that only about 32 claim actual innocence, with alleged proof to support the claim. 12 of those 32 are DNA cases. That is 32 cases out of about 7300 death sentences since 1973, or 0.4%. National Review's Senior Editor Ramesh Ponnuru, independently, came up with the same number for his "Bad List" article (10).

When reviewing various case descriptions by DPIC and then comparing them to the actual record, there is an obvious pattern of inaccuracy (11). This provides little doubt that many of the remaining 32 case descriptions by DPIC are also inaccurate. No responsible, objective party would depend upon the DPIC case descriptions.

Furthermore, Northwest U. Law Prof. Lawrence Marshall, a death penalty opponent, who organized the National Conference on Wrongful Convictions and the Death Penalty in Chicago 1998, stated that, "In a good half of these 75 [now 102] cases, the exoneration is so complete that it erases any doubt whatsoever," (12). Prof. Marshall's uncorroborated claims find proof of factual innocence in 38 cases.

Why do death penalty opponents claim that they have proof for half their innocent claims, then claim twice that number as innocent?

Well, it seems you do not doubt that some are innocent, even in your mind. What I'd like to know is what percentage of innocent persons being executed is acceptable. What error rate is OK by you? How many innocent's dying is your limit. That is the question here.

This claim is consistent with the 13 innocents/exonerations from Illinois. There appears to be some doubt about an innocence claim in about half of those cases. (13)

California Assistant Attorney General Ward Campbell finds that at least 68 of the DPIC 102 cases do not belong on the innocence list. He has not conceded that all the remaining 34 do belong on the list. (14).

"On July 1, 2002, in the case of United States v. Quinones, 205 F.Supp.2d 256 (S.D.N.Y. 2002) the United States District Court for the Southern District of New York declared that the Federal Death Penalty Act (was) unconstitutional."

"The federal court based its decision in part on the DPIC List. The federal court itself analyzed the List and applied undefined "conservative criteria" to conclude that 40 defendants on the List were released on grounds indicating "factual innocence." However, 23 of the names on the Quinones' List are names which (Ward Campbell's) study submits should be eliminated from the DPIC List."

"If the Quinones court's analysis of the DPIC List is combined with this critique's (Campbell's) analysis, only 17 defendants should be on the List, not the 102 defendants currently listed." (14A).

Furthermore, the Judge in that Quinones case, Rakoff, has since stated that the innocence number might be 30, not the 40 he stated during the case, indicating the combined numbers are, now, most certainly, lower than 17.

Of those 102 DPIC "innocent" cases, 24 have been identified by the DPIC as being from the state of Florida. The Florida Commission on Capital Cases conducted a thorough review of those 24 cases. The Commission found that 4 of those might have a credible claim of actual innocence. (15).

Again, I ask you: How many innocent's dying is acceptable? My answer to that question is simple. It is zero. You seem to be quibbling about this percentage or that. I would like to know what percentage is acceptable.

Further, I might add, that an innocent being executed is one thing, horrible as it is, but it also means that whoever did the crime has not been punished and the victim's family, the legal system and society has wasted a substantial effort and vital resources all while remaining at risk as the real perpetrator has his or her freedom.

That reveals an 83% error by the DPIC in their Florida case descriptions. If the DPIC has a consistent error rate, nationwide, that would indicate that there is evidence for claiming 17 actual innocents within their 102 innocents claim -- or 0.2% of the 7400 sentenced to death since 1973.

It is hardly a coincidence that the same number of likely actual innocents -- 17 -- is also found when combining the Campbell and Quinones lists.

Based upon those three reviews, 17 is the most credible number for actual innocents released from death row since 1973. And 83% seems to be the common error rate for "innocents" claims by death penalty opponents.

Even when using the DPIC's updated number of 117, The New York Times found that: "To be sure, 30 or 40 categorically innocent people have been released from death row . . .". (15A). Using the 30 number, even the Times find as a 72% error rate in the claims of death penalty opponents.

Your supportive quote has these words: "30 to 40 persons categorically innocent people have been released from death row." If they are categorically innocent then they should not have been there in the first place. What if these weren't lucky enough to be taken off? Again and again, I ask how do we know that all those who have been executed were in fact completely guilty, when, as you point out, numbers of them have been released. The system which puts people on Death Row is flawed, it is not perfect, not absolutely correct. For those reasons it is dangerous. It is dangerous because it allows murderers to go free while an innocent takes the blame for them. They learn a very dangerous lesson: how to kill and not get caught. It is dangerous because it subverts justice not only for the innocent executed, but for his or her family and community. Those who are innocent and released have their lives ruined and their sense of justice severely damaged, not to mention their family, community and so forth. Then, when that happens, the original victim's family has another grand trauma to suffer through. They have to wonder who DID kill their beloved. These concerns show the system is flawed, seriously so, if that many persons could wind up on death row only to be found categorically innocent we are harming individuals both the victims and the wrongfully accused, a communities sense of justice, and the perception that the legal system works.

However, using the DPIC's consistent error rate, as found by the most through reviews, the number is likely closer to 20.

SPECIFIC CASES

See "The Innocence Fraud of Death Penalty Opponents"

Another case on the DPIC list is James Creamer, who was never subject to execution (17). The jury gave him a death sentence, even though there was no death penalty option, because the Furman v Georgia case (1972) had voided all death penalty statutes then in existence Even so, Creamer was sentenced to death on 2/4/73 and then was re sentenced to life on 9/28/73. He is still on the DPIC innocents released from death row list (No. 5, as of 6/3/02).

Death penalty opponents (and the media) gave much play to that "100th case" - Ray Krone. It is an instructive example.

He was not on death row, at the time he was found innocent via DNA testing. His death sentence was overturned in 1995. He was retried and given a life sentence in 1996 (18). Inmates released from prison sentences, because of innocence evidence, are not "released from death row with evidence of their innocence." which is the DPIC "standard" to be on the list. Death penalty opponents do what they can to fraudulently raise their numbers.

This only demonstrates several of my points, one that the system of justice is not working correctly. How is it possible that a person is sentenced to death when, in fact, as you state, such a penalty was not actionable? Also, it shows that a person was convicted, given a death sentence only to have DNA prove the system in error. You don't think anything is wrong with that because the man wasn't executed? To me is shows a system that is faulty and dangerous.

Certainly a "100" could be considered a milestone. What few realized (or cared to investigate) is that it was a milestone of deception by death penalty opponents.

At least 11 of the cases were not even on death row at the time of their "innocence" discovery. 6 of the DPIC listed cases were not on death row when released and were prosecuted prior to 1973, in the pre Furman v Georgia (1972) era and, therefore, have no place in a modern era discussion of "innocents" released from death row (19).

And, at least four of the post 1973 convictions, Henry Drake, Jay Smith, Kirk Bloodsworth and Ray Krone, were not on death row when they won their freedom. Krone, the now famous 100th case, had not been on death row for 7 years, when he was found innocent via DNA.

You quibble with facts and niggle the details. Your own words provide my evidence against your cause. Here is another case where persons were found guilty and put on death row, yet, eventually DNA evidence found the justice system flawed. In my book each and every one of those cases are valid for the arguments against the death penalty. Why? Because they were found guilty, they were put on death row and they did win their freedom.

And you ignore what you yourself said: "They won their freedom." Which means they shouldn't have been put on death row in the first place!

None of those 11 are death row exonerations. They are prison exonerations. Therefore, the 32 cases becomes the 21 "released from death row with evidence of their innocence." And, obviously, no one can depend on the DPIC case descriptions regarding how many more of the 102 (or the 21) cases were not on death row at the time they were "released from death row with evidence of their innocence." Nor should anyone blindly accept the uncorroborated claims of death penalty opponents that all of those 21 are actually innocent.

Professor Marshall stated that "the exoneration is so complete that it erases any doubt whatsoever." If true, where is the independent, objective study which removes all doubt in 21-32 cases? It doesn't exist. Can death penalty opponents present, at least, a review wherein 21-32 cases have a consensus of opinion, whereby the evidence, the prosecutors, defense counsel and the appellate courts agree on the actual innocence issue? If so, it is no where to be found.

How many of those sentenced to death since 1973 have subsequently been released from death row because of actual innocence? It is likely between 15 and 30. 17 being the most realistic number, as it reflects findings in the three most thorough reviews -- Rakoff/Quinones, Campbell and the Florida Commission.

Again, how many? What would be an acceptable death rate for innocents? That is the main question I would ask anyone who espouses what you do.

The 102 number means nothing, except as a ruse to fool the press and the public.

In a joint press release, dated May 7, 2002, the National Coalition to Abolish the Death Penalty and the Texas Coalition to Abolish the Death Penalty stated:

"More than 100 people have now been released from death row due to actual innocence." (20)

Are such comments part of an organized deception or do they reflect willful ignorance?

THE MEDIA

With remarkably few exceptions, neither the media nor public policy makers have required death penalty opponents to support their claims or to define their standards.

In fact, the rule is that the media repeats exactly what anti death penalty sources tell them, without question and passes it along to their audience. This may be one of the worst "no fact checking" examples in journalistic history.

No, I think the worst "no fact checking" example would be how our nation was misled into