The StandDown Texas Project

DSM-5 News & Commentary Roundup

ReutersLegal posts, "Psychiatrists unveil their long-awaited diagnostic 'bible'," by Sharon Begley.  It's an excellent overview of the debate raging over the new publication.

The long-awaited, controversial new edition of the bible of psychiatry can be characterized by many numbers: its 947 pages, its $199 price tag, its more than 300 maladies (from "dependent personality disorder" and "voyeuristic disorder" to "delayed ejaculation," "kleptomania" and "intermittent explosive disorder"), each limning the potential woes of being human.

But to the psychiatrist who shepherded the tortuous creation of the "Diagnostic and Statistical Manual of Mental Disorders," perhaps the single most important number is the "5" in its title: This is the DSM-5, not the DSM-V.

That may seem like a cosmetic change, but the American Psychiatric Association, which will release the book on Saturday at its annual meeting, decided to use Arabic instead of Roman numerals because "we want it to be a living document," said Dr David Kupfer of the University of Pittsburgh, the chairman of the task force that produced the DSM-5. Rather than waiting another generation to revise the manual - the DSM-IV was published in 1994 - psychiatrists will regularly update it with, for example, findings from genetics and neuroscience, labeling the revisions DSM-5.1 and DSM-5.2 and so on.

"We used '5' because V.0 and V.1 just don't look good," said Kupfer.

The fact that the world's most powerful psychiatrists (their decisions determine what counts as a mental disorder, and thus what insurers cover and which children receive special services in school) are already building in ways to change the manual is commendable, even its critics say.

"Lawyers worry new measure of mental retardation could prompt more executions," by Elizabeth Dilts is also from ReutersLegal.

Earlier editions of the DSM defined mental retardation as an IQ score below 70 accompanied by an inability to meet certain developmental norms, such as bathing regularly or maintaining work. Based on that IQ benchmark, the U.S. Supreme Court ruled in Atkins v. Virginia in 2002 that it is illegal to execute a mentally handicapped person.

But the editors of DSM-V have dropped the 70 IQ score as an indicator of mental retardation and instead recommend that clinicians consider IQ scores while analyzing an individual's behavior to determine if he or she meets the developmental standards.

Making the definition of mental retardation more subjective could prompt more courts to subvert Atkins, said David Dow, a death penalty lawyer in Houston whose client Marvin Wilson was executed in Texas last summer despite his IQ score of 61.

"There are a lot of courts that are hostile to the basic legal doctrine the Atkins case established," Dow said. "When you replace a test that is one part objective, one part subjective with a solely subjective test, it becomes easier for courts that are hostile to the constitutional principle of Atkins to evade that criterion."

The Sunday New York Times Week in Review published the OpEd, "Why the Fuss Over the D.S.M.-5?"  It's by Sally L. Satel, M.D.

LATER this month, the American Psychiatric Association will unveil the fifth edition of its handbook of diagnoses, the Diagnostic and Statistical Manual of Mental Disorders. Fourteen years in the making, the D.S.M.-5 has been the subject of seemingly endless discussion.

The charges are familiar: the manual medicalizes garden-variety distress, leads doctors to prescribe unnecessary medications, serves as a cash cow for the association, and so forth.

But many critics overlook a surprising fact about the new D.S.M.: how little attention practicing psychiatrists will give to it.

There are dozens of revisions in the D.S.M. — among them, the elimination of a “bereavement exclusion” from major depressive disorder and the creation of binge eating disorder — but they won’t alter clinical practice much, if at all.

This is because psychiatrists tend to treat according to symptoms.

So why the fuss over D.S.M.-5? Because of the unwarranted clout that its diagnoses carry with the rest of society: They are the passports to insurance coverage, the keys to special educational and behavioral services in school and the tickets to disability benefits.

 

The New York Times also has news coverage, "Psychiatry’s Guide Is Out of Touch With Science, Experts Say," reported by Pam Belluck and Benedict Carey.

Just weeks before the long-awaited publication of a new edition of the so-called bible of mental disorders, the federal government’s most prominent psychiatric expert has said the book suffers from a scientific “lack of validity.”

The expert, Dr. Thomas R. Insel, director of the National Institute of Mental Health, said in an interview Monday that his goal was to reshape the direction of psychiatric research to focus on biology, genetics and neuroscience so that scientists can define disorders by their causes, rather than their symptoms.

While the Diagnostic and Statistical Manual of Mental Disorders, or D.S.M., is the best tool now available for clinicians treating patients and should not be tossed out, he said, it does not reflect the complexity of many disorders, and its way of categorizing mental illnesses should not guide research.

“As long as the research community takes the D.S.M. to be a bible, we’ll never make progress,” Dr. Insel said, adding, “People think that everything has to match D.S.M. criteria, but you know what? Biology never read that book.”

The revision, known as the D.S.M.-5, is the first major reissue since 1994. It has stirred unprecedented questioning from the public, patient groups and, most fundamentally, senior figures in psychiatry who have challenged not only decisions about specific diagnoses but the scientific basis of the entire enterprise. Basic research into the biology of mental disorders and treatment has stalled, they say, confounded by the labyrinth of the brain.

"DSM, NIMH on mental illness: both miss relational, historical context of being human," is by Claudia M Gold for the oston Globe Child in Mind blog.

It seems that the National Institute of Mental Health (NIMH) may have dealt a death blow to the recently published Diagnostic and Statistical Manual of Mental Disorders (DSM 5) when the organization declared they would no longer fund research based on the DSM system of diagnosis. The views of NIMH director Thomas Insel were referenced in the recent New York Times article on the subject.

And:

I am no fan of the DSM system, which reduces complex experience to lists of symptoms; focusing on the "what" rather than the "why."  However, the NIMH model has limits as well. There seems to be a wish to study mental illness in the same way we study cancer or diabetes. While I certainly have great respect for the complexity of the pancreas, or the process of malignant transformation of cells, trying to understand the brain/mind in an analogous way seems to be an unnecessary and even undesirable reduction of  human experience.

What is missing from both paradigms is recognition of the relational and historical context of being human.

Earlier coverage of the DSM-5 begins at the link.

Friday

I'll be out of the office Friday afternoon.

The University of Texas School of Law Capital Punishment Center is sponsoring a symposium, "Mass Incarceration and the Death Penalty."  Here's more:

The Capital Punishment Center’s symposium, “Mass Incarceration and the Death Penalty,” will provide a rare opportunity for scholars, lawyers, and interested members of the public to engage in an extended dialogue about some of the most pressing, nuanced, and timely criminal justice issues in a setting that is both rigorous and relaxed. Thanks to the generosity of the Center’s sponsors, the symposium is free and open to the public. Please join us on March 22-23, 2013 in the Law School’s Eidman Courtroom.

Keynote address by Erwin Chemerinsky.

Harris County Texas and Race

The research paper, "Racial Disparity in the Case of Duane Edward Buck," is available in Adobe .pdf format.

"Report: Racial Bias Prevalent When TX Man Sentenced to Death," is by John Michaelson for Texas Public News Service.

Advocates for a Texas man on death row filed a petition on Wednesday seeking a new sentencing hearing, pointing to just-released research on racial bias when his execution was ordered. The analysis looked at some 500 cases in Harris County around the time of Duane Buck's sentencing. It found the death penalty was much more likely for blacks, according to Christina Swarns with the NAACP Legal Defense Fund.

"For African American defendants like Mr. Buck, the Harris County District Attorney's office was three times more likely to seek death than for similarly situated white offenders, and Harris County juries were twice as likely to impose the death sentences for offenders like Mr. Buck than they were for similarly situated white offenders," she said.

The petition cites a promise to Buck made more than a decade ago. His attorney, Kate Black, says the promise was made because the prosecution elicited race-based testimony at several sentencings, Buck's included.

"In 2000, then (Texas) Attorney General John Cornyn looked at cases in which the expert who testified at Mr. Buck's trial testified in a number of other trials and found that there was Constitutional error in seven cases," Black said. "In six of the cases, those individuals received new sentencing hearings. Mr. Buck is now the only person who has not received a new sentencing hearing."

The Guardian reports, "Research exposes racial discrimination in America's death penalty capital," by Ed Pilkington.

Black defendants facing trial in Houston – the death penalty capital of America – are more than three times as likely to face a possible death sentence than whites, new academic research has revealed.

The study, by a criminologist at the University of Maryland, exposes the extent of racial discrimination inherent in the administering of capital punishment in Harris County, the ground zero of the death penalty in the US. The county, which incorporates Houston, Texas's largest city, has carried out 116 executions in the modern era – more than any entire state in the union apart from Texas itself.

Professor Raymond Paternoster of the university's institute of criminal justice and criminology was commissioned by defence lawyers acting in the case of Duane Buck, a death row prisoner from Houston whose 1995 death sentence is currently being reconsidered by the Texas courts.

Paternoster, whose report is based on the latest quantitative methods, looked at 504 cases involving adult defendants who had been indicted for capital murder in Harris County between 1992 and 1999 – the period during which Buck was charged for murdering his former girlfriend, Debra Gardner, and a man called Kenneth Butler. Paternoster whittled down that pool to 20 cases that most closely echoed that of Buck's own in terms of the factors involved in the crime that were likely to incur a death sentence.

He found that of the 21 men, including Buck, seven out of the 10 who were African American were sent by the Harris County district attorney for capital trial, compared with just one of the five white defendants.

"The probability that the district attorney will advance a case to a [death] penalty trial is more than three times as high when the defendant is African American than for white defendants," Paternoster writes. He adds: "The disparity by race of the defendant, moreover, cannot be attributed to observed case characteristics because these cases are those that were most comparable".

AFP posts, "Texas urged to overturn a racially-tinged death penalty."

Lawyers for an inmate whose execution was halted at the last minute urged a Texas court Wednesday to overturn his death penalty on the grounds that it was the result of racial discrimination.

Duane Buck, 49, was condemned to die for the 1995 murder of his girlfriend and one of her friends.

Neither Buck's attorney nor prosecutors dispute his conviction for the double-murder, but they have argued that racial considerations factored into the sentencing phase of his trial.

The Supreme Court intervened just hours before Buck's execution on September 15, 2011, with justices Sonia Sotomayor and Elena Kagan arguing that the case needed to be reviewed because "our criminal justice system should not tolerate (a death sentence) marred by racial overtones."

Buck's attorneys urged the Texas court in a brief filed Wednesday to vacate Buck's sentence and give him a new trial as a result of the "long history of racial discrimination" in the administration of criminal justice in Harris County, Texas.

"This case is very simple: no death sentence can be supported by an appeal to racial prejudice," defense attorney Kate Black said.

They cited a study which concluded that from 1992 to 1999 -- the period during which Buck was tried and sentenced -- prosecutors in Harris County were "over three times more likely to seek the death penalty against African American defendants, than against similarly-situated white defendants."

The study also found that juries in Harris County were more than twice as likely to impose death sentences on African American defendants than on whites.

The study also found evidence that race played a role in Buck's particular case.

"Study: Blacks Twice as Likely as Whites to Get Death Penalty in This Texas County," by Tim Murphy at Mother Jones.

In September of 2011, the Supreme Court granted a stay of execution for Texas death row inmate Duane Buck, who was given a death sentence in 1997 for the murder of an ex-girlfriend and a male acquaintance. The reason: Buck's race (he's black) was cited by a psychologist—whose testimony was in turn cited by the prosecutor—as evidence that he may pose a threat to other inmates should he be sentenced to life in prison. Texas' Republican attorney general in 2002, now-Sen. John Cornyn, recommended that Buck and six other inmates in similar situations be tried again; Buck is the only one who hasn't. Buck's case has since returned to the state courts, and his attorneys are still appealing for a re-trial. (No one disputes his actual guilt.)

On Wednesday, Buck's attorneys released a new report from University of Maryland criminology professor Ray Paternoster examining the impact race played on sentencing in Harris County (which includes Houston, where Buck was tried) from 1992 to 1999. Paternoster examined 504 cases. The takeaway:

The probability that the district attorney will advance a case to a penalty trial is more than three times as high when the defendant is African-American than for white defendants (this includes Mr. Buck’s case). This disparity by race of the defendant, moreover, cannot be attributed to observed case characteristics because these cases are those that were most comparable in terms of the estimated propensity score.

This racial disparity is only partially corrected at the jury sentencing stage...Ultimately, among this group of comparable cases a death sentence was twice as likely to be imposed on an African American defendant as a white defendant.

"Study: Harris County, Texas Juries Twice As Likely to Demand Death Penalty for Black Defendants Than White," by Julianne Hing at Colorlines.

Ebony posts, "Racism and the Death Penalty: New Evidence," by Lumumba Akinwole Bandele.

Earlier coverage of Duane Buck's case begins at the link.  Related posts are in the race category index.

An Update From Colorado

Denver Post columnist Vincent Carroll writes, "Let Hick grant clemency."  Here's an extended excerpt:

Imagine this unlikely scenario: Our supremely secular Colorado governor receives unsolicited moral advice from a Catholic prelate — and takes it seriously.

But it happened, according to John Hickenlooper's recent account on Colorado Public Radio. When Archbishop Charles Chaput left town 18 months ago for Philadelphia, he invited the governor to breakfast, where they spent a "significant amount of time" talking about the death penalty.

When Hickenlooper told Chaput he'd always been "sort of an eye for an eye person," Chaput retorted that "there's no language like that anywhere in the New Testament," adding that "to a large extent, Catholic theology is based upon forgiveness, and that only God has a right to make that decision."

"Just keep looking inside yourself," was Chaput's parting advice. "Just keep thinking about it, keep talking about it, and [clarity on the issue] will come to you."

Clarity from the governor may be needed sooner rather than later now that the U.S. Supreme Court has declined to hear the appeal of Nathan Dunlap, who sits on death row for the 1993 murder of four at an Aurora Chuck E. Cheese. And while you can never count out a good defense team, Dunlap's time is running out. Arapahoe County prosecutors last week said they'd consult with the attorney general and then file a motion asking the district court to "lift the current stay of execution, issue a warrant and set a week for the execution."

But Hickenlooper can stop that execution and, when the time comes, should.

He should commute Dunlap's sentence to life in prison without parole even if he hasn't fully arrived at Chaput's view of the death penalty. It should be enough for the governor that Dunlap's execution would be singularly absurd, from almost any standpoint you care to examine.

Colorado may not officially have abolished the death penalty — yet — but it may as well have.

Clarity from the governor may be needed sooner rather than later now that the U.S. Supreme Court has declined to hear the appeal of Nathan Dunlap, who sits on death row for the 1993 murder of four at an Aurora Chuck E. Cheese. And while you can never count out a good defense team, Dunlap's time is running out. Arapahoe County prosecutors last week said they'd consult with the attorney general and then file a motion asking the district court to "lift the current stay of execution, issue a warrant and set a week for the execution."

But Hickenlooper can stop that execution and, when the time comes, should.

He should commute Dunlap's sentence to life in prison without parole even if he hasn't fully arrived at Chaput's view of the death penalty. It should be enough for the governor that Dunlap's execution would be singularly absurd, from almost any standpoint you care to examine.

Colorado may not officially have abolished the death penalty — yet — but it may as well have.

"Colorado Death Penalty Called Unconstitutional By Attorneys, Scholars," is by Scot Kersgaard for the Colorado Independent.  It's via Huffington Post.

Colorado’s death penalty is not only massively expensive, critics say it is also unconstitutional because it is so randomly sought.

A study released last year by DU Law Professors Justin Marceau and Sam Kamin showed that from 1999 to 2010, 92 percent of 544 Colorado murders had at least one of the aggravating factors that need to be present for a defendant to be eligible for death, yet the death penalty was sought in only five of those cases — less than 1 percent.

The study was commissioned by Edward Montour’s legal defense team, and thus paid for by the state. Montour, already serving life without parole, is fighting to stay off of death row for a murder committed in prison.

One of his attorneys, David Lane, argues that while the Supreme Court has instructed states to narrow the field of who qualifies for the death penalty, Colorado has done the opposite, creating so many aggravating factors that death could be sought in just about every murder committed in Colorado. With 92 percent of Colorado murder cases being eligible for the death penalty, but with death being sought so rarely in the state, Lane says, “The only check is prosecutorial discretion.”

He notes that the only Colorado death filings recently have come from the 18th Judicial District of Douglas and Arapahoe counties where he says prosecutors “are in love with the death penalty.” With only one judicial district ever seeking the death penalty, Lane says the death penalty is pursued randomly in Colorado, thus making it unconstitutional.

Earlier coverage from Colorado begins at the link.

Marquette University Conference on Restorative Justice to Feature UT Prof

"Restorative justice conference explores death penalty vs. life without parole," is by Annysa Johnson of the Milwaukee Journal Sentinel.

The death penalty vs. life without parole and their effects on victims' families and their communities will be the topic of the 2013 Restorative Justice Conference at Marquette University Law School Feb. 21-22.

Speakers will include Marilyn Peterson Amour, associate professor in the School of Social Work at the University of Texas, who co-authored a 2012 study comparing the impact of sentences meted out in Texas and Minnesota. You can read more on that Marquette Law Review piece here.

The conference explores the effects of both sanctions through the personal stories of survivors, prosecutors, defense lawyers, victims' advocates, and judges. The conference is based on a groundbreaking study by Marilyn Armour of victims' families in Texas (affected by the death penalty) and Minnesota (affected by life without the possibility of parole) and the implications of these punishments for healing.

Marqutte Univesrsity Law School posts, "Restorative Justice Conference: The Death Penalty versus Life Without Parole."  The conference will be held at the Milwaukee campus on February 21st & 22nd.

The death penalty. Life without the possibility of parole. These are society's harshest punishments. But how do they affect the victims' families? Is one more healing than the other? Is there ever closure? And what is the ripple effect on the community?

Marquette Law School's Restorative Justice Conference on February 21–22, 2013, will examine the impact of both sanctions through the personal stories of survivors, prosecutors, defense lawyers, victims' advocates, and judges. The conference is based on a groundbreaking study by Marilyn Armour of victims' families in Texas (affected by the death penalty) and Minnesota (affected by life without the possibility of parole) and the implications of these punishments for healing.
Cost

There is no fee for the Keynote Kickoff event on Thursday. Friday conference fee is $20 per person (includes continental breakfast and lunch on conference day). Marquette University students and employees may attend at no charge but must, like others, register.

The complete conference schedule is at the link.

Related posts are in the restorative justice category index.

Craig Watkins Proposes a Texas Racial Justice Act

Today's Dallas Morning News reports, "Dallas DA Craig Watkins to push for law allowing appeals based on racial factors."  It's written by Scott Goldstein.

Dallas County District Attorney Craig Watkins said he plans to advocate for a state law that would allow criminals to appeal their conviction or sentence on the grounds that race was a factor.

The Racial Justice Act would be based in part on similar laws passed in recent years in North Carolina and Kentucky and would apply, at least initially, only in death penalty cases, Watkins said in an interview Monday. Defendants would be allowed to present evidence from their case or through general statistics to show that race was a significant factor in their prosecution or sentence.

“Throughout history, race has unfortunately played a part, an ugly part, in our criminal justice system,” Watkins said. “This is an opportunity for us to address not only the past, and those individuals who are still being affected by the disparities in treatment, but also in looking forward to make sure that we don’t have those same disparities in our criminal justice system.”

Watkins acknowledged a difficult fight for any such bill in the heavily conservative Texas Legislature. But he said he sees a benefit in floating the proposal now nonetheless because “even if it’s not passed, at least we’ve started the conversation,” he said.

Watkins said he plans to discuss the idea with lawmakers and hopes to have a bill filed in the next few months.

And:

Academic studies have argued that a racial disparity in sentencing exists. One 2008 study by a University of Denver professor concluded that black defendants in Harris County, which includes Houston, were more likely to get a death sentence than white defendants.

Blacks comprise 40 percent of Texas’ nearly 300 death row inmates, while 11 percent of the state’s population is black. Researchers caution, however, that such raw numbers don’t take into account a number of factors.

"Dallas DA: Texas should pass 'Racial Justice Act'," is the AP report filed by Nomaan Merchant. It's via the Galveston Daily News.

The Dallas prosecutor who built a reputation for freeing wrongfully convicted inmates says he has an idea to advance criminal justice reform in Texas: allowing defendants to appeal convictions and sentences on the basis of race.

Craig Watkins, the Dallas County district attorney, said in a recent interview that he wants lawmakers to consider what he called the Racial Justice Act. Such an act might allow defendants to introduce evidence, either in their specific case or through general statistics, to argue that their prosecutions or sentences were influenced by race, he said.

"The issue that we're bringing to light is to make sure that everything is fair, no matter what you look like, no matter where you come from, and you're treated just like anyone else," Watkins said. "And if you deserve a death sentence, then you will get it. If you didn't, then you shouldn't be on death row."

Related posts are in the race, state legislation, and Texas Legislature indexes.

Assisting Exonerees - A Largely Unmet Need

"Cleared death-row inmates need help adjusting to the world outside prison," is the Wilmington Star News editorial on North Carolina exonerations.  Here's the beginning of this must-read:

The journey from death row to a normal life is a lonely one for former inmates who have been cleared of murders they did not commit. Walking out the prison door is but the first difficult step. People like Alan Gell, sentenced to death for a murder he did not commit, are given a pat on the back, possibly some financial compensation and not much else.

What they really need is help adjusting to the outside world.

Two University of North Carolina system professors have done a public service with their book, "Life After Death Row," which examines the difficult transition from the grimmest of cell blocks to complete freedom – and absolutely no guidance as to what comes next.

Kimberly Cook, who heads the UNC Wilmington sociology and criminology department, and Sandra Westervelt, associate professor of sociology at UNC Greensboro, relate the struggles of Gell and others who have found themselves going from an institutionalized life where every decision is made for you into an unfamiliar world that expects you to get on with your life without missing a beat.

It doesn't work that way, and it is a disgrace that, after wrongly imprisoning someone, our justice system does not have procedures to help exonerated inmates make that transition. In North Carolina, it is not as though it would break the bank to provide some help.

Earlier coverage of the new book referenced in this editorial begins at the link.

Reentry for Exonerees

Today's Wilmington Star News in North Carolina reports, "Exonerated death row inmates readjust to society after release."  It's by Brian Freskos.

In 2004, Alan Gell walked out of a Bertie County courtroom a free man.

After languishing nearly five years on death row for a murder he did not commit, a new jury overturned his original conviction. But despite the sense of vindication that accompanied his freedom, Gell felt uneasy and scared.

He was released into a foreign world where toilets flushed automatically "and scared the crap out of you," he said. On the outside, he had no access to health care or social services. And with an erroneous murder conviction on his record, it felt impossible to find a job.

"They threw me to the wolves," he said in a telephone interview earlier this week. "If it was not for my family, I don't know what I would have done."

Gell is among 18 exonerated death row inmates whose post-release odysseys form the subject of a recently released book entitled, "Life After Death Row: Exonerees' Search for Community and Identity," co-authored by professors at University of North Carolina campuses in Wilmington and Greensboro.

And:

Cook and Westervelt say only a small proportion of exonerees receive compensation. Only 23 states have compensation laws. North Carolina boasts one of the most generous, awarding $50,000 for each year of wrongful incarceration. But the process often takes years. And to qualify, exonerees must obtain a governor's pardon – a task that often proves elusive. As a result, only about 23 percent of them win compensation through the law, Westervelt said.

Gell believes he should not have to ask the state to correct a wrong that it perpetrated. He instead filed a lawsuit against prosecutors and investigators and in 2009, settled for $3.9 million, according to the book.

Today, Gell's life has assumed a degree of normalcy. He is in a healthy relationship and has kids. But the stigma of being "that guy" who once served time on death row still sticks to him.

"You never really get over the whole deal," he said.

The article notes that proceeds from the book are being dontated to two nonprofit organizations that assisted the exonerated, Witness to Innocence and Centurion Ministries.

More on Life after Death Row: Exonerees' Search for Community and Identity is at Amazon.com.

Related posts are in the wrongful incarceration index.  Texas has one of the most generous compensation laws in the nation for those wrongfully convicted and incarcerated.

Lethal Injection Scholarship

Philosophy, Ethics, and Humanities in Medicine publishes the abstract for, "The absence of cruelty is not the presence of humanness: physicians and the death penalty in the United States," by Joel B. Zivot.

The death penalty by lethal injection is a legal punishment in the United States. Sodium Thiopental, once used in the death penalty cocktail, is no longer available for use in the United States as a consequence of this association. Anesthesiologists possess knowledge of Sodium Thiopental and possible chemical alternatives. Further, lethal injection has the look and feel of a medical act thereby encouraging physician participation and comment. Concern has been raised that the death penalty by lethal injection, is cruel. Physicians are ethically directed to prevent cruelty within the doctor-patient relationship and ethically prohibited from participation in any component of the death penalty. The US Supreme Court ruled that the death penalty is not cruel per se and is not in conflict with the 8th amendment of the US constitution. If the death penalty is not cruel, it requires no further refinement. If, on the other hand, the death penalty is in fact cruel, physicians have no mandate outside of the doctor patient relationship to reduce cruelty. Any intervention in the name of cruelty reduction, in the setting of lethal injection, does not lead to a more humane form of punishment. If physicians contend that the death penalty can be botched, they wrongly direct that it can be improved. The death penalty cocktail, as a method to reduce suffering during execution, is an unverifiable claim. At best, anesthetics produce an outward appearance of calmness only and do not address suffering as a consequence of the anticipation of death on the part of the condemned.

A preliminary version of the complete article is available in Adobe .pdf format.

Related posts are in the lethal injection index.

Connecticut Supreme Court to Examine Repeal Impact

"State Supreme Court To Consider If Death Penalty Repeal Should Affect Current Cases," is Alaine Griffin's breaking news report in the Hartford Courant.

The state Supreme Court has agreed to take up the issue of whether the recent repeal of Connecticut's death penalty can apply only to future crimes.

In a ruling Thursday, the state's highest court granted a request by Eduardo Santiago, whose death sentence was overturned in June, for written briefs and arguments on a legal filing that raises questions about the repeal's impact on those who committed capital crimes before the new law was passed.

The new law abolishes the death penalty for future capital crimes committed in Connecticut but allows executions for those who committed similar crimes before April, when the repeal took effect.

Thursday's ruling was issued as five of the 11 inmates on Connecticut's death row continue to fight their death sentences in a landmark habeas corpus trial being held at Northern Correctional Institution in Somers where death row is housed. The issue in that case is whether the death penalty has been implemented in a racially and geographically biased way.

It was not known early Friday whether Thursday's ruling would affect the trial.

Before the trial began, the inmates tried unsuccessfully to raise the issue of the repeal's impact on their death sentences. The judge said claims stemming from the repeal raise legal questions distinct from the evidence being presented at the habeas trial.

The Supreme Court on Thursday gave attorneys for Santiago until Nov. 13 to file briefs. The state will then have 60 days to respond. A hearing could be held sometime early next year.

Courant reporter Griffin has been covering the racial bias trial.  Her latest article is, "Witness: "Strikingly Large" Disparities In Death Penalty Cases."

A key witness for five death row inmates challenging the fairness of their death sentences testified Wednesday that there are "strikingly large" disparities along racial and geographic lines when it comes to the death penalty in Connecticut.

Stanford Law Prof. John J. Donohue III testified that minority defendants whose victims were white were three times more likely to receive a death sentence than white defendants whose victims were white.

Donohue reviewed 205 death-eligible cases in Connecticut from 1973 to 2007, including 141 in which the defendants were charged with capital felony, which made execution possible.

Where defendants are prosecuted is significant, too, Donohue testified, saying that one judicial district stood out - Waterbury. Those eligible for death there were sentenced at much higher rates than defendants tried elsewhere in state, he testified.

Donohue said former Waterbury State's Attorney John A. Connelly was "outspoken" about the death penalty and he was "criticized for his overzealousness." So, Donohue said, "looking at Waterbury was a natural thing to do."

In Waterbury, between 1973 and 2007, of the 12 death penalty eligible cases that were examined, four resulted in a death sentence, for a 33.3 percent rate. During that time, there were 193 death eligible cases in other areas of the state that were examined. Of those, five, or 2.6 percent, resulted in a death sentence.

Both Waterbury cases in which the defendant was a minority and the victim was white resulted in death sentences. In the rest of the state, two of 32 cases in which the defendant was a minority and the victim was white resulted in a death sentence, for a rate of 6.3 percent.

Donohue said he looked closely at the "egregiousness" or atrociousness of each crime, identifying the number of victims, who the victims were, how much a victim suffered and the culpability of the defendant. He said he concluded that the administration of the death penalty in Connecticut does not correspond to the egregiousness of the crime.

Earlier coverage from Connecticut and Connecticut's repeal of the death penalty begins at the links. Coverage of Eduardo Santiago's case is also available.

Related posts are in the geographic disparity and race indexes

You can also view the abstract of John Donohue's study, Capital Punishment in Connecticut, 1973-2007: A Comprehensive Evaluation from 4686 Murders to One Execution.

Today's California Roundup

"LA judge refuses to order one-drug executions," is the AP filing by Linda Deutsch.  It's via the Silicon Valley Mercury News.

A judge turned down a bid Monday by the Los Angeles County district attorney to order the immediate execution of two death row prisoners by a new single-drug injection method.

Superior Court Judge Larry Paul Fidler said he did not have jurisdiction to order the procedure that has never been used in California.

Executions in the state have been on hold for years while appellate courts consider the legality of the three-drug protocol now in place.

There are currently 725 prisoners on death rows in California, where voters will consider a ballot initiative in November that would replace the death penalty with life in prison without possibility of parole.

At Monday's hearing, Los Angeles County District Attorney Steve Cooley suggested a virtual end-run around the current logjam in the 9th U.S. Circuit Court of Appeals over the way executions are done.

Deputy District Attorney Michelle Hanisee said the three drugs used previously are no longer available, and a pharmaceutical company plans to stop making one of them.

The decision by Judge Fidler came as San Mateo County District Attorney Steve Wagstaffe asked a judge to set an execution date for Robert Fairbank, who was sent to death row for the murder of a San Francisco woman in 1985. A judge is expected to consider Wagstaffe's request in October.

And:

Proposition 34, the upcoming ballot initiative, argues that California has spent $4 billion on a dysfunctional capital punishment system that has resulted in just 13 executions since the death penalty was reinstated in 1978. For a brief period beginning in 1972, the death penalty was held as unconstitutional in the state and death sentences were commuted to life.

In his remarks in court, Fidler referred to the upcoming ballot measure and said the people of California will have the opportunity to decide the future of capital punishment.

"If they set aside the death penalty, that's it," he said. "Then they're expressing what their will is at this time in society, and that they don't want it to take place."

If they reject the ballot proposition, the death penalty for those who have exhausted their legal remedies "will have to be done in an efficient manner," Fidler said.

KPCC-FM, Southern California Public Radio, posts, "Court won't force California to resume executions," by Rina Palta.

On Monday, Los Angeles Superior Court Judge Larry Fidler denied L.A. County's request for the state to execute two longtime Death Row inmates who've exhausted all of their legal appeals.

For decades, Mitchell Sims and Tiequon Cox have sat on California's male Death Row at San Quentin State Prison in Marin County. That's why earlier this year, the Los Angeles County District Attorney's Office asked a judge to step in and order the state of California to set execution dates for the men. The state, argued Assistant District Attorney Michele Hanisee, has dragged its feet on its legal obligation to carry out the death penalty in California.

The state has been mired in litigation over its lethal injection process for years. On Monday, Hanisee argued that instead of resolving the lawsuits, the "state is going as slow as they can and calling it progress." 

Fidler agreed - but he said that as a criminal trial judge, he lacked the authority to override a civil court order in Marin County or the California State Legislature's direction that a long administrative process is necessary to vet any lethal injection method. 

Attorneys for the inmates argued that the process is lenghty and arduous because it needs to be.

"I see why the state wants to take its time," said Attorney John Grele. "Because they did it so abysmally wrong the first time."

What happens next, Fidler said, depends on the results of the November elections. Voters will decide then on a ballot initiative to end the death penalty in California.

And:

Earlier this year, Governor Jerry Brown instructed California's Department of Corrections and Rehabillitation to pursue a single-drug protocol. Lawyers for the state say it has complied. During previous hearings on this case, a consultant to the department testified that the state has written and tested at San Quentin a single-drug protocol. But Goldman did not know when CDCR would begin the official rule-writing process that would allow that protocol to become a law. He estimated that process could take about 10 months once it's started. 

In court Monday, Judge Fidler wondered aloud about why the state continues to appeal court rulings against a three-drug process it apparently couldn't carry out anyway, instead of fast-tracking a new, one-drug process. 

"Though they may be interesting," he said, "we're not going to drag out this litigation to discover some facts."

"L.A. Judge Says No to Executions; Study Shows Death Penalty Will Cost State Billions," is the KCET-TV report by Brian Frank.

Two major developments relating to Prop 34 on Monday. First, a judge in the Los Angeles Superior Court denied the county's request to move forward with the executions of two Death Row inmates. California is currently locked in litigation over its method of execution, a three-drug lethal injection process that a court has ruled constitutes cruel and unusual punishment. Earlier this year the district attorney's office asked a judge to set an execution date for two inmates at San Quentin State Prison in Marin County, anyway. But as KPCC reported, L.A. County Judge Larry Fidler said...

...that as a criminal trial judge, he lacked the authority to override a civil court order in Marin County or the California State Legislature's direction that a long administrative process is necessary to vet any lethal injection method.

At the same time, a new study released Monday concluded that under the state's current criminal justice system it would cost taxpayers between $5 billion and $7 billion more to execute a prisoner than it would to carry out a sentence of Life Without Parole.

Judge Arthur L. Alarcón and Paula M. Mitchell, the authors of the study, reported that by 2050...

"...roughly 740 more inmates will be added to death row, an additional fourteen executions will be carried out, and more than five hundred death-row inmates will die of old age or other causes before the state executes them."

Earlier coverage from California, including the Los Angeles District Attorneys effort to restart execution and Prop. 34 news, begins at the link.

More on Prop. 34 at SAFE Caliornia.

Last year, Judge Alarcon and Mitchell wrote, "Executing the Will of the Voters: A Roadmap to Mend or End the California Legislature's Multi-Billion-Dollar Death Penalty Debacle," also for the Loyola Los Angeles Law Review.  Coverage of the earlier Alarcon-Mitchell law review article is at the link.

The Living Death of Solitary Confinement

That's the title of a New York Times Opinionator blog post by Lisa Guenther of Vanderbilt University.  She's the author of the soon-to-be-published, Social Death and Its Afterlives: A Critical Phenomenology of Solitary Confinement.  Here's the beginning:

There are many ways to destroy a person, but the simplest and most devastating might be solitary confinement.  Deprived of meaningful human contact, otherwise healthy prisoners often come unhinged. They experience intense anxiety, paranoia, depression, memory loss, hallucinations and other perceptual distortions. Psychiatrists call this cluster of symptoms SHU syndrome, named after the Security Housing Units of many supermax prisons. Prisoners have more direct ways of naming their experience.  They call it “living death,” the “gray box,” or “living in a black hole.”

In June the Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights, headed by Senator Richard J. Durbin, Democrat of Illinois, held the first Congressional hearing on solitary confinement.  Advocates and experts in the field were invited to submit testimony on the psychological, ethical, social and economic issues raised by punitive isolation.  Among the many contributors was Anthony Graves, who spent over 18 years on death row in Texas, most of them in solitary confinement, for a crime he did not commit. Graves describes his isolation as a form of “emotional torture.”  Two years after his exoneration and release, he still feels trapped in isolation: “I am living amongst millions of people in the world today, but most of the time I feel alone.  I cry at night because of this feeling.  I just want to stop feeling this way, but I haven’t been able to.”

We tend to assume that solitary confinement is reserved for “the worst of the worst”: violent inmates who have proved themselves unwilling or unable to live in the general population.  But the truth is that an inmate can be sent to the hole for failing to return a meal tray, or for possession of contraband (which can include anything from weapons to spicy tortilla chips).  According to the Bureau of Justice, there were 81,622 prisoners in some form of “restricted housing” (code for solitary confinement) in 2005.  If anything, these numbers have increased as isolation units continue to be built in prisons, jails and juvenile detention centers across the country. 

Earlier coverage of the solitary confinement issues begins at the link.  Related posts are in the incarceration index.

For those interested in the topic, Solitary Watch is a must-read.

The Biology of Psychopathy & Judges

"Study of Judges Finds Evidence From Brain Scans Led to Lighter Sentences," is the New York Times report by Benedict Carey.  Here's an extended excerpt:

Judges who learned that a convicted assailant was genetically predisposed to violence imposed lighter sentences in a hypothetical case than they otherwise would have, researchers reported on Thursday, in the most rigorous study to date of how behavioral biology can sway judicial decisions.

The findings, published in the journal Science, are likely to accelerate the use of brain science in legal proceedings, experts said, and to intensify a long-running debate about its relevance. Courts have increasingly admitted such evidence — brain scans, mostly, as well as genetic analyses — though many experts say the science is still too primitive to inform legal decisions.

Defense lawyers now commonly introduce brain scans of convicted clients as mitigating evidence in appeals of death sentences, experts said.

Previous studies of how such evidence affects legal decisions are scarce and their results mixed. Some reports suggest that basic neurobiology affects juries’ verdicts, others that it does not. In the handful of real-life criminal cases in which brain science does seem to have had an effect, it has usually gone in favor of the defendant, reducing punishments, legal researchers said.

The new experiment focused on sentencing by judges, not jury verdicts. It found that neurobiological evidence reduced judges’ sentences by an average of about 7 percent for a fictional defendant convicted of battery and identified as a psychopath.

“What’s path-breaking about this paper is that it both isolates, as well as one can, the effects of biological testimony on outcomes and it also does this within a sample of the real-world decision makers, the judges themselves,” said Owen D. Jones, a professor of law at Vanderbilt University and director of the MacArthur Foundation Research Network on Law and Neuroscience. “This moves our understanding forward considerably.”

Dr. Jones and other experts cautioned that the effect might not apply broadly to other kinds of criminal defendants. It may also play out differently in jury trials. But they said that the findings were convincing and plausible.

In the study, three researchers at the University of Utah tracked down 181 state judges from 19 states who agreed to read a fictional case file and assign a sentence to an offender, “Jonathan Donahue,” convicted of beating a restaurant manager senseless with the butt of a gun. All of the judges learned in their files that Mr. Donahue had been identified as a psychopath based on a standard interview — that is, he had a history of aggressive acts without showing empathy.

The case files distributed to the judges were identical, except that half included testimony from a scientist described as “a neurobiologist and renowned expert on the causes of psychopathy,” who said that the defendant had inherited a gene linked to violent, aggressive behavior. This testimony described how the gene variant altered the development of brain areas that generate and manage emotion.

The account is an accurate description of one theory of how brain development may underlie aggressive behavior. Its applicability to any individual is unknown, however, given that many other factors could increase the likelihood of violence, researchers said.

The judges who read this testimony gave Mr. Donahue sentences that ranged from one to 41 years in prison, a number that varied with state guidelines. But the average was 13 years — a full year less than the average sentence issued by the judges who had not seen the testimony about genetics and the brain.

In interviews about their decisions, the judges said that a crime of aggravated battery like this one normally carried a sentence of 9 years, on average, and 15 years if the defendant was identified as a psychopath, the researchers found.

“But then those who read about the biological mechanism subtracted a year, as if to say, ‘This guy is really dangerous and scary, and we should treat him as such, but the biological evidence suggests that we can’t hold him as responsible for the behavior,’ ” said James Tabery, an assistant professor of philosophy at Utah.

He wrote the study with Lisa G. Aspinwall, a psychologist, and Teneille R. Brown, an associate professor in the university’s school of law. A research assistant, Gabriela Cash, recruited the judges by calling court administrators in every state.

NPR's Morning Edition reports, "Would Judge Give Psychopath With Genetic Defect Lighter Sentence?"
by Alix Spiegel.  Audio is available at the link.

In 1991, a man named Stephen Mobley robbed a Domino's pizza in Hall County, Ga., and shot the restaurant manager dead.

Crimes like this happen all the time, but this particular case became a national story, in part because Mobley seemed so proud of his crime. After the robbery, he bragged about the killing and had the Domino's logo tattooed on his back.

But there was another reason Mobley's case became famous.

Right around the time Mobley went to trial, a study was published in a scientific journal about an extremely interesting gene called MAOA: monoamine oxidase A.

And:

In the U.S., the study got a lot of media attention. The press was giddy with the idea that a defect in a gene might, in a sense, cause criminality. And after hearing about the work, Mobley decided that he should be genetically screened for MAOA deficiency. After all, Mobley reasoned, if his crime was the product of biology and not his own choices, judges would have to be more forgiving, more lenient when it came time to dole out a punishment.

But here's the question: Would a biological explanation actually reduce Mobley's sentence? Or could it increase it?

"Psychopaths get a break from biology," is the University of Utah news release.  Here's the full text of the release:

A University of Utah survey of judges in 19 states found that if a convicted criminal is a psychopath, judges consider it an aggravating factor in sentencing, but if judges also hear biological explanations for the disorder, they reduce the sentence by about a year on average.

The new study, published in the Aug. 17, 2012, issue of the journal Science, illustrates the “double-edged sword” faced by judges when they are given a “biomechanical” explanation for a criminal’s mental disorder:

If a criminal’s behavior has a biological basis, is that reason to reduce the sentence because defective genes or brain function leave the criminal with less self-control and ability to tell right from wrong? Or is it reason for a harsher sentence because the criminal likely will reoffend?

“In a nationwide sample of judges, we found that expert testimony concerning the biological causes of psychopathy significantly reduced sentencing of the psychopath” from almost 14 years to less than 13 years, says study coauthor James Tabery, an assistant professor of philosophy at the University of Utah.

However, the hypothetical psychopath in the study got a longer sentence than the average nine-year sentence judges usually impose for the same crime – aggravated battery – and there were state-to-state differences in whether judges reduced or increased the sentence when given information on the biological causes of psychopathy.

The study was conducted by Tabery; Lisa Aspinwall, a University of Utah associate professor of psychology; and Teneille Brown, an associate professor at the university’s S.J. Quinney College of Law.

The researchers say that so far as they know, their study – funded by a University of Utah grant to promote interdisciplinary research – is the first to examine the effect of the biological causes of criminal behavior on real judges’ reasoning during sentencing.

Biological Explanation of Psychopathy Helps Defendant

The anonymous online survey – distributed with the help of 19 of 50 state court administrators who were approached – involved 181 participating judges reading a scenario, based on a real Georgia case, about a psychopath convicted of aggravated battery for savagely beating a store clerk with a gun during a robbery attempt.

The judges then answered a series of questions, including whether they consider scientific evidence of psychopathy to be an aggravating or mitigating factor that would increase or decrease the sentence, respectively, and what sentence they would impose. They were told psychopathy is incurable and treatment isn’t now an option.

While psychopathy isn’t yet a formal diagnosis in the manual used by psychiatrists, it soon may be added as a category of antisocial personality disorder, Tabery says. The study cited an expert definition of psychopathy as “a clinical diagnosis defined by impulsivity; irresponsibility; shallow emotions; lack of empathy, guilt or remorse; pathological lying; manipulation; superficial charm; and the persistent violation of social norms and expectations.”

The researchers recruited 207 state trial court judges for the study. Six dropped out. Twenty others were excluded because they incorrectly identified the defendant’s diagnosis. That left 181 judges who correctly identified the defendant as a psychopath, including 164 who gave complete data on their sentencing decisions.

The judges were randomly divided into four groups. All the judges read scientific evidence that the convicted criminal was a psychopath and what that means, but only half were given evidence about the genetic and neurobiological causes of the condition. Half the judges in each group got the scientific evidence from the defense, which argued it should mitigate or reduce the sentence, and half the judges got the evidence from the prosecution, which argued it should aggravate or increase the sentence.

Judges who were given a biological explanation for the convict’s psychopathy imposed sentences averaging 12.83 years, or about a year less than the 13.93-year average sentence imposed by judges who were told only that the defendant was a psychopath, but didn’t receive a biological explanation for the condition. In both cases, however, sentencing for the psychopath was longer than the judges’ normal nine-year average sentence for aggravated battery.

Even though the year reduction in sentence may not seem like much, “we were amazed the sentence was reduced at all given that we’re dealing with psychopaths, who are very unsympathetic,” Brown says.

Aspinwall notes: “The judges did not let the defendant off, they just reduced the sentence and showed major changes in the quality of their reasoning.”

The study found that although 87 percent of the judges listed at least one aggravating factor in explaining their decision, when the judges heard evidence about the biomechanical causes of psychopathy from the defense, the proportion of judges who also listed mitigating factors rose from about 30 percent to 66 percent.

Psychopathy was seen as an aggravating factor no matter which side presented the evidence, but it was viewed by the judges as less aggravating when presented by the defense than when presented by the prosecution.

A Disconnect between Sentencing and Criminal Responsibility

One surprising and paradoxical finding of the study was that even though the judges tended to reduce the sentence when given a biological explanation for the defendant’s psychopathy, the judges – when asked explicitly – did not rate the defendant as having less free will or as being less legally or morally responsible for the crime.

“The thought is that responsibility and punishment go hand in hand, so if we see reduced punishment, we would expect to see the judges feel the defendants are less responsible,” Tabery says. “So it is surprising that we got the former, not the latter.”

The researchers also counted explicit mentions by the judges of balancing or weighing factors that increase or reduce sentencing. When evidence of a biological cause of the defendant’s psychopathy was presented by the defense, the judges were about 2.5 times more likely to mention weighing aggravating and mitigating factors than when it was presented by the prosecution or when no biological evidence was presented.

The data show that “the introduction of expert testimony concerning a biological mechanism for psychopathy significantly increased the number of judges invoking mitigating factors in their reasoning and balancing them with aggravating factors,” the researchers conclude. “These findings suggest that the biomechanism did invoke such concepts as reduced culpability due to lack of impulse control, even if these concepts did not affect the ratings of free will and responsibility.”

Brown adds: “In the coming years, we are likely to find out about all kinds of biological causes of criminal behavior, so the question is, why does the law care if most behavior is biologically caused? That’s what is so striking about finding these results in psychopaths, because we’re likely to see an even sharper reduction in sentencing of defendants with a more sympathetic diagnosis, such as mental retardation.”

State Variations in Sentencing

While the overall results showed a reduction in sentencing when judges read biological evidence about the cause of psychopathy, the reduction was greater in some of the 19 states surveyed and nonexistent in others. That is not surprising due to variations in sentencing guidelines, rules of evidence and the extent of judges’ discretion.

There were too few responses from eight states to analyze them individually. In three states – Colorado, New York and Tennessee – biological evidence of psychopathy actually increased the sentence, although the findings weren’t statistically significant.

In eight other states – Alabama, Maryland, Missouri, Nebraska, New Mexico, Oklahoma, Utah and Washington state – biological evidence of psychopathy reduced the sentence or had no effect, and the reduction was statistically significant in two of those states: Utah and Maryland. When just those eight states were examined, the defendant received an average sentence of 10.7 years if evidence was introduced that psychopathy has a biological cause, versus 13.9 years without such evidence.

“We saw sentencing go up in a few states and down in most, and that’s just evidence that it [the double-edge sword] could cut either way,” Brown says.

Aspinwall adds: “When you look at the reasons the judges provide, what is striking to us is the vast majority found the psychopathy diagnosis to be aggravating and, with the presentation of the biological mechanism, also mitigating. So both things are happening.”

The release also links to a Science podcast and a video on the topic.

Hugo Adam Bedau - New York Times Obituary

Today's New York Times carries the obituary, "Hugo Bedau, Philosopher Who Opposed Death Penalty, Dies at 85," by William Yardley.

Hugo Bedau, a philosopher who preferred to wrestle with the knottiest of public policy issues rather than reason from the remove of academia — most notably in confronting capital punishment, which he opposed as immoral, unjust and ineffective — died on Monday in Norwood, Mass. He was 85.

The cause was complications of Parkinson’s disease, said his wife, Constance E. Putnam. Professor Bedau’s half-century career encompassed several cycles in the national debate over the death penalty: its decline and eventual rejection by the Supreme Court in 1972, its resurrection by the court later that decade, and its suspension in several states more recently. His most ambitious work, “The Death Penalty in America,” revised several times, has been a standard text since it was first published in 1964.

Professor Bedau (pronounced beh-DOUGH) took up the issue as well in “The Case Against the Death Penalty,” a pamphlet distributed widely for many years by the American Civil Liberties Union. Written with the help of Henry Schwarzschild, a former director of the group’s Capital Punishment Project, the publication brought together a number of arguments against the death penalty: that it failed to deter crime (using supporting data); that it was fraught with racial bias, wrongful convictions and excessive financial costs; and that it was ultimately an act of “barbarity.”

“The history of capital punishment in American society clearly shows the desire to mitigate the harshness of this penalty by narrowing its scope,” the pamphlet said in a section titled “Unfairness.” “Discretion, whether authorized by statutes or by their silence, has been the main vehicle to this end. But when discretion is used, as it always has been, to mark for death the poor, the friendless, the uneducated, the members of racial minorities and the despised, then discretion becomes injustice. Thoughtful citizens, who in contemplating capital punishment in the abstract might support it, must condemn it in actual practice.”

The essay, heavily footnoted, was less than 9,000 words long. Professor Bedau’s curriculum vitae was more than 13,000.

“We called him the dean of death penalty scholarship,” said Michael Radelet, a death penalty expert at the University of Colorado who began working with Professor Bedau in the 1980s. “Bedau was the first guy to put it all together and the first to make the general empirical argument against the death penalty — that is, a little race, a little deterrent, a little innocence.”

And:

Ms. Putnam, a medical historian, said Professor Bedau was teaching at Princeton in the 1950s when the New Jersey Legislature was weighing measures in support of the death penalty. Struck by how little public debate the issue seemed to generate, he began to research capital punishment and eventually became immersed.

“It was anger, disappointment and frustration over discovering that something this significant in the so-called life of a society was going through the Legislature with so little public discussion or debate,” Ms. Putnam said.

Professor Bedau eventually testified on the issue before state legislatures and Congress, spoke to countless library groups, and delivered a series of lectures in 1994 as the Romanell-Phi Beta Kappa professor of philosophy while at Tufts. The lectures were collected in a book, “Making Mortal Choices,” published by Oxford University Press in 1997.

“He wasn’t a front-line protester; that wasn’t his role,” Ms. Putnam said. “His contribution was clarity of thinking.”

Earlier news of the passing of Hugo Bedau is at the link.

Death Penalty Should Be Killed

That's the title of a Sunday Denver Post editorial.

If James Holmes is convicted of the brutal murder of 12 people at an Aurora theater, he obviously should spend the rest of his life behind bars. We doubt if a single Coloradan would disagree.

But the more controversial question — on which disagreement is intense — is how long a mass murderer's life should last.

Should he be allowed to die in prison of natural causes, possibly living on for decades, or should he be put to death?

It's a critical question that prosecutors are already exploring.

We believe that even Holmes, if found guilty, should spend his life in a cell without hope of parole. But he should not be executed.

It's not only that we consider the death penalty an increasingly archaic form of punishment with troubling moral implications. Even if that weren't the case, capital punishment in Colorado has become a legal oddity and an embarrassment to fair and sensible public policy.

The death sentence is rarely sought, even more rarely obtained and almost never enforced.

And:

The study we mentioned — which we should note was instigated by the defense team for an inmate who killed a corrections guard — looked at the years 1999 through 2010. The three professors who conducted the research, including two from the University of Denver, identified 500 first-degree murder cases with at least one of the "aggravating factors" that would qualify for the death penalty. Yet they found "only 5 cases in which the death penalty was still being sought at the time of the sentencing" phase of the trial.

That's a prosecution rate of 1 percent. And you don't have to agree with the study's authors, who insist that Colorado's death penalty statute is unconstitutional, to be troubled by what their statistics say about this state's commitment to equal justice before the law.

Earlier coverage from Colorado begins at the link; coverage of the study of Colorado death penalty prosecutions is also available.

Hugo Adam Bedau, 1926-2012

Mike Radelet of the University of Colorado passes on word of the death of Hugo Adam Bedau, one of the great scholars of capital punishment.  He was the Austin B. Fletcher Emeritus Professor of Philosophy at Tufts University.   He edited several editions of The Death Penalty in America, beginning in 1964.  The most recent paperback edition was published in 2005.

Bedau was a founding member of the National Coalition to Abolish the Death Penalty and served on its board of directors for years, including several terms as chairman.

William A. Schabas posts of Bedau's passing at Human Rights Doctorate.

I'll update this post as more information becomes available.

Colorado Death Penalty Law Unconstitutional, Study Contends

That's the title of a news report in today's Denver Post written by John Ingold.

Colorado prosecutors could seek the death penalty in the vast majority of first-degree murder cases in the state but instead pursue it so infrequently that the state's capital-punishment system is unconstitutionally arbitrary, three law professors argue in a new study.

The conclusion could be earth-shaking for the Colorado criminal-justice system, at a time when prosecutors in Arapahoe County are deciding whether to pursue the death penalty against Aurora shooting suspect James Eagan Holmes. It could have more direct implications in the looming death-penalty sentencing hearing of Edward Montour — whose defense team initiated the study and included it in a motion.

"This is a groundbreaking study," said David Lane, one of Montour's defense attorneys.

Colorado law says a person must be convicted of first-degree murder, the most serious murder charge, and also meet an extra aggravating factor to be eligible for a death sentence. To conduct the study, the professors — in a first-of-its-kind effort in Colorado — assembled a list of all homicide cases between 1999 and 2010, then identified which of those cases were first-degree murder cases.

The study finds that 92 percent of the state's 544 first-degree murder cases in that time span contained at least one of the aggravating factors that make the case eligible for the death penalty. But prosecutors filed notices of intent to seek the death penalty in only 15 murder cases during that span and pursued the death penalty at trial in only five of those cases — a 1 percent rate among death-eligible cases.

"Under the Colorado capital sentencing system," the authors write in their report, "many defendants are eligible but almost none are actually sentenced to death. Because Colorado's aggravating factors so rarely result in actual death sentences, their use in any given case is a violation of the Eighth Amendment."

The Eighth Amendment prohibits cruel and unusual punishment.

The study was conducted by University of Denver law professors Justin Marceau and Sam Kamin and Rowan University professor Wanda Foglia with funds provided by Montour's defense team.

And:

Montour's team has now included the new study into a motion asking a judge to cancel Montour's sentencing hearing and find the Colorado death- penalty law unconstitutional.

The Pueblo Chieftain reports, "Three inmates jailed on death row; Colorado has not executed a prisoner since 1997."  It's by Tracy Harmon.

While prosecutors in Arapahoe County ponder whether to seek the death penalty for theater shooting suspect James Holmes, the state still maintains its execution room at Colorado State Penitentiary.

"The death chamber still is at CSP. An execution would be at CSP at this point in time," said Katherine Sanguinetti, Colorado Department of Corrections spokeswoman.

The state has three death row inmates — all incarcerated at Sterling Correctional Facility. All three were convicted for murders in Arapahoe County, where Holmes also is accused of killing 12 patrons and wounding another 58 on Friday at an Aurora movie theater.

And:

Fifteen years ago, the number of death row inmates was five. One of them actually was executed and only one — Dunlap — remains on death row. The state's last execution came Oct. 13, 1997, when Gary Lee Davis, 53, was given a lethal injection at Colorado State Penitentiary in Canon City.

Today's Denver Post also reports, "New Arapahoe County DA will get biggest case on first day in office — Holmes," by Carlos Illescas.

It will be the biggest case of his career, and it will begin the very moment he takes office.

The new district attorney in Arapahoe County will be dealing with the prosecution of a man who allegedly shot up a movie theater, killing 12 people and injuring 58 others.

A story that is still making national headlines will bring with it maybe the biggest decision of his career as well: whether to seek the death penalty against James Eagan Holmes, the man charged with the brutal midnight attack carried out during the premiere of the new Batman movie, "The Dark Knight Rises."

That's because it's a question not likely to be left to current District Attorney Carol Chambers, who is term-limited and will leave office in January

after eight years as the top prosecutor in Arapahoe, Douglas, Elbert and Lincoln counties.

Instead, that decision will ultimately come from one of two men who are vying in November to replace Chambers: Democrat Ethan Feldman or Republican George Brauchler.

It's a matter of timing: The sheer movement of the calendar will likely preclude Chambers from making that call should Holmes be convicted in the July 20 Aurora theater shooting.

Holmes is not scheduled to face a preliminary hearing until mid-November, and no date has been set for a possible trial. And even if things started moving more quickly, Holmes' lawyers may want to drag out proceedings so that when the window opens up to seek the death penalty, Chambers — who has sought the ultimate penalty six times during her tenure — is already out of office.

Earlier coverage from Colorado begins at the link.

Death Penalty Undermines Justice

That's the title of Roger Barnes' OpEd in today's San Antonio Express-News.  He's the Chair of the Department of Sociology and Criminal Justice at the University of the Incarnate Word in San Antonio.

Death penalty advocates have long maintained there is no evidence that Texas ever executed an innocent person.

It is time for these folks to fess up. Texas has executed an innocent person.

I base this upon a recent Columbia University Human Rights Law Review report. If ever there is evidence that we got it wrong and executed an innocent person, this is it.

Wanda Lopez, a convenience store clerk in Corpus Christi, was brutally knifed to death in 1983. Carlos DeLuna was executed in 1989 for the murder. But an 18-month investigation led by Professor James Liebman concludes it was most likely another man who committed the murder.

This report (which may be accessed at www.thewrongcarlos.net) details how Texas executed the wrong man. Video clips, police records, audio interviews and notes from 100 witness interviews paint a vivid picture of the system flaws that led to DeLuna's execution.

And:

We know the system makes mistakes. Since 1987, 12 death row prisoners have been exonerated in Texas, the most recent in 2010. No one wants to see innocent people on death row. The exonerations at least set people free, albeit after grave injustices. We cannot bring Carlos DeLuna back. Execution is final.

Not surprisingly, the innocence issue is a major reason why more people are challenging the death penalty. The innocence issue is also a reason why five states have abolished the death penalty.

Earlier coverage of Carlos DeLuna and the Columbia HRLR article begins at the link.

Texas Bar to Honor UT Arlington Professor for Indigent Defense Work

The Fort Worth Star-Telegram reports, "State Bar of Texas to honor UT Arlington official," by Diane Smith.

Michael Moore isn't a lawyer, but his work is helping change how Texas provides the poor with legal representation.

Moore, dean of undergraduate students and senior vice provost at the University of Texas at Arlington, is the first recipient of an award created in his honor by the State Bar of Texas.

He is being singled out for 15 years of service on the Committee on Legal Services to the Poor in Criminal Matters.

"I am humbled by the recognition," Moore said. "I always felt the work that we did was very much a collective effort by members of the committee. To be recognized by my former committee members and the State Bar with this award is indeed a surprise and a humbling experience."

The Michael K. Moore Award for Research and Writing in the Area of Indigent Defense will be presented July 23 in San Antonio during the State Bar of Texas' annual Advanced Criminal Law Course.

Jeff Blackburn, committee chairman, said Moore used his research talents to expose problems in Texas' criminal defense of low-income people.

And:

Allan Butcher, UTA professor emeritus and founding member of the committee, said Moore was enlisted to advise the committee about how to best survey the state of indigent defense in Texas.

The result was, "Muting Gideon's Trumpet: The Crisis in Indigent Criminal Defense in Texas."

Butcher said this work exposed a system in crisis and alludes to the U.S. Supreme Court case Gideon v. Wainwright, which determined that criminal defendants have a right to an attorney when they can't afford one. The report helped lay the foundation for the Fair Defense Act of 2001, which overhauled the legal representation of poor people accused of crimes.

You can read the 2000 report, Muting Gideon's Trumpet: The Crisis in Indigent Criminal Defense in Texas, in Adobe .pdf format.

Related posts are in the indigent defense category index.

Timothy McVeigh and the Myth of Closure

That's the title of an Atlantic post last month by Andrew Cohen. concerning a new book, Killing McVeigh: The Death Penalty and the Myth of Closure, by Indiana University Law prof Jody Madeira.  It's published by NYU Press.  The book is also available from Amazon.com.

The families of his victims were allowed to watch him die, but in the years that passed, many were left without a sense of finality. A new book follows these people, searching for an answer to a powerful question: When does a tragedy end?

Eleven years ago today-- on June 11, 2001-- Oklahoma City bomber Timothy McVeigh was executed by lethal injection at the federal death chamber in Terre Haute, Indiana. He died with his eyes open, it was reported, staring up at the closed-circuit camera that was beaming his execution back to Oklahoma. Four years earlier, almost to the day, a federal jury in Denver, Colorado, had sentenced him to death for the murder of 168 people, killed in a truck bomb blast at the Alfred P. Murrah federal building on April 19, 1995.
When the death sentence was revealed on June 13, 1997, The Denver Post reported at the time, there was little of the public cheering that had accompanied the jury's first verdict. Then, there had been a measure of jubilation on the streets outside the courthouse in downtown Denver. This time, on Friday the 13th, there was mostly just a sense of relief. "I'm glad it's complete," juror David Gilger said. "I hope it brings a sense of closure to everyone."

Closure. To many it is just another "made-up word. A politician's word," a word that has proven, unsurprisingly, to be wholly inadequate to describe the range of emotions, often raw and conflicting, of any particular person's grieving process. Then again, many others evidently still swear by it. Search "'victims' rights' and closure" on Google and it comes back with 1,770,000 results.

No surprise. Fifteen years ago, especially, the word had great political relevance. The concept of "victims' rights" was just then broadening its impact upon the criminal justice system, fueled by a United States Supreme Court decision styled Payne v. Tennessee. The 1991 ruling, written by Chief Justice William Rehnquist, held that a capital defendant had no Eighth Amendment right to be free from a sentencing trial which included "victim impact" statements.

After Payne came O.J. And then after that came McVeigh. It was in the name of justice, and closure, that the thousands of victims of the Oklahoma City bombing exerted remarkable political power to achieve their goals. The biggest example of their success was the swift, bipartisan passage of the 1996 Antiterrorism and Effective Death Penalty Act, an extraordinary statute that has influenced hundreds of murder cases -- and much of our legal war on terrorism -- ever since.

NYU Press has more on the book.

In Killing McVeigh, Jody Lyneé Madeira uses the Oklahoma City Bombing as a case study to explore how family members and other survivors come to terms with mass murder. As the fullest case study to date of the Oklahoma City Bombing survivors’ struggle for justice and the first-ever case study of closure, this book describes the profound human and institutional impacts of these labors to demonstrate the importance of understanding what closure really is before naively asserting it can or has been reached.

Related posts are in the books and victims' issues category indexes.

Ending the Practical Argument About the Death Penalty

That's the title of Paul Waldman's article in the current issue of American Prospect.  It's subtitled, "We're left to argue only the moral question."

When he was running for president in 2000, George W. Bush was often asked about the fact that as governor of Texas, he executed 152 people, more than any other governor in modern history at the time (though his successor Rick Perry has since surpassed him). Bush always responded that he believed the death penalty saves lives. In other words, his primary justification was a practical argument, not a moral argument. But the empirical evidence on the question of whether the death penalty was always fuzzy at best.

Like most death penalty opponents, I was always very skeptical of claims like Bush's (isn't that odd, how our beliefs about what is always seem to line up so neatly with our beliefs about what ought to be). Despite what you might believe from watching Law & Order, most murders aren't carefully planned so that the perpetrator can get his hands on his grandmother's fortune, giving him plenty of time to contemplate the potential consequences if he gets caught. People who kill other people tend to do it out of anger or desperation, and the idea that some significant number of them would stop themselves if they knew they might be executed if they got caught, but go ahead with the murder if they knew they'd spend the rest of their lives in jail, just doesn't make much sense.

So why haven't social scientists been able to answer this question definitively? The main problem is that there just aren't enough executions to give you the kind of healthy sample size you need. As Betsey Stevenson and Justin Wolfers tell us, the National Academy of Sciences has concluded that the existing research on the topic just can't tell us one way or the other whether the death penalty has any deterrent effect.

And:

In a way, the practical claims are too easy to make. It certainly made it easy for Bush—he could just say the death penalty saves lives, and he didn't need to provide a moral justification for the execution assembly line they have in the Lone Star State. The moral claims require you to be clearer about your values. That's a debate we ought to have.

More on the Stevenson/Wolfers column at the link; it begins coverage of the National Research Council study on deterrence.  Related posts are in the deterrence index.

The Death-Penalty Debate Represents a Market Failure

That's the title of a column at Bloomberg News View, written by Betsey Stevenson and Justin Wolfers on the recent deterrence study published by the National Reserach Council.  Stevenson and Wolfers are professors at the University of Pennsylvania’s Wharton School.  Here's an extended excerpt from the beginning of the essay.  There are graphs at the link.

The debate over the death penalty offers a vivid illustration of a tragic flaw in the market of ideas: Strong beliefs attract a lot more attention, and can have a lot more influence, than the truth.

In recent years, five U.S. states have eliminated capital punishment, and several others are currently reconsidering their policies. Advocates of the death penalty insist the moves will lead to more murders. They point to a number of studies conducted over the past couple of decades that purport to find clear evidence supporting their view. Experts happily serve up unequivocal congressional testimony, and feed their analyses to lobby groups.

The reality, unsatisfying and inconvenient as it may be, is that we simply don’t know how capital punishment affects the homicide rate. That’s the conclusion of the National Academy of Sciences, which typically plays the role of impartial arbiter in these social-science debates. Their expert panel recently concluded that existing research “is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates,” and that such studies “should not influence policy judgments about capital punishment.”

The panel’s conclusions largely echo those from research conducted by one of us (Justin Wolfers) jointly with Stanford University law professor John Donohue. That research replicated and probed the leading studies, finding that even minor changes in how the analyses were conducted dramatically altered the conclusions. As a result, there’s “not just ‘reasonable doubt’ about whether there is any deterrent effect of the death penalty, but profound uncertainty,” the authors wrote. Indeed, “we remain unsure even of whether” the effects “are positive or negative.”

How could the confident claims of those earlier researchers end up being so wrong? Let’s start by exploring why it’s so difficult to give a precise answer to those interested in the effects of the death penalty.

As big a deal as capital punishment may seem, it’s actually quite rare. Since the death penalty was reinstated in the U.S. in 1976, there have been about 670,000 homicides and only 1,296 executions, a rate of about one execution per 500 murders. This makes the task of discerning its specific impact very difficult.

To complicate things further, the homicide rate fluctuates enormously for reasons unrelated to capital punishment. So the correlation between capital punishment and homicide rates can be positive or negative, depending on the specific sample of states or countries analyzed, the sample period chosen, and which other determinants are accounted for.

Even if the correlation between capital punishment and murder rates could be reliably estimated, that wouldn’t be enough to prove causation. For instance, more vigorous capital punishment probably occurs at the same time as other reforms to sentencing, prisons and policing. Unless these variables are measured accurately -- and our existing criminal-justice statistics do not provide adequate measures -- it is impossible to disentangle which reforms are driving the homicide rate.

The Bloomberg column is noted at the Wall Street Journal Real Time Economics blog.

Betsey Stevenson and Justin Wolfers look at the problems of measuring the effectiveness of the death penalty. “As big a deal as capital punishment may seem, it’s actually quite rare. Since the death penalty was reinstated in the U.S. in 1976, there have been about 670,000 homicides and only 1,296 executions, a rate of about one execution per 500 murders. This makes the task of discerning its specific impact very difficult. To complicate things further, the homicide rate fluctuates enormously for reasons unrelated to capital punishment.

Earlier coverage of the NRC deterrence study begins at the link.

Opinion Roundup

West Virginia's Charleston Gazette carries the editorial, "Pro-death: Ugly spectacle," today.

The death penalty degrades any society that inflicts it. States that kill people are less humane. Texas is almost the world capital of executions, and former Gov. George W. Bush boasted of his large number of termination warrants. He even mocked a woman who was put to death.

Now another Texas case from just before Bush's tenure -- evidently the erroneous execution of an innocent man -- is spotlighted in a book-length report in Columbia University's Human Rights Law Review. The account by Columbia law professor James Liebman says:

Carlos DeLuna was a young parolee with the mental level of a child. One night in 1983, DeLuna said, he saw a thug he knew stab a Corpus Christi store clerk to death with a lock-blade buck knife. As sirens approached, DeLuna ran, fearful of police.

When he was found hiding under a pickup truck a mile away, DeLuna had no blood on him, even though the murder scene was soaked with blood as the female clerk wrestled with the killer.

And:

Liebman concludes that the low-IQ DeLuna almost certainly was wrongly executed for someone else's murder. But we wonder whether Texas officials really care, in a state where prejudice against Hispanics is strong.

This fall, Californians will vote in an attempt to ban the death penalty. We certainly hope they take the humanitarian step that West Virginia took a half-century ago. We're proud that the Mountain State stopped killing prisoners.

Pro-death sentiment is held chiefly by hard-right conservative Americans. But we wonder if they, too, are beginning to lose their desire for executions.

Most modern democracies have ended the barbaric, medieval practice of putting people to death. It's a brutal remnant from the dark past. Where it remains, it's inflicted almost entirely on the poor and downgraded minorities. It doesn't belong in any advanced, educated, fair society.

Earlier coverage of the Columbia Human Rights Law Review article begins at the link; also available, earlier coverage of the SAFE California ballot initiative.  You can read the complete Columbia Human Rights Law Reviewl article at The Wrong Carlos.

Illinois attorney Spencer Aronfeld posts, "How Florida's Death Penalty Is Killing Us," at Huffington Post.  Here's the beginning:

Since 1979 Florida has executed 72 human beings. Most spent more than a decade on death row waiting to be killed. According to the Florida Department of Corrections the average death row inmate is 44 years old at the time of his execution, while they were only 30 years of age at the time of the alleged offense that led to their conviction.

Florida also executes women. Judy Bunoano was the first woman Florida executed in 1998. She died in an electric chair. Currently there are four women on death row.

After Bunonano's execution, Florida started offering lethal injections as an optional means. The executions are performed by an unnamed "private citizen" that gets paid $150.00 for each execution.

Tragically, not everyone who has been on Florida's death row was actually guilty. In fact, Florida reverses more death sentences than any other state in the country, releasing 23 death row inmates based upon post-conviction evidence of their innocence.

Now is the time that Florida must reform its criminal justice system by taking a closer look at what Florida's death penalty says about us as a civilization, as well as the 401 people who are currently on Florida's death row. Some argue and believe that having Florida's death penalty somehow discourages murder. Yet, the statistics tell another story. For instance, in 2010 the average murder rate in states with death penalties was 4.6 per 100,000 while the average murder rate for states without the death penalty was only 2.9 per 100,000.

More on Florida death penalty issues at the links.

You Can't Fix the Death Penalty

That's the title of an OpEd in today's Los Angeles Times written by Columbia Law prof James Liebman.  It's subtitled, "Carlos DeLuna's execution shows that a faster, cheaper death penalty is a dangerous idea."

Californians will vote this fall on an initiative to abolish the death penalty. Proponents of the measure say it is necessary because capital punishment is too costly. Opponents argue that costs can be cut by streamlining the system.

But whether one is for or against capital punishment, trying to make the process cheaper and quicker is a terrible — and dangerous — idea.

Recently, my coauthors and I published the results of an extensive four-year investigation into the Texas execution of Carlos DeLuna, a young Latino man with a childlike intellect who was convicted of murder. His case flew through the courts. The entire process, from arrest to lethal injection, took only six years, or half the national average for capital cases.

It now seems virtually certain, however, that DeLuna was innocent. Only a more careful — and consequently longer and more expensive — prosecution and appeals process might have prevented the tragedy.

And:

The flaws in the system that condemned DeLuna — faulty eyewitness testimony, poor legal representation and evidence withheld from the defense — continue to put innocent people at risk of execution. Cameron Willingham, David Spence, Ruben Cantu, Larry Griffin, Gary Graham and Troy Davis are among those executed despite evidence that they were not guilty. What we don't know is how many more, like Carlos DeLuna, have fallen through the cracks without ever being noticed.

DeLuna's case disproves the myth that we can save the death penalty by generating more "quick and dirty" executions. The death penalty is broken. At great effort and expense, states such as California have tried every measure to fix it, but they have failed. The only solution is to end it.

You can read the complete Columbia Human Rights Law Review article at The Wrong Carlos.

Earlier coverage of Carlos DeLuna and the Columbia HRLR article begins at the link.  Earlier coverage of the SAFE California ballot initiative is also available

Texas Gaining National Rep for Executing Innocents

That's the title of Texas Observer Editor Dave Mann's take on the Columbia HRLR report, The Wrong Carlos.

Yes, it has come to this: Credible claims of innocence in multiple cases of men executed years ago. It’s becoming a disgrace for the state. What else can we say after the recent disturbing revelations in the case of Carlos DeLuna?

DeLuna was convicted of stabbing to death 24-year-old Wanda Lopez at a Corpus Christi convenience store in 1983. His conviction was based largely on the shaky testimony of a single eyewitness. Police had the eyewitness identify DeLuna at the crime scene while DeLuna was in custody—not ideal policing practice to say the least. No physical evidence linked him to the crime. Yet the state executed DeLuna in 1989. Now it appears they had the wrong man.

In 2003, Columbia University law professor James Liebman and a group of students began an eight-year reinvestigation of DeLuna’s case. Their results were recently published in a book-length Columbia Human Rights Law Review article.

And:

Texans have sadly grown accustomed to the horrifying tales of wrongful conviction after more than two dozen DNA exonerations in Dallas County and the high-profile cases of Anthony Graves and Michael Morton. But the DeLuna case is one of the most dispiriting yet. Though the details are different, what happened to DeLuna is eerily similar to the infamous Cameron Todd Willingham case and to the Claude Jones case. (If you’re not familiar with the Jones story, which the Observer broke in November 2010, then read this story. DNA tests debunked the key evidence against Jones, who was executed in 2000, though the tests didn’t conclusively establish his actual innocence.) Then there’s the case of Ruben Cantu, a former special ed student executed in 1993 for a crime he almost certainly didn’t commit.

"Carlos DeLuna, Cameron Willingham and Rethinking the Criminal Justice System," is Dan Simon's Huffington Post essay.  He's Professor of Law and Psychology at USC's Gould School of Law.  Here's the beginning:

Carlos DeLuna and Cameron Todd Willingham probably did not commit the crimes for which they were put to death by the state of Texas. In-depth inquiries into their convictions revealed bungled investigations, poor recordkeeping, mistaken eyewitness testimony, spurious forensic testimony and misconduct by law enforcement personnel, among other problems.

Sadly, the DeLuna and Willingham convictions are hardly isolated incidents. The National Registry of Exonerations, which launched this month, lists 890 men and women who were wrongfully convicted for serious crimes and spent, on average, more than 11 years in prison before being found factually innocent. That's not the complete story. The registry does not include an additional 1,170 people who were exonerated following large-scale police scandals. The actual number of false convictions is probably far greater.

At bottom, the primary cause for false convictions is the questionable quality of the evidence habitually used in criminal prosecutions. Poor evidence can be produced even when all actors follow procedures diligently and conscientiously. The problems lie with the investigative procedures themselves. Lineups, witness interviews, and suspect interrogations rely on crude and archaic investigative methods that are both insensitive to the prospect of human error and prone to exacerbate mistakes. As a result, the evidence elicited contains an unknown mix of accurate and inaccurate evidence.

Mystifyingly, criminal investigators are not required to make a reliable record of the evidence they collect. Verdicts are thus often based on faded memories, paraphrased statements, incomplete narratives and swearing contests about what transpired in the interrogation room. Hints of error are obscured from police supervisors and prosecutors, and they are concealed from lawyers, judges and juries. The lack of a reliable record opens the door to testimony creep -- as the trial date approaches, gaps in testimony get filled, narratives congeal, and reluctant witnesses become more confident.

The Catholic Sentinel posts, "Another innocent killed?"

America is one of the few remaining countries that allows its states to use the death penalty. For a state to kill people to demonstrate that killing people is wrong is crazy.

The Vatican and the U.S. bishops have spoken out against the death penalty.
Archbishop John Vlazny has called for an end to the death penalty in this newspaper.

“Human life is a gift from God, sacred from conception to natural death ,” he wrote last year.

In his encyclical Caritas in Veritate, Pope Benedict asserted that “society lacks foundations when, on the one hand, it asserts values such as the dignity of the person, justice and peace, but then, on the other hand, radically acts to the contrary by allowing or tolerating a variety of ways in which human life is devalued and violated, especially when it is weak or marginalized.”

Even as a deterrent to crime, the death penalty is not reliable. States with more executions do not generally have lower murder or crime rates.

The Story, an American Public Media radio broadcast, features an interview with Columbia Law prof James Liebman in, "Investigating an Execution."  It's conducted by Dick Gordon.  Audio is at the link.

Earlier coverage of Carlos DeLuna and the Columbia HRLR article begins at the link; also available, extensive coverage of the National Registry of Exonerations.  You can read the full article at The Wrong Carlos.

Botched Executions

Amherst College scholar Austin Sarat and a group of students have published, Gruesome Spectacles: The Cultural Reception of Botched Executions in America, 1890 - 1920 in the current issue of the British Journal of American Legal Studies.

"Three Percent of US Executions Since 1900 Were Botched," is the title of a news release issued by Amherst.  It's also available via Newswise.  Here's the full release:

Since the beginning of the 20th century, an estimated 3 percent of all executions in the United States were “botched,” according to Amherst College Professor Austin Sarat and a team of undergraduate researchers. The group found that, of approximately 9,000 capital punishments that took place in the country from 1900 to 2011, 270 of them involved some problem in carrying out the death penalty.

“Given the gravity of the decision to put someone to death and the constitutional prohibition of cruel punishment,” said Sarat, the William Nelson Cromwell Professor of Jurisprudence and Political Science, “the fact that 3 out of every 100 executions are messed up should be a cause of serious concern to all Americans.”

By culling through detailed and often grisly newspaper accounts of capital punishments that occurred over the past 111 years, Sarat and his team created a database—the only one of its kind, said Sarat—of all of the mentions of what he describes as “departures from the protocol of killing someone sentenced to death.” He explained that such departures included, among other things, instances in which inmates caught fire while being electrocuted, were strangled during hangings (instead of having their necks broken) or were administered the wrong dosages of specific drugs for lethal injections.

“What was particularly interesting was the way the media represented these events in the early part of the 1900s,” said Sarat. He and his team published a paper about this aspect of their work—the cultural reception of botched executions from 1890 to 1920—in the current issue of the British Journal of American Legal Studies and also discussed it at the meeting of the Association for the Study of Law, Culture and the Humanities in Fort Worth, Texas, this past March. “In the vast majority of the stories about the botched executions, the narratives were both sensational and what we called ‘recuperative’—reporters consistently made the point that, despite the gruesomeness of the proceedings, the inmates didn’t suffer, that justice was done. There was very little criticism of the process or questioning of the death penalty itself. The stories were used to sell newspapers and nothing else.”

Sarat also noted that the group’s analysis revealed that while the American penal system has gotten better at administering the death penalty, modern society demands more of the process—that the killing not be more painful than necessary, in particular—so that the acceptable margin of error is smaller today than it ever has been. As a result, capital punishments gone wrong are as much an issue in the 21st century as they were in the 20th.

Sarat cited the case of Romell Broom in Ohio in September of 2009 as one recent example of a botched execution. Efforts to find a suitable vein through which prison officials could inject a lethal dose of drugs were terminated after more than two hours of trying. Broom repeatedly grimaced in pain throughout the excruciating process and even attempted, at points, to help his executioners find a vein. Finally, Ohio Gov. Ted Strickland put a halt to the execution and ordered a one-week reprieve.

“In my view, no procedure like the one Romell Broom experienced can comport with our constitutional commitment to avoid cruelty in punishment,” said Sarat.

The idea for such an examination of botched executions was born in a small seminar class titled “America’s Death Penalty” (funded by a grant Amherst College received from the Andrew W. Mellon Foundation) that Sarat taught in the spring of 2011. Halfway through the semester, Sarat asked the six participating students if any were interested in staying on campus for the summer and conducting research with him on executions gone wrong. Five—Aubrey Jones ’13, Madeline Sprung-Keyser ’13, Heather Richard ’13, Kate Blumstein ’13 and Robert (Henry) Weaver ’13—signed on and spent hours finding, reading and categorizing newspaper accounts.

What struck Richard the most was the fact that, in the early 1900s, newspapers didn’t just publish articles about executions in vivid, morbid detail; they often made accounts more shocking by deliberately changing the facts. One Associated Press wire piece in 1922, for example, described the electrocution of James Wells on March 10 after 11 unsuccessful attempts. In the original story, Richard noted, the reporter wrote that “fully twenty minutes were consumed in putting him to death” and that the punishment was carried out by an “inexperienced executioner.” The Ogden, Utah, Standard-Examiner ran the piece but edited the first phrase to read “few minutes were consumed in putting him to death” and described the executioner as “experienced.” This was just one of many instances in which particular papers were loose with the facts, said Richard.

“We all found it fascinating that these editors and reporters took what is already an incredibly sensational event—a botched execution—and made it even more sensational by changing the details,” she said. “And on top of that, the institution of capital punishment was not really examined or critiqued. It certainly says something about the newspapers and their readers.”

Sarat agreed. “How a society punishes, and then talks about it, reveals its true character,“ he said. “Punishment tells us who we are. The way a society punishes demonstrates its commitment to standards of judgment and justice, its distinctive views of blame and responsibility, its understandings of mercy and forgiveness and its particular ways of responding to evil.”

“Sadly,” he said, “our attachment to the death penalty reveals an unpleasant, unseemly side of American character.”

More on Ohio's 2009 botched execution attempt of Romell Broom is at link.

Robyn Blumner on 'The Wrong Carlos'

Syndicated columnist Robyn Blumner writes, "When the state kills the innocent," for the Tampa Bay Times.  It's also available as, "Innocents have been executed via the Columbus Dispatch and Tribune Media Services.  It's a must-read.

If you’re reading this in a comfortable, middle-class home, what happened to Carlos DeLuna almost certainly could never happen to you.

But everyone should care about DeLuna’s story because it lays bare America’s broken “machinery of death,” to quote former U.S. Supreme Court Justice Harry Blackmun. After decades on the bench, Blackmun finally stopped upholding death sentences. He said the potential for error is too great in a system “fraught with arbitrariness, discrimination, caprice and mistake.”

DeLuna was a poor Hispanic nobody with a criminal record who was executed in Texas for a crime he didn’t commit. The system in Texas does not go out of its way for people like DeLuna. He was put to death in 1989 for the 1983 knife slaying of Wanda Lopez at a convenience store where she worked in Corpus Christi.

When DeLuna was arrested a short time after the murder, there wasn’t even a microscopic drop of blood on his clothes or shoes, despite a crime scene where Lopez’s blood was splattered on walls and pooled on the floor. A man’s bloody footprint at the scene was never measured by detectives to find a match.

Had police, prosecutors or defense lawyers done their job, they would have uncovered evidence pointing to another man. Carlos Hernandez was a knife-toting violent felon who told multiple witnesses that he had committed the Lopez crime. Hernandez died in prison in 1999 of cirrhosis of the liver.

And:

In 2006, Supreme Court Justice Antonin Scalia argued that because mistaken convictions have been uncovered, America’s death penalty is justified. He declared with relish that the system of procedural safeguards actually works because no innocent person, “not one,” has been wrongfully put to death. If there has been, Scalia wrote, “we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.”

Excuse us, Justice Scalia, but here are two: Carlos DeLuna and Cameron Todd Willingham. These are two men whose stories should lead all of us to conclude, as Justice Blackmun did, that America’s death-penalty experiment has failed.

The National Association of Criminal Defense Lawyers interviews Columbia Law prof. James Liebman in a podcast.  You can listen at the link.

Earlier coverage Carlos DeLuna and the Columbia HRLR acticle is at the link.  You can read the full article at The Wrong Carlos.

Death Penalty Perils

That's the title of an editorial in today's Houston Chronicle on the case of Carlos DeLuna.

We have noted before, as have other observers, that the death penalty in Texas is all too often plagued by errors and failings, and defendants, whether guilty or innocent, have most likely been executed on the strength of faulty evidence. We concluded therefore that rather than risk executing an innocent person, we should abolish the death penalty.

Last week, we were confronted by compelling evidence that in all likelihood, the unthinkable had happened and the state of Texas had indeed executed an innocent man: Carlos DeLuna, put to death in 1989 for the stabbing death of Wanda Lopez at a Corpus Christi convenience store.

As detailed by the Chronicle's Allan Turner ("Report: Texas executed wrong man in '83 killing," Page A1, May 15,) the Columbia Human Rights Law Review, produced by Columbia University law students, devoted its spring issue to a meticulously researched, 400-page article showing that DeLuna was most probably innocent.

And:

Texas has made significant changes in the past few years, one of them being the adoption of a life without parole sentencing option in capital cases. This in itself takes away a major incentive for the death sentence. But the fact is, we can never rule out human failings and errors. We need to follow the example of a growing number of states and repeal our death penalty law. Its risks far outweigh its benefits.

PBS' NewsHour examined the DeLuna case last night in, "Carlos DeLuna Case: the Fight to Prove an Innocent Man Was Executed," featuring an interview with Columbia Law prof Jim Liebman.  There is video at the link.

RAY SUAREZ: From the very beginning, it seems like things didn't add up. Was there ever any evidence connecting Carlos DeLuna to the gas station and the killing of Wanda Lopez?

JAMES LIEBMAN: There wasn't a shred of forensic in evidence this case. Even though the crime scene was a very small, confined area that was just doused in blood, because the victim was bleeding to death from her knife wound, there wasn't a drop of blood, not even a microscopic drop of blood on Carlos DeLuna or his clothing.

We know because we found the photograph 20 years later that the person who committed the crime left a footprint in blood, very deep blood, almost like stepping in mud. But Carlos DeLuna's shoes didn't have a drop of blood on them.

Earlier coverage of the Carlos DeLuna case and the Columbia HRLR article begins at the link.  All coverage is in the Carlos DeLuna category index.

Continued Coverage of the National Registry of Exonerations

The National Registry of Exonerations is beginning to garner editorials, and continuing to get focused attention.

"Hard truths about injustice," is the Dallas Morning News editorial.

Call it a graduate course on what can go wrong in the criminal justice system.

There are 891 case studies at present, and climbing.

That’s the number of individual cases listed so far in a new national project on cataloging and dissecting proven miscarriages of justice.

Called the National Registry of Exonerations, the project aims to build the first comprehensive listing of wrongful convictions in America so the public and professionals can learn the hard lesson of failure, then build a better system.

As with a similar, DNA-centered exoneration database maintained by the Innocence Project of New York, this one figures to be a good teacher. And Texas once again has an embarrassingly prominent presence.

So be it. This state needs to have its dirty laundry laid out as often as possible if that’s what it takes to overcome skepticism that things have been just fine the way they are inside Texas’ halls of justice. We know that’s not the case.

"A new National Registry on Exonerations casts doubt on the accuracy of our criminal justice system," is the title of a Birmingham News editorial.

How many people wrongfully convicted of a crime are we willing to accept? Especially those who are sentenced to Death Row?

A report released Monday by the National Registry on Exonerations raises those questions and more. The registry, a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, profiles 873 exonerations from January 1989 through February 2012. The report discusses including at least 1,170 other defendants whose convictions were dismissed after more than a dozen major police scandals. Most of those scandals involved the massive planting of drugs and guns on innocent defendants, which led to "group exonerations."

And:

Of the 16 state exonerations in Alabama, six were men sentenced to death. It does not require a vivid imagination to wonder whether a wrongly convicted person awaits execution on Alabama's Death Row or, worse, whether the state has killed an innocent person in our names.

If someone goes to prison for a crime he or she did not commit, it is an injustice. That is especially true in capital murder cases, where a life is at stake. We would like to have as much confidence in Alabama's criminal justice system as Strange professes, but the report on the national registry casts enough doubt to cause grave concern.

The Week magazine bundles, "25 years of wrongful convictions: By the numbers."

891 - Specific wrongful conviction cases detailed in the National Registry of Exonerations

93 - Percent of the exonerated convicts who are men

50 - Percent who are black

10.7 - Average time, in years, from conviction to exoneration

10,000 - Combined time, in years, the 891 exonerated prisoners spent behind bars

2.3 million - People incarcerated in the U.S. 

1,170 - Convicted defendants cleared in 13 "group exonerations" since 1995, following large police-corruption scandals, usually involving planted drugs or guns

416 - People exonerated of wrongful homicide convictions

UMichigan Law prof Sam Gross, co-founder of the Registry, is interviewed on NPR's All Things Considered, "Exoneration List Shows Patterns In False Convictions."  It's conducted by NPR's Audie Cornish.

And, to start, Professor Gross, this registry contains information about, I guess, 2,000 exonerations since 1989, but do you know if that's really a comprehensive list?

SAMUEL GROSS: No, it's not. It's incomplete in two senses. It doesn't include all the exonerations that occurred. It includes those we've been able to get information on. And, second, and really more important, even if we could get information on all the exonerations that have occurred in the United States in the past 20-some years, that would only be a small fraction of the people who were innocent but convicted of serious crimes, despite their innocence.

CORNISH: So, of these 2,000 cases that you talk about, you have almost 900 cases, roughly, that you have the most detail about. And one thing I found interesting is that it wasn't DNA, necessarily, that exonerated all of these people.

GROSS: That's right. If you ask somebody on the street about exonerations, the next word out of their mouth will almost certainly be DNA and that's because DNA exonerations, which started in 1989, have gotten a lot of attention and for good reason. They've taught us a lot about the criminal justice system and they provide a type of scientific evidence of innocence that is very powerful.

But DNA exonerations have always been a minority of the exonerations that occur and the more we learn about exonerations that don't get as much attention, the more non-DNA exonerations we find out about.

Exoneree Franky Carrillo and Sam Gross were guests on MSNBC Politics Nation with Al Sharpton.  Carrillo spoke about his own experience with wrongful conviction and exonerations.

Visit msnbc.com for breaking news, world news, and news about the economy

At Huffington Post David Protess posts, "Meet the Exonerated."  He's president of the Chicago Innocence Project.

Other findings were more nuanced. Notably, exonerations were spread across 43 states, but were most prevalent by far in three states: Illinois, New York and Texas. These states together accounted for one-third of the country's exonerations. Cook County and Dallas County led the way with 114 exonerations between them.

But why? While the knee-jerk reaction is to shout "corruption," the reality is good news more than bad. As the researchers indicate, these areas have been at the forefront of the national innocence movement, with dedicated lawyers, investigators, journalists and even college students engaged in exposing wrongful convictions since the 1990s. In the last five years, the D.A. of Dallas County has remedied injustice in 19 cases, some in collaboration with the local innocence project.

It is reasonable to conclude that if the loosely affiliated public interest groups were to bring their model to populated counties like San Bernardino (Calif.), Fairfax (Va.) and Bergen (N.J.) -- none with an exoneration since 1989 -- the problem of wrongful convictions would suddenly surface.

Another relevant issue is the death penalty. Seven of the 10 states with the most exonerations also had among the highest death row populations. Although fewer than 0.1 percent of prisoners are sentenced to death, 12 percent of exonerees had been condemned. Once again, the death penalty has been a priority of the innocence movement, and many dramatic exonerations have helped to change the conversation about capital punishment in America.

Earlier coverage of the National Registry of Exonerations begins at the link.

Continued Coverage - 'The Wrong Carlos'

Former Texas Governor Mark White writes, "Texas must take steps to ensure guilt in capital cases."  His OpEd appears in the Houston Chronicle.  White currently co-chairs the Constitution Project's Death Penalty Committee.

As governor of Texas during the early 1980s, I oversaw 19 executions. I was certain that the executions I oversaw involved guilty individuals, based on the best information available at the time, just as I am sure my successor was certain of guilt in the execution of Carlos DeLuna.

But now, a comprehensive investigation by Columbia University law professor James Liebman and his students suggests that Texas may well have executed the wrong Carlos.

And:

While Texas has certainly taken some steps forward since 1989 with regard to eyewitness identification reform and other innocence-related issues, the problems that plagued DeLuna's case continue to plague criminal - including capital - convictions in our state and across the nation. DeLuna's case should give us all pause as we realize that the possibility of executing an innocent individual is very real. And it should strengthen our resolve to ensure that convictions, particularly capital convictions, are accurate.

If we are going to continue to execute individuals, we must be absolutely certain of those individuals' guilt. Texas must implement best practices when it comes to criminal investigations and trials.

The eyewitness identification reform bill that the Legislature passed last year is one positive step, and I'm hopeful that jurisdictions around the state fully adopt and implement best practices in accordance with the legislation. Texas must also go beyond the steps it has already taken to examine other areas in need of reform, such as providing adequate defense counsel for the poor, reforming crime labs and revising the rules governing what evidence prosecutors must turn over to the defense.

I continue to believe some crimes are so heinous, some actions so abhorrent, that society is justified in demanding the perpetrator's life be forfeit. But I also believe if Texas is going to continue to impose the death penalty, we must take every possible precaution to ensure there is never another Carlos DeLuna.

San Antonio's alt-weekly, SA Current, has an interview with Columbia Law professor Jim Liebman, "Columbia Law School team publishes anatomy of a wrongful South Texas execution."  It's conducted by Michael Barajas.

Until the day Texas executed him in 1989, Carlos DeLuna insisted another Carlos stabbed and killed 24-year-old Wanda Lopez at a Corpus Christi gas station in February 1983. At trial, prosecutors dismissed the idea, calling the other Carlos “a phantom” that didn't exist.

More than two decades after DeLuna's execution, Columbia University law school professor James Liebman and a team of his students have gathered a trove of evidence they claim shows DeLuna was innocent of the crime, publishing the findings last week in a 400-page e-book and in the Columbia Human Rights Law Review's spring issue.

And, one of the questions and answer:

What's the impact of an investigation like this? What can it teach us when looking at capital cases today?

I think the most important thing is to make us recognize the risk we take. There is a real risk of executing the innocent in these capital cases, and that's why it's so important that this case is no different from many, many others we see. It's not an unusual case. Nobody had identified it anywhere near the time of execution as one that we ought to be worried about. There are a dime a dozen cases like this. And so right now where there's a big debate taking place across this country, when a number of states have abolished [the death penalty], with California's big referendum coming up, people should be asking the question: What do we get out of this penalty that we don't get out of, for instance, life without parole? And with what risk and at what cost? We feel this book really demonstrates the risk and the cost: the worst kind of risk out there. We feel it demonstrates that there is a very real risk even in this kind of run-of-the-mill case.

There's nothing about this case where you can say, “Oh we don't do it that way anymore,” or, “That just doesn't happen anymore.” As I say, the defense attorneys were not the strongest in the world but this is not the worst case of ineffective assistance out there. You see similar cases out there everyday across the country, Texas and elsewhere. Prosecutors did not turn over all of the evidence, but there are many cases where you see even worse examples of that. The appeals were quick, but that's not unusual. Like I said, in many ways this is a very run-of-the-mill kind of case even for today. It's the way cases go today. And so the real risk of an innocent person being executed that we found in this case is a real risk that the system continues to take as long as it's prepared to execute people.

"Texas killed the wrong Carlos," is a New York Daily News OpEd written by Shawn Crowley and Andrew Markquart.  Both participated in the Columbia HRLR project, Los Tocayos Carlos,

Other details about the shoddy investigation shocked us. The witness told police the man fleeing the station after Lopez’s murder looked like a transient, wore a disheveled sweatshirt and had a mustache. Police records show that the clean-shaven DeLuna wore a white dress shirt and dress pants that night.

According to the witness, the attacker violently wrestled with Lopez as she bled to death, casting a mist of blood spatter, streaks and pools all over the tiny clerk’s area. But forensic analysis showed that DeLuna’s body, clothes, shoes and fingernails had no blood on them.

The Corpus Christi D.A.’s office has since lost the physical evidence from the investigation. Lost along with it was the potential for the kind of DNA analysis that has exonerated nearly 300 prisoners in recent years.

All of this happened not in the 1920s or even the ’50s, but in the ’80s. And the flaws in our system that led to DeLuna’s death have not been mended. Readers can review our work and decide for themselves what happened. But we are convinced: America must come to grips with the reality of wrongful execution — and decide whether we value the death.

Earlier coverage of Carlos DeLuna and the Columbia HRLR article begins at the link.  All coverage is in the Carlos DeLuna category index.

Continued Coverage of the National Registry of Exonerations

The National Registry of Exonerations is a great resource that's getting continued media attention.

CNN posts, "More than 2,000 wrongfully convicted people exonerated in 23 years, researchers say."  It has graphics and interactive components.

More than 2,000 people have been exonerated of serious crimes since 1989 in the United States, according to a report by college researchers who have established the first national registry of exonerations.

Researchers say their registry is the largest database of these types of cases and showcases some of the major issues with the criminal justice system, including that the leading causes of wrongful convictions are perjury, faulty witness identification and misconduct by prosecutors.

"No matter how tragic they are, even 2,000 exonerations over 23 years is a tiny number in a country with 2.3 million people in prisons and jails," says a report released by the authors. "If that were the extent of the problem we would be encouraged by these numbers. But it’s not. These cases merely point to a much larger number of tragedies that we do not know about."

Read the report (PDF) | Exonerations by state and county (PDF)

The registry itself, which looks deeply into 873 specific cases of wrongful conviction, examined cases based on court documents as well as from groups that have long documented wrongful convictions. That group of wrongfully convicted spent more than 10,000 total years in prison, according to the report, with an average of 11 years each.

"2000 and Growing: Revealing Statistics in Exoneration Study," is Ashby Jones' WSJ Law Blog post.

With increasing frequency, it seems, we get wind of DNA exonerations. Someone who’s served several years in prison gets released after DNA evidence either proves that he wasn’t at the scene of the crime — or puts someone else there in his stead.

It raises the question: Just how many exonerations (due to DNA evidence or otherwise) happen in the U.S.?

The answer, it turns out, is over 2,000 in the last 23 years, according to a study out Monday from the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University.

The study is part of a broader effort at the schools to build a registry of exonerations to chart just how often it happens, and in what contexts.  “It used to be that almost all the exonerations we knew about were murder and rape cases. We’re finally beginning to see beyond that,” said Michigan Law professor Samuel Gross, editor of the registry and an author of the report.

"National Registry Of Exonerations: More Than 2,000 People Freed After Wrongful Convictions," by Michael McLaughlin at Huffington Post.

Some tales of wrongful conviction are well known, like the case of amateur boxer Dewey Bozella.

Bozella was found guilty in 1983 for the murder of an elderly woman. New York police and prosecutors pressed second-degree murder charges propped up by the testimony of witnesses who eventually recanted their testimony. It wasn't until 2007 that Bozella's attorneys discovered major discrepancies and evidence pointing to another suspect, leading to Bozella's release in 2009.

But many stories involving tainted evidence, malingering law enforcement and mistaken eyewitness identification never become common knowledge. The cases outlined on the new National Registry of Exonerations are likely just a fraction of the wrongful imprisonment cases in the United States, researchers told The Huffington Post.

More than 2,000 inmates and ex-cons have been exonerated since 1989, according to the database that aims to track all wrongful convictions in the United States. More than 100 had been sentenced to death.

"This is a beginning," said University of Michigan Law School professor Samuel Gross, one of the database's creators. "One of my great hopes is that this will lead us to learn more about exonerations."

The database, which was developed with members of Northwestern University's Center on Wrongful Conviction, focused on 873 individual cases. The researchers also identified 13 major police scandals that falsely netted 1,170 other people, although these are not included in the database because they are the results of a collective exoneration based on problems in individual agencies.

"Texas Among Top 3 States in Total Exonerations," is by Brandi Grissom and Ryan Murphy for the Texas Tribune.  The report contains a list of all Texas exonerees on the Registry.

The report's lead authors said the project is an unprecedented examination of the scope of wrongful convictions that shows they are far more prevalent than once thought. In Texas, according to the report, there have been 87 exonerations involving crimes ranging from robbery to murder. Only Illinois, with 110, and New York, with 88, had more.

“It used to be that almost all the exonerations we knew about were murder and rape cases. We’re finally beginning to see beyond that,” Michigan law professor Samuel Gross, editor of the registry and an author of the report, said in a news release. “This is a sea change.”

The report, which includes an online searchable database with details on about nearly 900 of the exonerations, details for the first time wrongful convictions in 58 cases involving drugs, taxes, white-collar and other nonviolent crimes; 102 exonerations for child sex abuse convictions; and 129 exonerations of defendants who were convicted of crimes that never happened.

The authors created a separate category for group exonerations, which includes cases of massive law enforcement corruption in Dallas and in Tulia that led to more than 40 exonerations.

The authors note, however, that their work does not encompass all of the wrongful convictions that have happened in the last two decades. Many more cases, they wrote, are probably undiscovered as the wrongfully convicted remain behind bars, die in prison or lack the money to prove their innocence.

They point to the numbers. For instance, in Dallas County, with about 2.4 million people, there have been 36 exonerations. Meanwhile, Bexar County, where the population exceeds 1.7 million, has had none.

"No matter how tragic they are, even 2,000 exonerations over 23 years is a tiny number in a country with 2.3 million people in prisons and jails. If that were the extent of the problem we would be encouraged by these numbers. But it’s not. These cases merely point to a much larger number of tragedies that we do not know about," the report states.

David A. Love writes, "How America's death penalty murders innocents," for the Guardian's Comment Is Free.  He's the executive director of Witness to Innocence.

The US criminal justice system is a broken machine that wrongfully convicts innocent people, sentencing thousands of people to prison or to death for the crimes of others, as a new study reveals. The University of Michigan law school and Northwestern University have compiled a new National Registry of Exonerations – a database of over 2,000 prisoners exonerated between 1989 and the present day, when DNA evidence has been widely used to clear the names of innocent people convicted of rape and murder. Of these, 885 have profiles developed for the registry's website, exonerationregistry.org.

The details are shocking. Death row inmates were exonerated nine times more frequently than others convicted of murder. One-fourth of those exonerated of murder had received a death sentence, while half of those who had been wrongfully convicted of rape or murder faced death or a life behind bars. Ten of the inmates went to their grave before their names were cleared.

The leading causes of wrongful convictions include perjury, flawed eyewitness identification and prosecutorial misconduct. For those who have placed unequivocal faith in the US criminal justice system and believe that all condemned prisoners are guilty of the crime of which they were convicted, the data must make for a rude awakening.

"The most important thing we know about false convictions is that they happen and on a regular basis … Most false convictions never see the light of the day," said University of Michigan law professors Samuel Gross and Michael Shaffer, who wrote the study.

"Nobody had an inkling of the serious problem of false confessions until we had this data," said Rob Warden, executive director of the Center on Wrongful Convictions at Northwestern University. 

The unveiling of the exoneration registry comes days after a groundbreaking study from Columbia law school Professor James Liebman and 12 students. Published in the Columbia Human Rights Law Review, the study describes how Texas executed an innocent man named Carlos DeLuna in 1989. DeLuna was put to death for the 1983 murder of Wanda Lopez, a young woman, at a gas station. Carlos Hernandez, who bragged about committing the murder and bore a striking resemblance to DeLuna, was named at trial by DeLuna's defence team as the actual perpetrator of the crime. But DeLuna's false conviction is merely the tip of the iceberg, as the database suggests.

Earlier coverage of the National Registry of Exonerations begins at the link.

Wrongful Convictions: A New Exoneration Registry Tests Stubborn Judges

That's Andrew Cohen's latest post at the Altantic looking at the impact of the National Registry of Exonerations.  It's a must-read.

Last Monday, investigators, lawyers, and writers at the Columbia Human Rights Law Review published a groundbreaking book-length piece chronicling how Texas executed an innocent man in 1989. The piece is remarkable for how deep down its authors dug to establish how and why Carlos DeLuna was executed for a crime that Carlos Hernandez almost certainly committed. Old news, proclaimed Texas prosecutors (on Twitter, no less) last week, and to a certain extent they are right. It's hard to get people focused upon a case that's a generation old. It's what has happened since DeLuna that matters.

And that's why this Monday brings such another important contribution to the debate over criminal justice in America. Early this morning, a vital new entity, the National Registry of Exonerations, published its first-ever report that picks up where the DeLuna case left off. The study results are grim: By one measure, at least 2,000 people have been falsely convicted of serious crimes in America since 1989. If Columbia Law School dug to the depths in a single case, the Registry has scanned wide the horizon in hundreds of cases to reveal both the progress made and the scope of the problem that remains.

A joint project administered by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University, the Registry profiled 873 specific cases of exoneration from 1989 through March 1, 2012. Not surprisingly, most of the men and women who were wrongfully convicted (61 percent) were black or Hispanic. As a group, the 873 exonerated defendants spent more than 10,000 years in prison -- an average of more than 11 years each. And of the 873 exonerees, nearly half, 416 to be exact, were wrongly convicted of murder. Of those, 101 were sentenced to death.

How does this happen? Why are there so many wrongful convictions when there is so much at stake for both the defendants and the victims and when we pride ourselves on a legal system designed to ensure meaningful judicial review? The reasons are legion. It matters where you are convicted, for example, and the color of your skin matters too. And it matters who your police and prosecutors and judges are. The report reveals that in a whopping 56 percent of murder-case exonerations the initial convictions was based upon "official misconduct." Carlos DeLuna, we know, was not alone.

The Registry tells us that there have been 102 exonerations of child abuse convictions, 58 exonerations in cases of non-violent crimes and 135 exonerations of defendants who actually confessed to crimes they didn't commit. It tells us more than I can list here, which is why it is so well worth reading.

Earlier coverage the Registry begins at the link.

An Examination of Capital Punishment in Delaware

"Use of death penalty spikes; Criticized study also alleges racial disparity," is the Wilmington News Journal report written by Sean O'Sullivan.

A 1991 change that shifted final responsibility for imposing a death sentence from the jury to a judge resulted in a dramatic spike in the number of death sentences in Delaware and put the state far above the national average for imposing capital punishment.

Delaware has the third highest death-sentencing rate in the United States.

In their study, five Cornell University law professors also allege that when the convicted killer is black and the victim is white, the rate at which Delaware imposes the death penalty is far higher than in eight other states they examined.

The Delaware Attorney General’s Office strongly disputes the study’s conclusions – particularly the ones regarding race – saying the authors used flawed methodologies to reach questionable and inflammatory conclusions.

And the fact that the number of death sentences handed down since 1991 has increased doesn’t necessarily indicate a problem, said Deputy Attorney General Paul R. Wallace. As the study authors note, that appeared to be the goal of the 1991 change.

A third finding that the study’s authors noted – but were at a loss to explain – is that homicide defendants in Kent County receive death sentences at a higher rate than defendants in New Castle or Sussex counties.

And:

The 41-page study, titled “The Delaware Death Penalty: An Empirical Study,” is scheduled to be published by the Iowa Law Review in the fall. The authors include Sheri Lynn Johnson, John H. Blume, Theodore Eisenberg, Martin T. Wells and Valerie P. Hans, a professor emeritus at the University of Delaware.

They found that, generally, between 1 percent and 3 percent of all murders end with a death sentence in other states. But in Delaware, the rate exceeded 20 percent of all homicides in some years.

Before 1991, Delaware’s rate of imposing death was high but it “did not materially differ from other states,” the authors state.

It was only after the 1991 change, which made the jury’s decision a nonbinding recommendation and gave the final say on death to judges, that the state’s rate soared above the national average, they said.

Delaware’s rate of imposing death sentences did decline following a 2002 change in the law mandated by the U.S. Supreme Court requiring juries to unanimously find the existence of an aggravating circumstance before the death penalty can be imposed. But even then, the state’s rate has remained above the national average by a significant margin and above pre-1991 levels, according to the study.

The authors also conclude that race appears to play a significant role in the imposition of the death penalty when a black defendant is convicted of killing a white person.

“Black defendants who kill white victims are seven times more likely to receive the death penalty as are black defendants who kill black victims. Moreover, black defendants who kill white victims are more than three times as likely to be sentenced to death (186.7 per thousand homicides) as are white defendants who kill white victims (26.1 per thousand homicides),” wrote the authors.

An earlier version of The Delaware Death Penalty: An Empirical Study is available at SSRN.

Coverage from Delaware begins at the link.

Initial News Coverage of the National Registry of Exonerations

Here are links to extensive news coverage of the National Registry of Exonerations.

"Study: 2,000 convicted then exonerated in 23 years," is the AP report filed by Pete Yost.  It's via the Pioneer Press.

More than 2,000 people who were falsely convicted of serious crimes have been exonerated in the United States in the past 23 years, according to a new archive compiled at two universities.

There is no official record-keeping system for exonerations of convicted criminals in the country, so academics set one up. The new national registry, or database, painstakingly assembled by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, is the most complete list of exonerations ever compiled.

The database compiled and analyzed by the researchers contains information on 873 exonerations for which they have the most detailed evidence. The researchers are aware of nearly 1,200 other exonerations, for which they have less data.

They found that those 873 exonerated defendants spent a combined total of more than 10,000 years in prison, an average of more than 11 years each. Nine out of 10 of them are men and half are African-American.

Nearly half of the 873 exonerations were homicide cases, including 101 death sentences. Over one-third of the cases were sexual assaults.

DNA evidence led to exoneration in nearly one-third of the 416 homicides and in nearly two-thirds of the 305 sexual assaults.

Researchers estimate the total number of felony convictions in the United States is nearly a million a year.

The overall registry/list begins at the start of 1989. It

gives an unprecedented view of the scope of the problem of wrongful convictions in the United States and the figure of more than 2,000 exonerations "is a good start," said Rob Warden, executive director of the Center on Wrongful Convictions.

"We know there are many more that we haven't found," added University of Michigan law professor Samuel Gross, the editor of the newly opened National Registry of Exonerations.

"Proven innocent after proven guilty," by Carlyn Kolker for ReutersLegal.

Exoneration. It is one of the most redeeming concepts in the American legal system -- the possibility that the justice system will liberate a person who was falsely convicted of a crime. But it is of course also one of the most terrifying aspects of that same system, predicated on the existence of actual failures.

The National Registry of Exonerations, formally inaugurated today by the University of Michigan and the Center on Wrongful Convictions at Northwestern, contains nearly 900 examples of that paradox. The stories, of everyone from white collar defendants to convicted murderers, focus on how these criminal defendants were convicted, and then, thanks to DNA evidence and re-canted testimony, among other things, were subsequently released, sometimes decades after their convictions.

The list dates from 1989 to the present and includes 885 examples from both federal court and state courts around the country. It is something of an information-gathering feat: No authoritative data base on exonerations already exists, and information on individual cases is scattered across a range of different sources, according to Samuel Gross, the University of Michigan law professor who made the registry.

The "easy" cases to identify were ones already investigated by non-profit legal groups such as the Innocence Project, which focuses on exonerating wrongfully-convicted defendants in death-penalty cases. But beyond that, Gross and his assistants (he had about 18 helpers, some volunteer, some part-time) scoured the Internet, newspapers, state and federal court records and interviewed attorneys to come up with the list of defendants across the country - most cases occurred in state courts - about whom they could gather proof that they'd been exonerated for crimes they didn't commit.

"Wrongful convictions shine spotlight on judicial system," by Kevin Johnson, USA Today.

Perjury, faulty eyewitness identification and prosecutorial misconduct are the leading reasons for wrongful convictions, according to the first national registry of exonerations compiled by university researchers.

The database, assembled in a collaboration by the University of Michigan and Northwestern University, has identified 873 faulty convictions in the past 23 years that have been recognized by prosecutors, judges or governors.

The registry's founders say the numbers, which do not include many cases in which innocent suspects plead guilty to avoid the risk of more serious punishments or cases that have been dismissed because of legal error without new evidence of innocence, represent only a fraction of the problem in the nation's criminal justice system.

"What this shows is that the criminal justice system makes mistakes, and they are more common than people think," said University of Michigan law professor Samuel Gross, the registry's editor. "It is not the rule, but we won't learn to get better unless we pay attention to these cases."

Despite the data, the registry concluded that the "overwhelming majority of convicted defendants are guilty."

"New national registry lists exonerations from wrongful convictions," is by Michael Doyle for McClatchy Newspapers.  It's via the Miami Herald.

Obie Anthony served hard time in California prisons for a crime he didn't commit.

He's not alone, and he's not forgotten. Anthony is one of nearly 900 exonerated former prisoners whose wrenching stories are wrapped into a new database. The National Registry of Exonerations, formally unveiled Monday, is the largest of its kind, and it will get bigger over time.

"This is useful, because if we want to prevent false convictions, we have to learn how we make mistakes," Samuel Gross, a University of Michigan Law School professor, said in an interview.

Gross is the editor of the registry, a joint project of the Michigan law school and the Center on Wrongful Convictions at Northwestern University School of Law. By compiling detailed information about an initial 891 exonerations that have been identified since 1989, the organizers say they already have begun to identify disturbing patterns.

Perjury from witnesses was found to be the biggest problem for those wrongfully convicted of murder, the database shows. Mistakes by eyewitnesses are almost always the cause of wrongful rape convictions. In either case, the consequences are severe. About half of the exonerated individuals had been in prison for at least 10 years; 75 percent served five years or more.

"Registry tallies over 2,000 wrongful convictions since 1989," by David G. Savage for the Los Angles Times and the Tribune News Service.

The registry covers the period since DNA came into common use and revealed, to the surprise of many prosecutors and judges, that a significant number of convicted rapists and murderers were innocent. The Innocence Project in New York says DNA alone has freed 289 prisoners since 1989.

Criminal law experts have been studying the growing number of exonerations. Some cases have involved police corruption or witnesses who recanted. Experts have also pointed to faulty eyewitness testimony and lying witnesses as common problems.

Beyond that, a surprising number of cases involved suspects who confessed to crimes they didn't commit.

"Nobody had an inkling of the serious problem of false confessions until we had this data," said Rob Warden, executive director of the Center on Wrongful Convictions at Northwestern University. Under persistent and prolonged questioning by investigators, some suspects confessed to crimes such as rape, even though DNA later revealed they were not the perpetrators.

Among the states, Illinois has the most exonerations listed in the new registry, and among counties, Cook County and Chicago led the way, followed by Dallas and Los Angeles. However, the sponsors of the new registry do not contend that their data permits strong comparisons across counties or states because only about 900 of the cases were examined in detail by jurisdiction.

"It's clear that the exonerations we found are the tip of the iceberg," Gross said.

"Researchers: More than 2,000 false convictions in past 23 years," by Elizabeth Chuck at MSNBC.

There is also regional coverage of the report.  "National study tracks number of people falsely convicted of crime," is by Tracey Kaplan for the Silicon Valley Mercury News.

"Report breaks down wrongful convictions," by  Alan Johnson for the Columbus Dispatch.

"New national registry details wrongful convictions," by Paul Purpura for the New Orleans Times-Picayune

National Registry of Exonerations

Today, the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law launched the first National Registry of Exonerations.  ExonerationRegistry.org represents the largest collection of such cases ever assembled and it will be continually updated.

The purpose of studying exonerations is to learn how to prevent and correct false convictions.

The Registry front page contains the report, Exonerations in the United States, 1989 – 2012.  You can also read an executive summary of the report.  The Registry contains a searchable, sortable database of exoneration.  You can view exonerations by state and by county.

News coverage of the National Registry of Exonerations in the next post.

Continued News Coverage of 'The Wrong Carlos'

The Week posts, "The Carlos DeLuna case: Definitive proof that Texas executed an innocent man?"

Is this irrefutable proof that an innocent man was put to death?
Yes, says Andrew Cohen at The Atlantic. After this definitive report, "no one can ever say again with a straight face that America doesn't execute innocent men. No one." This was a failure of the police, the courts, the local media, and the community. "If a new trial was somehow able to be conducted today, a jury would acquit DeLuna," Richard Dieter of the Death Penalty Information Center tells The Huffington Post. And yet, it's hard to say this proof is irrefutable. "We don't have a perfect case where can agree that we have an innocent person who's been executed, but by weight of this investigation, I think we can say this is as close as a person is going to come."

What lessons can we draw from this case?
Before this case, Liebman says, I believed botched capital punishment cases were mostly high-profile murders in which harried cops made mistakes. "Now, I think the worst cases are those that likely happen every day, in which no one cares that much about the defendant or the victim." Justice is fallible, says The Atlantic's Cohen. And "on the day, sooner than you think, when the United States Supreme Court again outlaws the death penalty, the justices will almost certainly cite the DeLuna case as one of the prime reasons why."

Time posts, "Did Texas Execute an Innocent Man?"  It's by Erica Ho.

The report, Los Tocayos Carlos: An Anatomy of a Wrongful Execution, published by the Columbia Human Rights Law Review, was put together by Columbia Law School professor James Liebman, head of the team that investigated the case. It reviews the string of likely missteps that led to DeLuna’s execution. To begin with, he was in the wrong place at the wrong time: DeLuna happened to visit the gas station that night, Feb. 4, 1983. But while reports described the killer as a Hispanic male wearing a grey flannel shirt, DeLuna was wearing a white dress shirt the night of the attack. Despite the bloody crime scene, no blood was found on DeLuna’s body or clothes. The prosecution’s case rested mainly on the shaky testimony of a single eyewitness. All this was complicated, the report says, by botched police procedures, an ineffective defense attorney and the unwillingness of the prosecution to consider a second suspect. And the report claims there was plenty of doubt even at the time as to whether DeLuna was the culprit.

"Groundbreaking Study Questions Execution of Possibly-Innocent Texas Man," by Collean Curry at ABC News.

A brutal murder, two similar-looking suspects, and a death sentence.

For Jim Liebman, these three ingredients became the catalyst for exposing one of the judicial system's greatest risks: executing an innocent person.

In a new book-length study written by Liebman, a Columbia law professor, and six of his students and published in the Columbia Human Rights Law Review, the decision to execute Carlos De Luna for the 1983 murder of a Corpus Christi gas station attendant is called into question again and again.

"This case, because it is such an everyday case, a very commonplace case, an 'everycase' if you've got problems in this kind of case that no one was paying attention to. It contributes to the wider debate about what the risks [of the death penalty] are to human life," Liebman told ABC News.

"Columbia law article says Texas executed the wrong Carlos," by Isolde Raftery at MSNBC.

The article, which took six years, one professor and 12 students to produce, reads like a true-crime novel. It begins: “Wanda Lopez died at work at a Sigmor Shamrock gas station in Corpus Christi, Texas on February 4, 1983. She was twenty-four. Wanda’s only brother, Richard Vargas, heard her say her last words, but they gave him no solace or peace. They just made him angry.

"Texas 'executed an innocent man', report claims," is the BBC News report.

"Wrong man executed: Columbia Law School challenges 23-year-old Texas verdict," at CNN.

"Did Texas Execute an Innocent Man?" at the Takeaway.

"Law School Report Questions Texas Use of Death Penalty in 1983 Corpus Christi Murder," by David Martin Davies for Texas Public Radio News.

"'When human life is on the line'," by Dick Polman at WHYY-FM Newsworks.

"Carlos DeLuna And Cameron Todd Willingham: The Sad Similarities," by Jason Linkins at Huffington Post.

"Did These Columbia Law Students and Their Professor Prove That Texas Executed An Innocent Man?" by Christopher Danzig at Above the Law.

The Columbia Human Rights Law Review (HRLR)  article is Los Tocayos Carlos,

Earlier coverage of Carlos DeLuna and the HRLR article begins with the preceding post.  All coverage is in the Carlos DeLuna category index.

Editorials on the DeLuna Case and Columbia Report

"Carlos DeLuna death case is unnerving," is the editorial in today's Dallas Morning News.

A bizarre reality is imbedded in the public’s attitudes toward the death penalty: Most Americans support it, yet most also allow for the possibility that innocent people can or have been executed.

This suggests one of two things. Either the nation is callous to the idea of fatal error, which we pray is not the truth, or there’s never been a case that has sufficiently aroused the public by putting a face on an innocent victim of a state death chamber.

Could that have changed this week?

The execution of Carlos DeLuna took place 22 years and five months ago, but his path from the streets of Corpus Christi to death row has been freshly examined by a major law school project at Columbia University (reprising work, in greater depth, done by the Chicago Tribune in 2006). The findings should nauseate those who trust that only the greatest care, the most professional police work, the most rigorous jury and appellate review take place before someone is strapped to the gurney and allowed one last say.

And:

We might tell ourselves that today’s technology-savvy public would demand a higher level of proof, that no one would look back in wonder about a current death verdict.

But today’s public also admits that they believe somewhere, something is likely to break down in the system. This newspaper opposes the death penalty for that very reason.

"Another man wrongly executed," is the Philadelphia Inquirer editorial.

With nearly 300 people across the nation exonerated after being sentenced to death, the risk of executing an innocent person is a reality in the 33 states, including Pennsylvania, where capital punishment remains legal.

That risk alone should be enough to persuade responsible elected officials to scrap the death penalty — as Connecticut did in April, following the lead of Illinois, New Mexico, and New Jersey.

There can be no more compelling reason for taking that step than evidence that the wrong person has been executed for a crime.

And that’s exactly what Columbia University law professor James Liebman and five of his students provided this week with their book-length exploration of the 1983 murder for which a Texan, Carlos DeLuna, was put to death in 1989.

The Columbia Human Rights Law Review (HRLR)  article is Los Tocayos Carlos,

More news coverage of the report will be linked in the next post.  Earlier coverage of Carlos DeLuna and the HRLR article begins at the link.  All coverage is in the Carlos DeLuna category index.

Two Interviews With Jim Liebman

The Texas Tribune posts, "James Liebman: The TT Interview," conducted by Brandi Grissom.  There is video at the link.

Now, more than two decades after DeLuna's execution, Columbia University law school professor James Liebman and a team of students have uncovered evidence they say proves that Carlos DeLuna was innocent, and that Carlos Hernandez not only was real but was probably the real killer. They released their findings in a book-length monograph and website published by the Columbia Human Rights Law Review on Tuesday.

"I'm convinced that no jury could possibly have convicted Carlos DeLuna beyond a reasonable doubt on the evidence here. That's absolutely clear," Liebman said in a videotaped interview with the Tribune from Columbia University in New York. Liebman discussed the lengthy in-depth investigation that the team conducted, which he said revealed that Hernandez had a long history of violent crimes, that police worked too fast, that important leads were never followed and that, in the end, even DeLuna's execution may have been botched. "Everything that could go wrong, did go wrong," he said.

And:

Carlos DeLuna protested his innocence until his death. At his execution, the Rev. Carroll Pickett, the death house chaplain, said DeLuna asked if he could call him Daddy and held the pastor's hand as long as he could.

"I fully believe that Carlos DeLuna was an innocent man, and I will always believe that," Pickett said.

At the Guardian, Ed Piklington writes, "Wrongful execution of Carlos DeLuna: highlights from our Reddit discussion."

Issue 3: How did a Columbia investigator uncover in a day what Texas police weren't able to find in six years?

Liebman: If you don't look hard, you won't find, and I fear that this is a case where the responsible people didn't look hard because they believed that they had quickly arrested the right man. As sometimes happens, minds closed before the evidence was in.

Pilkington: Yes. When I read that I nearly fell off my chair.

Issue 4: Will public opinion be affected?

Liebman: There is a vibrant debate about the death penalty in the US just now and the public is paying close attention. We wrote this article so it could provide information on that debate to the public in a very accessible way. I have faith in the facts and in the public's ability to make reasoned judgments on matters of policy over time. And it takes time. In fact, public opinion on the opinion has changed dramatically over the past 15 years in the US and it has had an impact. Juries are imposing one-third as many death sentences each year now, compared to 1999.

Earlier coverage of the case of Carlos DeLuna and the Columbia HRLR article begins with the preceding post.  All coverage is in the Carlos DeLuna category index.

Additional Coverage of the DeLuna Report

Reuters posts, "Capital mistake?" by Terry Baynes.

In his career as a Columbia Law professor, James Liebman has penned his share of technical law review articles arguing against capital punishment. But to illustrate how the justice system could execute an innocent man, Liebman wanted a more visceral reaction from readers. To get it, he teamed up with a group of his students and after some extensive research, homed in on the case of Carlos DeLuna, a poor Hispanic with an IQ of 72 who was executed in Texas in 1989 for the stabbing death of a gas station clerk in Corpus Christi.

The resulting narrative reads like more like Norman Mailer's "Executioner's Song" than your typical Columbia Human Rights Law Review entry. The journal published the article today, along with an innovative interactive website that allows readers to review every piece of evidence in the case online, from police audiotape and trial transcripts to crime scene photos and video interviews. "Presented that way, people can make a judgment for themselves," said Liebman.

"Report says Texas executed an innocent man," is the UPI report.

A 400-page article in Columbia University's Columbia Human Rights Law Review asserts Texas convicted and executed the wrong man in a 1983 killing.

The article examines the arrest, prosecution and 1989 execution of Carlos DeLuna in the death of Wanda Lopez, 24, who was fatally stabbed during a robbery at a Corpus Christi gas station, the Houston Chronicle reported.

In prosecuting, DeLuna, the state bypassed Carlos Hernandez, a man who the article said had bragged about killing Lopez and laughed about DeLuna being convicted of the crime.

Today's Houston Chronicle reports, "Eyewitness procedure flawed in DeLuna murder case, lawmakers say," by Allan Turner.  It's also available at the Hearst sister-paper, the San Antonio Express-News.

Legislative sponsors of a law tightening procedures for police lineups on Tuesday faulted Corpus Christi police for allowing eyewitnesses in a 1983 convenience store robbery-murder to identify the suspect as he sat handcuffed in the back seat of a squad car.

State Sen.  Rodney Ellis, D-Houston, and Rep. Pete Gallego, D-Alpine, stopped short of claiming Texas wrongfully executed suspect Carlos DeLuna for the February 1983 murder of store clerk Wanda Lopez.

Gallego, however, said the way Corpus Christi police handled the suspect's identification was a "textbook example" of why the system needs to be reformed.

"What appears to be very faulty eyewitness identification was the main evidence used to reach a conviction in this case," Ellis said in an email.

"... The chief witness appears to have gone back and forth on how certain he was that Mr. DeLuna was the culprit. You cannot have this level of uncertainty in death penalty cases."

"Columbia Human Rights Law Review releases study on Corpus Christi man executed in 1989," by Michelle Villarreal in the Corpus Christi Caller Times.

Carlos DeLuna, executed in 1989 for the murder of a Corpus Christi woman, was innocent, a 400-page report released Tuesday states.

The Columbia Human Rights Law Review report detailed the events of his July 1983 trial for the death of Wanda Lopez and how he was wrongly executed.

Columbia Law School professor James Liebman and students conducted the study to contribute to a public debate of the death penalty specifically arguing that it is an ineffective form of punishment, Liebman said.

The DeLuna case was chosen after Liebman did a study on courts across the country and how they handled legal error. Executions piqued his interest and he started looking at Texas death penalty cases.

“One of the very first cases we came across was the Carlos DeLuna case, who said all along that another man murdered the woman,” Liebman said.

Slate posts, "Report: Texas Executed Innocent Man," by Rachael Levy.

Carlos DeLuna maintained his innocence from the moment he was arrested in 1983 for the stabbing death of a young Texas woman right up until he was executed six years later. On Monday, a Columbia University professor and a group of law students offered what appears to be definitive proof that DeLuna's mistaken-identity claims were the real deal and that an innocent man was put to death.

"10 Shocking Bits From Book About How Texas Executed an Innocent Man," by Ben Jacobs at Daily Beast.  Here's the Beast's first bit:

Ignored By 911

Wanda Lopez was a divorced single mother and high-school dropout who worked the 3–10 p.m. shift behind the register at the Sigmor Shamrock gas station and convenience store. It was in a rough neighborhood in Corpus Christi, located next to a strip club called Wolfy’s. At 8:09 p.m., she called 911 in a panic. She immediately asked “[C]an you have an officer come to 2602 South Padre Island Drive? I have a suspect with a—a knife inside the store ... He’s a Mexican. He’s standing right here at the counter.” Instead, the 911 operator, Jesse Escochea, who wasn’t supposed to be answering calls and just picked up the phone because everyone else was occupied, quizzed her for 77 seconds because he thought she had “an attitude.” He didn’t dispatch a police car until after Lopez had been fatally stabbed in her chest while asking for help. It later emerged that the reason for her “attitude” was that she had previously called 911 about the same man loitering outside the door and was told to immediately call back if the man entered. If the regular 911 operator had answered, help would have come right away and Wanda Lopez might not have been stabbed.

"Did Texas Execute an Innocent Man?" is Jordan Smith's Austin Chronicle report.

It’s been 23 years since Carlos De Luna was executed by lethal injection for the 1983 attempted robbery and murder of Wanda Lopez at a Corpus Christi gas station; this week, a book-length law review article was released that meticulously deconstructs the case – and makes it almost undeniable that Texas has executed an innocent man.

In the years since De Luna’s execution, serious questions have been raised about whether De Luna was actually responsible for the crime. This week, the Columbia University School of Law’s Human Rights Law Review publishes “Los Tocayos Carlos: An Anatomy of a Wrongful Execution,” dedicating the entire issue to unfolding the De Luna case with an eye toward what went wrong – and what the ramifications are for Texas and beyond. Indeed, the article, by Professor James Liebman and a group of law students, presents the strongest evidence yet that the state of Texas has convicted and killed an innocent man, Carlos De Luna, and failed completely to catch the real killer, Carlos Hernandez, despite compelling evidence that pointed directly to his guilt. De Luna, who repeatedly claimed innocence, was executed in 1989. “Two things are clear right off the bat,” says Liebman. “One, on the evidence [that we now have, it is clear] Carlos De Luna could never have been convicted” because there’s simply too much doubt. “Two, if that evidence had been put [to use to prosecute] Carlos Hernandez, there is no doubt [Hernandez] would have been convicted.”

Kristin Houle posts, "Did Texas Execute an Innocent Man?" at Burnt Orange Report.  She's the executive director of the Texas Coalition to Abolish the Death Penalty.

Everything that could go wrong in a death penalty case did so for Carlos DeLuna, a poor Hispanic man with childlike intelligence who maintained his innocence from the time of his arrest to his execution just six years later.  Among the many issues calling into question the reliability of DeLuna's conviction are:

- A single cross-ethnic eyewitness identification conducted at night, at the crime scene, while the suspect was in the back seat of a police squad car;
- No corroborating forensics and a sloppy crime scene investigation;
- Grossly inadequate representation at the trial and appellate levels, including failure of his court-appointed attorneys - one of whom had never tried a criminal case in court, let alone a capital murder case - to present any witnesses or mitigating evidence during the sentencing phase; and
- Prosecutorial failure to turn over potentially exculpatory evidence to the defense.

"New book aims to show executed man was innocent," by Melanie Eversley at USA Today.

"Questions About Another Texas Execution: Was Wrong Man Condemned?" is by Mark Memmott at NPR.

Lucy Steigerwald posts "Columbia Professor and Students Reveal Texas Justice Executed the Wrong Man in 1989," at Reason.

"Human Rights Law Review Reveals Troubling Picture of Wrongful Execution," by Jeremy Leaming at ACS.

A Routine Execution in Texas

That's the title of an editorial in today's New York Times concerning the case of Carlos DeLuna.  It begins today's extensive coverage of the Columbia Human Rights Law Review (HRLR) article, Los Tocayos Carlos,

Carlos DeLuna, who was executed in 1989 by the state of Texas, was almost certainly wrongly convicted of stabbing a young woman to death with a knife in a gas station robbery in Corpus Christi. Carlos Hernandez, who died in a Texas prison while serving time for stabbing someone else, almost certainly killed the young woman and repeatedly told others that he had committed the murder.

This case is the subject of an extraordinary project at Columbia Law School, which this week released a book-length account — called “Los Tocayos Carlos,” or the namesake Carlos — detailing the errors in the investigation and prosecution of Mr. DeLuna from the moment of his arrest.

Texas has executed 482 people since it reinstated the death penalty in 1982, four times the number of any other state. A grievous injustice was very likely done in the DeLuna case. But the errors documented by Prof. James Liebman and his team are routinely found in other capital cases in Texas and other states.

In 2006, The Chicago Tribune presented evidence casting doubt on Mr. DeLuna’s conviction, based largely on Professor Liebman’s initial research. This account, based on new evidence and a 30-month inquiry, supports an even firmer conclusion that Texas executed an innocent man.

Earlier coverage of the Carlos DeLuna case and the HRLR article begins at the link.  Additional news coverage will be linked in the next post.

Prejean Papers Featured in DePaul University Exhibit

"Exhibit on anti-death penalty activist opens at DePaul," is the AP post, via the Rockford Register Star.

An exhibit dedicated to the life of a nationally known Roman Catholic anti-death penalty activist is opening in Chicago.

Sister Helen Prejean wrote the book "Dead Man Walking," which later became a film starring Susan Sarandon and Sean Penn.

The exhibit at DePaul University looks at notable moments in her activism over the decades and includes correspondence with people on death row. Prejean donated her papers to DePaul in 2010.

The exhibit is called "In Deeds and Words: The Prejean Ministry Against the Death Penalty."

DePaul University has issued a news release, "Noted Anti-Death Penalty Activist Sister Helen Prejean to Visit DePaul for May Lectures, Opening of Exhibition on Her Life and Work."

Sister Helen Prejean, C.S.J., the activist and author whose book “Dead Man Walking” helped fuel the current anti-death penalty movement in the United States, will appear at DePaul University May 14 to dedicate an exhibition highlighting her work to end capital punishment.

 “In Deeds and Words: The Prejean Ministry Against the Death Penalty” examines notable moments in Prejean’s 30 years of advocacy on behalf of death row inmates and her activism to abolish the death penalty. The exhibit highlights her relationships and correspondence with individuals on death row. It also highlights the process of writing her best-selling books, “Dead Man Walking” and “The Death of Innocents,” and adapting the former for the 1995 film starring Susan Sarandon and Sean Penn.

The exhibit will be open to the public Monday through Friday from 9 a.m. to 5 p.m. through Nov. 30 in DePaul’s Special Collections and Archives, Room 314 of the Richardson Library, 2350 N. Kenmore Ave., Chicago.

And:

On May 15 at 7 p.m., Prejean will present a lecture titled “Dead Man Walking—the Journey Continues,” in which she will reflect on current efforts to roll back the death penalty around the country. A 6:30 p.m. reception will precede the talk.

Both programs are free and will be held at Cortelyou Commons, 2324 N.  Fremont St., Chicago, but reservations are required at eventRSVP@depaul.edu.

On May 16 at 6:30 p.m., Prejean will participate in a public conversation about the writing process behind her past best-sellers and her upcoming book “River of Fire.” The program will be held in Room 220 of the Lincoln Park Student Center, 2350 N. Sheffield Ave., Chicago.

“Sister Prejean has long been a leading light in the fight for social justice across a wide spectrum of issues, especially the movement to end capital punishment in the United States,” said the Rev. Dennis H. Holtschneider, C.M., DePaul’s president. “We are deeply honored that she has chosen DePaul to preserve the record of her life’s work.”

Prejean first announced the donation of her archives to DePaul in February 2011, coincidentally just after the Illinois Legislature’s surprising vote to abolish the death penalty. She was invited to consult on the issue with Illinois Gov. Pat Quinn, who signed the legislation several weeks later, making Illinois the 16th state in the nation to outlaw capital punishment. In recent months, Connecticut has repealed its death penalty and a referendum has been placed on the November ballot asking California voters if that state should abolish capital punishment.

The launch of the Prejean exhibit coincides with the opening of Prejean’s papers for researchers and academic use. The collection is multifaceted and contains rich resources not only on the issue of capital punishment, but also in charting the development of Prejean’s activism, the process of writing and publishing a book, and the social justice issues that underlie much of the death penalty debate.

Andrew Cohen on the DeLuna Case

"Yes, America, We Have Executed an Innocent Man," is Andrew Cohen's post at the Atlantic.  He begins his report on Carlos DeLuna and the Columbia Human Rights Law Review article with a 2006 Supreme Court death penalty case.

Even for Justice Antonin Scalia, the crassest of the current United States Supreme Court justices, it was a particularly callous piece of writing. In 2006, in a case styled Kansas v. Marsh, the Court's five conservatives had just upheld a portion of Kansas' capital punishment law. The statute was interpreted to direct a sentence of death even if a jury found the "aggravating" and "mitigating" sentencing factors in equilibrium -- "equipoise," the Court lyrically called it. A tie, in other words, would mean death, not life.

For the majority, Justice Clarence Thomas had bent over backward to overturn a ruling by the Kansas Supreme Court that had declared the law unconstitutional. The High Court's four liberal justices had voted to uphold the Kansas ruling. Justice John Paul Stevens, the Ford appointee, chastised Thomas for reaching out so aggressively to overturn a state court on a matter of state law. And Justice David Souter, the Bush I appointee, wrote about how such "equipoise" necessarily precluded a death sentence.

Mocking the rationale of both, and unsatisfied with the scope of Justice Thomas' majority opinion, Justice Scalia wrote a concurrence he will have to live with the rest of his life. As he sought to destroy Justice Souter's argument about the doubts reasonable people have about the accuracy and reliability of America's death penalty regime, Justice Scalia described a criminal justice system unfamiliar to anyone who has ever covered a murder case, read a book about one, or watched television news.

And:

At 11 p.m Monday, the Columbia University Human Rights Review published and posted its Spring 2012 issue -- devoted entirely to a single piece of work about the life and death of two troubled and troublesome South Texas men. In explaining to their readers why an entire issue would be devoted to just one story, the editors of the Review said straightly that the "gravity of the subject matter of the Article and the possible far-reaching policy ramifications of its publication necessitated this decision."

The article is titled "Los Tocayos Carlos: Anatomy of a Wrongful Execution" and it was written by James S. Liebman, Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White, Lauren Rosenberg and Daniel Zharkovsky. Los Tacayos can be translated from Spanish as "namesakes" and the two men at the heart of the story were, indeed, named Carlos DeLuna and Carlos Hernandez.. On December 7, 1989, this intense piece establishes beyond any reasonable doubt, Texas executed the former for a murder the latter had committed.

The Review article is an astonishing blend of narrative journalism, legal research, and gumshoe detective work. And it ought to end all reasonable debate in this country about whether an innocent man or woman has yet been executed in America since the modern capital punishment regime was recognized by the Supreme Court in 1976. The article is also a clear and powerful retort to Justice Scalia in Kansas v. Marsh: Our capital cases don't have nearly the procedural safeguards he wants to pretend they do.

Earlier coverage of Carlos DeLuna and the HRLR article begins at the link.

The Wrong Carlos

The current issue of Columbia Human Rights Law Review (HRLR) examines the case of Carlos DeLuna, executed by Texas in 1989.  In 2006, the Chicago Tribune ran a three-part series, demonstrating that DeLuna was likely innocent of the crime for which was convicted and executed. 

The HRLR article is Los Tocayos Carlos, and it breaks new ground in investigating the case; all that went wrong, from the intital police response to a 911 call until Carlos DeLuna's execution.  The full report - contained at an interactive website - is a must read.

Here's a roundup of the news coverage this morning.  "Texas executed wrong man, report claims," by Allan Turner for the Houston Chronicle.

At 24, Wanda Lopez was savvy to the pitfalls of her crime-infested Corpus Christi neighborhood. A divorced high school dropout with a child to support, she knew well the perils of her solo night job at a nearby gas station. When a customer warned that a man with a knife lurked outside the store, she immediately telephoned police.

What happened next that February night in 1983 - a robbery, frenzied struggle and fatal stabbing - continues to resonate with questions about how well police, prosecutors and defense lawyers performed their jobs.

On Tuesday, the Columbia Human Rights Law Review will devote its spring issue to a 400-page article asserting that the state convicted the wrong man, bypassing a potential suspect who had bragged of killing Lopez.

The critique is the latest in which death penalty opponents seek to prove that Texas, with 482 executions since 1982, killed an innocent man.

And:

The journal article, "Los Tocayos Carlos: Anatomy of a Wrongful Execution," grew out of a 2003 student project to examine Texas capital cases in which a single eyewitness account was key to conviction.

"This case changed my whole view," said Columbia Law professor and project sponsor James Liebman. "I had thought the problem cases were ones where you have an out-of-town defendant, a scary person who commits a really bad crime that grabs the whole community. The police are under so much pressure to find someone that something goes wrong. Now, I think the worst cases are those that likely happen every day in which no one cares that much about the defendant or the victim."

"Wrong man was executed in Texas, probe says," is by Chantal Valery of AFP.

He was the spitting image of the killer, had the same first name and was near the scene of the crime at the fateful hour: Carlos DeLuna paid the ultimate price and was executed in place of someone else in Texas in 1989, a report out Tuesday found.

Even "all the relatives of both Carloses mistook them," and DeLuna was sentenced to death and executed based only on eyewitness accounts despite a range of signs he was not a guilty man, said law professor James Liebman.

Liebman and five of his students at Columbia School of Law spent almost five years poring over details of a case that he says is "emblematic" of legal system failure.

DeLuna, 27, was put to death after "a very incomplete investigation. No question that the investigation is a failure," Liebman said.

The report's authors found "numerous missteps, missed clues and missed opportunities that let authorities prosecute Carlos DeLuna for the crime of murder, despite evidence not only that he did not commit the crime but that another individual, Carlos Hernandez, did," the 780-page investigation found.

The report, entitled "Los Tocayos Carlos: Anatomy of a Wrongful Execution," traces the facts surrounding the February 1983 murder of Wanda Lopez, a single mother who was stabbed in the gas station where she worked in a quiet corner of the Texas coastal city of Corpus Christi.

"Everything went wrong in this case," Liebman said.

That night Lopez called police for help twice to protect her from an individual with a switchblade.

"They could have saved her, they said 'we made this arrest immediately' to overcome the embarrassment," Liebman said.

Forty minutes after the crime Carlos DeLuna was arrested not far from the gas station.

Texas News Service reports, "New Website Documents “Wrongful” Texas Execution," by Peter Malof.

A treasure trove for true-crime fans is being touted as near-proof that the state of Texas executed an innocent man. Available online starting today: police photos, court files, taped witness interviews, 911 recordings, and a novel-syle report about a Corpus Christi murder in 1983.

The website comprises the largest single public collection of information about a criminal case, according to the Columbia Law School professor and his students who posted the results of their 18-month study, published in the University's Human Rights Law Review.

Kristin Houlé, executive director of the Texas Coalition to Abolish the Death Penalty, predicts the report will give pause to even the most steadfast supporters of capital punishment.

"There not only is substantial evidence that the state of Texas executed the wrong person, but also that law enforcement knowingly turned a blind eye to the real perpetrator."

The website - "TheWrongCarlos.net" - portrays the arrest and conviction of Carlos DeLuna as a case of mistaken identity. He always maintained that another "Carlos" who looked strikingly similar was responsible for the convenience-store murder of single mother Wanda Lopez.

The Guardian posts, "The wrong Carlos: how Texas sent an innocent man to his death," by Ed Pilkington.

A few years ago, Antonin Scalia, one of the nine justices on the US supreme court, made a bold statement. There has not been, he said, "a single case – not one – in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred … the innocent's name would be shouted from the rooftops."

Scalia may have to eat his words. It is now clear that a person was executed for a crime he did not commit, and his name – Carlos DeLuna – is being shouted from the rooftops of the Columbia Human Rights Law Review. The august journal has cleared its entire spring edition, doubling its normal size to 436 pages, to carry an extraordinary investigation by a Columbia law school professor and his students.

The book sets out in precise and shocking detail how an innocent man was sent to his death on 8 December 1989, courtesy of the state of Texas. Los Tocayos Carlos: An Anatomy of a Wrongful Execution, is based on six years of intensive detective work by Professor James Liebman and 12 students.

Starting in 2004, they meticulously chased down every possible lead in the case, interviewing more than 100 witnesses, perusing about 900 pieces of source material and poring over crime scene photographs and legal documents that, when stacked, stand over 10ft high.

What they discovered stunned even Liebman, who, as an expert in America's use of capital punishment, was well versed in its flaws. "It was a house of cards. We found that everything that could go wrong did go wrong," he says.

"Another innocent executed?" is by Rania Khalek at Salon.

Death-penalty abolitionists long believed that the execution of an innocent person would turn the public against capital punishment. But that conviction has recently been shaken. First, there was Cameron Todd Willingham, who, after his 2004 execution in Texas, was found to have been likely innocent of killing his three small daughters. Nearly a decade later, Georgia executed Troy Davis despite widespread doubts about his guilt.

A new investigative report by the Columbia Human Rights Law Review (CHRLR) reveals that Carlos DeLuna, who was executed by the state of Texas in 1989, was likely innocent as well. The full report, titled “Los Tocayos Carlos: An Anatomy of a Wrongful Execution,” can be viewed at CHRLR’s newly launched interactive website where readers can view all of the evidence cited in the article.

Earlier coverage is in the Carlos DeLuna category index.  Journalists have also pointed to Ruben Cantu and Todd Willingham as likely innocents executed by Texas.

The Myth of Deterrence

That's the title of a New York Times editorial.  It appeared in the Saturday edition.

One of the most frequently made claims about the death penalty is that it deters potential murderers. That was the claim when the Supreme Court reinstated capital punishment in 1976. It is the claim today after a revival of research about the topic in the last decade.

But a distinguished committee of scholars working for the National Research Council has now reached the striking and convincing conclusion that all of the research about deterrence and the death penalty done in the past generation, including by some first-rank scholars at the most prestigious universities, should be ignored.

The committee found that the research “is not informative about whether capital punishment increases, decreases, or has no effect on homicide rates.” No study looks at what really matters, by comparing the deterrent effects of capital punishment with other penalties, like life without parole. A lot of the research assumes that “potential murderers respond to the objective risk of execution,” but only one in six of the people sentenced to death in the last 35 years have been executed and no study properly took that diminished risk into account.

And:

On Wednesday when Connecticut’s governor, Dannel Malloy, signed the state’s new law abolishing the death penalty, these problems were on his mind. As a former supporter of capital punishment, he said that he “came to believe that doing away with the death penalty was the only way to ensure it would not be unfairly imposed.”

The 33 states that retain the death penalty should follow that lead.

Earlier coverage of the National Research Council deterrence study and Connecticut repeal begins at the links.

Current Research Not Sufficient to Assess Deterrent Effect of the Death Penalty

That's the title of a news release issued by the National Research Council announcing a major study capital punishment and deterrence.  Here's the full text of the news release:

Research to date on the effect of capital punishment on homicide rates is not useful in determining whether the death penalty increases, decreases, or has no effect on these rates, says a new report from the National Research Council.  The committee that wrote the report evaluated studies conducted since a four-year moratorium on the death penalty was lifted in 1976, and it found that the studies do not provide evidence for or against the proposition that the death penalty affects homicide rates.  These studies should not be used to inform judgments about the effect of the death penalty on homicide, and should not serve as a basis for policy decisions about capital punishment, the committee said.

The lack of evidence about the deterrent effect of capital punishment -- whether it is positive, negative, or zero -- should not be construed as favoring one argument over another, the report stresses.  "Fundamental flaws in the research we reviewed make it of no use in answering the question of whether the death penalty affects homicide rates," said Daniel S. Nagin, Teresa and H. John Heinz III University Professor of Public Policy and Statistics at Carnegie Mellon University Pittsburgh, and chair of the committee that wrote the report. "We recognize that this conclusion may be controversial to some, but no one is well-served by unsupportable claims about the effect of the death penalty, regardless of whether the claim is that the death penalty deters homicides, has no effect on homicide rates or actually increases homicides."

The key question, the report says, is whether capital punishment is less or more effective as a deterrent than alternative punishments, such as a life sentence without the possibility of parole.  Yet none of the research that has been done accounted for the possible effect of noncapital punishments on homicide rates.

The committee also found that studies made implausible or unsupported assumptions about potential murderers' perceptions of and response to capital punishment.  Many studies did not address how perceptions are formed and simply inferred that potential murderers respond to the objective risk of execution. This inference ignores the fact that determining the objective risk poses great complexities even for a well-informed researcher, let alone a potential murderer.  For instance, only 15 percent of people who have been sentenced to death since 1976 have actually been executed, and a large fraction of death sentences are reversed.  Furthermore, estimates of the deterrent effect of the death penalty were based on unfounded assumptions, for example, that the effect of capital punishment is the same across all the states and over time.  There is no evidence to support such suppositions.

These intrinsic shortcomings severely limit what can be learned from the existing research, the report says.  The committee recommended next steps for research that include collecting data that consider both capital and noncapital punishments for murder, conducting studies on how potential murderers perceive a range of punishments in homicide cases, and using statistical methods based on more credible assumptions about the effect of capital punishment on homicide rates.

The ultimate success of the research may depend on the specific questions being addressed, the report adds.  Questions of interest include if and how the legal status or intensity of use of the death penalty affects homicide rates or whether executions affect these Rrates in the short term.  The report acknowledged that new data and knowledge may not come quickly or easily, but such research may help to provide insight into the crime prevention effects of noncapital punishment that could be useful for future policy decisions.

The committee was not asked and did not investigate the moral arguments for or against capital punishment, the empirical evidence on whether capital punishment is administered in a nondiscriminatory and consistent fashion, or the cost of its administration.

The study was sponsored by Tides Foundation, the Proteus Action League, and the National Institute of Justice.  The National Academy of Sciences, National Academy of Engineering, Institute of Medicine, and National Research Council make up the National Academies.  They are private, nonprofit institutions that provide science, technology, and health policy advice under a congressional charter.  The Research Council is the principal operating agency of the National Academy of Sciences and the National Academy of Engineering.

The members of the NRC review committee are listed on the release, as well as other information.

Prepublication information for Deterrence and the Death Penalty is also available.

Here'a roundup of the initial news coverage:

"Report: Deterrent effect of death penalty unclear," is the AP filing.  It's also available from ABC News and CBS News.

A new report says there is no reliable research on whether the death penalty has any effect on the murder rate, more than 35 years since the Supreme Court allowed the resumption of executions in the United States.

The National Research Council report says all the studies on the possible deterrent effect of the death penalty suffer from fundamental flaws. The report identifies problems that include not taking account of the effects of alternatives to death sentences or insufficiently weighing how killers assess the risk of execution.

The authors of the new report say they are disappointed to reach the same conclusion as a 1978 study. They say their evaluation of the existing research does not favor either side in the long-running debate about deterrence and the death penalty.

"Does the Death Penalty Deter Crime? Studies are Inconclusive," at National Journal.

We still don’t know enough about whether the death penalty works to deter crime, and policymakers should ignore research that claims to say whether it does, the National Academy of Sciences said on Wednesday.

A panel of experts appointed by the independent, nonprofit academy reviewed more than 30 years of research done since the 1976 Supreme Court decision that reinstated the death penalty as constitutional.

“The studies have reached widely varying, even contradictory, conclusions. Some studies conclude that executions save large numbers of lives; others conclude that executions actually increase homicides; and still others conclude that executions have no effect on homicide rate,” according to the academy panel, chaired by Daniel Nagin, an expert in criminology and statistics at Carnegie Mellon University.

And:

The report turns up some interesting facts – for instance, only 15 percent of people who have been sentenced to death since 1976 have actually been executed.

"NRC: Death penalty effect research 'fundamentally flawed'," by Dan Vergano at USA Today.

Does the death penalty deter murderers? Criminology offers no answers, despite more than three decades of research, concludes an expert panel, reviewing studies of the deterrence effects of capital punishment.

In 1976, the Supreme Court reinstated the death penalty as the law of the land. Since then, 1,234 people have been executed in U.S. prisons, where 35 states apply the death penalty.

So, does it help lower the homicide rate? Who knows. Research looking into links between capital punishment and murder rates is "fundamentally flawed," concludes a National Research Council panel led by criminologist Daniel Nagin of Carnegie-Mellon University in Pittsburgh.

"One major deficiency in all the existing studies is that none specify the non-capital sanction components of the sanction regime for the punishment of homicide," says the panel's just-released report, such as life imprisonment. As well, "incomplete or implausible models of potential murderers' perceptions," confound the studies, making them suspect.

"We recognize this conclusion will be controversial to some, but nobody is well served by unfounded claims about the death penalty," Nagin said, in a telephone briefing for reporters. "Nothing is known about how potential murderers actually perceive their risk of punishment."

Related posts are in the deterrence category index.

Nevada Cost Study

The Las Vegas Sun reports, "Study lays out costs associated with death penalty in Nevada."  It's written by Gregan Wingert.

The ACLU of Nevada recently highlighted a study conducted by a UNLV professor who found that defending the death penalty in Clark County costs at least $170,000 more than defending cases where life in prison is sought.

Terance Miethe, of UNLV's department of criminal justice, began the study in January and determined that the 80 pending capital murder cases in Clark County will cost approximately $20 million, according to the report.

Miethe's research estimates that public defense attorneys have spent double the time, about 2,300 hours, on capital murder cases as opposed to non-capital murder cases, the report says.

According to the study, 35 cases resulting in the death sentence between 2009 and 2011 took, on average, more than three years to complete. The study concluded that life with parole and life without parole cases took 2 to 2 1/2 years, respectively.

The ACLU of Nevada issued a press release, "Study on Murder Cases in Clark County Completed."  Here's the release text:

The American Civil Liberties Union of Nevada thanks Dr. Terance Miethe of the Department of Criminal Justice, University of Nevada—Las Vegas, for conducting a study on defense attorney time spent on murder cases in Clark County, and also Clark County Commissioner Chris Giunchigliani for having commissioned the study by Dr. Miethe. Dr. Miethe observes that defense costs associated with capital cases are $170,000 to $212,000 higher than in those cases where the death penalty is not sought.

ACLU welcomes the insights provided by Dr. Miethe, but cautions that the information provides only a necessary first step in analysis. It is critically important that the full array of costs associated with the death penalty be examined.

This study, dated Feb. 21 but not obtained by the ACLU of Nevada until April 4, provides an independent reference point for discussions about priorities, staffing, and funding of Clark County District Attorney’s office, and provides some harder numbers in place of estimates given to the Clark County Commission by former District Attorney David Roger in early 2011. However, as concerning as some of these numbers might be—such as the estimate of $20 million to handle 80 pending capital murder cases—the study was based on a survey of only 22 defense attorneys. The study also correctly points out, on page 7, its own substantial limitations: “It is important to note that this statistical extrapolation does not cover the full array of time spent in capital cases by other court officials (e.g. judges, prosecutors, jurors), staff and administrative personnel, mitigation specialists, investigators, and expert witnesses. It also does not take into account the additional costs of capital litigation that are associated with state/federal appeals and the extra costs of imprisonment of death-eligible inmates pending trial and sentencing.”

Thus, Dr. Miethe also states on page 7: “Given these major omissions in the present analysis, a more comprehensive study is required for estimating the overall costs and benefits of capital litigation in this jurisdiction across all groups involved in the criminal processing and adjudication of these cases.”

In the 2011 Nevada Legislature, the commission of a statewide cost study on the death penalty was passed by the Assembly and the Senate, only to be vetoed by Gov. Sandoval, who said he did not think the bill was specific enough to ensure that such a study would be “reliable” and “fair.” This seems to have overlooked the fact that death penalty cost studies have been performed nationwide (Nevada could simply replicate the methodology of the best study[s] performed in other states) and that the state government employs numerous experienced and highly trained accountants, auditors, economists, and attorneys.

The American Civil Liberties Union of Nevada will be back in the 2013 Legislature again advocating for a moratorium on the death penalty in Nevada, which was originally part of the 2011 bill but was amended out, and the kind of comprehensive cost study that now has also been called for by Dr. Miethe.

The complete study, "Estimates of Time Spent in Capital and Non-Capital Murder Cases: A Statistical Analysis of Survey Data from Clark County Defense Attorneys," and the Executive Summary are available in Adobe .pdf format from the ACLU of Nevada.

Cost has been an issue in Nevada in the past.  Related posts are in the cost index.

Another Academic Tribute to David Baldus

"Race and the Death Penalty: A Tribute to the Life and Work of David C. Baldus," is the title of a program at the University at Albany on Friday, April 20.  It will mark the the addition of the Baldus' personal papers to the National Death Penalty Archive, at UAlbany.

Here's the program announcement:

The University at Albany 's School of Criminal Justice and the University Libraries are pleased to invite the public and the University community to an event to be held on Friday, April 20 at 3:30 in the Standish Room, on the third floor of the Science Library, to announce the addition of the personal papers of the late David C. Baldus, Joseph B. Tye Professor at the University of Iowa College of Law, to the National Death Penalty Archive.

David Baldus's research and scholarship on the influence of race in the administration of the death penalty are unparalleled.  His study of racial disparities in the application of Georgia's death penalty served as the foundation of the landmark Supreme Court case, McCleskey v. Kemp (1987).  In that decision, by vote of 5-4, the justices upheld Georgia's death penalty law against constitutional challenge despite dramatic race-of-victim differences in capital charging and sentencing decisions that were revealed by "the Baldus study."  The McCleskey decision was issued a quarter century ago, on April 22, 1987.  Speakers at the April 20 event will reflect on the legacy of McCleskey v. Kemp and issues involving race and capital punishment as they recognize David Baldus's enduring commitment to equal justice under law and comment on the significance of including his papers within the National Death Penalty Archive.  Speakers will include:

Professor Catherine Grosso, Michigan State College of Law
Dr. Alice Green, Center for Law and Justice
Mr. David Kaczynski, New Yorkers for Alternatives to the Death Penalty
Mr. Brian Keough, M.E. Grenander Department of Special Collections and Archives, University at Albany
Professor James Acker, School of Criminal Justice, University at Albany

Discussion and a question-and-answer session will follow.  Refreshments will be available.  The event is free and open to the public.  For additional information, contact: Brian Keough at bkeough@albany.edu.

Last October, The University of Iowa College of Law held an Academic Conference and Tribute to honor his work and life; archived video is at the link.  Earlier coverage of David Baldus and his work is also available.

Examining When Justice Goes Awry

That's the title of Gary Craig's column in today's Rochester Democrat & Chronicle of New York state.  Here's an extended excerpt:

Jonathan Gradess sees a certain logic in holding a conference on wrongful convictions in Monroe County.

“I like the idea that (the conference) is going to be in a jurisdiction that has been in the vanguard of mistakes,” said Gradess, who heads the New York Defenders Association. “It’s sort of like taking the death penalty to Texas. It’s taking wrongful convictions to Rochester.”

A statement that stings some in law enforcement but can’t be denied is that Monroe County has had its share of high-profile wrongful convictions.

Growing research into misidentifications by victims and false confessions by the accused show that wrongful arrests and convictions likely can be curbed. And on Friday, April 20, the Rochester Institute of Technology’s criminal justice and psychology departments will host a conference with the leading experts in these topics as well as others.

Among the speakers at the conference, titled “Justice Miscarried: Convicting the Innocent,” will be John Jay College psychology professor Saul Kassin, an expert in false confessions; Peter Neufeld, co-founder of the Innocence Project; John Jay College professor Jennifer Dysart, an expert in eyewitness identification; Steven Barnes, who spent 20 years in prison for a murder he didn’t commit; and Eugene Pigott Jr., an associate judge on New York’s highest court, the Court of Appeals.

“This conference will help people truly understand the peer-reviewed research that explains why — despite their best intentions — eyewitnesses so often misidentify innocent people as the perpetrators of crime,” said LaVerne McQuiller Williams, associate professor and head of RIT’s criminal justice department. “It will also address why innocent people falsely confess to having committed crimes and the threat that prosecutorial misconduct presents in convicting the innocent.”

The 2012 New York State Wrongful Convictions Conference will be held April 20.  Registration is free, but ends on April 12.

Study: Prosecutors Not Disciplined for Misconduct

That's the title of Brandi Grissom's Texas Tribune post on a forum on prosecutorial misconduct held yesterday tat UT Law.

In 91 criminal cases in Texas since 2004, the courts decided that prosecutors committed misconduct, ranging from hiding evidence to making improper arguments to the jury, according to data that the Innocence Project will release today.

None of those prosecutors has ever been disciplined.

“It paints a bleak picture about what’s going on with accountability and prosecutors,” said Cookie Ridolfi, founder of the Northern California Innocence Project, who researched misconduct data in Texas and other states.

At a symposium today at the University of Texas at Austin, exonerees Michael Morton of Texas and John Thompson of Louisiana, along with lawyers and legal scholars, will discuss the need for increased accountability for prosecutors nationally and in Texas. The symposium is part of a national accountability campaign by the New York-based Innocence Project.

And:

“There’s no disincentive for a prosecutor to do it unless he or she has an internal moral code themselves,” Ridolfi said. In a study of California cases, her organization reported that from 1997 to 2009, courts found 707 instances of prosecutorial misconduct. There were just six instances in which prosecutors were disciplined.

As more inmates are being freed based on DNA evidence, Ridolfi said, more cases of misconduct are being identified. Although it is often the same prosecutors who repeatedly engage in misconduct, she said, the problem reflects poorly on the entire justice system.

“It’s basically bringing down the integrity of all the district attorneys’ offices,” she said.

In Texas, Ridolfi said, she found only one instance in which a prosecutor was publicly disciplined, and it took place before the time period her group studied. Terry McEachern, who prosecuted the infamous Tulia drug cases in which black defendants were convicted of drug charges concocted by a rogue investigator, received a two-year probated suspension of his law license in 2005 and a $6,225 fine.

"New Research Illustrates Lack of Accountability for Prosecutors in Texas," is the news release issued by the Innocence Project and Prosecutorial Oversight.  Here's the beginning:

New research released today by the Prosecutorial Oversight coalition illustrates the lack of accountability and transparency for prosecutorial misconduct in Texas. The research will be addressed at a symposium today at the University of Texas School of Law that will include panelists with backgrounds from all aspects of the criminal justice system addressing systemic and legal approaches for reducing prosecutorial error and misconduct.

The Austin event marks the second stop on a national tour organized by the Prosecutorial Oversight coalition, which includes the death row exoneree John Thompson, who was stripped of $14 million in civil damages for prosecutorial misconduct by the U.S. Supreme Court in Connick v. Texas; the Innocence Project; the Veritas Initiative, Northern California Innocence Project’s prosecutorial accountability program; the Innocence Project of New Orleans; Voices of Innocence; and local partners, the Texas Center for Actual Innocence; and the Actual Innocence Clinic at the University of Texas School of Law.

“No one is disputing that prosecutors have tremendous responsibility, and the vast majority do a good job under difficult circumstances.  But now that the Supreme Court has given prosecutors almost complete immunity for their actions, we need to develop systems of accountability for dealing with those prosecutors who violate their ethical obligations,” said Jennifer Laurin, Assistant Professor, University of Texas School of Law.

The research released today was conducted by the Veritas Initiative, which issued a groundbreaking report on prosecutorial misconduct in California last year.  The group reviewed all of the published trial and appellate court decisions addressing allegations of prosecutorial misconduct between 2004-2008. To see what, if any, consequences prosecutors face for their misconduct, Veritas looked at Texas’ public attorney disciplinary records from 2004 to November 2011.

From 2004 to 2008, courts found that prosecutors committed error in 91 cases.  Of these, the courts upheld the conviction in 72 of the cases, finding that the error was “harmless.”  In 19 of the cases, the court ruled that the error was “harmful” and reversed the conviction.  From 2004 until November 2011, only one prosecutor was publicly disciplined by the Texas Bar Association, and this was from a case that arose before 2004.

There's much more at Prosecutorial Oversight.  Earlier coverage of the cases of Michael Morton and John Thompson begins at the links.  Related posts are in the prosecutorial misconduct index.

An Update From North Carolina on Race & the RJA

"Death penalty study author meets House members," is Gary D. Robertson's AP report, via the Rocky Mount Telegram.  Here's an extended excerpt:

An N.C. House committee examining whether to make changes to the Racial Justice Act heard Tuesday from the co-author of a study that found race was a significant factor as prosecutors made juror decisions in death penalty cases. The report was met by skepticism and support from panel members.

Michigan State University law professor Barbara O’Brien addressed the committee as lawmakers decide what, if anything, to do about a 2009 law designed to reduce death sentences to life imprisonment when racial bias is evident.

O’Brien told the committee her review of more than 7,400 potential capital jurors couldn’t locate anything other than race to explain why potential black jurors were rejected more than twice as often by prosecutors compared to whites.

The statistical analysis of qualified jurors for the cases of all 173 death row prisoners as of July 2010 found prosecutors statewide were on average 2.26 times more likely to dismiss a potential black juror compared to any other qualified member of the jury pool. The pool doesn’t include people who wouldn’t support a death sentence under any circumstance.

The black-white strike ratio of at least 2-to-1 held even when O’Brien’s analysis controlled for other variables that could have had an effect on a prosecutor’s decision-making, such as information scrubbed from juror questionnaires and court transcripts for about 25 percent of the qualified jurors. The variables, for example, included whether the prospective juror knew a witness or the defendant; stood accused of a crime; or expressed reservations about the death penalty.

“Racial disparities that we observed in the raw strike a pattern ... they’re not explained by any race-neutral characteristics that we could find and that ever have been suggested to us,” O’Brien said, adding that there were no factors in the court records or in affidavits by prosecutors “that could explain the different ways these black potential jurors were being treated.”

Republican leaders in the House formed the committee when they couldn’t gather enough votes in January to override Democratic Gov. Bev Perdue’s veto of a bill that would have effectively repealed the 2009 law, which was passed when Democrats were in control. The committee is expected to make recommendations to the full N.C. General Assembly when it reconvenes in May.

Earlier coverage of the Racial Justice Act begins at the link.