2011 Summer, Pg. 21. The costs of capital punishment litigation.

• Author: By James M. Reams and Charles T. Putnam

New Hampshire Bar Journal

2011.

2011 Summer, Pg. 21.

The costs of capital punishment litigation

New Hampshire Bar JournalVolume 52, No. 2Summer 2011The costs of capital punishment litigationBy James M. Reams and Charles T. PutnamMost critics and even many supporters of capital punishment conclude that it costs society more to carry out the average death sentence than it does to carry out the average sentence to life without parole. We are less sure of that conclusion.

One cannot really begin a discussion of the costs of capital punishment without looking at the allegations, by the Death Penalty Information Center (DPIC) regarding "exonerations" in capital cases that have occurred since 1970. The DPIC list of exonerations is so flawed that it should not be taken seriously. Unfortunately, it seems to bear witness to the saying that if you tell the same lie often enough, it will be believed .

The DPIC list of "exonerations" is scientifically flawed for a number of reasons that result in a vast overstatement of the number of actual exonerations. The reasons have to do with flawed criteria for inclusion on the list.

The DPIC's definition of "exoneration" is very different from the way the word is understood by the general public or as it is defined by the Webster's Collegiate Dictionary. As generally understood, exoneration means that the accused defendant did not actually commit the criminal act or was actually innocent.

The DPIC definition, however, equates acquittal and dismissal with actual innocence. For instance, it includes cases where convictions were reversed for legal insufficiency; where defendants benefited from excluded, but reliable evidence; where defendants were actual perpetrators or principals in the killing of another; where conclusions are based on information from media reports and conversations with unidentified participants and constitutionally anachronistic cases.

Thus, the DPiC list of "exonerations" is not the result of rigorous research and vastly overstates the number of exonerations. See, "Exoneration Inflation" by Ward Campbell, lACJ, Summer 2008, for in-depth analysis and a critique of the DPIC figures, or U.S. vs. Quinones, 205 F. Supp. 2nd 256 (SDNY, 2002)

Opponents of the death penalty, argue that even one exoneration is too many for society to retain capital punishment. Some, including former Attorney General McLaughlin and Andrew Schulman, attempt to set a new standard for death penalty litigation, which is "100 percent guaranteed method or separating the innocent from the guilty" Schulman, NHBJ, Spring 2011, page 33.

Human beings cannot expect 100 percent safety in...