The myth of innocence.

• Author: Marquis, Joshua

For decades in America, questions about the death penalty centered on philosophical and sometimes religious debate over the morality of the state-sanctioned execution of another human being. Public opinion ebbed and flowed with support for the death penalty, declining as civil rights abuses became a national concern in the 1960s and increasing along with a rapid rise in violent crime in the 1980s. (1)

Those who oppose capital punishment call themselves "abolitionists," (2) clearly relishing the comparison to those who fought slavery in the 19th century. In the mid-1990s these abolitionists, funded by a cadre of wealthy supporters including George Soros and Roderick MacArthur, succeeded in changing the focus of the debate over the death penalty from the morality of executions to questions about the "fundamental fairness" or, in their minds, unfairness of the institution. (3) The abolitionists were frustrated by polling that showed that virtually all groups of Americans supported capital punishment in some form in some cases. (4)

Led by Richard Dieter of the neutral-sounding Death Penalty Information Center, opponents of capital punishment undertook a sweeping make-over of their campaign. (5) In addition to painting America as a rogue state--a wolf among the peaceful lambs of the European Union who had forsaken the death penalty--the latter-day abolitionists sought to convince America that, as carried out, the death penalty was inherently racist, that the unfortunates on death row received wretched and often incompetent defense counsel, and, most appalling, that a remarkable number of those sentenced to death were in fact innocent. (6)

Dieter and his allies pointed to the fact that while African-Americans make up only slightly more than ten percent of the American population, they constitute more than forty percent of those on death row. (7) In addition, they described some cases in which the appointed lawyers were nothing more than golfing pals with the judge making the appointment, that some of these lawyers had no previous experience with murder cases, and that in at least one case the lawyer appears to have slept through portions of the trial. (8)

Abolitionists painted a picture of massive prosecution, funded by the endless resources of the government and pitted against threadbare public defenders either barely out of law school or, if experienced, pulled from the rubbish heap of the legal profession. (9)

But most compelling of all the arguments that called capital punishment "fatally flawed" were the stories of men who had served years on death row, a few coming close to their scheduled execution only to be released because a court had determined that they were "exonerated." Television programs showed dramatic footage of Anthony Porter, freed from Illinois's death row, running into the arms of his savior, Northwestern University journalism professor David Protess. (10) A handful of other stories of "innocents on death row" filled magazines, television programs, and symposia on college campuses across the country.

In the face of horrific crimes like the murder of more than 160 people by Timothy McVeigh, death penalty opponents sought to recruit new converts. By the time of the 2000 presidential campaign, they had succeeded in moving the debate to a point where supporters of capital punishment felt beleaguered and outgunned. (11) A growing number of classic conservatives, from William F. Buckley to Pat Robertson, expressed their mistrust of capital punishment. (12) The arguments succeeded in driving down public support for the death penalty from a high of almost 80% in the late 1980s (13) to a low of around 65% in the year George W. Bush ran against A1 Gore for president. (14)

Recognizing that the polls still showed majority support for the existence of the death penalty, abolitionists started advocating for a "moratorium," suggesting that short of abolition, a halt should be declared to executions while the issue was intensively studied. (15) They found an unlikely ally in then-Governor George Ryan of Illinois. (16)

Ryan, a conservative Republican, had just two years earlier, in 1998, won election in part by underlining his support for capital punishment. (17) But in 1999 the Chicago Tribune began running a hard-hitting series of lengthy articles, accusing Illinois prosecutors of serious misconduct and highlighting a number of cases in which men sentenced to death row had been released when appellate courts found serious errors in their trials or claims of misconduct by police or prosecutors. (18) Although prosecutors and at least one state Supreme Court justice questioned Ryan's authority simply to halt the death penalty process, (19) Ryan's action effectively prevented the execution of any of the 170 men on that state's death row. (20)

Ryan became a folk hero. He was lauded on college campuses across the country, cited as a profile in political courage by foreign politicians, and was even nominated for the Nobel Peace prize. (21) Just before leaving office in 2003, Ryan stunned many when he announced a sweeping clemency, using his executive powers to release 164 men from death row and granting outright pardons to four more. (22)

Sensing a possible sea change in public sentiment, the abolitionists pushed for other states to follow Ryan's example. The moratorium became a leading campaign issue in the Maryland governor's race in 2002, following the outgoing governor's decision to place a moratorium on that state's use of the death penalty and commission a study to determine whether race plays a role in the application of the death penalty. (23)

After these apparent victories, the tide started to turn, but not in the way the abolitionists expected. Governor Ryan was dogged by a federal investigation into bribery and corruption charges that drove his approval rating to less than twenty-five percent. (24) His name became so toxic in Illinois politics that a Republican candidate for governor in 2004, whose last name was also Ryan but was no relation to the Governor, campaigned on first name. (25) After securing indictments and convictions against his top aides and even his campaign committee, federal prosecutors indicted Ryan on charges of bribery, corruption, and racketeering. (26)

In Maryland, Democratic gubernatorial candidate Kathleen Kennedy Townsend, who had pledged her continued support for the death penalty moratorium, suffered a defeat in the 2002 election in the wake of the Washington-area sniper shootings. (27) And, finally, the murder of 3,000 people on September 11, 2001, reminded many Americans that some crimes merited the ultimate punishment.

Having largely abandoned the moral arguments against capital punishment, the modern abolition movement is now based on a trio of urban legends: (1) the death penalty is racist at its core; (2) those accused of capital murder get grossly inadequate representation; and (3) a remarkable number of people on death row are innocent.

In the last ten years the violent crime rate in America, including the murder rate, has decreased dramatically. (28) A series of recent studies by economists showed an undeniable correlation between the death penalty and deterrence. (29)

One researcher who reported that pardons may have actually cost lives nonetheless added a postscript to the study, saying that despite the results of his study he personally believed that the death penalty remained biased against minorities. (30)

How could the death penalty not be racially biased given the disproportionate number of African-Americans convicted of murder? A Cornell University study issued in March of 2004 by law professors John Blume and Theodore Eisenberg and statistician Martin Wells (31)--all opponents of the death penalty (32)--showed that the conventional wisdom about the South's so-called "death belt," where blacks are said to be much more likely to the than whites convicted of similar murders, simply does not hold up. In the words of the authors, "[t]he conventional wisdom about the death penalty is incorrect in some respects and misleading in others." (33)

Until the Cornell study, the abolitionists had relied largely on the studies of David Baldus for their accusations of racism. Baldus, an Iowa law professor, claimed that race was a key factor in the imposition of death sentences. (34) The Cornell University study, however, drawn from statistics gathered by the U.S. Department of Justice's Bureau of Justice Statistics, showed that while African-Americans were convicted of committing 51.5% of all murders, they comprised only 41.3% of death row's population. (35) The study revealed that roughly ten percent of the murders were cross-racial (36) and that in twenty-eight states, including Georgia, South Carolina and Tennessee, blacks were under-represented on death row. (37) States like Texas, which had the greatest number of people on death row, actually had a lower per capita rate of imposing the death penalty than Nevada, Ohio, and Delaware. (38)

The Cornell study thereby confirmed what many prosecutors had suspected: that a white murderer sentenced to death was twice as likely actually to be executed than a black person sentenced to death. (39) It may be shockingly politically incorrect to say, but the fact is that the most horrific murders--serial killings, torture murders, and sex crimes against children--tend to be committed more frequently by white murderers than blacks. (40)

The next urban legend is that of the threadbare but plucky public defender fighting against all odds against a team of sleek, heavily-funded prosecutors with limitless resources. The reality in the 21st century is startlingly different. There is no doubt that before the landmark 1963 decision in Gideon v. Wainwright, (41) appointed counsel was often inadequate. But the past few decades have seen the establishment of public defender systems that in many cases rival some of the best lawyers...