Mississippi Supreme Court Justice Departs With an Anti-Death Penalty Flourish

Radley Balko | December 18, 2008

Last week, Mississippi Supreme Court Justice Oliver Diaz, Jr. wrote what likely will be his last death penalty opinion.  Diaz, you may recall, is one of just two justices on that court to specifically say that the state should no longer certify former medical examiner Dr. Steven Hayne as an expert witness.

Diaz has also seen the criminal justice system from the other side. During his term he was twice tried—and twice acquitted—in federal court of taking bribes, charges critics have said were politically motivated, and part of the Bush administration's politicization of the Justice Department.  He lost his bid for reelection last November.

Mississippi actually has been surprisingly slow in executing people off Parchman Penitentiary's death row.  But it's not for a lack of trying.  The state has been repeatedly rebuked by the federal courts for adopting illegal jury instructions, providing insufficient and underpaid public defenders (by state law, they can receive no more than $1,000 per case), and other inadequate protections in death penalty cases. I suspect (and hope) we'll also soon see the federal courts sending scores more cases back for a new trial because of the improper testimony Dr. Hayne and Dr. Michael West.

In his dissent in this last case, Diaz lays out his case against the death penalty, drawing on his own experience as a criminal defendant, and on the cases he has seen cross his desk as a justice with the state's supreme court.

But my unique life experiences have shown me – to a greater degree, I submit respectfully, than any other justice voting today – the potentially oppressive power of government prosecution. For nearly two years . . . I have chosen to advocate for stricter adherence to the guidelines that we have established to limit arbitrary or disproportionate sentences.

I have concluded, though, that even this may not be enough to satisfy the demands of our state and federal constitutions that death not be meted out arbitrarily.

[...]

our courts are subject to fallibility no less than any of man’s institutions, and racial discrimination in the courtroom is no mere bit of ancient history. Only a generation ago, the U.S. Supreme Court addressed a case in which the defendant, a black man sentenced to death for murder, produced the most comprehensive, scientific study of its kind ever compiled to date and showed that the race of his white victim made his Georgia trial court 22 times more likely to impose a death sentence.

[...]

But even the specter of racially motivated executions pales in comparison to the most terrifying possibility in a system where the death penalty is dealt arbitrarily: innocent men can be, and have been, sentenced to die for crimes they did not commit. In 2008 alone, two men – both black – convicted of murders in Mississippi in the mid-1990s have been exonerated fully by a non-profit group that investigates such injustices.

One of these men, Kennedy Brewer, spent an astonishing six years on death row. Just as a cockroach scurrying across a kitchen floor at night invariably proves the presence of thousands unseen, these cases leave little room for doubt that innocent men, at unknown and terrible moments in our history, have gone unexonerated and been sent baselessly to their deaths.

I'm opposed to the death penalty not because I don't think there are some crimes so heinous that they merit death as a punishment.  I'm opposed to it because I don't think the government is capable of administering it fairly, competently, and with adequate protections to prevent the execution of an innocent person.

Three years of reporting on various aspects of Mississippi's criminal justice system have confirmed those concerns dozens of times over.

(Via Folo)

Comments

|12.18.08 @ 1:35PM|#

Well put. If even one innocent man dies because of the death penalty, we should scrap the entire system. If we cannot *know* that every single person we are sending to death row is a killer, we should never do it.

|12.18.08 @ 1:37PM|#

I'm opposed to the death penalty not because I don't think there are some crimes so heinous that they merit death as a punishment. I'm opposed to it because I don't think the government is capable of administering it fairly, competently, and with adequate protections to prevent the execution of an innocent person.

My thoughts exactly.

EscapedWestOfTheBigMuddy|12.18.08 @ 1:37PM|#

Well said, Justice Diaz.

Sam Grove|12.18.08 @ 1:39PM|#

You betcha.

The death penalty is a power that should not be granted to such an imperfect institution.

|12.18.08 @ 1:39PM|#

Full disclosure - I celebrated the Ceaucescus' trial, conviction and executions.

Virgil|12.18.08 @ 1:40PM|#

In other death penalty related news, some Georgia legislators are trying to make it easier to get death penalty convictions by removing the requirement for unanimous jury support of the death penalty sentence.

http://www.nytimes.com/2008/12/17/us/17death.html?_r=1&scp=5&sq=death%20penalty&st=cse

|12.18.08 @ 1:47PM|#

I reversed my position on capital punishment ten or fifteen years ago. Mostly for the reasons Radley states. We should never grant the government that power.

|12.18.08 @ 1:47PM|#

Good article. The penultimate paragraph lays out precisely how I feel.

Headline needs fixing, though: "penatly"

Naga Sadow|12.18.08 @ 1:49PM|#

Radley is a big reason why I changed my view on capital punishment.

|12.18.08 @ 2:15PM|#

Add me to the list that joins Radley in his conclusion. I used to be a fairly steady believer in the death penalty, but the evidence shows that it has been administered incompetently.

|12.18.08 @ 2:17PM|#

"the Bush administration's politicization of the Justice Department. "

Blah blah blah... the Bush Administration invented politics!

Radley Balko|12.18.08 @ 2:20PM|#

Blah blah blah... the Bush Administration invented politics!

They didn't invent politics. They systematically tried to put political opponents in prison.

They aren't the first to try that, either. That doesn't mean we shouldn't criticize them for it.

|12.18.08 @ 2:43PM|#

I know there's no doctrinare "Libertarian" position on a ton of issues, but the death penalty is a litmus test. If you believe the government is fundamentally incapable of spending public funds correctly but are ok with giving it the power of life and death in non-defense situations you are either morally unserious or a racist

|12.18.08 @ 2:51PM|#

Wow, has it really been 3 years? Damn Radley, you are one dogged individual. Keep it up man.

JD|12.18.08 @ 2:52PM|#

On the one hand I agree with the assessment that we should not be giving the government the power over life and death, even though I think there are crimes fully deserving of the death penalty. OTOH, if you're going to have a state justice system at all, you have to grant that it will make mistakes sometimes; if making mistakes with a power is a case for removing the power entirely, then we can't let them do anything. Some people say the death penalty is different because it's irreversible, but I would say that spending 20 years in prison is pretty irreversible too.

Radley Balko|12.18.08 @ 3:04PM|#

Some people say the death penalty is different because it's irreversible, but I would say that spending 20 years in prison is pretty irreversible too.

Talk to some of the people who've done 20 years or more for crimes for which they were later exonerated. I'll bet they have a different take.

perilisk|12.18.08 @ 3:33PM|#

"but I would say that spending 20 years in prison is pretty irreversible too." Perhaps the more appropriate term is "mitigable". You can free a person with a 20 year sentence after 1 year, if they are found to be innocent, but dead is dead.

|12.18.08 @ 5:36PM|#

possibly, the judge is wrong on every issue:

The Death Penalty Provides More Protection for Innocents
Dudley Sharp, Justice Matters, contact info below

Often, the death penalty dialogue gravitates to the subject of innocents at risk of execution. Seldom is a more common problem reviewed. That is, how innocents are more at risk without the death penalty.

To state the blatantly clear, living murderers, in prison, after release or escape, are much more likely to harm and murder, again, than are executed murderers.

Although an obvious truism, it is surprising how often folks overlook the enhanced incapacitation benefits of the death penalty over incarceration.

No knowledgeable and honest party questions that the death penalty has the most extensive due process protections in US criminal law.

Therefore, actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed.

That is. logically, conclusive.

16 recent studies, inclusive of their defenses, find for death penalty deterrence.

A surprise? No.

Life is preferred over death. Death is feared more than life.

Some believe that all studies with contrary findings negate those 16 studies. They don't. Studies which don't find for deterrence don't say no one is deterred, but that they couldn't measure those deterred.

What prospect of a negative outcome doesn't deter some? There isn't one . . . although committed anti death penalty folk may say the death penalty is the only one.

However, the premier anti death penalty scholar accepts it as a given that the death penalty is a deterrent, but does not believe it to be a greater deterrent than a life sentence. Yet, the evidence is compelling and un refuted that death is feared more than life.

Some death penalty opponents argue against death penalty deterrence, stating that it's a harsher penalty to be locked up without any possibility of getting out.

Reality paints a very different picture.

What percentage of capital murderers seek a plea bargain to a death sentence? Zero or close to it. They prefer long term imprisonment.

What percentage of convicted capital murderers argue for execution in the penalty phase of their capital trial? Zero or close to it. They prefer long term imprisonment.

What percentage of death row inmates waive their appeals and speed up the execution process? Nearly zero. They prefer long term imprisonment.

This is not, even remotely, in dispute.

Life is preferred over death. Death is feared more than life.

Furthermore, history tells us that lifers have many ways to get out: Pardon, commutation, escape, clerical error, change in the law, etc.

In choosing to end the death penalty, or in choosing not implement it, some have chosen to spare murderers at the cost of sacrificing more innocent lives.

Furthermore, possibly we have sentenced 25 actually innocent people to death since 1973, or 0.3% of those so sentenced. Those have all been released upon post conviction review. The anti death penalty claims, that the numbers are significantly higher, are a fraud, easily discoverable by fact checking.

The innocents deception of death penalty opponents has been getting exposure for many years. Even the behemoth of anti death penalty newspapers, The New York Times, has recognized that deception.

To be sure, 30 or 40 categorically innocent people have been released from death row . . . (1) This when death penalty opponents were claiming the release of 119 "innocents" from death row. Death penalty opponents never required actual innocence in order for cases to be added to their "exonerated" or "innocents" list. They simply invented their own definitions for exonerated and innocent and deceptively shoe horned large numbers of inmates into those definitions - something easily discovered with fact checking.

There is no proof of an innocent executed in the US, at least since 1900.

If we accept that the best predictor of future performance is past performance, we can, reasonably, conclude that the DNA cases will be excluded prior to trial, and that for the next 8000 death sentences, that we will experience a 99.8% accuracy rate in actual guilt convictions. This improved accuracy rate does not include the many additional safeguards that have been added to the system, over and above DNA testing.

Of all the government programs in the world, that put innocents at risk, is there one with a safer record and with greater protections than the US death penalty?

Unlikely.

Full report -All Innocence Issues: The Death Penalty, upon request.

Full report - The Death Penalty as a Deterrent, upon request

(1) The Death of Innocents: A Reasonable Doubt,
New York Times Book Review, p 29, 1/23/05, Adam Liptak,
national legal correspondent for The NY Times

copyright 2007-2008, Dudley Sharp
Permission for distribution of this document, in whole or in part, is approved with proper attribution.

Dudley Sharp, Justice Matters
e-mail [e-mail] 713-622-5491,
Houston, Texas

Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS, VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.

A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

Pro death penalty sites

http://homicidesurvivors.com/categories/Dudley%20Sharp%20-%20Justice%20Matters.aspx

www.dpinfo.comwww.cjlf.org/deathpenalty/DPinformation.htm
www.clarkprosecutor.org/html/links/dplinks.htm
www.coastda.com/archives.html
www.lexingtonprosecutor.com/death_penalty_debate.htm
www.prodeathpenalty.com
http://yesdeathpenalty.googlepages.com/home2 (Sweden) www.wesleylowe.com/cp.html

|12.18.08 @ 5:38PM|#

Opps, the judge blew it on the Georgis (McCleskey) cases, as well.

Race & the Death Penalty: How numbers are tricking you
forwarded by Dudley Sharp, Justice Matters, contact info below

How numbers are tricking you
by Arnold Barnett
MIT Technology Review October, 1994
The statistics that fill the media are often subtly misleading. Here's a guide to the most common types of errror.
www(dot)geocities.com/CapitolHill/4834/barnett.htm

NOTE: I have removed most of this article and only retained the section on the death penalty - Dudley

------------------------------------------

Fundamental misunderstandings of statistical results can arise when two words or phrases are unwisely viewed as synonyms, or when an analyst applies a particular term inconsistently.

The Odds of Execution

A powerful example of the first problem arose in 1987, when the U.S. Supreme Court issued its controversial McClesky v. Kemp ruling concerning racial discrimination in the imposition of the death penalty. The Court was presented with an extensive study of Georgia death sentencing, the main finding of which was explained by the New York Times as follows: "Other things being as equal as statisticians can make them, someone who killed a white person in Georgia was four times as likely to receive a death sentence as someone who killed a black."

The Supreme Court understood the study the same way. Its majority opinion noted that "even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks."

But the Supreme Court, the New York Times, and countless other newspapers and commentators were laboring under a major misconception. In fact, the statistical study in McClesky v. Kemp never reached the "factor of four" conclusion so widely attributed to it. What the analyst did conclude was that the odds of a death sentence in a white-victim case were 4.3 times the odds in a black-victim case. The difference between "likelihood" and "odds" (defined as the likelihood that an event will happen divided by the likelihood that it will not) might seem like a semantic quibble, but it is of major importance in understanding the results.

The likelihood, or probability, of drawing a diamond from a deck of cards, for instance, is 1 in 4, or 0.25. The odds are, by definition, 0.25/0.75, or 0.33. Now consider the likelihood of drawing any red card (heart or diamond) from the deck. This probability is 0.5, which corresponds to an odds ratio of 0.5/0.5, or 1.0. In other words, a doubling of probability from 0.25 to 0.5 results in a tripling of the odds.

The death penalty analysis suffered from a similar, but much more serious, distortion. Consider an extremely aggravated homicide, such as the torture and killing of a kidnapped stranger by a prison escapee. Represent as PW the probability that a guilty defendant would be sentenced to death if the victim were white, and as PB the probability that the defendant would receive the death sentence if the victim were black. Under the "4.3 times as likely" interpretation of the study, the two values would be related by the equation:

If, in this extreme killing, the probability of a death sentence is very high, such that PW = 0.99 (that is, 99 percent), then it would follow that PB = 0.99/4.3 = 0.23. In other words, even the hideous murder of a black would be unlikely to evoke a death sentence. Such a disparity would rightly be considered extremely troubling.

But under the "4.3 times the odds" rule that reflects the study's actual findings, the discrepancy between PW and PB would be far less alarming. This yields the equation:

If PW = 0.99, the odds ratio in a white-victim case is 0.99/0.01; in other words, a death sentence is 99 times as likely as the alternative. But even after being cut by a factor of 4.3, the odds ratio in the case of a black victim would take the revised value of 99/4.3 = 23, meaning that the perpetrator would be 23 times as likely as not to be sentenced to death. That is:

Work out the algebra and you find that PB = 0.96. In other words, while a death sentence is almost inevitable when the murder victim is white, it is also so when the victim is black - a result that few readers of the "four times as likely" statistic would infer. While not all Georgia killings are so aggravated that PW = 0.99, the quoted study found that the heavy majority of capital verdicts came up in circumstances when PW, and thus PB, is very high.

None of this is to deny that there is some evidence of race-of-victim disparity in sentencing. The point is that the improper interchange of two apparently similar words greatly exaggerated the general understanding of the degree of disparity. Blame for the confusion should presumably be shared by the judges and the journalists who made the mistake and the researchers who did too little to prevent it.

(Despite its uncritical acceptance of an overstated racial disparity, the Supreme Court's McClesky v. Kemp decision upheld Georgia's death penalty. The court concluded that a defendant must show race prejudice in his or her own case to have the death sentence countermanded as discriminatory.)

webpage http://sloancf.mit.edu/vpf/popup-if.cfm?in_spseqno=5&co_list=F
email [e-mail]

-----------------

Los Angeles Times
July 12, 1998

The Math Behind Race, Crime and Sentencing Statistics
By John Allen Paulos
Philadelphia

Who can forget the morass of statistics used in the O.J. Simpson double-murder trial? What did the cited DNA probabilities mean? Did the jury and the public grasp the mathematics undergirding the numbers?

More recently, the issues of race, death and mathematics have again subtly entertwined. This time, the misunderstanding arises because the technical meaning of a common phrase differs substantially from its informal meaning. What at first glance may seem like semantic nitpicking has significant consequences for public policy and perceptions.

In a study published in The Times, there appeared a potentially inflammatory, although ostensibly correct, statement. In reporting on death sentences in Philadelphia, the study asserted that the odds of blacks convicted of murder receiving a death sentence were four times the odds faced by other defendants similarly convicted. The Times article, as well as accounts in other newspapers, then transmuted that statement into the starkly inequivalent one that blacks were four times as likely to be sentenced to death as whites. The author of the study used the technical definition of odds, not the more familiar idea of probability and, as a consequence, most readers were seriously misled.

The difference between "probability" and "odds" is crucial. The odds of an event is defined as the probability it will occur divided by the probability that it will not occur. Consider a coin flip. The probability of it landing heads is one-half, or .5, and the probability of not landing heads is also one-half, or .5. Hence: The odds of the coin landing heads is 1 to 1 (.5 divided by .5). Now consider rolling a die and having it land on 1,2,3,4 or 5. The probability of this event is five-sixths, or .83, and the probability of the die not landing on 1,2,3,4 or 5 is one-sixth, or .17. Hence: The odds of the die landing on one of these five numbers is 5 to 1 (.83 divided by .17). More serious discrepancies between probabilities and odds occur for events with higher probabilities.

What's the relevance of this to murder statistics and death penalties? To most readers, the phrase "four times the odds" means that if, say, 99% of blacks convicted of murder were to receive the death penalty, about 25% of whites similarly convicted would receive the same penalty.

Yet, when the technical definition of "odds" is used, the meaning is quite different. In this case, if 99% of blacks convicted of murder received the death penalty, then a considerably less unfair 96% of whites similarly convicted would receive the death penalty. Why? Using the technical definition, we find that the odds in favor of a convicted black murderer receiving the death penalty are 99 to 1 (99/l00 divided by 1/100). The odds in favor of a convicted nonblack murderer getting death are 24 to 1 (96/l00 divided by 4/100). Thus, since 99 is roughly four times 24, the odds that a convicted black murderer will receive the death penalty are, in this case, approximately four times the odds that a convicted nonblack murderer will receive the same sentence.

As Arnold Barnett and others have shown, similarly misleading claims were made in the 1987 U.S. Supreme Court decision in McClesky vs. Kemp. The issue concerned the effect of a murder victim's race on death sentencing in the state of Georgia, but the confusion is the same.

By dissecting the phrase "four times the odds," I don't mean to deny that racism exists, that there are racial disparities in sentencing or that the death penalty is morally wrong. Rather, I mean to deflate the likely-to-be-inferred magnitude of racial disparities in the sentencing for murder and other violent crimes. The difference between 99% and 96%, for example, is much less egregious than that between 99% and 25%. Still, whatever they are, the raw percentages are troubling enough without the tendentious and easily misinterpreted phrase "four times the odds."


John Allen Paulos, a professor of mathematics at Temple University, is the author of "A Mathematician Reads the Newspaper" and the forthcoming "Once Upon a Number."

Webpage http://www.math.temple.edu/~paulos/
email [e-mail]

Permission for distribution of this document, in whole or in part, is approved with proper attribution.

Dudley Sharp, Justice Matters
e-mail [e-mail], 713-622-5491,
Houston, Texas

Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.

A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

Pro death penalty sites

www.homicidesurvivors.com/categories/Dudley%20Sharp%20-%20Justice%20Matters.aspx

www.dpinfo.com
www.cjlf.org/deathpenalty/DPinformation.htm
www.clarkprosecutor.org/html/links/dplinks.htm
www.coastda.com/
www.lexingtonprosecutor.com/death_penalty_debate.htm
www.prodeathpenalty.com
www.yesdeathpenalty.googlepages.com/home2 (Sweden)
www.wesleylowe.com/cp.htm

Charles|12.18.08 @ 6:02PM|#

My working theory: Dudley Sharp might be a dick.

Virgil|12.18.08 @ 6:17PM|#

Wow - so many bizarre, inaccurate, and/or grossly misrepresentative statements in Dudley's cut'n'paste screed. Where to begin....

"Studies which don't find for deterrence don't say no one is deterred, but that they couldn't measure those deterred."

This one falls under bizarre. Apparently you're expecting them to actually prove a negative, which of course isn't possible. If the absence of any evidence of deterrence in studies explicitly designed to look for it doesn't count as evidence against it, then deterrence is simply an unfalsifiable article of faith for you.

"To be sure, 30 or 40 categorically innocent people have been released from death row . . . (1) This when death penalty opponents were claiming the release of 119 "innocents" from death row."

This one would be both bizarre and misrepresentative. To this point, well over 100 death row inmates have been exonerated. As I'm sure you're well aware, no court finds anyone "categorically innocent." The fact that these 100+ individuals have been released from death row based on exculpatory evidence is pretty much as strong a case as could rationally, honestly be expected that they were not guilty of the crime, and your "categorically innocent" criterion is just laughable. Which leads us to

"There is no proof of an innocent executed in the US, at least since 1900."

Based on your "categorically innocent" criterion above, I'm going to go out on a limb and suggest that there's very little if any evidence you would accept as proof that an innocent has been executed. But there have in fact been several cases where exculpatory evidence has arisen following execution, strongly indicating that the person executed was not guilty of the crime for which they were executed (see for example http://www.democracyinaction.org/dia/organizationsORG/ncadp/content.jsp?content_KEY=2496&t=Innocent%20And%20Executed%20Section.dwt).

Even if that weren't the case, the fact that well over 100 death row inmates have been exonerated, in many cases based on DNA evidence that wasn't available for almost all of the 20th century, makes it _extremely_ likely that one or more innocents have been executed. In fact, based on the rate of exonerations due to DNA evidence over the past 15 years it would practically take a miracle for an innoncent _not_ to have been executed in the 93 years prior. Add to that the fact that in very few cases until very recently has the evidence been examined in any detail post-execution, making it very unlikely that we would even know. Taking all of that together (and even ignoring the evidence at the link above, and other similar evidence), your "no proof of an innocent executed" is essentially meaningless.

Joshua Holmes|12.18.08 @ 6:42PM|#

The general problem with the Dudley argument is that, even if the death penalty saves some innocent lives, it comes at a cost of extinguishing other innocent lives. No one should have to die to prevent the crimes of another.

Moreover, the people on death row are not the people being paroled from prison. The alternative to death is life in prison without the possibility of parole. Escapes from supermax prisons - where these criminals would likely be - are uncommon.

Shadow of the Past|12.18.08 @ 8:06PM|#

I'm opposed to it because I don't think the government is capable of administering it fairly, competently, and with adequate protections to prevent the execution of an innocent person.

Love ya, Radley, but the government doesn't sentence people to death. Juries do.

Talk to some of the people who've done 20 years or more for crimes for which they were later exonerated. I'll bet they have a different take.

How so? You're seriously telling me that a person who was wrongly put into the klink at age 20 and is finally released at age 40 won't consider it irreversible?

I'm sure they're glad they weren't executed, but that's not the point. If the problem is with the justice system, then the justice system itself needs to be fixed, even if youre just sentencing people to life in prison.

|12.19.08 @ 4:40AM|#

virgil:

Some fact checking for you, for "exonerated" death row inmates.

The Death Penalty Information Center has been responsible for some of the most serious deceptions by the anti death penalty side.

Dieter and DPIC have produced the claims regarding the exonerated and innocents released from death row list.

Richard Dieter, head of the Death Penalty Information Center (DPIC): defining what "exonerated" or "innocent" means.

". . . (DPIC) makes no distinction between legal and factual innocence. " 'They're innocent in the eyes of the law,' Dieter says. 'That's the only objective standard we have.' "

That is untrue, of course. We are all aware of the differences between legal guilt and actual guilt and legal innocence and actual innocence, just as the courts are.

Furthermore, there is no finding of actual innocence, but it is "not guilty". Dieter knows that we are all speaking of actual innocence, those cases that have no connection to the murder(s).

Dieter "clarifies" the three ways that former death row inmates get onto their "exonerated" by "innocence" list.

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

None establishes actual innocence.

DPIC has " . . . included supposedly innocent defendants who were still culpable as accomplices to the actual triggerman."

DPIC: "There may be guilty persons among the innocents, but that includes all of us."

Good grief. DPIC wishes to apply collective guilt of capital murder to all of us.

Dieter states: "I don't think anybody can know about a person's absolute innocence." (Green). Dieter said he could not pinpoint how many are "actually innocent" -- only the defendants themselves truly know that, he said." (Erickson)

Or Dieter won't assert actual innocence in 1, 102 or 350 cases. He doesn't want to clarify a real number with proof of actual innocence, that would blow his entire deception.

Or, Dieter declare all innocent: "If you are not proven guilty in a court of law, you're innocent." (Green)

Dieter would call Hitler and Stalin innocent. Those are his "standards".

And that is the credibility of the DPIC.

For fact checking.

1. "Case Histories: A Review of 24 Individuals Released from Death Row", Florida Commission on Capital Cases, 6/20/02, Revised 9/10/02 at http://www.floridacapitalcases.state.fl.us/Publications/innocentsproject.pdf

83% error rate in "innocent" claims.

2. "Is 'the innocence list' an appropriate name?", 1/19/03
FRANK GREEN, TIMES-DISPATCH STAFF WRITER
http://www.stopcapitalpunishment.org/coverage/106.html

Dieter admits they don't discern between legal innocence and actual innocence. One of Dieter's funnier quotes;"The prosecutor, perhaps, or Dudley Sharp, perhaps, thinks they're still guilty because there was evidence of their guilt, but that's a subjective judgment." Yep, "EVIDENCE OF GUILT", can't you see why Dieter would think they were innocent? And that's how the DPIC works.

3. The Death of Innocents: A Reasonable Doubt,
New York Times Book Review, p 29, 1/23/05, Adam Liptak,
national legal correspondent for The NY Times

"To be sure, 30 or 40 categorically innocent people have been released from death row . . . ".

That is out of the DPIC claimed 119 "exonerated", at that time, for a 75% error rate.

NOTE: It's hard to understand how an absolute can have a differential of 33%. I suggest the "to be sure" is, now, closer to 25.

4. CRITIQUE OF DPIC LIST ("INNOCENCE:FREED FROM DEATH ROW"), Ward Campbell, http://www.prodeathpenalty.com/DPIC.htm


5. "The Death Penalty Debate in Illinois", JJKinsella,6/2000, http://www.dcba.org/brief/junissue/2000/art010600.htm


6.THE DEATH PENALTY - ALL INNOCENCE ISSUES, Dudley Sharp
http://homicidesurvivors.com/2006/03/20/all-innocence-issues--the-death-penalty.aspx

Origins of "innocence" fraud, and review of many innocence issues

7. "Bad List", Ramesh Ponnuru, National Review, 9/16/02
www.nationalreview.com/advance/advance091602.asp#title5

How bad is DPIC?

8. "Not so Innocent", By Ramesh Ponnuru,National Review, 10/1/02
www.nationalreview.com/ponnuru/ponnuru100102.asp

DPIC from bad to worse.

|12.19.08 @ 4:50AM|#

I wrote:"Studies which don't find for deterrence don't say no one is deterred, but that they couldn't measure those deterred."

Virgil responded: "This one falls under bizarre. Apparently you're expecting them to actually prove a negative, which of course isn't possible. If the absence of any evidence of deterrence in studies explicitly designed to look for it doesn't count as evidence against it, then deterrence is simply an unfalsifiable article of faith for you."

Try some reason, Virgil.

The point was the reasonable evidence for deterrence.

Many studies find for deterrance. Studies that don't find it, do not say it doesn't exeist but, only, that they didn't measure it.

Then we have: What prospect of a negative outcome doesn't deter some? There isn't one.

Of course the death penalty deters some.

The question, of course, is not

Does the death penalty deter?

The question is, can anyone, including Vorgil, prove that it does not deter some?

Of course not.

|12.19.08 @ 6:04AM|#

Joshua,

The point was that innocents are more at risk without the deathpenalty.

Spare murderers, sacrifice more innocents.

Execute murderers, spare more innocent lives.

And it is not, remotely, an even field.

The proof is overwhelming that living murderers harm and murder, again, in large numbers. ZThere is no proof of an innocent executed.

Although Virgil attempts to downplay the iportance of proof, it is very important in this discussion, as it is in most.

Virgils point, with which I agree, is that simply because there is no proof of an innocent executed doesn't mean that it hasn't happened. But, so, too, there are many cases that we, undoubtedly, have no proof for, where innocents were harmed or murdered, by those who had murdered before.

Becaue we have overwhelming proof for one and none for the other, we can reasonably speculate that the unknown innocents harmed or murdereed by the known those who had murdered, before, is a much much larger number than the unknown innocents executed.

If your real concenr is for innocents, you would call for more executions.

Super max prisons are the eception, not the rule. To state an obvious truism, living murderers are much more likley to harm and murder, again, in prion, after escape or after improper release than are executed murderers.

|12.19.08 @ 6:10AM|#

Shadow of the Past,

The protections of the death penalty are far in excessive of the due process protections for any other sanction, meaning that innocents are more likley to be sentneced to a prison term and more likley to die, serving under than sentnece, than it is that an innocent will be executed.

That is logocally conclusive, if death penalty due rocess is superior.

And, of course you are right, the time taken away from an actually innocent person incarcerated, is irreversible time lost.

Virgil|12.19.08 @ 10:40AM|#

You know, Dudley, just because you keep repeating your mantra that something is "logically conclusive" doesn't magically make it so. The fact is, irrefutable evidence of innocence is an absolutely absurd standard by which to judge, in these cases or anywhere else, because it's essentially impossible to achieve. If there's enough evidence to have a conviction overturned and a death row prisoner exonerated (which, despite what you'd like to pretend, means pretty damn strong evidence), their finding of "not guilty" is the only meaningful, intellectually honest way we have to judge their convictions and exonerations.

"Try some reason, Virgil."

You're just captain irony today, aren't you? When you see reason applied to the question of innocents' having been executed in the past (in response to your meaningless statement that "There is no proof of an innocent executed in the US, at least since 1900."), you run screaming in the other direction. Given the rate of exoneration based on DNA evidence over the past 15 years, it should be painfully obvious to anyone with the most basic capacity for reason that it's a virtual certainty that one or more innocents were executed in this country prior to its availability. If you refuse to acknowledge that, all you're demonstrating is that you prefer your ideology to reality.

"The Death Penalty Information Center has been responsible for some of the most serious deceptions by the anti death penalty side."

Even if that is the case, which you certainly haven't remotely demonstrated above, it probably doesn't help your cause that you're spewing some of the most serious deceptions by the pro death penalty side. They would "call Hitler and Stalin innocent"? Why don't you quit wasting everyone's time with the hysterical, dishonest Hitler allusions?

Virgil|12.19.08 @ 10:56AM|#

Oh, I almost forgot - speaking of "serious deceptions," this statement of yours is blatantly false:

"Many studies find for deterrance. Studies that don't find it, do not say it doesn't exeist but, only, that they didn't measure it."

There have in fact been multiple studies that explicitly looked or measured a possible deterrent effect of the death penalty, and did not find one. It's not that "they didn't measure it;" it's that they did measure it and found it to be zero. I'm sure you're well aware of this, just as I'm sure you're also aware that many of the studies that have reported a deterrence effect have been strongly criticized for their data sampling and other statistical/analytical methods. But I can understand why you'd want to pretend that neither of these things are true. Sometimes when the facts don't match your ideology, it's much easier to just ignore or deny the facts than to rethink your ideology. Of course when people see you continuing to repeat things are that are demonstrably untrue, it gives them a pretty good idea of how little attention the rest of your statements deserve. So good luck with that.

|12.19.08 @ 11:10AM|#

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

None establishes actual innocence.

Huh? If you're acquitted by a trial, you are actually innocent. By your own reasoning, it seems to me that there's no way at all that a person who was found guilty could ever be innocent.

Why don't you grow a pair and admit that mistake can and have been made? Hundreds of them easily.

If you have that much faith in the system, follow more of Balko's work.

|12.19.08 @ 2:03PM|#

"""None establishes actual innocence."""

I guess it depends on how you view our justice system. It's innocent until proven guilty. Since the proven guilty is removed, the person reverts back to innocent, until proven guilty.

|12.19.08 @ 5:54PM|#

Very good logic there TrickyVic, I like your train of thought.

Somehow I missed this nugget of truth in Dudley's posts -

innocents are more likley to be sentneced (sic) to a prison term and more likley to die, serving under than sentnece, than it is that an innocent will be executed.

That's true for sure, but the fact that you consider that a "pro-death penalty argument" is very perverse and disturbing.

That is logocally conclusive, if death penalty due rocess (sic) is superior.

No one said it wasn't superior, I think most people's problem is that it isn't infallible, much like your spell check.

vegasquixote|12.19.08 @ 8:16PM|#

Mr. Sharp has no legal, law enforcement, or scholarly credentials. He presents no original information and fails to present essential information. Anyone who takes the time to do research in this area would not make the claims Mr. Sharp makes.

|12.22.08 @ 3:04PM|#

Virgil writes "oh, I almost forgot - speaking of "serious deceptions," this statement of yours is blatantly false: "Many studies find for deterrance. Studies that don't find it, do not say it doesn't exeist but, only, that they didn't measure it."

"There have in fact been multiple studies that explicitly looked or measured a possible deterrent effect of the death penalty, and did not find one."

I am well aware of that. However, those studies do not say "no one is deterred" They say we could not measure those deterred, if they are.

Which was my precise point.

No deception.

|12.22.08 @ 3:18PM|#

Virgirl:

You are missing the forest for the trees.

I never asked for "irrefutable evidence of innocence"

I was asking for something other than the obvious deceptions which I outlined and gave references for.

Some few other readers and writers of this blog seem to not know the difference between a "not guilty" verdict and actual innocence.

Not guilty is a legal standard, regarding a jury or judges inability to find for guilt beyond a reasonable doubt, resulting in a not guilty verdict for the defendent.

Most know that those found legally "guilty" are sometimes actually innocent and that those found legally "not guilty" may, indeed, have done the crime.

I have never, until this blog, found anyone that did not understand those obvious facts.

The innocence debate within the death penalty discussion has nothing to do with legal guilt or a not guilty verdict, it only is with regard to actual innocence. Nothing else.

No one is worried about a "legally innocent" person being executed.

That cannot happen.

The concern is over an actual innocent being found guilty and the probability of that person being executed.

Is there anyone that doesn't know that?

If the debate had anything to do with innocent until proven guilt, those not tried yet, or those found not guilty, or those released from death row, then the anti death penalty movement would be claiming 2700 or so innocent people sent to death row.

They are not,

They are claiming a specific 130, who they claim to be actually innocent, based upon their own absurd definition of exonerated of innocent, a definition that doesn't even include "actual innocence.".

If you choose not to recgnize that obvious reality, then you have abandned both reason and truth.

|12.23.08 @ 10:23AM|#

To: Dahn Shaulis, aka Vegas Quixote

I have substantial background as a death penalty expert, something you are very much aware of. For some time you followed me around the web and attempted to refute my claims. As all of those efforts failed, you, now, feel obligated to post nonsense, which does not contribute to the debate, as opposed to what other parties do on this blog, which is to contribute, based upon fact, reason and opinion.

If you wish to contribute and be productive, you can list your "essential information" and we can evaluate it. OK?

And you can inform all of your criminal justice backgroumnd and your other achievements and we can be happy for your contributions.

thebastidge|12.28.08 @ 9:04AM|#

The Death Penalty Information Center claims innocence for people who are released due to procedural errors as well as those who are released due to exculpatory evidence.

It's not the same thing...