by Wendy Kaminer
IN SPITE OF INNOCENCE: Erroneous Convictions in Capital Cases by Michael L. Radelet, Hugo Adam Bedan, and Constance E. Putnam. Northeastern University Press, $29.95.
IF MOVIES mirror popular opinion, many Americans believe that innocent people are sometimes presumed guilty of crimes. The idea of an innocent man caught in a web of circumstance that implicates him in a murder was most artfully exploited by Alfred Hitchcock and has long been a Hollywood staple. Yet a majority of Americans also support the death penalty, presumably in the belief that the average inmate on death row belongs there.
In Spite of Innocence painstakingly demonstrates that real people convicted of murder are sometimes as innocent as film heroes, if rarely as appealing. Michael Radelet, a professor of sociology at the University of Florida; Hugo Adam Bedau, a professor of philosophy at Tufts University; and the journalist Constance Putnam chronicle more than 400 wrongful capital convictions, from the early 1900s to the present. Most are murder convictions, but a few involve rape. (The Supreme Court invalidated the death penalty in rape cases in 1977.) Most vulnerable to being executed for rape were black men accused by white women.
The cases described here, in considerable detail, range from the notorious to the obscure. They include the case of the Scottsboro Boys, nine black men who “spent a total of 104 years in prison for a [rape] that never occurred,” and the Randall Adams case, made famous by Errol Morris’s documentary The Thin Blue Line. Adams, recently released from prison after twelve years, had been convicted of killing a police officer on the basis of perjured testimony, in a trial marked by prosecutorial misconduct and defense inexperience. In a less publicized, 1974 case Jerry Banks spent six years on death row for a murder conviction reflecting grossly incompetent defense counsel and the falsification of evidence by a sheriff’s detective. In a 1956 case James Foster was convicted of murder on the basis of a mistaken eyewitness identification, which may have resulted from police failure to conduct a proper lineup. Foster spent two years on death row and was released only after the actual murderer confessed.
What went wrong in these cases? The authors point to perjured testimony by prosecution witnesses and mistaken eyewitness identifications as the most frequent causes of error. But probably the most disturbing cases, as they observe, are those involving shoddy or bad-faith police work, prosecutorial misconduct, and racism—all of which bring into question the integrity of the justice system itself.
The criminal-justice system delineated by the cases in this book is a system in which people are not proved guilty of crimes so much as chosen to be found guilty: the police and prosecutors light upon a suspect because of prejudice or circumstances or in response to public pressure for a quick conviction. They interpret or distort evidence in a way that supports their case and suppress evidence against it. Of course, this is not necessarily typical of law-enforcement work, but there are too many documented cases of police and prosecutorial misconduct to dismiss it as a fluke. And after all, there is no reason to assume that police officers and district attorneys as a class are more honest than the rest of us.
Nor are they necessarily more competent. At best, the system described here is less malevolent than arbitrary. As the authors point out, it is “fickle good fortune rather than anything having to do with the rational workings of the criminal justice system” that eventually exonerates some people. In southern states, they note (quoting from a National Law Journal report), “justice in capital murder trials is more like a random flip of the coin than a delicate balancing of the scales.” Contrary to what we want to believe about criminal justice, this is not a system in which character is fate.
Proponents of capital punishment vigorously question this critique, and many dismiss it as political. In fact, an earlier version of this study, published in the mid-1980s by Radelet and Bedau, generated an aggressive response from Edwin Meese’s Department of Justice and exchanges of op-ed pieces and lawreview articles. A 1986 Justice Department memo by the assistant attorney general Stephen J. Markman attacked Radelet and Bedau’s findings by questioning their political sympathies. The authors discussed more than 300 cases, but the fact that they chose to include Sacco and Vanzetti, the Rosenbergs, and Bruno Hauptmann (none of these are much more than mentioned in the book), Markman wrote, “makes it clear that this ‘study’ is, more than the authors would admit, a polemical tract rather than a serious and fair-minded inquiry.” Equally damning was the fact that the study had been funded partly by the Unitarian Universalist Society, which “has provided financial support to many liberal groups seeking to change national policies on social issues.”
In addition to the authors’ nefarious political tics, however, Markman addressed the substance of their study, notably the assertion that the convictions they described were, in fact, wrongful. Readers can judge for themselves Radelet, Bedau, and Putnam’s credibility; but their work is thoroughly documented, and 90 percent of the cases they report involve official acknowledgment of error.
A less frivolous line of attack is that these wrongful convictions are anomalies. The authors, however, contend that the cases they describe are typical of hundreds or perhaps thousands of others. Again, readers will be guided by their own instincts and experience in deciding whether this claim is true, The authors do suggest, persuasively, that coerced confessions are a particular problem in capital cases: people plead guilty out of fear of receiving the death penalty. They also point out that in questionable cases, investigations of guilt and innocence are rarely pursued after an execution has been carried out. Except for the occasional cause célèbre, like the Rosenberg case, people’s cases die with them.
Finally, some statistical evidence indicates that capital punishment is not fairly applied. Practically all the more than 2,000 defendants currently on death row are poor; many have received less than competent defense counsel at trial, particularly in states that rely on court-appointed private attorneys. who may have little criminal litigation experience, instead of seasoned public defenders. There is also much evidence that the system is racially biased, with regard to not just the race of the defendants but also the race of the victims. Blacks are disproportionately represented on death row, as they are in the larger prison population. More striking, however, are the racial disparities among victims in capital cases: most of them were white. Of the 231 victims whose convicted killers have been executed since the death penalty was reinstated, 194 were white.
It’s difficult to predict how supporters of capital punishment would react to statistics like this if they were publicized, say, on Oprah Winfrey. Some might lose faith in the system; others might question the reliability of the statistics or dismiss their implications. The Supreme Court has held that the greater statistical likelihood of being sentenced to death for killing a white person “does not demonstrate a constitutionally significant risk of racial bias.”
Support for capital punishment requires leaps of faith like this—a willingness to believe, in spite of the evidence, that the system is fair or, at least, can readily be made fair. In Massachusetts, Governor William Weld, seeking to enact a death-penalty bill, has answered charges of racial bias in the criminal-justice system by promising to eliminate it, which is a little like justifying abortion prohibitions by promising to eliminate sex. Radelet, Bedau, and Putnam do not believe that errors in the system can be significantly reduced, partly because the human beings administering the system are fallible; so they advocate reducing the risk of error by eliminating capital punishment instead.
Would this eliminate deterrence as well? It might in a rational world—a world in which criminals carefully considered the consequences of their actions, keeping their emotions, not to mention their psychoses, under control. But in this world the assertion that the death penalty deters murder is not supported by the evidence, as the authors point out (and even Assistant Attorney General Markman conceded). In the absence of proof of the death penalty’s deterrent effect, Governor Weld, for one, says that on the question of deterrence he is guided by his gut.
Debates about capital punishment usually come down to the viscera. Regardless of rational arguments about inequitable application or deterrent effect, the concept of capital punishment is deeply satisfying to many people who are, with good reason, fearful of crime and furious that it is out of control. That this fear and fury might be more productively directed against the widespread availability of guns does not make them less deserving of respect. Until opponents of capital punishment offer alternative ways of honoring legitimate demands that murders be avenged, they will be futilely contributing rational arguments to a highly irrational debate. Many people, after all, don’t need to be persuaded that lawyers and courts can’t be trusted. Many think the judicial system can’t prosecute traffic tickets fairly, much less rapes and homicides, and in fact their anger at the system’s breakdown fuels the demand for executions. There is a lot of cognitive dissonance in the capital-punishment debate: many people are eager to grant much power to a system in which they have little faith.