Death and Injustice: Made in the USA

Study reveals that over 2/3 of death row prisoners have been unfairly convicted

Revolutionary Worker #1060, June 25, 2000

Since the Supreme Court reinstated the death penalty in 1973, more than 500 people have been executed in the United States. An average of one condemned prisoner a week has been put to death for the past six years. In 1999, the total number of prisoners executed was 98—a 44 percent increase from the previous year. There are now over 3,500 prisoners on death row across this country—and the number continues to grow.

At the same time, there is a growing number of reversals of death sentences. Last year 8 innocent people were released from death row—bringing the total of death row inmates exonerated and let out of prison in the years 1973-99 to 84.

How many more people are sitting on death row today because of wrongful convictions? How many innocent people have already been executed?

Now, a study released on June 12 adds new and detailed evidence about the unjust and sinister nature of death penalty USA. The key finding of the study is that almost 7 out of 10 death sentences handed down by state courts from 1973 to 1995 were overturned when appeals courts found that the sentences were obtained through grossly unfair trials.

The study, entitled "A Broken System: Error Rates in Capital Cases," was conducted by a team of lawyers and criminologists at Columbia Law School. The main author of the report is James Liebman, a law professor who has served as defense attorney in death penalty trials and appeals. This is the first-ever statistical study of the appeals process in capital punishment cases since 1973. The study arose from a 1991 request by the Senate Judiciary Committee to Liebman to calculate the rate of death penalty reversals on federal appeal; in 1995 the study was expanded to include state appeals.

The Liebman report examined all death penalty cases in the 23-year period from 1973 to 1995. Of the more than 4,500 capital cases that went through the appeals process in that period, 47 percent of the death sentences were thrown out by state appellate courts. Of the remaining death sentences, 40 percent were thrown out on federal appeal.

The Risk of Wrongful Execution

As the Liebman study points out, the statistics show that the death penalty system in this country puts "many people [at] the risk of wrongful execution." In retrials, 7 percent of the people whose death sentences were overturned were found to be totally innocent of the crimes they were convicted of. 75 percent received sentences less than death. And of the 18 percent that received the death sentence on retrial, many had their convictions overturned again on further appeal.

In order to win reversals on appeal, defendants have to show that there were major "prejudicial errors" committed in the original trial. According to the Liebman report, the two type of errors that led to the majority of death penalty reversals were: "(1) egregiously incompetent defense lawyers who didn’t even look for—-and demonstrably missed —important evidence that the defendant was innocent or did not deserve to die; and (2) police or prosecutors who did discover that kind of evidence but suppressed it, again keeping it from the jury."

Other "errors" include judges talking to the media about the trial or giving faulty instructions to the jury, police coercing "confessions" from defendants, prosecutors keeping African Americans from the jury when a Black person was on trial, or police planting informers in jails to eavesdrop on conversations between defendants and their lawyers. The Liebman report includes documentation of hundreds of such "errors" in death penalty trials.

The study points out that there is a wide state-to-state variation in the rate of death penalty reversals—from 100 percent in Kentucky, Maryland, and Tennessee to just 18 percent in Virginia. But the low rate in states like Virginia does not mean that death penalty trials are "fairer" in those states. As the study notes, it could indicate that the courts in those states make it much more difficult for people to win their appeals.

And the trend throughout the U.S. is to make it more difficult for people on death row to win their appeals. The New York Times reported: "The number of errors, and the number that go undetected, may have risen since the study was completed, Professor Liebman said, because since the mid-1990s several states and Congress have curbed appeals by death row inmates and sped the execution process. A 1996 federal law, signed by President Clinton, put a one-year limit on the time death row inmates have to appeal to federal courts after exhausting their appeals in state courts. And a number of states have shut down special public defender units that formerly helped death row inmates with their appeals."

Looking Beyond the Report

The key statistic in the Liebman report—that almost seven out of ten death sentences are reversed on appeal—is outrageous in itself. But even this figure does not give a full picture of the deep injustice of death penalty in the U.S.

As the Liebman study points out, incompetent defense lawyers are very common in death penalty trials. Most defendants can not afford lawyers, and they are assigned court-appointed lawyers who have no experience in capital cases or who just don’t care. One Texas death row prisoner whose case is on appeal in a federal court now says that his lawyer slept through much of his trial. Such incompetent lawyers would not do the work necessary to collect and preserve legal and factual issues that could be raised later on appeal.

And there are death row prisoners who have gone through the whole appeals process without getting their convictions and sentences reversed—even though there was compelling evidence of their innocence or of atrocious judicial error. In March of last year, Anthony Porter was within hours of being executed in Illinois before his 1983 death sentence was overturned and he was freed. Porter had lost all his appeals—and it took an investigation by a journalism class at Northwestern University to uncover evidence of his innocence.

The case of Shaka Sankofa (Gary Graham) involves many of the serious "errors" listed in the Liebman study that are the basis for death sentence reversals. Sankofa’s original lawyer made no effort to put on defense witnesses. And police and prosecutors hid important evidence proving his innocence. But Shaka Sankofa lost all his appeals in the state and federal courts. As we go to press, he faces a June 22 execution date in Texas.

Racism and the Death Penalty

The team behind the Liebman report is continuing research into capital punishment in the U.S. Their next goal is to "identify the causes of the huge amounts of serious error infecting American capital convictions and sentences."

An Amnesty International report published last year ("Killing with Prejudice: Race and the Death Penalty," May 1999) analyzed a central factor in the unjust nature of the U.S. death penalty: racism. Of the people executed between 1973 and 1997, 37 percent were Black—even though Black people make up 12 percent of the U.S. population. Nearly half of all murder victims in the U.S. are Black—but 83 percent of the people executed nationwide were convicted and executed for killing someone who was white.

Philadelphia—where political prisoner Mumia Abu-Jamal was railroaded and sentenced to death—is a stark example of the way Black people are targeted with the death penalty. Eighty-three percent of those on death row from Philadelphia are African-American. The odds of receiving a death sentence in that city are almost four times higher for Black defendants than white defendants.

In a June 1998 report, the Death Penalty Information Center concluded, "Race is more likely to affect death sentencing than smoking affects the likelihood of dying from heart disease." And the Amnesty International report declared, "Racial discrimination pervades the U.S. death penalty at every stage of the process...."

The Death Machine

From the viewpoint of the revolutionary proletariat, the problem is not that the death penalty process needs to be "fixed." The basic problem is that the death penalty is part of a whole system of injustice and oppression in the U.S. The use of capital punishment—the "death machine," as Mumia calls it—has been a major weapon in the hands of the power structure against the people.

As Bob Avakian, Chairman of the Central Committee of the RCP,USA, points out: "Communists oppose the use of the death penalty by the bourgeois state because this will be used overwhelmingly against people from the oppressed masses and will be wielded to reinforce the dictatorship of the bourgeoisie, fortifying its repressive apparatus and forging a more repressive political atmosphere which, again, will be overwhelmingly directed against the oppressed masses and those who oppose the status quo."

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