In an article posted January 5, 2006 on Scientific American's blogsite, writer Philip Yam seems to have abandoned all scientific method and decided to take the claims of the vocal and well-funded opponents of capital punishment at face value.
It's hard to know which urban legend to start with as Yam veers wildly across the many objections to the death penalty, raised like plastic gophers popping out of holes in a carnival game, so let's just address them chronologically because that is, well . . . scientific!
First off, Yam declares that "[t]he U.S. remains the only developed Western nation to permit executions...." Apparently all those colored people's cultures in the east don't count -- developed democracies like Japan and India, to just name a couple. Never mind that because of the historical guilt carried by the Axis powers the European Union demands that any nation seeking entrance into the EU abandon the death penalty. Of course they can still brutalize and torture suspects (like that paragon of Western civilization, France) -- they just cannot officially execute them. And also never mind that opinion polls conducted across Europe show that the majority of the various nations' citizens would like to see the return of capital punishment. But those nations are ruled by republican elites; they're not a messy democracy like the United States.
Then Yam talks of some real science -- DNA -- and says "many on death row have been set free because of [DNA]--the Death Penalty Information Center counts 122 exonerations since 1973."
The actual number of DNA "exonerations" off death row is one-tenth that number; perhaps more significantly, only five of those people were taken off death row because of DNA. The rest had already had their sentences reduced, commuted or vacated.
Perhaps even more significantly, the true number of "innocent" men who have occupied America's death rows since 1976 is closer to 22 -- not 122 -- a fact acknowledged publicly by anti-death penalty Judge Jed Rackoff, who made history when he declared the federal death penalty unconstitutional. Rackoff's decision was overturned by the U.S. 2nd Circuit Court of Appeals. (For a definitive breakdown of the DPIC's "innocence list" check out California Assistant Attorney General Ward Campbell's careful deconstruction.)
Some will loudly claim that even one is too many but since Yam addresses what he calls the "by-catch rate," let's hold that argument for last.
Citing the work of Professor Elizabeth Loftus, a darling of criminal defense lawyers who has testified in hundreds of criminal trials on behalf of . . . the defense, Yam sweeps away the validity of eyewitness testimony. Loftus was driven out of the University of Washington after they demanded she take an ethics class; she now teaches at UC Irvine where she spends a lot of her time fighting a lawsuit, currently before the California Supreme Court, in which she called a child untruthful in her claims of child abuse. That "Jane Doe" is now a U.S. Naval officer and is suing Loftus. Yam adopts wholesale the critics of witness memory, neatly disposing of all that unpleasant eyewitness testimony that highly paid experts tell us we should ignore.
The he goes on to invoke the adolescent disdain for "jailhouse snitches," implying that anyone in prison couldn't possibly be truthful and that juries are apparently too stupid to evaluate the validity of their testimony. One can only wonder if the former Enron employees now ratting out Ken Lay would fall into the "jailhouse snitch" category -- or have they become courageous whistle blowers? He also tells us that "[w]e know that some personality types are more likely to yield to the pressures to confess."
Let's see now. We can't trust eyewitness testimony, memory or confessions, and Yam tells us of widespread "sloppy or overzealous police work and prosecution," which doesn't leave jurors with any reason to ever convict anyone in his "scientific" model of justice.
Yam then announces that: "Most states are now recognizing the weaknesses of the death penalty," and cites declining death sentences as proof. He is apparently ignoring the considerable research that shows that the death penalty acts as a deterrent to murder; or, more simply, that for a number of reasons the murder rate in the United States has fallen considerable in the last 10 years.
Finally, Yam cites a case from Texas where death penalty opponents have claimed that Ruben Cantu was wrongfully executed and asks whether executing one innocent man for every 1000 guilty ones is acceptable. Not content with that ratio, he makes glancing reference to a study by University of Michigan Professor Samuel Gross who claimed to find about 330 exonerations in serious felony cases over the last 20 years as evidence that we are in fact executing as many as one in twelve who are innocent.
Perhaps Yam couldn't be bothered to read Gross's study or, more importantly, did not consider that Gross' 328 cases come out of a universe of millions of serious felony convictions, making the error rate closer to 1 in 1,000,000 than 1 in 12.
We all aspire to a justice system that is flawless and while we may not achieve it, that is no reason not to strive towards that goal. The question Yam and others refuse to ask is: What happens when we don't convict or in some cases execute? How many people have died and will die at the hands of wrongfully freed murderers?
Unfortunately, these are not hypotheticals. They are the victims of freed killers like Kenneth McDuff, Robert Massie, and David Dunster. Dunster killed a woman in Oregon, in 1972, got transferred to a prison in Montana where, in 1978, he killed an inmate. In 1993 he was transferred to Nebraska where he killed Larry Witt. Now Dunster languishes on death row in Nebraska.
