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Tuesday, Nov 10, 2009
The same holds for lower court decisions. In December 2001, a federal District Court in Pennsylvania overturned the death sentence of death-row prisoner Mumia Abu-Jamal, on the grounds that his jury in 1982 had been provided with a sentencing form so confusing that it appeared to require all 12 jurors to agree to a mitigating circumstance before any one of them could consider it in deciding whether Abu-Jamal deserved the death penalty or life without parole.
Abu-Jamal, a journalist and former Black Panther convicted of killing a white policeman, came within days of being executed back in 1995 because of this error, but he was spared when his appeal hearing ran past the execution date, voiding it. In fact, Pennsylvania, like most other states with death penalty statutes, says that if any juror finds a mitigating circumstance, that juror may consider that factor in deciding between life or death. (Since a death sentence must be decided unanimously by a jury, just one juror voting against death results in a life sentence instead of execution.) Yet despite the reality that many of the 244 other people on Pennsylvania's death row were sentenced by juries using the same confusing form, no blanket order revoking those sentences was issued following the ruling in Abu-Jamal's case.
Jim Liebman, a professor of law at Columbia University, is the lead author of two recent studies of death penalty errors, which surveyed virtually all the death penalty cases in the country since the Supreme Court reinstated capital punishment in the mid-1970s. He points out that the highest rates of sentencing error are consistently found in states such as Arizona, Nevada or Pennsylvania, all of which have very "broad" death penalty statutes -- that is, statutes that allow for capital punishment for a wide variety of crimes -- while a state like Colorado, which has a very narrowly applied death penalty, has far fewer errors.
In reviewing all 5,760 death sentences issued between 1973 and 1995, Liebman says he found that 41 percent -- about 2,360 cases -- had been tossed out on appeal because of "sentencing errors." Among those, more than 300 were overturned on initial appeal by a state court on the grounds that the so-called aggravating circumstance (a finding required for imposition of the death penalty) in fact did not exist. A third were overturned at the post-conviction phase or by a habeas appeal on grounds of "ineffective counsel" (most often for failure to introduce mitigating evidence at a sentencing hearing). Another 19 percent were overturned because of the suppression of exculpatory evidence by prosecutors.
Subsequent to their sentences or convictions being overturned, 82 percent of capital defendants have received lesser sentences -- a figure that leads Liebman to conclude that "they were oversentenced in the first place." Liebman notes that sentencing errors are also likely to be common among the 59 percent of capital cases in which the convictions were not reversed on appeal.
While public debate and media attention about the death penalty have focused on wrongful convictions, "sentencing errors go to the heart of the problem with the death penalty," Liebman argues. "The idea of the death penalty is that it is supposed to be applied to the worst of the worst offenders, but this is not what is happening." He adds that "hundreds of cases of sentencing error" have gone uncorrected, including many that have already led to executions. Agreeing with Blecker, he adds, "The marginal cases are where most of the errors turn up."
Advocates of capital punishment, for the most part, express little concern about sentencing errors. "Just about anyone would agree that the execution, or for that matter just the incarceration of an innocent person, is of far greater concern than the execution of a person who is actually guilty of premeditated murder," says Kent Scheiddegger, of the Criminal Justice Legal Foundation, a pro-capital-punishment organization based in California. "I don't think that the execution of a person who has committed premeditated murder is an injustice. The worst it can be is an uneven dispension of mercy."
Others see the matter differently. "Even if it is someone who is a killer, we're still talking life and death," Liebman says. "I don't think we can be so callous as to say, 'They're killers, so who cares if they live or die' -- especially since you see people with resources getting their sentences overturned and others without resources going on to execution."
Besides, not everyone sent to death row is guilty of premeditated murder. Take Phillip Tompkins, a borderline mentally retarded black man convicted of killing a woman in Texas after deliberately colliding with her car and then taking her to a secluded spot to rob her. According to prosecutors, Tompkins tied the woman, Mary Berry, to a tree, stuffed part of a bedsheet in her mouth, and then left to use her ATM card and steal $1,000. An all-white jury found that Tompkins had murdered her, but it was never clear whether he had intended to do so, particularly given his low IQ.
