MODEL LESSON: The Death Penalty -- Background and Quiz
TAUGHT: Friday, March 31, 2006
Historical background on the death penalty: http://justice.uaa.alaska.edu/death/history.html.
Facts about capital punishment in Washington State: Washington Courts homepage, http://www.courts.wa.gov/deathPenalty/overview.
Death Penalty Quiz: The Death Penalty Information Center, http://deathpenaltyinfo.org.
Arguments for and against the death penalty: Encyclopedia Britannica online at http://www.britannica.com.
Editorial, The Cost of Errant Justice, by Brian Forst, The Washington Post, Thursday, March 30, 2006, http://www.washingtonpost.com.
TIME: 50 Minutes
GOALS: Conducting the death penalty exercise will allow students to:
Learn about the history of the death penalty;
Learn some basic facts about capital punishment;
Consider the different arguments for and against it; and
Start formulating and/or refining their own opinions about the death penalty.
Knowledge Objectives – Following this class, students will be:
Knowledgeable of some death penalty statistics, such as how many states have it, how many people have been put to death, etc.; and
Familiar with some of the main arguments for and against the death penalty.
Skills Objectives – As a result of this class, students should be better able to:
Intelligently discuss issues surrounding the death penalty;
Articulate and debate justifications for and against capital punishment; and
Formulate their own opinions about wrongful convictions and capital punishment.
Attitude Objectives – This Lesson Plan will help students feel that:
There are valid arguments for and against the death penalty.
Lecture -- Introduce the Death Penalty to the Students (10 minutes)
Provide brief overview of the history of the death penalty in the United States based on the historical information provided in the student packets.
Explain the different justifications for and against the death penalty (moral, utilitarian, practical.)
Death Penalty Quiz– Based on the Attached 10 Questions & Answers (in the Homework – see p. 9 of the attachment)(30 minutes)
Get two volunteer teams of two or three students each and bring to front of class.
Ask each team for their answer to each question and why (with question written out for the overhead projector).
Then ask audience opinions (show of hands.)
Then provide right answer to question (written out on overhead.)
Go through the other 9 questions in the same fashion.
Determine which team has won the Death Penalty Quiz.
The extent of the engagement and involvement in the Death Penalty Quiz.
The quality of the class discussion surrounding each question and answer to the quiz.
See attached homework assignment to read the packet of information on the death penalty, which includes all of the answers to the Death Penalty Quiz, and write a paper expressing your opinion on the issue.
You have now participated in the “Death Penalty Quiz” to increase your understanding of the criminal justice system and capital punishment (the death penalty). This supplemental packet contains additional important information regarding the practical use of the death penalty in the U.S., Washington state, and the world.
Your assignment is to carefully read through these materials and use them to help you write a short essay arguing either for, or against, the death penalty in Washington state. The essay should not be longer than 500 words (about 1 page, typed and single spaced, or 2 pages double spaced), and will be worth 20 points. The essay need not be typed, but it should be legible. There is no right or wrong answer to the assignment, for there are excellent arguments on all sides of this issue. It will be graded based on the thoughtfulness of your answer, the quality of your writing and your ability to back up your arguments with the information contained in this handout. Think about moral and practical justifications for the death penalty, as well as about the justifications for punishment in general (retribution, rehabilitation, deterrence, incapacitation.)
In addition to the materials contained in this packet, please think about the problem of wrongful convictions and our in-class exercise on Friday, March 31st when you compose your essay. You need not limit your reasoning to any specific argument laid out in this packet. Be creative, but be persuasive. Good Luck!
A BRIEF HISTORY OF THE DEATH PENALTY IN THE U.S.
1930 – 1967: The Death Penalty and Race From 1930, the first year for which statistics are readily available from the Bureau of Justice Statistics, to 1967, 3,859 persons were executed under civil (that is, nonmilitary) jurisdiction in the United States. During this period of
nearly half a century, over half (54%) of those executed were black, 45 percent were white, and the remaining one percent were members of other racial groups -- American Indians (a total of 19 executed from 1930-1967), Filipino (13), Chinese (8), and Japanese (2). The vast majority of those executed were men; 32 women were executed from 1930 to 1967.
Three out of five executions during that period took place in the southern U.S. Contrary to popular belief, the state of Georgia (and not Texas) had the highest number of executions during the period, totaling 366 -- more than nine percent of the national total. Texas followed with 297 executions; New York with 329; California with 292; and North Caroline with 263. Most executions -- 3,334 of 3,859 -- were for the crime ofmurder; 455 prisoners (12%) -- ninety percent of them black -- were executed for rape; 70 prisoners were executed for other offenses.
During the same period, the U.S. Army (including the Air Force) executed 160 persons, including 106 executions for murder (including 21 involving rape), 53 for rape, and one for desertion. (The execution for desertion was the subject of the 1974 movie "The Execution of Private Slovik.") The U.S. Navy has executed no one since 1849.
Moratorium on Executions: By the end of the 1960s, all but 10 states had laws authorizing capital punishment, but strong pressure by forces opposed to the death penalty resulted in an unofficial moratorium on executions for several years, with the last execution during this period taking place in 1967. Prior to this, an average of 130 people were executed each year.
The Furman Case Invalidates Most Death Penalty Laws: Legal challenges to the death penalty culminated in a 5-4 U.S. Supreme Court decision Furman v. Georgia(1972), which struck down federal and state capital punishment laws permitting wide discretion in the application of the death penalty. Characterizing these laws as "arbitrary and capricious," the majority ruled that they constituted cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution and the due process guarantees of the Fourteenth Amendment. In a rare display of non-conformity, each justice wrote a separate opinion. Only two of the justices (Justices Brennan and Marshall) declared capital punishment to be unconstitutional in all instances. Other Justices focused on the arbitrariness of the application of capital punishment, including the appearance of a racial bias against black defendants. In all, nine separate opinions -- five invalidating existing laws and four arguing for their retention -- were written by the nine Supreme Court justices spelling out their different views on what constituted the "cruel and unusual punishment" prohibited by the Eighth Amendment.
New Laws Upheld: More than 600 death row inmates who had been sentenced to death between 1967 and 1972 had their death sentences lifted as a result of Furman, but the numbers quickly began to build up again as states enacted revised legislation tailored to satisfy the Supreme Court's objections to arbitrary imposition of death sentences. These laws were of two major types. The first type, providing for guided discretion, was upheld by the Supreme Court in three related cases: Gregg v. Georgia (1976), Jurek v. Texas (1976), and Proffitt v. Florida (1976). The Georgia, Texas, and Florida statutes validated by the U.S. Supreme Court afforded sentencing courts the discretion to impose death sentences for specified crimes and provided for two-stage, or "bifurcated," trials, involving in the first stage the determination of a defendant's guilt or innocence and, in the second, determination of the sentence after consideration of aggravating and mitigating circumstances. In Georgia and Texas, the final sentencing decision rested with the jury, and in Florida with the judge.
Those laws which provided a mandatory death penalty for specific crimes, and allowing no judicial or jury discretion beyond the determination of guilt, were declared unconstitutional in Woodson v. North Carolina (1976) and Roberts v. Louisiana (1976). These rulings led directly to the invalidation of mandatory death penalty statutes in 21 states, and resulted in the modification of the sentences of hundreds of offenders from death to life imprisonment.
Executions Resume: The first execution under the new death penalty laws took place on January 17, 1977, when convicted murdered Gary Gilmore (not of “Gilmore Girls” fame) was executed by firing squad in Utah. Gilmore's was the first execution in the United States since 1967. Two prisoners were executed in 1979; one in 1981; two in 1982; and five in 1983. Executions increased dramatically in 1984, with 21 in that year, and there have been at least 10 executions in the U.S. every year since. There were 74 executions in 1997. From 1977 to 1997, a total of 432 executions took place. Of the executed prisoners during this period, 266 were white, 161 were black, and five were of other races. By the end of 1997, 38 states and the federal government had capital punishment law; 12 states (including Alaska) have no death penalty. (Bureau of Justice Statistics annual bulletins on capital punishment provide current information on U.S. jurisdictions which authorize the death penalty.) By the end of 1996, 3,219 prisoners were under sentence of death, including 3,208 in 34 states and 11 under federal jurisdiction. All were convicted of murder. Please see graph attached to this packet.
Supreme Court Decisions Refine Death Penalty Laws: In 1977, the Supreme Court declared in Coker v. Georgia (1977) that applying the death penalty in rape cases was unconstitutional because the sentence was disproportionate to the crime. Coker resulted in the removal of twenty inmates -- three whites and 17 blacks -- awaiting execution on rape convictions from death rows around the country. In Lockett v. Ohio (1978), the high court forced a number of states to again revise their death penalty statutes by ruling that the sentencing authority in a capital case must consider every possible mitigating factor to the crime rather than limiting, as Ohio had, the mitigating factors that could be considered to a specific list.
Current Status: Since the 1976 Gregg decision upholding the constitutionality of Georgia's death penalty law, numerous states have reinstated capital punishment in their statutes. The most recent state to enact a death penalty law was New York in 1995. As of January 1998, 38 states and the federal government have capital punishment laws in effect. Alaska, eleven other states -- Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin -- and the District of Columbia and Puerto Rico do not have a death penalty.
INTRODUCTION. In order to assess how our capital punishment (“Death Penalty”) system operates, it is important to have an overview of the functioning of the numerous legal proceedings involved in each capital case. The following chart and text provide descriptions of the various proceedings conducted in the trial, state appellate, and federal courts.
TRIAL-LEVEL SAFEGUARDS. The U.S. Constitution, Washington Constitution, and federal and state statutes require scrupulous review of capital cases due to their considerable potential for error and the irreversible nature of the death sentence. From the beginning of a death penalty case to its final resolution years later, specialized, supplementary death penalty procedures are required by law. Courts at all levels make every effort to prevent wrongful convictions and guarantee fairness. The consensus of death penalty experts across the country is that death penalty law has become increasingly complicated, convoluted, and involved.
ONLY ONE WASHINGTON CRIME IS PUNISHABLE BY DEATH. “Aggravated murder” is the only crime for which a death sentence may be imposed in Washington. Aggravated murder is first degree murder with one or more “aggravating” circumstances, including, for example, murder of a law enforcement officer or fire fighter, murder committed while the defendant was in jail; “murder for hire" (think, “hit man”); murder occurring during the commission of a felony; or when the murder involves multiple victims (e.g., the “Green River Murders”).
Generally speaking, if a defendant is convicted of aggravated murder, the trial court must either sentence the defendant to life without the possibility of parole, or death. However, before the death penalty can be considered, the prosecutor in the aggravated murder case must first make a timely death penalty request to the court (within 30 days of the defendant’s “arrangement”, or first appearance before the judge). This death penalty request must argue that there are insufficient mitigating circumstances to merit any punishment except death (that is, the crime was extremely heinous). If the defendant is convicted, the court will then hold a special “Sentencing Hearing”, to determine whether the defendant should receive the death penalty, or life imprisonment without parole. A similar hearing takes place at the federal level. For example, as you read this (March 31, 2006), a jury is currently trying to decide whether convicted terrorist Zacarias Moussaoui should receive the death penalty for his involvement in the 9/11 attacks!
APPELLATE-LEVEL REVIEW MECHANISMS. However, a death sentence does not necessarily result in the death of a defendant (now, inmate). Even once a defendant has been convicted of aggravated murder and sentenced to death, the state constitution requires that an appeals court review the trial court's judgment by an appellate court. If the appeals court agrees with the trial court, the defendant may appeal the conviction and death sentence to the Washington State Supreme Court. This review usually encompasses both a general review of the trial court proceedings and a statutorily mandated review of the death sentence, which will take into consideration the following factors: proportionality of the sentence; whether there was sufficient evidence to support the sentence; whether the defendant was mentally retarded; and whether the sentence was brought about through passion or prejudice (e.g., whether the trial court acted irrationally, as for instance, under pressure from outsiders such as the press). If, after state appeal, an aggravated murder conviction and death sentence is affirmed, the defendant may seek review by the US Supreme Court by filing a petition for writ of certiorari. However, as you know, the writ of certiorari is a mere request by the requesting person (the “petitioner”) to have the high court hear his/her case. The U.S. Supreme Court does not have to hear the case. But if it does hear the case, it may reverse the conviction or sentence.
Personal Restraint Petition. If, after exhausting the remedies mentioned above, the judgment is affirmed, the Washington constitution allows capital defendants to file a personal restraint petition. In these petitions, defendants raise issues that were not covered in their trial court proceedings or appeals, such as allegations of ineffective assistance of counsel, or the existence of newly discovered evidence (e.g., DNA Evidence). Additional personal restraint petitions to the Washington State Supreme Court may be requested by any convicted defendant so long as the defendant can give a good reason why the evidence was not brought to the court’s attention earlier. This burden is very heavy. No capital defendant's second personal restraint petition has been heard in the past eight years!
Habeas Corpus. If the death penalty still stands after exhausting all the remedies mentioned above, as a matter of federal law, all Washington defendants sentenced to death have the right to file a petition for habeas corpus in US District (Trial) Court, and a right to have denial of their habeas corpus petition reviewed by the Ninth Circuit Court of Appeals (Which has federal jurisdiction over the west coast states). The term “habeas corpus” is Latin for “You have the body”. In effect, this petition requires that the authority “produce the body” of the prisoner, and explain to the judge receiving the habeas corpus petition the reasons for the prisoner’s continued confinement.
RECENT DEATH PENALTY LITIGATION/LEGISLATION. During the last nine years, the number of issues raised and considered in the state courts have increased substantially. In 1991, the US Supreme Court announced, in McCleskey v. Zant, that a death penalty defendant must, for the most part, raise all claims in state appellate court before raising them in federal appellate court. In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA) to further restructure the death penalty review process. This law requires all capital defendants to present all potential claims in state court, and prevents the initiation of new claims at the federal court review level. The McCleskey decision and AEDPA have placed a difficult and complex burden on the state courts to ensure the fairness of capital sentencing proceedings. In death penalty cases, the penalty for the prosecution's failure to adequately respect the defendant's rights can be reversal of the not only the death penalty, but the entire conviction. Similarly, the penalty for the defendant's failure to timely raise issues can be preclusion of the defendant's ability to raise them in the future.
With so much at stake in death penalty trials, appeals, and habeas corpus or personal restraint petitions, prosecutors and defense counsel often inundate the court with motions raising every conceivable issue that may affect the outcome of the case. For example, prosecutors and defense attorneys filed over 56 motions in the case, In re Gentry, a personal restraint petition recently decided by the Washington State Supreme Court. Each motion requires deliberation and a decision by the Court. In 1997, the Washington State Supreme Court began requiring the appointment of defense co-counsel for death penalty cases at trial and on appeal, consistent with American Bar Association and federal law guidelines. Minimum experience requirements for defense counsel were also set. In the last five years, Washington courts have increasingly appointed experts to assist with psychiatric or DNA questions and other complex scientific issues. These additional counsel and experts add costs to both trial and appellate level proceedings and make them last longer since the courts must hear and evaluate the complex issues raised. Ask yourself, who pays for all the extra expense?
WASHINGTON’S DEATH PENALTY IN ACTION. The result of the required reviews for each of Washington's 25 death penalty cases, conducted with the scrupulous attention to constitutional safeguards that must be given to these cases by the courts, has been the execution of three men, two of whom terminated their review process early on, choosing not to pursue appellate review past the first stage. Six capital judgments have been reversed, two by the Washington State Supreme Court, one by the federal district court, and two by the Ninth Circuit. The remaining 16 death penalty sentences are currently in the state or federal review process.
1. The death penalty saves taxpayers money because it is cheaper to execute someone than to keep them in prison for the rest of their life.
No. Although it is certainly cheaper to inject someone with deadly chemicals than to incarcerate them for 30 or 40 years, the best studies on the cost of the death penalty indicate that it costs about $2 million per execution over the costs of a system which imposes life sentences for the same crimes. Moreover, about 70% of the costs occur at trial with only a minority of the costs for the appeal.
That's right. Although the costs of incarceration are expensive (about $25,000 per year per inmate), that amounts to $750,000 to $1,000,000 depending on whether a person lives 30 or 40 years after his or her sentencing. The death penalty, on the other hand, costs an additional $2 million per execution.
2. Since the death penalty was reinstated in 1976, more black people have been executed than white people.
No, about 34% of those who have been executed have been black, while 58% have been white. However, blacks constitute only about 12% of the U.S. population, so their execution rate is much higher than the rate of whites being executed.
Correct. Through the end of February, 2006, 583 white people have been executed and 344 black people. However, racism in the use of the death penalty is shown when one looks at the race of the victims in the underlying crime that resulted in sending the inmate to death row. You are much more likely to receive the death penalty if the person you murdered was white than if the person you murdered was black
3. After the Supreme Court allowed the death penalty to resume in 1976, the first person to be executed was Gary Gilmore in Utah by a firing squad.
Yes. Gilmore refused to appeal his conviction or sentence and was executed only three months after his trial.
No. These facts are True. Another person was executed by firing squad in 1996, also in Utah. Like Gilmore, John Taylor waived his appeal and asked to be shot.
4. Since the death penalty was reinstated in the U.S., very few people have been released from death row because they were innocent.
Incorrect. There have now been over 120 people released from death row after they were exonerated. In all of these cases, there was a re-trial ending in acquittal, the state dropped all charges after the conviction was thrown out by a higher court, or an absolute pardon was granted on the basis of innocence.
Correct. There have now been over 120 people released from death row after they were exonerated. Thus, for every 8 executions carried out, there has been one person formerly death on row who is now deemed innocent.
5. In most states with the death penalty, you can be executed even if you suffer from mental illness.
Yes. While the Supreme Court ruled in Atkins v. Virginia that it is unconstitutional to execute the mentally retarded, almost all states allow the execution of those with mental illness.
No. In almost all states, mental illness is no bar to execution. The practice of executing those with mental retardation was banned by the Supreme Court in 2002.
6. There are some states in the U.S. where you cannot receive the death penalty for any crime.
Not quite true. Although there are 12 states that do not have the death penalty under state law, the federal death penalty governs certain crimes in every state.
The statement is false because no matter what state you commit a crime in you can still receive the federal death penalty, providing you have broken one of the laws to which that federal penalty applies. For example, certain acts of kidnapping in which a death occurs could merit the federal death penalty, regardless of what state the crime occurs in.
7. Hanging has not been used as a method of execution in the United States for over 30 years.
No. There have been three hangings in the U.S. since 1993.
Yes. Delaware hanged one man in 1996 and the state of Washington conducted 2 hangings in the 1990s.
8. When the police chiefs of the U.S. were polled on their views about ways to lower the crime rate, only 1% named the death penalty as their top priority in reducing violent crime.
Right. According to a Peter Hart Research Poll conducted in 1995 of police chiefs around the country, the officers named such measures as reducing drug abuse, a better economy, and controlling guns as more important than the death penalty in reducing violent crime.
Incorrect. A national poll of police chiefs in 1995 also found that the majority of police chiefs do not believe that the death penalty is an effective law enforcement tool.
No woman has been executed in the U.S. for over 25 years.
No. Velma Barfield was the first woman executed after the reinstatement of the death penalty. She was executed by lethal injection in North Carolina in 1984. Since then, ten additional women have been executed.
Yes. Velma Barfield was the first woman executed after the reinstatement of the death penalty. She was executed by lethal injection in North Carolina in 1984. Since then, ten additional women have been executed. There are about 50 women on death row awaiting execution.
10. Those who commit a crime when they are under 18 years of age are ineligible for the death penalty in the U.S.
Correct. The Supreme Court found the death penalty for juvenile offenders (those under 18 at the time of the crime) unconstitutional in Roper v. Simmons (2005).
(F) No, the statement is True. The death penalty for juvenile offenders was ended by the Supreme Court in 2005.
Source: The Death Penalty Information Center, http://deathpenaltyinfo.org. The Death Penalty Information Center is a non-profit organization serving the media and the public with analysis and information on issues concerning capital punishment. The Center was founded in 1990 and prepares in-depth reports, issues press releases, conducts briefings for journalists, and serves as a resource to those working on this issue. The Center is widely quoted and consulted by all those concerned with the death penalty.
ARGUMENTS FOR AND AGAINST THE DEATH PENALTY THE DEATH PENALTY FROM A GLOBAL PERSPECTIVE. Capital punishment for murder, treason, arson, and rape was widely employed in ancient Greece, and the Romans also used it for a wide range of offenses. It also has been sanctioned at one time or another by most of the world's major religions. In 1794 the U.S. state of Pennsylvania became the first jurisdiction to restrict the death penalty to first-degree murder, and in 1846 Michigan abolished capital punishment for all murders and other common crimes. In 1863 Venezuela became the first country to abolish capital punishment for all crimes. Portugal was the first European country to abolish the death penalty (1867). By the mid-1960s some 25 countries had abolished the death penalty for murder. During the last third of the 20th century, the number of abolitionist countries increased more than threefold. Despite the movement toward abolition, many countries have retained capital punishment, and some have extended its scope. In the U.S., three-fourths of the states and the federal government retain the death penalty, and death sentences are regularly carried out in China, Saudi Arabia, Singapore, and Iran. Supporters of the death penalty claim that life imprisonment is not an effective deterrent to criminal behavior. Opponents maintain that the death penalty has never been an effective deterrent that errors sometimes lead to the execution of innocent persons, and that capital punishment is imposed inequitably, mostly on the poor and on racial minorities.
ARGUMENTS FOR AND AGAINST THE DEATH PENALTY.
Capital punishment has long engendered considerable debate about both its morality and its effect on criminal behavior. Contemporary arguments for and against capital punishment fall under three general headings: moral, utilitarian, and practical.
For: Supporters of the death penalty believe that those who commit murder, because they have taken the life of another, have forfeited their own right to life. Furthermore, they believe, capital punishment is a just form of retribution (payback), expressing and reinforcing the moral indignation not only of the victim's relatives but of law-abiding citizens in general.
Against: By contrast, opponents of capital punishment, following the writings of Cesare Beccaria (in particular On Crimes and Punishments ), argue that, by legitimizing the very behavior that the law seeks to repress—killing—capital punishment is counterproductive in the moral message it conveys. Moreover, they urge, when it is used for lesser crimes, capital punishment is immoral because it is wholly disproportionate to the harm done. Abolitionists also claim that capital punishment violates the condemned person's right to life and is fundamentally inhuman and degrading.
Note on Religions: Although death was prescribed for crimes in many sacred religious documents and historically was practiced widely with the support of religious hierarchies, today there is no agreement among religious faiths, or among denominations or sects within them, on the morality of capital punishment. Beginning in the last half of the 20th century, increasing numbers of religious leaders—particularly within Judaism and Roman Catholicism—campaigned against it. Capital punishment was abolished by the state of Israel for all offenses except treason and crimes against humanity, and Pope John Paul II condemned it as “cruel and unnecessary.”
For: Supporters of capital punishment also claim that it has a uniquely potent deterrent effect on potentially violent offenders for whom the threat of imprisonment is not a sufficient restraint.
Against: Opponents, however, point to research that generally has demonstrated that the death penalty is not a more effective deterrent than the alternative sanction of life or long-term imprisonment.
For: There also are disputes about whether capital punishment can be administered in a manner consistent with justice. (See, Innocence Project). Those who support capital punishment believe that it is possible to fashion laws and procedures that ensure that only those who are really deserving of death are executed.
Against: By contrast, opponents maintain that the historical application of capital punishment shows that any attempt to single out certain kinds of crime as deserving of death will inevitably be arbitrary and discriminatory. They also point to other factors that they think preclude the possibility that capital punishment can be fairly applied, arguing that the poor and ethnic and religious minorities often do not have access to good legal assistance, that racial prejudice motivates predominantly white juries in capital cases to convict black and other nonwhite defendants in disproportionate numbers, and that, because errors are inevitable even in a well-run criminal justice system, some people will be executed for crimes they did not commit. Finally, they argue that, because the appeals process for death sentences is protracted, those condemned to death are often cruelly forced to endure long periods of uncertainty about their fate.
Source: Encyclopedia Britannica online at http://www.britannica.com.
EDITORIAL: The Cost Of Errant Justice
The Washington Post
By Brian Forst
Thursday, March 30, 2006; Page A23
A March 6 Post editorial lamented the District's appallingly low homicide closure rate. Last year just 43 percent of all known homicides reported to the D.C. police department resulted in a prosecution. While this number is low, it turns out that the problem -- most serious offenders evading punishment -- is not unique to the District. Consider the roughly 15 million felony victimizations that occur annually in the United States. Just half of these are reported to the police, and only a million or so defendants in those cases are convicted, leaving well over 10 million failures each year to convict serious, culpable offenders.
Errors on the other side -- wrongful convictions -- are equally noteworthy, even if less frequent. Estimates of erroneous convictions range from 0.5 percent to about 1.3 percent, suggesting something like 10,000 wrongful convictions annually. Civil libertarians have compiled a list of people convicted of capital murder and later exonerated. In 2001 then-Justice Sandra Day O'Connor cited 90 such releases since 1973. At last count the number had risen to 175.
But the problem of such errors is more than a matter of counting misses on both plates of the scale of justice. Even if there are many more failures to convict than wrongful convictions -- and even if no one has been wrongfully executed in the 30 years since the Supreme Court reinstated the death penalty (no one really knows) -- wrongful imprisonments impose huge costs on innocent people: loss of freedom, lost companionship of loved ones, lost livelihoods and difficulty getting decent jobs after years in prison. And they impose parallel losses on families and friends of the wrongfully convicted and services lost to the community. These are extremely costly errors.
And they are gross injustices. Perhaps the greatest cost of wrongful convictions is their corrosive effect on the legitimacy of the criminal justice system. Typically a product of erroneous witness identification and bad luck, wrongful convictions seriously undermine the public's confidence in police, prosecutors and the courts. They are double errors, reflecting also failures to bring to justice those who actually committed the acts, sometimes enabling the commission of further crimes.
In his last days in office as Virginia's governor, Mark Warner took unprecedented action to deal with the problem. He ordered thousands of decades-old cases involving DNA evidence to be reopened following the discovery of files containing meticulously preserved samples of blood, semen and saliva, ready for retesting using technology that had not been available when the evidence was originally collected. DNA analysis of evidence in a small sample of these cases induced Warner to pardon two inmates wrongfully convicted of rape. This work to expose and correct errors of justice -- and to validate the accuracy of other old cases -- may prove to be Warner's greatest legacy, not only to Virginia but to the nation's criminal justice system.
Some errors of justice are inevitable, but we could manage them much more effectively than we do. Sophisticated systems are in place to manage mistakes in other fields: scientific research and production processes, for example, or to balance the risk of loss against the yield in financial portfolios. And yet no such systems exist with regard to the vitally important business of determining guilt or innocence in criminal cases.
This can be fixed. The use of modern management methods and more widespread availability of effective forensic technology could go a long way to solve more of these crimes and reduce both types of error. DNA evidence gives us a unique window into errors for those crimes for which the evidence is available and relevant. We can use this window to estimate rates of errors for those crimes. We can do more to assess the social costs of both wrongful convictions and nonconvictions for each major crime category: The costs to the community of failures to convict serial rapists and one-time shoplifters are clearly in different leagues. We can learn more about the relationships between police and prosecution policies and errors of justice. And in old, settled cases with valid DNA evidence, as in Virginia, we may be able to find further errors of justice and correct them. Better late than never.
The writer is professor of justice, law and society at American University's School of Public Affairs and the author of "Errors of Justice: Nature, Sources and Remedies