The Death Penalty in the 21st Century

After a sixteen-year hiatus, the Trump Administration announced that the Federal government will resume executions in late 2019 and early 2020, reinvigorating the public and political discourse around capital punishment. Support for the decision is mixed, but a few things are clear.

First, in the democratized world, the death penalty is as American as apple pie. Modern trends regarding the practice “are unmistakably toward abolition,” as nearly three-fourths of the world has abolished capital punishment.

Even within the United States, the practice is far from ubiquitous. As of August 2019, twenty-five states have an active death penalty law, twenty-one have abolished the practice, and four have a moratorium (capital punishment is currently suspended).

Furthermore, among death penalty states, executions are not evenly distributed. Since the turn of the twenty-first century, Texas alone accounts for 41% of executions in the United States; Texas and Oklahoma together have carried out more than half of all executions. This trend mirrors those dating back to 1976, the beginning of the modern death penalty era.

Also clear is that the trend in the United States for more than two decades has been against capital punishment. In that time period, no states have added the death penalty, while nine states have abolished it and four others have imposed a moratorium.

Public opinion mirrors the policy landscape. In a February 1999 Gallup Poll, 71% of respondents answered affirmatively when asked, “Are you in favor of the death penalty for a person convicted of murder?” In October 2018, support was down to 56%, while 41% said they were “Not in favor.”

The Trump Administration’s recent decision thus goes against a decades-long trend, and seems a good opportunity to revisit some of the key aspects of the debate over capital punishment.

Moral Arguments

Perhaps the loudest arguments about the death penalty deal with its morality or lack thereof. Such perspectives are common. According to a 2014 Gallup Poll, the most common reason given for why supporters favor the death penalty is “An eye for an eye/They took a life/Fits the crime.” Other moral arguments are also high on the list: “They deserve it” or “Fair punishment” or “Serve justice.”

support

For those who indicated support for the death penalty, asked: “Why do you favor the death penalty for persons convicted of murder?” (Source: Gallup, “Death Penalty”)

This is equally true on the other side. The same poll showed that the most common reasons for opposition was that it was “Wrong to take a life” and “Punishment should be left to God/religious belief.”

oppose

For those who indicated opposition to the death penalty, asked: “Why do you oppose the death penalty for persons convicted of murder?” (Source: Gallup, “Death Penalty”)

Moral arguments may be among the most common and loudest. They resonate with people and can drive opinions. However, they are the weakest in terms of empirical debate. We cannot “test” or “measure” morals; there is no objective truth, no clear right or wrong.

So, what are the measurable aspects of the death penalty debate, and to what conclusions do they lead?

Effects on Crime Rates

A common issue in the death penalty debate is whether or not it deters other would-be offenders. That is, others who would otherwise consider committing a murder will be deterred because of the possibility of a death sentence. The flipside of deterrence is brutalization, or the idea that capital punishment actually increases violence by devaluing human life.

For decades, researchers have examined the relationship between capital punishment and murder rates, and the only reasonable conclusion is that the two are likely not related.

Death penalty states, on average, have higher murder rates than non-death-penalty states. Furthermore, the trends across states have been similar, suggesting that the death penalty may have little to do with changes in murder rates.

 Similarly, international data suggest that many countries experienced a decline in murder rates following abolition of the death penalty.

A handful of studies have found significant results on both sides – either in favor of deterrence or brutalization – but such studies are heavily flawed in their methods and conclusions. Such results have been found to be finicky, heavily dependent on how data are analyzed and statistical models are specified.

Thus, the only reasonable conclusion is that the death penalty has little discernible effect on murder rates.

Racial Bias

Capital punishment, like virtually every element of the criminal legal system, has clear racial undertones. Since 2000, just over one-third of those executed were black.

defendant race

Includes cases from Jan. 1, 2000 through May 31, 2019 (Source: DPIC: “Race and the Death Penalty by the Numbers”)

Perhaps more telling, though, is to examine the race of the victims in the murder cases in which defendants were ultimately executed. More than 70% of executions were in murder cases involving white victims, despite the fact that whites are not more likely than blacks to be victims of murder.

victim race

Includes cases from Jan. 1, 2000 through May 31, 2019 (Source: DPIC: “Race and the Death Penalty by the Numbers”)

If the death penalty truly is reserved for the “worst of the worst,” these outcomes suggest that the worst cases are those in which a white person is killed. Put another way, this suggests that we value a white life is more than a black life.

This is no surprise, given the racial roots of capital punishment in the U.S. As reported by the Death Penalty Information Center, when the death penalty was allowed for rape in the early twentieth century, “89% of the executions involved black defendants, most for the rape of a white woman.”

These racial tendrils of the death penalty, remnants from the era when lynching was a prominent practice, are seen even today.

Economic Costs

A key argument made by supporters of capital punishment is that it saves the money we’d otherwise spend on incarceration. However, as practiced today, the death penalty is, unquestionably, much more expensive than incarceration.

For example, an analysis of cases in Oklahoma estimated that the each case in which the death penalty is sought costs approximately $110,000 more than a similar case in which the death penalty is not sought.

Even stronger findings appear elsewhere. A Nebraska study found that each death penalty case costs approximately $1.5 million more. The Legislative Finance Committee in New Mexico estimated that bringing the death penalty back might cost as much as $7.2 million in the first three years. And studies in other states have found that the death penalty costs several times more than cases ending in long-term imprisonment.

The extravagant costs of capital punishment come from every phase of the criminal legal process—pre-trial processes take longer and cost more; defense and prosecution costs are higher; imprisonment on death row is more expensive; and appeals are longer and cost more.

Some may propose a simple, albeit crude, solution—speed up executions once someone is convicted. While the front-end of cases would still be expensive, the argument goes, much would be saved by reducing time-to-execution. After all, the average time between receiving a death sentence and execution is somewhere around fifteen years.

Reducing this time as a cost-saving means sounds intuitive, but could potentially lead to much more grave problems.

Innocence and the Death Penalty

Why not speed up the time to execution, which hovers around fifteen years?

As of this writing, since 1989, 123 people in the United States have been exonerated based on their innocence after being sentenced to death. On average, it took 15.2 years before exoneration. If we accelerate the rate at which executions are carried out, it undoubtedly means more innocents will be put to death.

The criminal legal system is perfect neither in its design nor implementation. As I’ve written about extensively, wrongful convictions happen. Innocent people are erroneously arrested, convicted, imprisoned, and in all likelihood, executed.

The risk of such an error should strike concerns in everyone. Not only would it mean the government erroneously executes an innocent citizen, but a wrongful convictions usually means a wrongful acquittal—the real guilty party, the true perpetrator, is the only person who benefits, as they remain free to continue committing crimes.

The Death Penalty Today

The Trump Administration’s decision to resume executions, while supported by some members of the public, has drawn ire elsewhere. There are myriad legal issues, questions around the method of lethal injection, critiques from religious groups.

Importantly, the critiques are coming not only from liberals, presumed to be the group “against” the death penalty, but from conservatives as well, who are concerned not only with capital punishment’s implications for the value of life, but for its fiscal irresponsibility and concerns over the increased power of the government.

Despite the fact that the death penalty might satiate some primal urge to do unto others as they have done, it is an irresponsible practice according to the facts.

This is not to say that anyone’s moral inclinations are wrong. If person X believes in the death penalty out of ethical or moral obligation, that is their prerogative, just as it is for person Y to believe taking a life is wrong no matter the situation.

Yet in terms of a debate that hinges on things we can measure and evaluate, there are not two sides to the death penalty debate. The facts point to the continued decline in its use as the logical path forward.

The Lessons of ‘When They See Us’

On May 31, Netflix premiered a new show called When They See Us, a four-episode series depicting the injustice of the Central Park Jogger case. The show became an overnight cultural phenomenon. Since its debut, it has become the most-watched show on Netflix and has sparked a social conversation about race, police misconduct, the faults in our criminal legal system, the politics of law, and the fundamental meaning of justice.

When They See Us is ‘true crime’ done right. The source material is inherently interesting, and the series features strong direction and captivating performances from all of its core actors, many of whom are relatively unknown. It’s an important show, one that Emily Nussbaum wrote makes something “that might easily be unwatchable not merely watchable but mesmerizing.”  As with other dramatic tellings of real events, the show has the power to not only entertain, but to educate and inspire. Despite the crime and trials occurring three decades ago, there are still many lessons to learn from it. The criminal legal system provides a unique and telling window into who we are as a culture and as a society, and deconstructing injustices such as those experienced by the Central Park Five presents an even starker portrait.

What happened in the Central Park Jogger case?

On April 19, 1989, twenty-eight-year-old Trisha Meili—a successful, attractive, white woman with a successful career in the financial industry—went jogging in New York City’s Central Park. Her body was found early the next morning. She’d been raped and beaten, left to die overnight in the cool spring night. The crime was heinous; Meili lost more than three-fourths of her blood and was in a coma. Surprising many, she made it, but suffered permanent damage, and was unable to recall anything about the attack.

That same night, a large group of teenagers ran through the park, engaging in what authorities and the media referred to as “wilding.” Some members of the group harassed some passersby, beat up a homeless man, and generally caused trouble. When police arrived, the group scattered, and several were arrested.

In the end, the police focused on five boys whose ages ranged from 14 to 16: Raymond Santana, Kevin Richardson, Antron McCray, Yusef Salaam, and Korey Wise. They were interrogated without lawyers and without their parents, some for more than 20 hours, using a variety of manipulative and psychologically intense techniques and strategies. Eventually, all “confessed” to the crime, although Salaam’s mother appeared and stopped the confrontation before her son signed a statement. Amidst a media firestorm and widespread public outcry, and despite no physical evidence linking them to the crime, all five were convicted. Four of them were sent to juvenile facilities; Wise, who was sixteen at the time, was charged as an adult and sent to Rikers Island, an adult facility in New York notorious for its violence and corruption.

Santana, Richardson, McCray, and Salaam each served five to seven years; Wise served more than twelve. Ironically, it was his lengthy stint in prison that eventually triggered the chain of events that led to their exoneration. While incarcerated, Wise had a run-in with another inmate, Matias Reyes, who was incarcerated for rape. Reyes admitted to the crime and said that he acted alone. He knew details that were unknown even to investigators and were verifiable, and the DNA matched.

In 2002, the Central Park Five were exonerated. In 2014, they settled a civil lawsuit for $41 million. The case is an important one that, as I’ve previously written, “stands as an infamous stain on the fabric of American criminal justice, displaying the fragility and vulnerability of the system to error.”

What can we learn?

The Central Park Five case is a tragedy on many levels, and When They See Us portrays the experience from the perspective of the boys and their families. There is much to learn from the case; lessons which should long ago have been heeded, but which are still necessary today. The below list is not exhaustive or comprehensive, but include some of the key lessons that, as a criminology professor and an innocence scholar who has been studying this issue for a decade, hope viewers learn as they watch the drama unfold.

Yes, Innocent People are Sometimes Convicted

Even today—a full 30 years after the first DNA exonerations in the United States and 15 years after the founding of the Innocence Network—there is still skepticism and disbelief about the existence of wrongful convictions. However, even a cursory look demonstrates that, beyond dispute, innocent people are sometimes wrongly convicted. And although we can only estimate how often it occurs, the best estimates suggest that as many as 6% of prisoners and about 4% of people sentenced to death may be innocent. There are more than 2.1 million people incarcerated in the U.S. and more than 2,700 on death row, meaning there may be more than 12,000 innocent prisoners and more than 100 innocent death row inmates in the United States today.

Police Interrogations Can Lead to False Confessions

Although it seems counter-intuitive—few people would readily say that they’d falsely admit to anything, let alone a violent crime—it is beyond dispute that people sometimes confess to crimes they did not commit. Moreover, it may not be rare. In fact, about 12% of known wrongful convictions—299 of the first 2,465 exonerations—involved a false confession. Moreover, about one-fourth of homicide exonerations involved a false confession. Psychologists and legal scholars have uncovered many reasons for false confessions, and they are varied. Some, called situational factors, have to do with the nature of interrogations and the tactics used by officers. For example, how long the interrogation lasted, and whether the officers lied to the suspect. Others, called dispositional characteristics, have to do with the person being interrogated. Among known false confessions, three groups are consistently over-represented: suspects suffering from mental illness, suspects suffering from mental retardation or developmental disabilities, and juveniles.

Yes, Juveniles are at a Greater Risk of Falsely Confessing

A variety of developmental limitations put juveniles at greater risk for falsely confessing, particularly when confronted with intense and manipulative interrogation strategies. These range from adolescent immaturity, to increased suggestibility, to lack of comprehension of legal procedures and rights. The Central Park Five, all between 14 and 16, were interrogated, without lawyers or parents, for dozens of hours. Such a practice is a recipe for false confessions.

The Adversary System Doesn’t Always Work

In theory, the United States’ adversarial system of justice is supposed to pit two equally-matched sides (the prosecution and the defense) against each other in front of a neutral arbiter (the judge) and fact-finders (the jury). If this is done properly, the truth should emerge. Presumably, issues such as coerced and false confessions would come to light and such errors would be mitigated to the extent possible. However, the system is, by its very nature, based on probabilities. Guilt must not be proven with absolute certainty, but beyond a reasonable doubt. A high threshold, no doubt, but one that still leaves room for error. And those errors can and do result in wrongful convictions.

A Good Lawyer Can’t Always Prevent Wrongful Convictions…

One key element of the adversarial system is having competent defense counsel. However, even a good or great lawyer cannot always overcome a system that is slanted in favor of the state, despite their best efforts.

…But a Bad or Unqualified Lawyer May Make Things Worse

And having an incompetent or unqualified lawyer can be a death knell. Inadequate defense is a common trait in known wrongful conviction cases. In some, the issues are egregious, such as defense attorneys who fell asleep or were intoxicated. But in others, it may simply be luck of the draw, depending on what court-appointed lawyers are available. A defendant may end up stuck with an attorney who has little or no experience in the type of case at hand. For instance, Yusef Salaam’s attorney was experienced as a divorce lawyer.

There is Capital in Legal Success

The defense is positioned across the courtroom from the prosecutor. According to the American Bar Association, the prosecutor should be an “administrator of justice,” whose “primary duty…is to seek justice within the bounds of the law, not merely to convict.” However, time and again, we have seen that there are gains to be made through legal success, particularly in high-profile cases and even if it comes at the expense of others. The Central Park Jogger case was certainly high-profile, and people made their careers on that case. Linda Fairstein, for instance, was the head of the District Attorney Office’s sex crimes unit. She is portrayed in When They See Us as bullheaded, determined to plow over the five boys and secure a conviction. After the case, she went on to become a champion in the law enforcement community and a bestselling author of crime novels. Similarly, prosecutor Elizabeth Lederer continued her legal career and became a teacher at Columbia Law School. When promotions and raises and a spotlight are at stake, legal actors may abandon their idealistic roles and opt for the more pragmatic, self-centered approach to the law.

Social Context Can Influence the Legal Process

 Although not highlighted to a great degree by the show, the New York City in which the crime and trial occurred was not the same one we see today. In the 1980s, the city “was rife with social problems: fear of terrorist attacks, the growing AIDS epidemic, homelessness, failing school systems, and increasing levels of crime.” The people of New York were on edge, and a brutal crime, committed against an attractive and successful young white woman, supposedly attacked by a group of black and brown youngsters, in a space that was seen as a refuge amidst the chaos of the City, created a spark that grew into a wildfire.

 Old Racial Prejudices Still Cloud the Criminal Legal Process

That wildfire was spread through bias, prejudice, and outright racism. The boys—teenagers, kids, we must remind ourselves—were labeled as animals and beasts. They were a “wolfpack” who were “wilding” and rampaging through the park. The story was eerily reminiscent of other cases where black and brown men were portrayed as savages who could not control themselves. We can read about the Scottsboro Boys in the 1930s, or the murder of Emmett Till in the 1950s, or the ‘Career Girl Murders’ of the 1960s,  or the Ford Heights Four case of the 1970s. The list goes on—case after case of black men punished, through the law or extralegal means, of offenses against white women. In all of these cases, we can see, as law professor N. Jeremi Duru argued, the consistent proliferation of the “myth of the bestial black man.”

…But Those Prejudices are Not Always Overt

Unlike decades past, where people’s prejudices were often obvious and visible to anyone who looked, the racial prejudices that influence today’s legal process are sometimes less overt. We don’t often see a group of white men in Klan robes lynching a black man for allegedly whistling at a woman. Instead, racial biases and prejudices and disparities have been formalized and institutionalized through our legal system. From the behaviors that are defined as crimes to the punishments for those crimes, from police practices to mass incarceration, racism has become embedded in our criminal legal system. The modern era of mass incarceration is, as Michelle Alexander has argued, the “New Jim Crow.”

The Media Can Influence the Process

The social context that influences the legal process, and the prejudices and racism that taint it, can be proliferated through the media when a case generates enough public interest and buzz. Media often capitalize on cases that instill fear and drive anxiety; as the classic saying goes, “If it bleeds, it leads.” In a city like New York, and with a savage crime that involved a victim and suspects who are ideal from the perspective of telling a provocative news story, it’s no surprise that media and public outcry ran high. It didn’t help that prominent politicos and social figures also spoke loudly against the boys; now-President Donald Trump spent tens of thousands of dollars to take out full-page newspaper ads urging New York to “bring back the death penalty.” Such an environment is a dangerous one in which to search for truth and justice.

Loved Ones Suffer, Too

One of the most interesting and important aspects of When They See Us is that it shows the case from the perspective of not just the defendants, but their families. It is well-known that mass incarceration has profound effects on not just inmates, but their entire families—significant others, children, friends, and communities. The same is true, perhaps even more so, in the case of wrongful conviction. Researchers have demonstrated that wrongful convictions create a bevy of post-release problems that must be navigated by not only the exoneree, but their loved ones as well.

Errors Beget More Harm

When officials erroneously pursued the Central Park Five and police failed to investigate Matias Reyes, they allowed a rapist and murderer to remain free. Reyes went on to commit even more violent crimes. And this case is not unique. As professor James Acker has written, there is a “flipside injustice” to wrongful convictions, in that they generally mean that the guilty party is not caught. And many of those guilty parties go on to commit additional crimes, which political scientist Frank Baumgartner and colleagues call “crimes of wrongful liberty.”  When the criminal legal system gets it wrong, it is not just the defendants and their families who are affected. The original victims never get any real sense of justice and is forced to relive a traumatic case that was thought to be closed, and new victims may be created when the real offender continues to commit crimes. Wrongful convictions leave in their wake a destructive path, or a “circle of harm,” that extends to many people.

Stories Are Powerful

More than anything, I hope people are moved by the story told in When They See Us. In fact, it’s difficult to imagine someone watching this series and not feeling something. Stories are powerful—they help us make sense of the world around us and to find our place in it. They can expose us to previously unknown facets of life that we may otherwise never see. Stories also can help be a catalyst for calls to action. After its release, When They See Us was trending on Twitter and has become the most watched show on Netflix. The series has sparked widespread outcry. There have been calls for Donald Trump to apologize (though he has refused to do so) and to boycott Linda Fairstein and reopen her old cases (the Manhattan DA has said he won’t reopen her cases, but her publisher has since dropped her, and she has stepped down from several board positions). Amidst public pressure, prosecutor Elizabeth Lederer has resigned from her position as an instructor at Columbia Law School. None of these steps can undo what was done to the Central Park Five and their families. It cannot give them back the years and experiences they lost. And, in the big scheme of things, they’re minor things; baby steps, if you will. But they were a long time coming, and baby steps are still steps. I am often skeptical of outcry through outlets such as Twitter—the court of public opinion can be a dangerous, unruly, and unfair place—but in this case, it seems as though it has mostly been used for the better.

CP5

Four of the Central Park Five as adults. From left to right: Salaam, Wise, Richardson, and Santana. Source: Maysles Documentary Center, via Flickr)

Want to Know More about the CP5? Further Readings and Recommendations

If you haven’t watched When They See Us, I highly recommend it. The show tells an important story. Watch it, and try to absorb its lessons.

If you have seen the show and want to know more, I highly suggest you look through the case profiles of the Central Park Five on the websites of the Innocence Project and the National Registry of Exonerations. I also recommend Sarah Burns’s book, The Central Park Five, and watch the documentary by the same name, directed by Ken Burns.

New Article on Wrongful Convictions and Public Opinion

An article I co-authored with friend and colleague Kevin Mullinix has been published online in the Journal of Experimental Criminology.

In the study, we use two survey experiments to assess the ways in which people respond to both numerical information about and a narrative of wrongful conviction in terms of their support for the death penalty and police reforms, trust in the criminal justice system, and personal concern about wrongful convictions.

The full citation is below, along with the abstract.

Norris, R.J. & Mullinix, K.J. (2019). Framing innocence: An experimental test of the effects of wrongful convictions on public opinion. Journal of Experimental Criminology. Online first, doi: 10.1007/S11292-019-09360-7.

OBJECTIVES:

Discourse about criminal justice in the USA increasingly revolves around wrongful convictions. Research has documented the emergence of the “innocence frame,” but relatively little is known about its effects on public opinion. We utilize framing theory to examine how various presentations of wrongful conviction information affect attitudes toward the justice system and highlight the consequences of the innocence movement for public opinion.

METHODS

We implement two survey experiments to test the effects of innocence information for criminal justice attitudes. In the first experiment, we test the impact of wrongful conviction numbers relative to a control group for death penalty support. In the second experiment, we analyze the effects—both separately and jointly—of exoneration numbers and a wrongful conviction narrative relative to a control group for attitudes toward the death penalty and police reform, trust in the justice system, and personal concern.

RESULTS

We demonstrate that the presentation of factual numbers of exonerations reduces support for capital punishment and erodes trust in the justice system, but fails to garner support for police reforms or increase personal concern about wrongful convictions. However, a narrative about an individual wrongful conviction predictably has more pronounced effects on death penalty attitudes and increases personal concern and support for police reform, but has little effect on trust in the justice system more broadly.

CONCLUSIONS

Wrongful convictions are consequential for public opinion, but the effects are contingent on how the information is framed and the attitudinal outcome of interest. Our findings have implications for criminal justice attitudes and policy, the innocence movement, and framing theory.

Is This Really a “Witch Hunt”?

Donald Trump was back at it again, releasing a fury of tweets denouncing an illegal and expensive “witch hunt” carried out by Democrats.

This, of course, is nothing new for the President, whose claims to victimhood in this “witch hunt” have been a common refrain.

My focus here is not on whether Trump can or should be impeached, or whether he or his team violated any specific rules or regulations. Instead, I hope to make a specific but important point about the language used by the President, the White House, and supporters of this administration. History—both in the United States and abroad—is littered with actual witch hunts, and this is not a witch hunt. As Stacy Schiff has written, “historical literacy is not for everyone,” so I wouldn’t expect this sort of argument to be persuasive for many people, including supporters of the President. But it bears repeating, nonetheless.

What is a Witch Hunt?

Merriam-Webster defines witch hunt as follows:

  1. a searching out for persecution of persons accused of witchcraft

person holding cattle skull surrounded by squash and candles

This original definition refers quite literally to the hunting of witches and dates to 1885, but the phenomenon of witch hunting predates even that.  Historians have traced this type of persecution to Hebrew scriptures and found evidence of executions for witchcraft throughout history.

Perhaps the most famous witch hunt was that which occurred in Salem, Massachusetts in 1692. The accusations began in February and snowballed. The first execution occurred in June, and by the end, twenty people—fourteen women and six men—would be executed. (Several others died in jail.)

The Salem Witch Trials are but an example of the broader pattern of unfounded hysteria driving extreme actions. Historians have documented approximately 12,000 executions of “witches,” about three-fourths of whom were women. The reasons for the gendered imbalance are varied, but as Jone Johnson Lewis suggests, may have to do with cultural perceptions of women as weaker and thus susceptible to superstition and witchcraft, property inheritances, and the ease of accusing the most poor and marginalized women in society.

Given the ugly history of actual witch hunts—the executions of innocent people and the reinforcement of negative gendered stereotypes—I would prefer that such language not be used so loosely. To throw such phrases around in such a free and cavalier manner does a disservice to the actual history of the phenomena.

The Political Witch Hunt

Beyond the original and literal use of the phrase, there is another definition offered by Merriam-Webster:

  1. The searching out and deliberate harassment of those (such as political opponents) with unpopular views

Even by this definition, I’d argue that what’s happening is not a political witch hunt. The President and his people are not being sought out and harassed because their views are unpopular. Despite their moral ugliness, in fact, their views seem to be echoed by many members of the public. Rather, they are being investigated for potentially illegal conduct.

Investigation is not a synonym for harassment, and illegal conduct is not a synonym for unpopular views. When police investigate a crime, even if the suspect turns out to be innocent, their actions do not automatically constitute a witch hunt. They are simply doing their job, hopefully to the best of their abilities and within the bounds of the law.

Trump, Nixon, Politics, Helicopter, Farewell, Chopper

Furthermore, although I’d prefer we don’t use  phrases like witch hunt for political purposes, there are several examples we may point to in American political history that more closely fit the definition. The Palmer Raids of 1919-20 and McCarthyism of the 1940s-50s, for example, among others.

Even drawing the boundaries more narrowly does not necessarily make the current situation a witch hunt. Several of our most recent presidents have been subjected to independent investigations that have been more extensive and have carried on longer than the current one. Calling any of these witch hunts may be a stretch, particularly the present situation.

History and Language

By almost any measure, Donald Trump is not the victim of a witch hunt, let alone the “greatest Witch Hunt in American History,” as the President tweeted.

What he seems to often forget is that words matter. They have meanings and contexts. While language may help achieve certain political ends—and, to be fair, he has had some success rallying support through the use of absurd hyperbole—it can also be highly dangerous.

Words also have histories, and the phrase witch hunt has a long and bloody one. I think we’d all benefit from keeping that in mind when choosing our words. This is especially true for the man in power and his supporters. But, hey—“Historical literacy has never been for everyone.”

What do we owe the wrongly convicted?

Compensation for the wrongly convicted has been in the news recently. Just over a week ago, Indiana became the 34th state to pass a compensation law for exonerees—those found to be innocent of the crimes for which they were convicted.

That’s great—it really is. For a state to have a compensation statute is certainly better than not having one. But it begs the question:

How can the government possibly provide redress in the wake of a wrongful conviction?

***

Archie Williams was released from a Louisiana prison in March 2019 with the help of the Innocence Project New Orleans. It must have felt like a triumphant day for him and his supporters, when prosecutors joined a motion to vacate his convictions and he was exonerated. He was a free man.

The downside? He was convicted in 1983, and spent 36 years in prison for crimes he never committed.

And Williams is not alone; just this year, Clifford Williams, Jr. and Hubert Myers were recently exonerated in Florida after spending nearly 43 years wrongly incarcerated for murder. The average time spent in prison among exonerees is about 9 years, and at least 45 people have been exonerated after spending more than 30 years in prison.

What do we, as a society, owe these individuals?

exoneree state

(Photo: The exoneree stage from the 2019 Innocence Network Conference. Combined, these men and women spent more than 1,070 years incarcerated for crimes they did not commit.)

***

When I’ve spoken about wrongful convictions to students and members of the general public, a common question I’ve heard is something along the lines of, “Don’t they get a lot of money when they get out?”

The answer, generally, is no. Or, at least, very rarely.

Certainly, we occasionally hear the story about the wrongly convicted winning large civil lawsuits, but success rates are low, and pursuing litigation requires time and resources that are unavailable to many exonerees. The truth is that those cases we hear are the exceptions, not the rule.

The rule is that exonerees get little, if anything, when they’re released.

justice_scales_balance_lawyer

***

Indiana’s new compensation law provides $50,000 per year of wrongful incarceration to eligible exonerees. A few states offer more; Texas, for example, offers $80,000 per year. But many offer less. Louisiana, where Williams was convicted, offers eligible exonerees $25,000 per year, but the award is capped at $250,000. Even worse, Wisconsin offers only $5,000 per year with a limit of $25,000, and New Hampshire offers a maximum amount of $20,000, regardless of time served. Montana’s law does not provide a monetary award, instead offering educational aid to attend a college or university.

But, for now, let’s set aside the insultingly-low amounts from these last few states, and assume that every law will eventually reach or exceed the level of compensation provided in Indiana’s new law. Even so, is it enough?

***

When Williams was arrested in January 1983, the world was a fundamentally different place. To put this into perspective, at the time of his arrest, Ronald Reagan was the U.S. President; personal computers, cell phones, and the Internet had technically been invented, in the loosest sense, but not yet the ubiquitous technologies they’ve come to be; the American car market was on the upswing; Michael Jackson’s Thriller was still new; and we were still months away from the first Mario Bros. game and the finale of the original Star Wars trilogy.

The world he recently reentered as a free man, and in which he must now find his way, is changed. Certainly, financial compensation—and a significant amount of it, at that—is well-deserved and would alleviate some of the transitional struggles faced upon reentry. But money is not enough.

Williams, like all exonerees, also carries with him the baggage of (wrongful) incarceration; the physical, psychological, and emotional scars that result from protracted legal struggles and imprisonment. In their wonderful book, Life After Death Row, Saundra Westervelt and Kimberly Cook document the many challenges faced by death row exonerees, though the experiences may translate to anyone who is imprisoned and later exonerated. Their work makes clear that financial compensation, while necessary and helpful, is not sufficient. Instead, “compensation” laws must account for the additional programs and services—often available to parolees and probationers—that exonerees need.

In addition to a monetary award, Indiana’s new compensation law provides access to some additional reintegration programs and resources. Several states do the same. Such services should not be seen merely as additional benefits, but as necessary components of a sound policy. We must conceptualize compensation as more than financial assistance, but as a full-fledged reintegration plan.

For people like Archie Williams, Clifford Williams, Jr., Hubert Myers, and the more than 2,400 other exonerees, it’s the least they deserve.

 

Why NOT test the DNA?

A few days ago, the New York Times ran a story about the case of Sedley Alley, who convicted and sentenced to death for a 1985 rape and murder in Tennessee. Alley was executed in 2006 and now his daughter, April, has petitioned the court to test DNA evidence from the crime scene.

low angle photography of beige building

(Photo Credit: Sebastian Pichler, retrieved from Unsplash.com)

I know not whether Sedley Alley was innocent; right now, nobody does. But we do know a few things. First, we know that Alley’s conviction was questionable, based on limited physical evidence and a shaky confession that Alley says was coerced. Second, we know he was executed. And third, we know that there is DNA evidence that has never been tested, but which might give us a clearer understanding of Alley’s guilt or innocence. So, a logical question follows:

Why not test the DNA?

The benefits of testing are clear. We learn, with a greater degree of certainty, whether or not an innocent man has been executed. If the test results are inculpatory – suggesting that Alley was, in fact, guilty – then we can rest our heads with a slightly greater sense of ease, knowing that the worst-case scenario was avoided, and capital punishment supporters have a small cap in their feather in their fight to delay the inarguable decline of the death penalty in the 21st century.

If, on the other hand, the DNA test results are exculpatory – suggesting that Alley was innocent and thus wrongfully convicted – we will have documented the execution of an innocent person, marking the first time a wrongful execution was proven through DNA evidence. Such a scenario would clearly highlight the dangers involved in administering the ultimate form of punishment and, hopefully, help accelerate necessary reforms to our criminal legal system.

So, I again ask: Why not test the DNA?

Dna

The answer to this question is likely complicated, but I suspect it has something to do with institutional protectionism. Capital punishment is, undoubtedly, an American institution, having been practiced for centuries. The risk of executing an innocent person has always existed, but it was just that – a risk; a mere possibility, one that must be balanced with the potential benefits of having a death penalty. I say “potential” benefits because they are not supported by data or sound research. No statistically sound studies have found the death penalty to deter violent crime; capital punishment does not save money, but costs taxpayers significantly more than long-term imprisonment; the death penalty is implemented in a racially and socioeconomically biased fashion; and the risk of executing the innocent is real, to the extent that about 1-in-25 people sentenced to death may be innocent.

For these reasons (and more), the death penalty is in decline in the U. S. Seemingly, the last thing proponents have to hang their support on is retribution – the notion that those who commit murder simply deserve the death penalty; an “eye for an eye,” and all that. Indeed, when asked why they support capital punishment, here is what proponents gave as their answers in an open-ended question in a 2014 Gallup poll:

dp support

(Source: Gallup Historical Trends – Death Penalty)

Several of the responses directly or implicitly suggest that people support the death penalty for retributive reasons – that people simply deserve it. This view, however, must rely on some level of confidence in our criminal legal system. After all, one must be confident that those who are sentenced to death, and ultimately executed, are the ones who truly deserve. As James Q. Wilson wrote, ““Wicked people exist. Nothing avails except to set them apart from innocent people.” Thus, those sentenced to death and executed must be guilty. 

However, if it were demonstrated, especially through DNA testing, that innocents were executed, it would scientifically show that we are not always capable of separating the “wicked” from the innocent. In light of such knowledge, it is plausible that people’s trust and belief in our system will be reduced; that confidence that death penalty support requires would further erode. Perhaps the fear of such a revelation is enough to keep us from seeking the truth, wherever that quest may lead. 

***

This is a messy issue. The death penalty is a highly moralized and emotional thing for people, and it can be hard to be fully rational. But, to conclude, I’d say this:

To death penalty supporters – put your confidence to the test. If you have any faith in our criminal legal process, then support the DNA testing that will help us understand whether we adequately separated the “wicked” from the innocent in this one case.

To death penalty skeptics, critics, and abolitionists – this could be monumental. A DNA-based finding of wrongful execution would be hard to ignore, even for the most ardent death penalty proponents, and may be what is needed get over the hump in improving and/or abolishing the death penalty.

And, to both camps: Be prepared to live with the results, whatever they may reveal. In the end, truth should be what we’re after, regardless of its nature.

Back from the Innocence Network Conference (and I have some thoughts…)

Another year, another Innocence Network Conference. And as always, it was a great experience. This year, more than 900 (!) people gathered in Atlanta to celebrate victories and discuss new directions in the fight for justice.

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(Above: The exoneree stage at the Innocence Network Conference. The new exonerees at this year’s meeting collectively spent 1,070 years incarcerated for crimes they did not commit.)

This was my fourth IN Conference and even in the short period I’ve been attending (since 2013), it’s grown tremendously. Yet, somehow, it has managed to maintain an impressive feeling of intimacy. The ability to connect with others – exonerees, their supporters, lawyers, advocates, and more – is unparalleled at any academic conference I’ve attended. In fact, I firmly believe academic conferences can learn a thing or two from meetings like this. Drop the pretentious air and ego-maniacal falsehood of academic fame and importance, embrace the truth that we are non-objective observers and participants in the worlds we inhabit and in which we work, and connect with people who feel deeply and passionately about what they do. Perhaps we can, and should, stop pretending to be neutral and passive observers following pure scientific principles, accept that we have our own biases and agendas, and use our passions, energy, and expertise to change the world around us for the better.

None of this is to say that the conference or those who attend are flawless. It’s not, and we’re not. But those of us within academia might just benefit from observing meetings such as this one, of people who do work for the public good, who advocate for social, political, and criminal justice. Perhaps it would improve our scholarship rather than reduce its quality, or increase the impact that we have as experts in our respective fields. (Real impact, that is, not the impact factors we tend to brag about.)

Every time I’ve attended the IN Conference, I’ve left inspired and energized. Usually, this translates to a period of furious scholarly writing during the home-stretch of the semester. Not so, this time. Certainly, I’m inspired by those who attended; I’d dare anyone to meet some of these folks and not be. But this year, it won’t translate to a productive stretch of academic scholarship for me. Instead, I find myself inspired to think not about new scientific research questions or study designs, or how to maximize my tenure prospects, but about issues that are much bigger and more important.

I had the opportunity to meet several exonerees who spent more than thirty years in prison for crimes they didn’t commit. They were incarcerated longer than I’ve been alive. I find it impossible to meet those individuals, hear their stories, imagine what they experienced, and not think existentially, about life, and about freedom, and about how we far too often take those things for granted. And they inspire me to think about how I’ve spent my own life to this point and how I spend the rest of it. I’m inspired to think about what I can and should do with the time that remains; how I can be different, be better; how I can maximize my experience for myself and, hopefully, for others.

Hopefully, I’ll have more to share soon.


A quick aside on Atlanta as a conference venue:

The first time I went to Atlanta for a conference (funny enough, in 2013), I hated it. I thought it was just the worst on the list of ASC host cities. But in the past year, I’ve traveled there three times for different types of work-related trips, and I must admit that I was unfair to the city. While I still have no desire to live there myself – it’s far too hot for me – I’ve enjoyed my visits, and look forward to the next one. Below are some random, not-so-high-quality cell phone photos from my walk around Centennial Olympic Park on Saturday morning and my self-guided brewery tour.