Jewish World Review June 27, 2000 / 24 Sivan, 5760
http://www.jewishworldreview.com -- SOME TIME AGO, it occurred to the anti-death penalty fanatics that Americans, in overwhelming numbers, really do want extraordinarily depraved murderers executed. Normal people, unlike lawyers, didn't care if heinous murderers were insane or Caucasian or ate too many twinkies. Ever since then, spurious claims of innocent people being executed have been appearing with some regularity.
In 1985, a study conducted by Hugo A. Bedau of Tufts University and Michael L. Radelet of the University of Florida claimed that 23 innocents had been put to death in this country in this century alone. The study also claimed to prove that 350 "innocent" people had been convicted of capital or "potentially capital" crimes.
Newspapers rushed to trumpet the astonishing results: "25 Wrongfully Exected in U.S., Study Finds" (New York Times); "25 Wrongfully Executed Since 1900, ACLU Says" (Chicago Tribune); "Innocents Executed, ACLU Claims; 25 Said to Have Died Since 1900 for Crimes They Did Not Commit" (The Washington Post); "Study Says 25 Innocent People Were Executed in This Century" (Los Angeles Times); "Report Says 25 Innocent People Executed" (United Press International); and so on. (The later corrections did not receive such prominent coverage.)
But then about five years later, a couple of lawyers decided to look at the facts of the cases cited by Bedau and Radelet. Professor Paul Cassell of the University of Utah Law School and Steve Markman (who has less time to engage in time-consuming academic research these days inasmuch as he is a justice on the Michigan Supreme Court) revealed the amazing arrogance and dishonesty of the anti-death penalty advocates.
Among the flaws they found in the Bedau-Radelet Study, the "potentially capital" crime category had been defined to include cases in which the death penalty was not imposed. On that theory, the entire populace has narrowly escaped the hangman -- the difference being that in addition to not being sentenced to a capital crime, most of us have not been arrested or convicted of a capital crime, either. The authors of the study even included crimes which could not possibly have resulted in a capital sentence by citing, for example, crimes that occurred in states that did not have the death penalty.
But the most preposterous and disingenuous aspect of the Bedau-Radelet study was how the study determined which executed men were later "found to be innocent." The authors of the study seemed to have performed no greater examination of guilt than checking in with the defense counsel.
The Bedau-Radelet Study cited such indicia of "innocence" as the executed man's sustained protestations of his innocence (for the record, criminals always claim to be innocent). They relied on confessions by others (murderer etiquette mandates that the first guy executed must confess to all his associates' crimes on his way to the death chamber, no matter how preposterous the claim). They recited opening statements from defense counsel about what the defense intended to prove at trial, even when the defense theory was absurd and no substantiating evidence was ever adduced.
They even relied on works of pure fiction to claim one particular executed man was "innocent."
In arguing the innocence of Joseph Hillstrom, executed for murder in 1930, for example, Bedau and Radelet cite a novel portraying Hillstrom as innocent. They apparently did not attach much weight to the fact that the novel's author explicitly states in the forward that he has written a work of fiction -- "an act of the imagination." Nor were Bedau and Radelet impressed by the author's repeated public statements that he believed the real Joseph Hillstrom to be guilty.
Bedau and Radelet dismiss the confession of another executed man on the grounds that it was "coerced." The confession, they write, was given only "after being held incommunicado for 32 days after his arrest." They neglect to mention that the allegedly innocent man had issued a constant stream of confessions, not only 32 days after being arrested, but also the day after the crime.
By the time they were finished with the Bedau-Radelet Study, Markman and Cassell were able to state without contradiction: There is no documented case of a factually innocent person being executed for at least the past 50 years.
Nor is there likely to be. Probably 99.9 percent of defendants convicted of murder are guilty. Less than 1 percent of all convicted murderers will receive the death penalty. We could triple the number of murderers sentenced to death without ever executing an innocent man.
Anyway, I'm really hoping Professor Cassell will take a look at the rash of alleged DNA
"exonerations" someday. Until then, just remember, DNA may serve to inject sufficient
"reasonable doubt" in a case to require that the conviction be expunged, but that doesn't
"prove innocence" any more than the exclusionary rule "proves
JWR contributor Ann Coulter is the author of High Crimes and Misdemeanors: The Case Against Bill Clinton. You may visit the Ann Coulter Fan Club by clicking here.
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