A Broken System, Part II: Why There is So Much Error in Capital Cases and What Can be Done About It

There is growing awareness that serious, reversible error permeates America’s death penalty system, putting innocent lives at risk, heightening the suffering of victims, leaving killers at large, wasting tax dollars, and failing citizens, the courts and the justice system. Our June 2000 Report shows how often mistakes occur and how serious it is: 68% of all death verdicts imposed and fully reviewed during the 1973-1995 study period were reversed by courts due to serious errors. Analyses presented for the first time here reveal that 76% of the reversals at the two appeal stages where data are available for study were because defense lawyers had been egregiously incompetent, police and prosecutors had suppressed exculpatory evidence or committed other professional misconduct, jurors had been misinformed about the law, or judges and jurors had been biased. Half of those reversals tainted the verdict finding the defendant guilty of a capital crime as well as the verdict imposing the death penalty. 82% of the cases sent back for retrial at the second appeal phase ended in sentences less than death, including 9% that ended in not guilty verdicts. Part II of our study addresses two critical questions: Why does our death penalty system make so many mistakes? How can these mistakes be prevented, if at all? Our findings are based on the most comprehensive set of data ever assembled on factors related to capital error — or other trial error. Our main finding indicates that if we are going to have the death penalty, it should be reserved for the worst of the worst: Heavy and indiscriminate use of the death penalty creates a high risk that mistakes will occur. The more often officials use the death penalty, the wider the range of crimes to which it is applied, and the more it is imposed for offenses that are not highly aggravated, the greater the risk that capital convictions and sentences will be seriously flawed. Most disturbing of all, we find that the conditions evidently pressuring counties and states to overuse the death penalty and thus increase the risk of unreliability and error include race, politics and poorly performing law enforcement systems. Error also is linked to overburdened and underfunded state courts