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McAdams on Death Row Innocence Claims

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While looking for something else, I came across a transcript of Professor John McAdams' testimony to the Senate Judiciary Committee, Senate Hearing 109-540, Feb. 1, 2006. I've copied it in full after the jump. Some of the numbers are a bit out of date, but the main points remain valid.

Mr. MCADAMS: There are an easy dozen issues surrounding this and I am going to limit myself to only one. I am used to talking 50 minutes at a time and now I have seven. I am going to address the whole issue of ''innocents'' on death row and innocents who claim to have been executed.

The key thing to remember about the anti-death penalty activists is that they vastly inflate the number of innocents who have ever been on death row and they make claims of innocents being executed that simply don't survive scrutiny. The sort of canonical list of innocents supposedly put on death row is from the Death Penalty Information Center. When I checked the website Sunday, it listed 122 people, which sounds appallingly large, but if you analyze it even superficially, you find that it is terribly inflated.

For example, back in 2001, I analyzed the list when it had 95 people on it and by the admission of the Death Penalty Information Center, 35 inmates got off on procedural grounds and another 14 got off because a higher court believed the evidence against them was insufficient. Of course, if the higher court was right, there is an excellent reason to release them, but it is not proof of innocence.

The State of Florida in 2002 noted that there were 24 people on the list from Florida who were supposedly innocents on death row and they appointed the Florida Commission on Capital Crimes that concluded that only four of those 24 cases--in only four of those 24 cases was the factual guilt of the inmate in doubt.

Other examinations have been no more favorable. For example, a liberal Federal district court in a case called Quinones in New York ruled the death penalty unconstitutional, but if you look at that particular case, the court admitted that the Death Penalty Information Center list ''may be over-inclusive,'' and following its own analysis asserted that for 32 people on the list, there was evidence of factual innocence, as opposed to procedural innocence, and Ward A. Campbell, supervising Deputy Attorney General of the State of California, reviewed the list when it had 102 people on it and he concluded that, I am quoting, ''it is arguable that at least 68 of the 102 defendants on the list should not be on the list at all. Only 34 released defendants have claims of actual innocence, less than one-half of 1 percent of the 6,930 defendants sentenced to death between 1973 and 2000.''

Indeed, staffers of this Committee--it was the minority staff at the time--produced a report on, at that time, I think it was 2002, S. 486, where they did a thorough job of debunking a lot of these claims of actual innocence.

So believing the claims of the anti-death penalty activists about the number of innocents on death row is roughly equivalent to believing the National Rifle Association about how many Americans have saved themselves from serious bodily harm because they own and carry guns, or the claims of NARAL about how many backalley abortions would result from overturning Roe v. Wade. Activists tend to inflate the evidence and make it serve their purposes.

Another question is, have any innocents been executed? Have any innocents at all been executed? And indeed, anti-death penalty proponents make that claim. Back in the 1980s, a volume by Hugo Adam Bedau and Michael Radelet claimed 23 innocent people executed in the U.S. in the 20th century. They only named one person since the 1970's that they claimed was innocent and had been executed, and their claims--the fellow was named James Adams--their claims about that person were debunked in a Stanford Law Review article that took Bedau and Radelet to task for, quote, ''disregard for evidence'' and putting a spin on the evidence to support their thesis of Adams' innocence.

Interestingly, if you look at the more sensible death penalty opponents, they won't make strong claims. Let us consider a guy named Barry Scheck, who is co-founder of the Innocence Project. He was in 1998 interviewed by Matt Lauer on the ''Today Show'' and Lauer asked him a very leading question. Quote, ''Since 1976, 486 people have been executed in this country. Any doubt in your mind that we put innocent people to death?'' Scheck responded, ''Well, you know, I--I think that we must have put to death innocent people, but if you are saying to me to prove it right now, I can't.''

Now, there are still claims of innocent people being put to death. We heard from Senator Feingold. I would urge everyone to look at the Death Penalty Information Center website, where there is still--if it hasn't been sanitized as of yet--there is still an essay making claims of innocence from Roger Keith Coleman. And if you just read the essay on the Death Penalty Information Center website, you will come away absolutely convinced that Coleman must be innocent. But Coleman was the guy, you remember, very recently who actually had DNA testing and it proved him guilty. So I would urge everyone to please read that blurb on the Death Penalty Information website, then look at what the DNA evidence found, and I think you will get an idea that if you just believe what death penalty opponents say, you may be misled.

On a personal note, I actually teach a course on the Kennedy assassination and a lot of these claims of innocence remind me of what some conspiracy theorists say to try to get their boy Lee Harvey Oswald off the hook.

Now, death penalty opponents will say that if any who is innocent has been put on death row, that is unacceptable, or certainly if anyone has been executed who is innocent, that is unacceptable. They don't seem to pay a lot of attention to the fact that, quite clearly, a very large number of innocents have been imprisoned. I refer people to the work of the Innocents Project that has found--it has let off at the moment 174 people exonerated on the basis of hard DNA evidence and they admit that they have a huge backlog of other people.

Then there is the question of what the reasonable standard is. Is it reasonable to believe that a sanction of this kind or any public policy can be perfect? We can never fight even a just war without having some innocent casualties. The FDA can never approve a drug without some people dying of a rare and arcane reaction. Standards of perfection simply can't apply to any public policy, and it is unreasonable for death penalty opponents to try to impose it on the death penalty when they wouldn't think of doing so on any other punishment.

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Professor McAdams makes many important observations, to which I would add only this: If the point of it all is to preserve innocent life, it is simply beyond sensible argument that the death penalty is preferable to life imprisonment.

The abolitionist movement has not proved in court, or in any other remotely neutral forum, that any innocent person has been executed in the modern era. But there is court-validated proof that the FAILURE to impose the death penalty cost at least three innocent lives -- this in a single case.

The killer and mastermind was Clarence Ray Allen. He was convicted of one murder and given a life term, although the death penalty was available. From jail, he commanded and orchestrated the killing of three more people. Finally, although too late, he was executed in 2005.

The failure to execute him promptly, the first time around, cost three innocent lives. If the abolitionist lobby gives a hoot, I haven't heard about it. Indeed, and understandably, they keep this story as quiet as possible. But you can read it here, http://bulk.resource.org/courts.gov/c/F3/395/395.F3d.979.01-99011.html, in the unanimous Ninth Circuit opinion by Clinton-appointed Judge Kim Wardlaw.

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