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Exoneration Inflation, Continued

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Of all the propaganda efforts of the anti-death-penalty movement, the most successful has been the notorious "innocence list," which can be found on the website of the Death Penalty Information Center.  Six years ago, Ward Campbell published in the IACJ Journal (Institute for the Advancement of Criminal Justice) an article titled Exoneration Inflation noting the various ways that people have been included on the list even though they had not been determined to be actually innocent or if their cases were simply irrelevant to the debate over the present system because they were sentenced under a different, since-abandoned system.

Surprisingly, three of the latter made it on to the notorious list just this year.  Three men convicted in Ohio for a 1975 killing and removed from death row just a couple of years later when the statutes were struck down have now been released altogether.  It is indeed regrettable that they spent so much time unjustly in prison, but the cases have nothing to do with the current death penalty debate.  They were not sent to death row under a law anything like any law now in effect in the United States or that has been in effect for 36 years.

In a report to be released tomorrow the DPIC will crow about a "record" number of "exonerations" of "former death row inmates," but the fact that these three were briefly on death row under a long-ago abandoned system has no relevance to our current capital sentencing system.
After the U.S. Supreme Court's opaque 1972 ruling in Furman v. Georgia striking down the then-existing death penalty statutes, state legislatures and Congress did not know what would be required to enact a constitutional death penalty law.  Congress, California, New York, and others interpreted Furman to require a mandatory sentencing system and enacted such laws.  Ohio enacted a law that was essentially mandatory in most cases, allowing an otherwise eligible defendant to escape the death penalty only on grounds of (1) the victim inducing his own killing, (2) duress, coercion, or strong provocation, or (3) mental illness.  In all other cases, death was mandatory upon rendition of the verdict.

In its 1976 decision in Woodson v. North Carolina, the Supreme Court held, without apologizing, that what it previously implied was required was actually forbidden.  Mandatory capital sentencing was declared unconstitutional.  The Court left open the singular case of murders by life-sentenced inmates (which it closed 11 years later), but otherwise mitigation had to be considered.

In 1978, the Supreme Court decided in Lockett v. Ohio that Ohio's statute was essentially a mandatory one under Woodson.  That holding was unremarkable.  Unfortunately, the Court went much further than it needed to on another aspect of the case, but that's another story.

The reason that discretion matters in the calculation of risk of executing an innocent person is that residual doubt about guilt is a powerful reason not to impose the death penalty, even in cases where it is otherwise warranted.  The positive effect that the relatively rare cases of actual exoneration have had is to make people more sensitive to the possibility.

The probability of an innocent person being sentenced to death today is far lower than it was four decades ago for a number of reasons.  One of them is that the people involved in the decision have more discretion, know they have it, and are more aware of the possibility of a mistake.  The possibility of an innocent person being sentenced death today and then actually executed is microscopic.

As for Ricky Jackson, Wiley Bridgeman, and Ronnie Bridgeman (Kwame Ajamu), why were they in prison so long after their death sentences were set aside?  Probably because we provide less in resources and review for life prisoners with claims of actual innocence than we do for unquestionably guilty murderers challenging their sentences.  Their case was investigated by a magazine, AP reports

Why do we allocate our resources in that way?  How about if life prisoners and death-sentenced inmates get the same resources and review, but after the first appeal we only fund claims related to the actual determination of who did it?  Wouldn't that make more sense?

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