Consider this:

You are 5 times more likely to be executed if you are convicted in a rural area than in an urban area.

You are 2.5 times more likely to be executed if your victim is white

You are half as likely to be executed if you are a female (versus a male).

Attorney General Ashcroft overruled local prosecutors 28 times so far (2/19/03) who had opted NOT to seek the death penalty;

• in at least 3 of these cases, this reneged on a plea agreement worked out between the prosecutor and the defendant in exchange for the defendant's cooperation;
• this means that all bets are off in terms of defendants who are thinking of cooperating with the government, e.g., terrorists who may be able to identify future terrorist acts;
• in all but 2 of the 28 cases, the defendants were racial minorities;

- source: NPR, 2/19/03

Posted Feb. 11, 2002 (Washington) -- Innocent people are more likely to be sentenced to die in America in areas that zealously use the death penalty, have higher Black populations and where judges face political pressure, according to a study released Monday.

Taking a range of risk factors into consideration, Florida, Georgia, Texas and Alabama are among the most likely states to make serious mistakes in capital cases while Connecticut and Colorado are low risk, said Colombia Law School Professor James Liebman, the study's lead researcher.

While race, politics and an overburdened legal system play a strong role, Liebman said areas that relied heavily on the death penalty as punishment, even in weaker cases, were most likely to impose a flawed capital sentence.

"What our study shows is that aggressive death sentencing is a magnet for serious error," Liebman told Reuters.

The study, which looks at why mistakes occur in capital cases, follows a report by Liebman in 2000 which found that 68 percent of all death verdicts reviewed from 1973-1995 were reversed by courts due to serious error.

Of those reversals, 82 percent ended in less harsh sentences, and 9 percent of those people were found not guilty and eventually freed.

Since the death penalty was reintroduced in America in 1973, 99 death row inmates have been exonerated, raising questions about its validity and leading to mounting pressure among opponents for it to be scrapped or at least suspended.

"If you have a scattershot death penalty policy, you are going to miss most of the time," said Liebman, a strong opponent of the death penalty."

EXECUTION ONLY FOR "WORST OF WORST" CASES

The researchers found broad differences from one area to another within the same state. For example, in Lexington County in South Carolina, the death sentence was imposed in 93 per 1,000 homicides. In Richland County, just a couple of miles away, the rate was 9 per 1,000 homicides.

What the study showed said Liebman, was that the death penalty should be reserved only for the "very worst of the worst" cases.

The study estimated when death sentences increased from a quarter of the national average to the highest rate, the predicted increase in reversal rates was sixfold to about 80 percent.

The more aggravating circumstances found in a case -- such as multiple victims, a defendant who has a long history of prior violent behavior or physical torture -- the less likely a mistake would be made.

"As you add those aggravating circumstances, the likelihood of reversal goes way down," said Liebman.

Looking at particular cases, researchers identified three key errors that often led to reversals -- incompetent legal counsel, police or prosecutors who suppressed evidence and judges who gave jurors the wrong instructions.

High capital reversal rates were also more likely in densely populated states and in areas where the risk of homicide was higher for whites and in those areas with a weak record of catching and imprisoning serious criminals.

Another trend was that the more often state trial judges were subject to election and the more partisan those elections, the higher the error rate.

The report suggested 10 reforms, including proof beyond any doubt that a defendant committed a capital crime, barring the death penalty for defendants with obvious extenuating circumstances such as for juveniles and the mentally ill.

Other suggestions included making life imprisonment without parole an alternative to death, making all police and prosecution evidence available to the jury, insulating sentencing judges from political pressures and the appointment of competent defense counsel.

For the most part, Liebman said little if any compensation was given to people wrongly sentenced to death.

"In all of these cases, it's a case of wasted lives, time and money," he said.

http://www.law.columbia.edu/news/PressReleases/lieb_summary.html:

A Broken System: Error Rates in Capital Cases, 1973-1995

Columbia Law School

Executive Summary

There is a growing bipartisan consensus that flaws in America’s death-penalty system have reached crisis proportions. Many fear that capital trials put people on death row who don’t belong there. Others say capital appeals take too long. This report—the first statistical study ever undertaken of modern American capital appeals (4,578 of them in state capital cases between 1973 and 1995)—suggests that both claims are correct.

Capital sentences do spend a long time under judicial review. As this study documents, however, judicial review takes so long precisely because American capital sentences are so persistently and systematically fraught with error that seriously undermines their reliability.

Our 23 years worth of results reveal a death penalty system collapsing under the weight of its own mistakes. They reveal a system in which lives and public order are at stake, yet for decades has made more mistakes than we would tolerate in far less important activities. They reveal a system that is wasteful and broken and needs to be addressed.

Our central findings are as follows:

Nationally, during the 23-year study period, the overall rate of prejudicial error in the American capital punishment system was 68%. In other words, courts found serious, reversible error in nearly 7 of every 10 of the thousands of capital sentences that were fully reviewed during the period.

Capital trials produce so many mistakes that it takes three judicial inspections to catch them —leaving grave doubt whether we do catch them all. After state courts threw out 47% of death sentences due to serious flaws, a later federal review found "serious error"—error undermining the reliability of the outcome—in 40% of the remaining sentences.

Because state courts come first and see all the cases, they do most the work of correcting erroneous death sentences. Of the 2,370 death sentences thrown out due to serious error, 90% were overturned by state judges—many of whom were the very judges who imposed the death sentence in the first place; nearly all of whom were directly beholden to the electorate; and none of whom, consequently, were disposed to overturn death sentences except for very good reason. This does not mean that federal review is unnecessary. Precisely because of the huge amounts of serious capital error that state appellate judges are called upon to catch, it is not surprising that a substantial number of the capital judgments they let through to the federal stage are still seriously flawed.

To lead to reversal, error must be serious, indeed. The most common errors—prompting a majority of reversals at the state post-conviction stage—are (1) egregiously incompetent defense lawyers who didn’t even look for—and demonstrably missed—important evidence that the defendant was innocent or did not deserve to die; and (2) police or prosecutors who did discover that kind of evidence but suppressed it, again keeping it from the jury. [Hundreds of examples of these and other serious errors are collected in Appendix C and D to this Report.]

High error rates put many individuals at risk of wrongful execution: 82% of the people whose capital judgments were overturned by state post-conviction courts due to serious error were found to deserve a sentence less than death when the errors were cured on retrial; 7% were found to be innocent of the capital crime.

High error rates persist over time. More than 50% of all cases reviewed were found seriously flawed in 20 of the 23 study years, including 17 of the last 19. In half the years, including the most recent one, the error rate was over 60%.

High error rates exist across the country. Over 90% of American death-sentencing states have overall error rates of 52% or higher. 85% have error rates of 60% or higher. Three-fifths have error rates of 70% or higher.

Illinois (whose governor recently declared a moratorium on executions after a spate of death-row exonerations) does not produce atypically faulty death sentences. The overall rate of serious error found in Illinois capital sentences (66%) is very close to—and slightly lower than—the national average (68%).

Catching so much error takes time—a national average of 9 years from death sentence to the last inspection and execution. By the end of the study period, that average had risen to 10.6 years. In most cases, death row inmates wait for years for the lengthy review procedures needed to uncover all this error. Then, their death sentences are reversed.

This much error, and the time needed to cure it, impose terrible costs on taxpayers, victims’ families, the judicial system, and the wrongly condemned. And it renders unattainable the finality, retribution and deterrence that are the reasons usually given for having a death penalty.

Erroneously trying capital defendants the first time around, operating the multi-tiered inspection process needed to catch the mistakes, warehousing thousands under costly death row conditions in the meantime, and having to try two out of three cases again is irrational.

This report describes the extent of the problem. A subsequent report will examine its causes and their implications for resolving the death penalty crisis.