Exploding the myths about the death penalty in America

Craig Silverman, former Chief Deputy DA for the City and County of Denver, now a criminal defense lawyer and Saturday morning talk radio host, has written a great article on Colorado Governor John Hickenlooper’s mental gyrations about the death penalty in Colorado’s. Dear Governor: Thanks for being more enlightened than the rest of us ridicules Hickenlooper’s seeming inability to think clearly about an important subject, one upon which a governor of a state should be able to state his position with clarity. Silverman uses sarcasm to denounce Hickenlooper for trying to elevate himself morally with his oily evasiveness on the issue, wondering aloud if the death penalty is moral (as if the rest of us haven’t had our own struggles with that) and accusing Bob Beauprez of using Nathan Dunlap’s life as a wedge issue in the governor’s race.

Actually, Hickenlooper was definite in his position on the death penalty when he first ran for governor in 2010.  He was for it.

Much of Silverman’s article is tongue in cheek and satirical. If you’re familiar with Silverman’s unique wit and style it’s not going to be a problem.  But if not, you may take some of what he says the wrong way.  Just know that Silverman supports the death penalty (somewhat unusual for a criminal defense lawyer) but that’s probably got something to do with his prosecutorial background and that he successfully prosecuted several depraved criminals for savage deadly attacks on others.  He sought the death penalty in cases where juries refused.  Colorado juries have never been keen on the death penalty even in the worst cases, even though Coloradans support it 2:1.

One of the best things about Silverman’s article is the many links he provides to other sources for information on the death penalty, and the many myths that have been created and propagated by death penalty opponents.  One of the best is the reference to California Assistant Attorney General Ward A. Campbell’s well researched critique of the Death Penalty Information Center’s exoneration list.  That article is on the Pro-Death Penalty website, which contains volumes of information on the death penalty in America, both current and historical.

Silverman’s article and its many links to other sources offer mountains of information to anyone interested in the death penalty controversy, especially anyone who might be having trouble deciding where they stand on the issue.  Reading all this with an open mind reveals that many myths have been created by death penalty opponents who operate mostly on emotion and not upon empirical evidence, nor on any sense of the abject evil that exists in some human beings  who are best understood as evolutionary mistakes.

For example, the following conclusions can be made with confidence:

Even though some people on death row have had their cases reversed and granted a new trial for errors at their original trial, only a handful have had their conviction and sentence reversed on the grounds of actual innocence.

It’s possible that an innocent person has been put to death at some time in America’s history, but there are few, if any, that have ever been documented to a reasonable certainty. None since the United States Supreme Court overhauled the death penalty in the United States in the 1970s.

The Death Penalty Information Center has created the myth that it’s highly likely innocent people have been executed. But on closer look they have done this by counting as actual innocence cases where a trial verdict has been reversed on various grounds having nothing to do with actual innocence.  Most times when a person on death row gains a new trial it is because of some error at the first trial, not because actual innocence has been established.  Many well publicized cases of actual innocence have been established by DNA evidence, and many innocent persons have spent years or decades in prison for crimes they did not commit. Almost none of them were prisoners on death row.

The changes made in response to the Supreme Court’s ruling in1970 have instituted several procedures that make it unlikely an innocent person will ever get the death penalty. For example, mandatory death sentences have been abolished; capital cases are split into two phases, one to establish whether the defendant is guilty or not guilty, and another to decide upon the sentence; at the sentencing stage mitigating evidence must be allowed (under pre-1970 statutes this evidence was often not allowed); and automatic appellate review of capital conviction and sentence is required.  The hazards of eye-witness identification is a much more developed science and defense lawyers regularly get jury instructions that warn jurors of the unreliability of eye-witness identification of strangers when no corroborating evidence bolsters it.  Probably no one in America receives a death sentence on a conviction based upon eye-witness ID alone.

All the evidence necessary for anyone to reach these conclusions on their own is available at the links in Silverman’s article.