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IV.   Implications of Central Findings

To help appreciate these findings, consider a scenario that might unfold immediately after any death sentence is imposed in the U.S. Suppose the defendant, or a relative of the victim, asks a lawyer or the judge, "What now?"

Based on almost a quarter century of experience in thousands of cases in 28 death-sentencing states in the U.S. between 1973 and 1995, a responsible answer would be: "The capital conviction or sentence will probably be overturned due to serious error. It'll take nine or ten years to find out, given how many other capital cases being reviewed for likely error are lined up ahead of this one. If the judgment is overturned, a lesser conviction or sentence will probably be imposed."73

As anyone hearing this answer would probably conclude as a matter of sheer common sense, all this error, and all the time needed to expose it, are extremely burdensome and costly:

  • Capital trials and sentences cost more than noncapital ones.74 Each time they have to be done over-as happens 68% of the time-that difference grows exponentially.

  • The error-detection system all this capital error requires is itself a huge expense-apparently millions of dollars per case.75

  • Many of the resources currently consumed by the capital system are not helping the public, or victims,76 obtain the valid death sentences for egregious offenses that a majority support. Given that nearly 7 in 10 capital judgments have proven to be seriously flawed, and given that 4 out of 5 capital cases in which serious error is found turn out on retrial to be more appropriately handled as non-capital cases (and in a sizeable number of instances, as non-murder or even non-criminal cases),77 it is hard to escape the conclusion that large amounts of resources are being wasted on cases that should never have been capital in the first place.

  • Public faith in the courts and the criminal justice system is another casualty of high capital error rates.78 When most capital-sentencing jurisdictions carry out fewer than 6% of the death sentences they impose,79 and when the nation as a whole never executes more than 2.6% of its death population in a year,80 the retributive and deterrent credibility of the death penalty is low.

  • When condemned inmates turn out to be innocent81 —an error that is different in its consequences, but is not evidently different in its causes, from the other serious error discussed here82 —there is no accounting for the cost: to the wrongly convicted;83 to the family of the victim, whose search for justice and closure has been in vain; to later victims whose lives are threatened-and even taken-because the real killers remain at large;84 to the public's confidence in law and legal institutions; and to the wrongly executed, should justice miscarry at trial, and should reviewing judges, harried by the amount of error they are asked to catch, miss one.85

If what were at issue here was the fabrication of toasters (to return to our prior example), or the processing of social security claims, or the pre-takeoff inspection of commercial aircraft-or the conduct of any other private- or public-sector activity-neither the consuming and the taxpaying public, nor managers and investors, would for a moment tolerate the error-rates and attendant costs that dozens of states and the nation as a whole have tolerated in their capital punishment system for decades. Any system with this much error and expense would be halted immediately, examined, and either reformed or scrapped.

The question this Report poses to taxpayers, public managers and policymakers, is whether that same response is warranted here, when what is at issue is not the content and quality of tomorrow's breakfast, but whether society has a swift and sure response to murder, and whether thousands of men and women condemned for that crime in fact deserve to die.

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The remainder of this Report more fully describes our findings. Part V describes the review process for capital sentences. Part VI describes our study methodology. Parts VII, VIII and IX more thoroughly document and display our findings about the frequency with which reversible error is found in capital judgments in the United States between 1973 and 1995, and the time taken to find those errors. Part VII examines relevant factors at the national level. Part VIII does so using comparative analyses of the 28 capital-sentencing states in which at least one case had advanced through the entire post-sentence inspection process. And Part IX does the same thing, comparing the 8 federal judicial circuits and corresponding regions into which they are divided. After presenting a variety of information, Parts VII, VIII and IX preliminarily address the potential causes of so much error in capital sentencing. Finally, Part X briefly describes the more sophisticated analyses we will undertake in the next phase of our study (to be published in the Fall) to set the stage for proposed reforms.

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