By Brian P. Janiskee, Edward J. Erler Posted July 31, 2000

The death penalty is serious business. A vast majority of Americans support it, and always have, because they know it serves as both deterrent and the ultimate form of justice for the worst criminals. It goes without saying that no one would want an innocent man or woman put to death. This is why an elaborate appeals system is in place to make sure mistakes are not made. A new disinformation campaign is out to prove otherwise, as death penalty opponents have seized on dubious research to make their case.

One study in particular, by James Liebman, Jeffrey Fagan, and Valerie West of Columbia Law School, made national news. Reporters, editorial writers and activists seized on the study's shocking assertion that nearly two-thirds of all death sentences are overturned because of "serious, reversible error."

As it turns out, that assertion is flat out wrong. We exposed the deceptive logic and invalid statistical sampling techniques in the Liebman study in an article published in Investor's Business Daily on July 19.

Evidently, we struck a nerve.

In a letter to the editor published just two days after our piece appeared, Liebman, Fagan, and West accused us of engaging in "reckless falsehoods" and challenged us to answer the following question: "Should taxpayers continue to invest millions of dollars in a system that for decades has produced more than two death verdicts that have to be scrapped for every one that passes inspection?"

Here again, Liebman and company are distorting the issue. The current debate over capital punishment is not about guilt or innocence or about whether criminals have received the death penalty justly or unjustly. The United States Supreme Court has stacked the deck against death sentences and provided many technical loopholes. Liebman, et. al., would have us believe that every death sentence overturned on the basis of these technicalities shows that the system is "collapsing under the weight of its own mistakes." On the contrary, the success of "super due process" in a significant number of cases indicates that death sentences are carefully scrutinized and that the likelihood of an innocent person being put to death is virtually zero.

Liebman, et al., try to discredit us by asserting they did not use "sampling techniques." Their study indicts "the reliability" of the "death penalty system as a whole." Yet they limit their data set to the years 1973-1995, and include only those cases that have been "fully reviewed." This is clearly a sample and would be understood as such by any competent statistician.

Liebman, et al., claim that they do not count as "serious error" any case in which the death sentence is ultimately upheld. But several commentators — most notably University of Utah law professor Paul Cassell — have also identified a number of such cases in the Liebman study.

For example, Liebman and his cohorts are utterly ambiguous about dates they used from California in their study. They present conflicting information about the year in which the California study begins — in some places indicating 1973 and in others 1976. At one point, the authors claim that the study begins in 1976 "after California had a valid [death penalty] statute."

Why 1976? California enacted its current death penalty law in 1977 (strengthened by the "Briggs Initiative," which expanded the number of death-penalty eligible crimes in 1978). It was upheld by the California Supreme Court only in 1980. After 1980, however, the Rose Bird Court steadfastly refused to uphold death sentences, manufacturing a variety of guises to subvert the law. In any case, the Liebman study stops at 1995. Because of the excessive length of the appeals process most of the cases included in the study were Bird Court reversals.

In recent years, however, California's Supreme Court has affirmed over 80% of death penalty cases. Thus the focus on earlier years skews the sample egregiously. As Berkeley law professor and death-penalty critic Franklin Zimring has noted, the Liebman study "is more out of date for California than for any other state because we had such a wild swing in state court affirmances."

Liebman et al. maintain that the super due process requirements are expensive. But, of course, justice is not the province of cost accountants. If due-process considerations invalidate death sentences, we ought not to take this as a failure of the system but as a cautious application of a penalty that is extreme in its finality.

Perhaps Liebman and his cohorts would never admit the justice of the death penalty, but their attempt to cast the system as arbitrary is almost as reckless as their method of statistical analysis.