By Brian P. Janiskee, Edward J. Erler Posted July 9, 2000

Anti-death penalty hysteria has gripped the nation. Alas, this hysteria is fueled by fraudulent statistical studies and a misplaced sense of fairness. It's time for cooler heads to prevail.

One of the biggest headline-grabbers of late is a study by James S. Liebman and his associates at Columbia Law School. Trumpeted on front pages and newscasts across the country, the study alleges that nearly two-thirds of all death sentences are overturned because of "serious, reversible error." Liebman and company conclude that the death penalty system is "collapsing under the weight of its own mistakes."

Is it? In fact, Liebman's study doesn't document a single instance where an innocent victim was executed. It does, however, leave readers with the suspicion that our legal system is so flawed that mistaken executions are commonplace.

The vast majority of the "serious" and "reversible" errors Liebman claims to unearth are based mostly on "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."

But there is less here than meets the eye. In most cases, defense lawyers couldn't persuade juries that their clients didn't deserve to die. Innocence had nothing to do with it.

The fact is that the legal system is stacked heavily against the death penalty. The U.S. Supreme Court has set strict due process requirements that make it very difficult to impose capital punishment. Less than 5% of those convicted of capital crimes are executed.

Time and again, the high court has said that states must have well-defined standards that limit the discretion of judges and juries to impose the death penalty. But there can be no limits on the discretion not to impose the death penalty.

What about reports of "egregious incompetence" among defense attorneys? That depends on what an appeals court says incompetence is.

During the Rose Bird era, the California Supreme Court fashioned a simple definition of competence: any defendant who received the death penalty had an incompetent defense!

In one case, the Bird Court found a counsel incompetent because he didn't accept his client's suggestion for mounting an impossibly flawed defense. In another, a lawyer was declared incompetent by the court because he did accept his client's suggestion on the theory that the defendant has a right to participate in his own defense.

Liebman counts these frivolous decisions among the "reversible errors" that prevented a miscarriage of justice. But the fact that the Bird Court reversed almost every death sentence on such contrived grounds should exclude them from any valid statistical study.

Which leads to the two fatal flaws of Liebman's study: its statistical sample and its method. In calculating the reversal rate, the study includes any reversal of a death sentence, even if that sentence was later restored by the courts.

In some instances, courts send cases back to trial courts for consideration of some procedural issue but later uphold the death sentence. Liebman counts these as "serious errors." That's why the actual error rate in capital cases is certainly far lower than the Liebman study indicates.

Look again at California. The state supreme court twice declared the death penalty unconstitutional, and vacated the death sentences of scores of felons. On each occasion, these sentences were commuted to life in prison. These, too, Leibman calculates into the error rate.

One of those who was spared by the Bird Court was Charles Manson. No one has ever argued that Manson was innocent or that his trial was so flawed as to constitute a miscarriage of justice. No one, that is, except for Liebman — who considers Manson's commutation to be evidence of "serious, reversible error."

We are told that the prospect that even one innocent victim might be wrongly executed is enough to abolish the death penalty — or at least to impose a moratorium until a more reliable system can be constructed. But no reasonable person could argue that Charles Manson's commutation is evidence of a system that has put "lives and public order" in serious jeopardy.