Serious Error with “Serious Error”: Repairing A Broken System of Capital Punishment

Washington University Law Review Volume 79 Issue 3 January 2001 Serious Error with “Serious Error”: Repairing A Broken System of Capital Punishment Adam L. VanGrack Washington University School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Recommended Citation Adam L. VanGrack, Serious Error with “Serious Error”: Repairing A Broken System of Capital Punishment, 79 WASH. U. L. Q. 973 (2001). Available at: https://openscholarship.wustl.edu/law_lawreview/vol79/iss3/7 This Note is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact . SERIOUS ERROR WITH “SERIOUS ERROR”: REPAIRING A BROKEN SYSTEM OF CAPITAL PUNISHMENT I. INTRODUCTION Six days following Professor James Liebman and his colleagues’ release of the study A Broken System: Error Rates in Capital Cases, 19731995 (the “Liebman Study”),1 Washington Post columnist David Broder wrote: In the annals of politics, there have been few pieces of social research which have decisively affected the course of policy debate. Michael Harrington’s “The Other America”2 opened the eyes of the nation—and of Presidents Kennedy and Johnson—to the extent of poverty in this nation. Daniel Patrick Moynihan’s essay on “The Negro Family” 3 alerted President Richard Nixon and his successors to the plight of female -headed welfare families. Now, there may be a third. James S. Liebman’s just-published report, “A Broken System: Error Rates in Capital Cases 19731995,” 4 transforms the debate on the death penalty as much as those earlier works did the understanding of poverty and welfare in America.5 This Note is written as a warning to Mr. Broder and those who have read and will read the Liebman Study. Although the study tracks “serious error”6 found throughout capital cases in the U.S. judicial system, the study contains serious error itself. This Note does not claim that Professor Liebman and his colleagues’ conclusions are incorrect. It may be true that 1. James S. Liebman, Jeffery Fagan, & Valerie West, A Broken System: Error Rates in Capital Cases, 1973-1995, (June 12, 2000), at http://justice.policy.net/jpreport/index.html [hereinafter Liebman Study], reprinted in James S. Liebman, Jeffery Fagan, Valerie West, & Jonathan Lloyd, Capital Attrition: Error Rates in Capital Cases, 1973-1995, 78 TEX. L. REV. 1839 (2000) (abridged version of the original) [hereinafter Capital Attrition]. 2. MICHAEL HARRINGTON , T HE OTHER AMERICA : P OVERTY IN THE UNITED STATES (1962). 3. OFFICE OF POLICY PLANNING & RESEARCH , U.S. DEP’ T OF LABOR, THE NEGRO FAMILY: THE CASE FOR NATIONAL ACTION (1965). 4. Liebman Study, supra note 1. 5. David Broder, Editorial, Broken Justice, WASH . POST, June 18, 2000, at B7 (emphasis and notes added). 6. “Serious error” as referenced in this Note refers to “serious error” as defined by the Liebman Study. See Liebman Study, supra note 1, at 134-37 nn.33-40. For a discussion of “serious error,” as defined by the Liebman Study, see infra Part IV.B. 973 Washington University Open Scholarship p973 Vangrack.doc 974 WASHINGTON UNIVERSITY LAW QUARTERLY 2/28/2002 5:11 PM [VOL. 79:973 the U.S. capital punishment system is wrought with “serious error,” 7 in need of serious reform,8 and “broken.”9 However, such conclusions are not supported by the data found in the Liebman Study or the analysis conducted within it.10 As policy makers and legal experts begin to use the conclusions of the Liebman Study as part of their decision-making process,11 those who analyze the study must assure the public that the study’s conclusions are properly supported. This Note specifically addresses the degree of significance that policy makers, legal experts, and the general public can place on the conclusive findings of the Liebman Study. Although the Liebman Study attempts to determine whether the U.S. capital punishment system is “broken,” 12 in the course of their study, the authors execute procedures that cast doubt upon the validity of their conclusions. Their data is unavailable for peer review;13 certain important parts of the study are left out from the analysis; 14 key variables are vaguely defined; 15 and the authors make unsupported assumptions about the meaning of certain variables.16 This Note assesses the validity of the Liebman Study’s conclusions and the significance of its results. Part II of this Note provides both a general background of the recent history of capital punishment and an overview of certain aspects of social scientific research. Part III of this Note discusses the history, findings, and recent impact of the Liebman Study. Part IV of this Note examines the data, analysis, and process of the Liebman Study. Part V of this Note discusses the proper methodology and data analysis that the Liebman Study’s authors could have utilized to successfully support the study’s conclusions. 7. Liebman Study, supra note 1, at 134-37 nn.33-40. 8. Id. at 121-24. 9. Id. For a discussion of the Liebman Study and its conclusions, see infra Parts III-IV. 10. See discussion infra Parts IV-V. 11. See infra notes 85-88 and accompanying discussion. 12. Liebman Study, supra note 1, at 121-24. 13. See Ronald Eisenberg, Prosecutor Comments on Latzer and Cauthen, P ROSECUTOR, Jan./Feb. 2001, at 16, 16 (noting that Professor Liebman and his colleagues’ “refusal to share underlying data with researchers” and how such actions are “particularly troubling”). Further, the information on the variables within the study is too vague for a reader to assess the distinct data collection and selection procedure of Professor Liebman and his colleagues. See, e.g., Liebman Study, supra note 1, at 134-37 nn.33-40. 14. See, e.g., Liebman Study, supra note 1, at 64, 68, 80 (discarding the use of Virginia in the study’s state-by-state analysis because it does not support their theory). 15. See, e.g., id. at 134-37 nn.33-40 (describing the study’s definition of “serious error”). 16. See discussion infra Part IV.B.2 (discussing how high rates of capital “serious error,” as defined by the Liebman Study, are not an indication, as the study claims, of a broken system). https://openscholarship.wustl.edu/law_lawreview/vol79/iss3/7 p973 Vangrack.doc 2001] 2/28/2002 5:11 PM SERIOUS ERROR WITH “SERIOUS ERROR ” 975 II. GENERAL BACKGROUND A. Recent Historical Background of Capital Punishment17 During the twenty-three year span of the data utilized within the Liebman Study, from 1973 to 1995,18 many legal events occurred that dramatically altered the state of the U.S. capital punishment system. 19 Just one year before the study’s data range began, the Supreme Court found the death penalty, as applied by the states, unconstitutional as “cruel and unusual punishment” under the Eighth Amendment (...truncated)