Editor’s Comment: A Little Death Penalty Math – By Greg Westfall

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I watch presidential debates for the same reason I suspect some others watch NASCAR races—to see the crashes. And so it was as I settled in to watch the September 7, 2011, debate between the current Republican presidential hopefuls moderated by Brian Williams. I knew, of course, that unless he backed out or otherwise refused, Rick Perry would be in this debate, so I thought my chances were good. I had not been watching for long when this exchange occurred:

williams: Governor Perry, a question about Texas. Your state has executed 234 death row inmates, more than any other governor in modern times. Have you . . .

[Interrupted by vigorous applause from the audience]

Have you struggled to sleep at night with the idea that any one of those might have been innocent?

perry: No, sir. I’ve never struggled with that at all. The state of Texas has a very thoughtful, a very clear process in place of which—when someone commits the most heinous of crimes against our citizens, they get a fair hearing, they go through an appellate process, they go up to the Supreme Court of the United States, if that’s required. But in the state of Texas, if you come into our state and you kill one of our children, you kill a police officer, you’re involved with another crime and you kill one of our citizens, you will face the ultimate justice in the state of Texas, and that is, you will be executed.

williams: What do you make of . . .

[Interrupted again by applause from the audience]

What do you make of that dynamic that just happened here, the mention of the execution of 234 people drew applause?

perry: I think Americans understand justice. I think Americans are clearly, in the vast majority of—of cases, supportive of capital punishment. When you have committed heinous crimes against our citizens—and it’s a state-by-state issue, but in the state of Texas, our citizens have made that decision, and they made it clear, and they don’t want you to commit those crimes against our citizens. And if you do, you will face the ultimate justice.

http://historymusings.wordpress.com/2011/09/07/campaign-buzz-september-7-2011-full-text-transcript-republican-presidential-debate-ronald-reagan-library-rick-perry-mitt-romney-steal-show/

While I wasn’t just floored—after all, you have to consider the audience might not perfectly represent the public at large—I was a little taken aback. I mean, Perry just about got a standing ovation for essentially proclaiming that capital punishment—of which he shares ultimate administrative control—does not even appear on his moral radar. Never has he questioned a decision he has made. And he’s proud of it. And a lot of people in the audience agreed.

Intrigued as I was baffled and slightly nauseous, I started to look around for the real state of opinions about the death penalty today. Along the way, I found some interesting data.

A Gallup Poll from October 2010 of 1,025 adults nationwide found 64% favored the death penalty for a person convicted of murder, 29% opposed, and 6% were unsure (for some reason, this all adds up to 99%). Sixty-four% support for capital punishment is the lowest level ever demonstrated in the poll, although it has gone that low several times since 1991, when the poll was first conducted. At the other extreme, the level of support has gone as high as 80%. (All of these polls may be viewed at http://www.pollingreport.com/crime.htm and have margins of between 4% and 5%.)

A question Gallup didn’t ask in 2010 (but had asked in 2003, 2005, 2006, and 2009) was:

“How often do you think that a person has been executed under the death penalty who was, in fact, innocent of the crime he or she was charged with? Do you think this has happened in the past five years, or not?”

In 2009, 59% believe that it indeed had. In years past, the%age believing we had executed an innocent man has run as high as 73%.

Thus, the numbers shake out like this: As of last October, 64% of Americans favor the death penalty. At the same time, and using data from 2009, 59% of Americans believe we have executed an innocent man in the last five years. Now. Let’s do some math.

If we take 1,000 people (a valid sample for polling purposes), we can assume that roughly 640 (64%) will support the death penalty. In those same thousand people will be 590 (59%) who believe we have executed an innocent person in the last five years. The question is to what extent these two populations overlap, thus giving us people who (1) believe in the death penalty, and (2) believe we have executed an innocent man in the last five years. The populations would look like this:

(a)640 (64%) of people are for the death penalty, 360 (36%) of people are against or unsure;

(b)590 (59%) of people believe we have killed an innocent person in last 5 years.

Let’s assume that concern about killing an innocent person actually caused the 360 people who do not support the death penalty to be against it or unsure. Then, subtract all of them from the 590 who believe we have executed an innocent in the last five years. That would leave 230 people who support the death penalty while at the same time believing that we have executed an innocent person within the last 5 years.

Folks, that’s 23% of our population. Nearly one juror in four begins from the position of believing that our capital punishment system kills innocent people but doesn’t care.

That should give us something to talk about in voir dire.

TCDLA
TCDLA
Greg Westfall
Greg Westfall
Greg Westfall graduated in 1993 from Texas Tech School of Law, where he was Editor-in-Chief of the Law Review. Board certified in Criminal Law since 2000, Greg practices criminal and civil trial law at Westfall Sellers in Fort Worth, Texas. Greg has regularly published and spoken at seminars since 1994 and has served as Editor of the Voice for the Defense. Greg is married to Mollee Westfall and has two children. Greg can be reached at .

Greg Westfall graduated in 1993 from Texas Tech School of Law, where he was Editor-in-Chief of the Law Review. Board certified in Criminal Law since 2000, Greg practices criminal and civil trial law at Westfall Sellers in Fort Worth, Texas. Greg has regularly published and spoken at seminars since 1994 and has served as Editor of the Voice for the Defense. Greg is married to Mollee Westfall and has two children. Greg can be reached at .

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