Weighing the Evidence

Book cover
Peculiar Institutionby By David GarlandBelknap/Harvard Univ. Press. 432p $35

As Marcus Lyons approached the arched courthouse entrance in March 1991, it was not his naval uniform that drew attention. It was the eight-foot-long wooden cross he shouldered. Curiosity turned to alarm when Lyons attempted self-crucifixion, raising a hammer and pounding a nail into his foot.

Police saved Lyons. But that did not even begin to set things right. Lyons had left an Illinois prison two weeks before to serve out parole for a rape he did not commit. His life in ruins—a fiancée lost, a good job gone, a reputation shattered—Lyons had mutilated himself in desperate protest.


The protest did not bring immediate justice. Eventually, though, Lyons read about another man’s exoneration through DNA evidence. Lyons contacted the man’s lawyer, who agreed to take on Lyons’s case. In 2007, thanks to DNA testing, Lyons won official exoneration from the state.

In Convicting the Innocent: Where Criminal Prosecutions Go Wrong, Professor Brandon L. Garrett, of the University of Virginia School of Law, insists that the story of Lyons and other DNA exonerees should incite and not reassure, should spur reform rather than engender complacency. The United States should not focus on the DNA evidence that liberated the innocent. It should instead turn its attention to the non-DNA evidence that put the wrong people in jail to begin with.

Most crimes do not yield DNA evidence that will identify the real perpetrator and exclude the falsely accused. Rape will ordinarily do this, but robbery, assault, arson, extortion and murder usually will not. Innocent Americans accused of the latter crimes will, without benefit of the DNA deus ex machina, be at risk for wrongful convictions. The risk arises from the same things that allowed DNA exonerees to be convicted in the first place—sincere but mistaken eyewitness identifications, coerced confessions, shoddy forensic science and scheming informants.

Looking at the 250 people exonerated through DNA as of February 2010, Garrett aimed to determine how often each of these malignant factors had warped the criminal justice process at the expense of an innocent person (and to the benefit of an actual criminal who went unpursued). Garrett tracked down court transcripts and dug into case files. He then sliced, diced, sifted and collated the data.

Some law professors would take a pass on this kind of grunt work. Garrett did not, and our justice system can be the better for it.

Garrett found that eyewitness misidentification helped jail the innocent in 76 percent of the false convictions he analyzed. No surprise. Little tests the presumption of innocence as much as a jury’s inability to distinguish between certainty and accuracy when a victim points at the defendant and tells the jury: “That is the man.” And little tilts the playing field so much as pretrial police steering of an eyewitness; Garrett found that show-ups (one-to-one showing of a suspect to a witness), flawed line-ups and suggestive remarks paved the way to unjust verdicts in most instances of eyewitness misidentification.

Forensic science evidence played a role, usually a pernicious one, in 74 percent of the cases. Sometimes this evidence centered on microscopic hair comparisons, at other times on bite marks, shoe prints, fingerprints or serology. Some errors arose from unreliable methodologies that were high in subjective judgment and low in accepted quantitative standards (like microscopic hair comparison). Other errors derived from testimony and argument overstating the significance of findings reliable in themselves.

Faulty informant testimony infected the proceedings in 21 percent of the cases. In 23 of 52 cases, the informant was a codefendant. In 28, the informant resided in the jail that housed the wrongly accused. This latter situation is spring-loaded for the most egregious miscarriages of justice. As Garrett points out, the unscrupulous jailhouse snitch looking to exchange testimony for a break on his own case will likely do so at the expense of the fellow inmate facing the gravest charges. He understands that the prosecutor will most richly reward the inmate who helps him win the big conviction for capital murder.

In 16 percent of the cases Garrett analyzed, 40 of 250, the wrongly accused himself confessed to a crime he did not commit. Fourteen of these false confessors were mentally retarded, three were mentally ill and 13 were juveniles. Virtually all these people implicated themselves after unusually long interrogations.

Of course, serious diagnosis without recommended treatment leads to despair. So Garrett closes out his book with some very concrete prescriptions. Many of them were presaged a decade ago in the superb book Actual Innocence, by Jim Dwyer (disclosure: a friend), Peter Neufeld and Barry Scheck. Yet each merits renewed consideration by legislators, judges, prosecutors and police authorities. Here is a partial list:

• Police identification procedures should conform to written protocols, and each procedure should be documented contemporaneously. Ideally, officers unfamiliar with the specific investigation should conduct the procedures to prevent influencing witnesses with even unintended clues and cues. Judges should emphatically instruct jurors not to evaluate an identifying witness solely by the person’s certainty and not to imagine that the memory works like a camera.

• Forensic labs should stand independent of law enforcement and submit to external oversight in the form of periodic blind audits. “All examiners should be blind-tested for proficiency. The defense should have access to underlying bench notes and laboratory reports, and to their own defense experts.” Courts should stand guard against junk science.

• Before allowing a jailhouse informant to testify, a trial court should render a threshold judgment of minimal reliability. All police or prosecutor conversations with informants should be recorded; this will ensure full disclosure of deals struck and deter informants’ ascribing to defendants details learned from the police.

• Interrogations should be recorded, as 11 states and the District of Columbia currently require or encourage. Trial courts should scrutinize resultant recordings for hints of coercion or of the police’s feeding a suspect crime details the suspect then weaves into his confession. Minors and the mentally compromised should enjoy special safeguards.

Though Garrett’s prescriptions mostly track specific procedural or systemic infirmities, one category of crime merits its own reform. Garrett would endow the accused capital murderer with extra protections, such as a standard of proof effectively higher than beyond-a-reasonable-doubt.

Garrett does not pretend that any reform will absolutely ensure against the society’s killing the wrong person. That guarantee will come only when we abandon the death penalty.

Which brings us to David Garland’s Peculiar Institution: America’s Death Penalty in an Age of Abolition. Garland, currently a professor of sociology at New York University, scants the problem of capital innocence. This, along with his light treatment of religion, might seem odd initially. Faith and fatal error loom large for death penalty opponents.

Garland, though, has not written a game plan for getting rid of the death penalty. One need not infer too wildly to recognize that Garland would like us to get rid of it. But for now he aims to deepen our understanding of why we still have a death penalty when nations toward whom we feel most kindred do not. In the tradition of de Toqueville, Dickens, Chesterton and Gunnar Myrdal, Garland, who hails from the Scottish Lowlands, casts the discerning eye of the outsider on us. And to compelling result.

With minimal “Oh you Yanks” condescension, Garland identifies the legal, political and cultural factors behind our retaining a punishment left behind by neighbors and friends such as Canada, Mexico, Britain, Italy, France, Spain, Portugal, Austria, Germany, Holland, Belgium, Denmark, Poland, Australia and New Zealand.

The death penalty can survive in the United States because America does not lend itself to centralized, top-down reform, much less to centralized, top-down reform that is contrary to popular sentiment.

In Europe, national parliamentary “elites” imposed abolition from on high. With the possible exception of the Irish, no European citizenry favored abolition before the fact.

In 1972, with the U.S. Supreme Court’s decision in Furman v. Georgia, judicial abolition (a species of top-down reform) seemed imminent, or even accomplished, here. But, as Garland brilliantly recounts, by 1976 a majority of Justices (deciding Gregg v. Georgia, which revived capital punishment) could not—or would not—say no to the 35 state legislatures that had readied new death statutes over the previous 48 months. Thinly disguised racial backlash and calls for “law and order” won out. Roughly a decade later, the victory was solidified in a 5-to-4 decision in McCleskey v. Kemp to ignore powerful statistical evidence of capital discrimination based on the “race of the victim.”

Today, barring fundamental change on the Supreme Court, American abolition will have to occur in our “’hyperdemocratic’” political arenas. This means one state at a time against the backdrop of a criminal justice system driven by local elected officials rather than, as elsewhere, appointed career professionals.

The death penalty survives because in the United States we suffer high homicide rates; because the Deep South underfunds law enforcement; because the death penalty serves as a proxy for states’ rights, itself a proxy for white hegemony; and because the illusion of our collectively controlling death holds some allure for our Thanatos-phobic society. The death penalty “tames death and puts it to work.”

There is another reason the death penalty survives: American consciences rest easy in the notion that capital defendants receive elevated due process. That, however, is a lie, even if Garland, for reasons unknown, abstains from calling it that.

Granted, I have a dog in the fight. Or maybe I have been a dog in the fight, having practiced law on behalf of capital defendants in Alabama and New York. Still, I have no doubt that average citizens would be appalled were they to watch what passes for adequate capital defense in most death jurisdictions. (Only recently have I given up my Prince-and-the-Pauper fantasy of a disguised Chief Justice Roberts slipping into a Death Belt courtroom and comparing the advocacy there to that which he provided moneyed clients when in private practice.)

Even to attempt a halfway reliable capital justice system costs an obscene amount. Garland understates when he pegs at $170 million the cost (prosecutorial, judicial, defense and corrections) of New York’s 12-year effort toward a responsible death penalty. Were the Supreme Court even to begin seriously enforcing the right to counsel throughout the country, budgetary hell would break loose.

Given the current fiscal climate, it might break loose anyway. Garland points out that in many death states the death penalty is far more a symbol and political cudgel than a practice, “a resource for political exchange and cultural consumption” more than “a penal instrument that puts persons to death.”

To be sure, we have executed over 1,200 men and women since 1976. The overall national rate of execution, however, remains low. As of 2007, the lag between conviction and execution ran 12 years on average. Most death rows serve more as warehouses than as hospices or on-deck circles for executions.

As towns and cities lay off police and teachers, it may not be long before non-abolitionists take a more pragmatic look at the death penalty. California maintains the nation’s largest death row. A poll has already found that a 63-percent majority there favor mass commutation as a cost-saving measure.

Ideally, abolition should be a triumph of conscience, not of calculators. It ought to spring from concerns over the human fallibility Brandon Garrett explores or the sanctity of life John Paul II proclaimed. Still, perhaps we are destined to emulate our European cousins and condemn the death penalty only after we are free of it.

Comments are automatically closed two weeks after an article's initial publication. See our comments policy for more.
james belna
7 years ago

I doubt that Kevin Doyle will ever respond to this question, but to all of you who agree with him that we ought to abolish capital punishment, feel free to give your own answer. In Californina alone, there are more than 38,000 inmates who are serving life sentences, most of whom have little or no prospect of ever being paroled. If California were to get rid of the death penalty, then any murders that any of these lifer inmates might choose to commit would go completely unpunished. They would literally have a license to kill guards and fellow inmates, or to direct the killing of anyone on the outside, without having to face any consequence whatsoever, except for a purely symbolic second (or third or fourth) life sentence. How can a system of justice which explicitly permits convicted killers to keep killing over and over again without even the theoretical threat of punishment be consistent with the sanctity of life?

Christopher Mulcahy
7 years ago

Some questions on the death penalty:

Why can not one single solitary case can be cited, in modern times, of an innocent being executed?  Not one time, where subsequent evidence established innocence by the admission of the parties involved and law enforcement?  Even convictions subsequently overturned have very infrequently established innocence, only procedural irregularities or (often questionable) mitigating circumstances.

Should perfection be the standard in this matter?  While thousands of innocents (victims) die at the hands of criminals, do we require celestial perfection in the courtroom?

Should the question of the death penalty be determined in the context of the most peaceful, law-abiding culture in the history of the universe (thanks to the 101st airborne and friends)?  Might one not be wise to contemplate other cultural circumstances, such as, say, a period when terrorists seize busloads of schoolchildren for ransom, or attempt to poison the water supply of a big city, or some such?  Could evil men do such things in our time?  What would our responsibilities be then?

Christopher Mulcahy
7 years ago

Tim, I refer the readers to the New Yorker story as well.   The final sentence reads: “There is a chance, however, that Texas could become the first state to acknowledge officially that, since the advent of the modern judicial system, it had carried out the ‘execution of a legally and factually innocent person.’” (p. 17)  I suggest this sentence implies no such execution has occurred hitherto.  It also testifies to the willingness of the State of Texas to review its actions.

I quote further (p. 9) In his opinion, (Supreme Court Justice Anton) Scalia declared that, in the modern judicial system, there has not been “a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops.”


But my real point, Tim, is not that the system is perfect.  We all implicitly understand that the risk of adverse legal action is with us continuously in this life. Unfortunately, injustice is done in American courtrooms every day.  The issue is this: what are the appropriate punishments for crime in our culture, a culture that celebrates individual dignity and therefore freedom and responsibility like no other culture on this planet? We have no internal passports.  We enjoy freedom of movement and, indeed, freedom to change our residence to any state or town.  To own property of all kinds.  To possess firearms.  We are a people dedicated to freedom.  With freedom, I argue, comes a terrible responsibility. A magnificent responsibility.  A life and death responsibility. 

Let’s skip the anecdotal narratives and focus clearly on the central issue.

Vince Killoran
7 years ago
Chris' argument isn't compelling, at least not to me.

I have no idea what he means when he claims that "With freedom, I argue, comes a terrible responsibility." This is just raw self-assertion on his part.

Assuming that we are so exceptional that we have more "freedom" than other countries why would that cause us to conclude that we must, therefore, have a death penalty? What purpose does it serve?  Certainly not as a deterrent. Perhaps as a form of raw revenge or retribution?  As Christians we must reject this.  Mario Cuomo stumped a death penalty supporter years ago by asking why, if it's okay to execute murderers for the crime of murder why we don't rape people for the heinous crime of rape. 

As for cases of the innocent being executed please see the Death Penalty Information Center's webpage (http://www.deathpenaltyinfo.org/executed-possibly-innocent). They offer the common sense observation that "Courts do not generally entertain claims of innocence when the defendant is dead. Defense attorneys move on to other cases where clients' lives can still be saved." 
Jim Lein
7 years ago
I read this review after just watching the old Henry Fonda movie on TV, "Let Us Live."  It centered around eyewitness misidentification and the Fonda character and another man almost being electrocuted for a crime they didn't commit.  We haven't come far from 1939, when the movie was made.  

I'm shocked - shocked - by some of the unchristian calls for revenge and punishment, including killing.  Good point, though, by Vince on courts not entertaining claims of innocence for deceased persons.  Unfortunately, Mario Cuomo is wrong; we do rape people for the crime of rape - by proxy.  There have been a number of DAs in the news, warning accused rapists that they will be raped daily in prison.  I was surprised these attorneys weren't censored for approving of and inciting crime in prison.    
C Walter Mattingly
7 years ago
Vince writes of the death penalty, "What purpose does it serve? Certainly not as a deterrent." That is the question. Deterrence is really the only justification I can see, but Vince's assertion that it is "certainly not...a deterrent" is raw assertion on his part. The issue is by no means decided one way or the other, but a study that cites the increase in the murder rate per million during the years of the abolition of the death penalty in the US and the several years following the Supreme Court striking down the abolition of the death penalty (it took 6 years for Texas to reinstate the death penatly after it was again permitted) compared to what went before can't be discounted. It may well be a deterrent, and a substantial one at that. It seems the jury is still out on that one.
There is  truth to Garland's argument that the death penalty is more of a threat hanging over the head of a would-be murderer than anything else. New Hampshire, for example, has the death penalty and I believe the second lowest murder rate of all states, but it hasn't executed anyone since the 70's. New Mexico, on the other hand, has no death penatly and the second highest murder rate of all states in a recent year. 
Vince Killoran
7 years ago
Let's be clear about one thing-criminal justice scholars are universal on one point regarding the death peanalty: it is NOT a deterrant.
C Walter Mattingly
7 years ago
Check out "Does Death Penatly Save Lives? A New Debate," NYTimes, Nov 18, 2007. It cites a dozen recent studies that purport to demonstrate it is a deterrent, with scholars from Harvard, Stanford, LSU, Emory, and others in concordance. This issue has been a political football for decades. The Supreme Court (Justice Potter for majority) said it was a deterrent in 1976, then studies tended to run toward no deterrence, now it is swinging again. In any case, it is quite clear that the issue is anything but settled.
Vince Killoran
7 years ago
I am quite familar with that NYT article but you will note that I wrote that criminal justice scholars have concluded time & again that it doesn't save lives.  Recently some scholars have argued that it does-they are economist working from models, not the real world.

The NYT notes that these studies "have been the subject of sharp criticism, much of it from legal scholars who say that the theories of economists do not apply to the violent world of crime and punishment. Critics of the studies say they are based on faulty premises, insufficient data and flawed methodologies."

David Garland concludes in his new study of the death penalty in the U.S. that "despite periodic claims that correlations have been discovered between death penalty use and homicide rate declines, the settled view of most experts is that there is not persuasive empirical evidence to show that the deterrent effect of the death penalty for murder is any-or is not-more effective than life imprisonement."  [PECULIAR INSTITUTION: AMERICA'S DEATH PEANALTY IN AN AGE OF ABOLITION (Harvard U. Press, 2010), p. 318]
7 years ago

Thanks for taking the time to read my review, folks. Let me response to Jim B. and Chris M.

Jim, I cannot think of any American jurisdiction that imposes the death penalty only on Lifer prisoners who kill. The overwhelming majority of executions are carried out against persons convicted for crimes committed out in society; so it is really these executions you need to justify.

Beyond that, Lifers are famously well-behaved, in general, for the prison authorities have god-like control over the rest of there existence. This is something even Robert Blecker, academia’s foremost death penalty proponent, concedes. 

Understand the ability of prisons to make the Lifer’s world a bit more livable; the well-behaved Lifer can have a job in the prison and go out into an exercise yard with other inmates. Likewise, understand that prisons can rachet up confinement conditions both in terms of incapacitation and plain old punishment. Prisons can take the nonconforming Lifer and isolate him. They can deprive him of all human contact, reduce his life to a small cell 23 hours a day (with one hour out for quarantined exercise) and even put him on The Loaf: a tasteless, textureless bread that meets all nutritional needs without imparting any of the pleasure or satisfaction of eating.

Last, Jim, if you are right, you should be able to produce statistics showing that homicidal behavior among Lifer prisoners in death penalty states is lower than in abolitionist states.

Chris, you have me confused. You question whether there has been a single wrongful execution in the modern era and then, when Tim Reidy points to a case, you suggest we "skip the anecdotal narratives." If you are serious about exploring the question of wrongful (i.e. guy did not commit the crime) executions in the modern era, you should read the law review piece at

If you do not wish to read the whole piece, use the search function to get to "rooftops," and read from that paragraph to the end.

Be warned, Chris.  An honest look at the problem of wrongful convictions might scare you. Once you get beyond the callous and logically-flawed assurances of Justice Scalia (which are debunked in the piece I have recommended to you), you will discover just how often lives are turned into nightmares because of mistakes by police, prosecutors, judges, and juries. Don’t worry too much, however. Wrongful convictions are not wholly random; race, class, and education skew the odds heavily. Guys who blog about the "appropriate punishments for crimes in our culture" and celebrate our lack of "internal passports" are at much lower risk.

Christopher Mulcahy
7 years ago
First, no one has addressed my criticism of your criticism of capital punishment on the grounds it must be available in case of epic crime against a civic population.

Second, it is shocking that anyone would originate an expression such as "unchristian calls for revenge and punishment".  Revenge and punishment are one of the primary functions of the state and one of the stellar achievements of civilized nations.  It is precisely revenge and punishment by the state, under the carefully controlled and passionless supervision of (presumably Christian) professionals, that precludes individual violence by you and me.  Ignorance of this principle is a sad characteristic of the irresponsible liberal left.  Are we to revert to barbarism?  Please!

How can the deterrent effect of capital punishment be evaluated when it is rarely practiced?  Almost no state really has capital punishment. I see pretend capital punishment, though.  And Texas, sometimes.

Do America's readers have absolutely no respect for the Western traditions/American traditions of personal responsibility and, yes, punishment and, yes, capital punishment?  Are we all babyboomers who pretend no one came before us?  Or if they did they were benighted ignoramuses?  (Don't trust anyone over 30?)

No one addresses proportionality?  Perfection?  You demand perfection in the courtroom?  No mistakes, ever?  Really?  What planet is this?

No quotes from Popes?  Saints? Philosophers?  We just wing it?

Final thought:  Jesus suffered capital punishment, between two thieves.  Don't recall his comment on the fate of the thieves.  Did he support capital punishment in principle?

C Walter Mattingly
7 years ago
Vince, I have no argument with the statement that there is no definitive evidence that capital punishment deters premeditated murder. Nor is there definitive evidence that captial punishment does not deter premeditated murder. Evidence has been collected on both sides for decades, but the issue remains unsettled.
james belna
7 years ago

Here is a completely fair and honest statement of the abolitionist position on capital punishment: “The state must guarantee the right of a criminal to kill as many innocent people as he wants, in as cruel and sadistic manner as he may choose, without having to face even the theoretical possibility that he will place his own life at risk. In fact, he can keep killing innocent victims over and over and over again, and we will never so much as harm a hair on his head.”

Most people who want to abolish the death penalty are also passionate advocates of unrestricted abortion rights. This is no surprise; after all, they are maintaining a rigorous moral consistency. Here is a completely fair and honest statement of the pro-choice position on abortion: “The state must guarantee the right of a mother to kill her own unborn fetus, even choosing the skull-crushing partial-birth method, without having to face even the slightest possibility that she will be stigmatized in any way. In fact, she can keep aborting her innocent unborn over and over and over again, and we will never so much as raise an eyebrow in disapproval.”

These people (and there are many of them) who are against the death penalty and for abortion rights are not moral monsters. If anything, they are extraordinarily empathetic souls. They literally cannot bear the thought that the state might put anyone to death, even an unquestionably guilty and unrepentant killer. Similarly, they cannot bear the thought that a woman might be compelled to endure an unwanted pregnancy. In each case, they have generously manifested their compassion.

However, compassion is only a virtue to the extent that they are ordered to justice. We can and sometimes do grant clemency to convicts who have been sentenced to death, but genuine mercy presupposes the right to punish willful murderers. There is nothing compassionate about a justice system that refuses to even prescribe any punishment for murder, just as there is nothing compassionate about unrestricted abortion rights.



Vince Killoran
7 years ago
"Evidence has been collected on both sides for decades, but the issue remains unsettled."

Well, it's not exactly a draw given the weight of the evidence that it does not deter.  Still, since the supporters argue for the death penalty  they must supply the reasons why we need it & it is just as well as the proof.
C Walter Mattingly
7 years ago
Well stated.
You have a point, and while it is true that opinion on deterrence, which has gone back and forth, with the current weight of opinion on the nondeterrence side but moving toward the deterrence side, we all have to look at the evidence. To me the most powerful and compelling evidence is to examine the effect on murders per million and compare the trend during the 4 year stretch and the ensuing several years when capital punishment was effectively banned in the US with the periods before and after. And to change an existing law established by the Supreme Court, the weight of evidence resides upon those who wish to effect the change.
A relevant aside. Years ago I briefly taught poetry in a maximum security prison to murderers and violent offenders and got a glimpse of life there. The most common alternative to the death sentences for the kinds of horrific murders they apply to is a life sentence with no chance of parole. In effect, lock them up in the dungeon and throw away the key. I honestly believe that may be a more of a cruel and unusual punishment than death by injection.  


The latest from america

Musician Billy Joel performs during his 100th lifetime performance at Madison Square Garden on Wednesday, July 18, 2018, in New York. (Photo by Evan Agostini/Invision/AP)
Steven Hyden says he is not a religious person, but he is fervently devoted to the music that he grew up with.
Maurice Timothy ReidyAugust 14, 2018
A much-needed biography of Paul Hanly Furfey (1896-1992): priest, sociologist and urban revolutionary theorist.
Jack DowneyAugust 10, 2018
What happened to Egypt's popular uprising?
Ryan RichardsonAugust 10, 2018
A memoir that includes historical analysis as well as biographical narrative tells the tale of four Mexican-Americans unsure if they belong any longer in their adopted country.
Vivian CabreraAugust 09, 2018