Literature Review - Saint Mary's College



Sentenced to Death:

Demographic Characteristics of Exonerated Individuals

By Emily Romano

Abstract

This purpose of this paper is to analyze the patterns in the American judicial system with regard to exonerated individual. Specifically, the paper examines the gender, race, age, class, year of conviction, and year of dismissal of those who have been exonerated. The study included 83 exonerated individual. It found that the majority of those exonerated did not come from Southern states compared to the number of convictions from those states. Also, the majority of those exonerated are white, while that largest numbers of convictions were of minorities.

The Death Penalty Information Center (DPIC) states that the first documented case of execution in what is now the United States was in the new colonies in 1608 when Captain George Kendall was hung for an undocumented crime. In the United States, the debate over the death penalty is as old as the death penalty itself. Overtime, the debate over the death penalty had led to changing requirements for the utilization of the death penalty. Merritt (2005) notes that in the 17th century prisoners were publicly burned at the stake for witchcraft, blasphemy, and other socially defined crimes. In the 18th and 19th centuries individuals were hung publicly for crimes such as horse stealing, sodomy, rape, larceny, as well as murder. According to the DPIC, today 38 states currently have the death penal and that since 1973, 972 people have been convicted and sentenced to death and, of those 972, 119 people were subsequently removed from death row due to evidence that was uncovered proving they were wrongfully convicted, wrongfully sentenced, or received an unfair, biased trial. This paper will identify demographic characteristics of 83 of those exonerated individuals in attempts to uncover larger structural problems within the criminal justice system. This paper examines the gender race, age, class, year of conviction and dismissal of individuals who have been exonerated of death penalty convictions.

LITERATURE REVIEW

Debate about the use of the death penalty has been shaped by factors such as age class, race, and gender. For example, the first documented case of a woman being executed was Jane Champion in 1632 in the New Colonies. Historically, women were not typically executed because of the gender stereotype that women were inherently good and, therefore, were not punishable by death (Amnesty International, 2005). The very few cases of women who have been executed were convicted of crimes such as witchcraft or civil disobedience.

Children under the age of 18 were eligible for capital punishment sentences until 2002. In the 1970s children who were accused of heinous crimes, such as first and second-degree murder, were tried as adults. In 1988, in Thompson v. Oklahoma (487 U.S. 815), four Supreme Court Justices held that the execution of offenders age fifteen and younger at the time of their crimes was unconstitutional. In 2005, the United States Supreme Court ruled in Roper v. Simmons that the death penalty cannot be applied to persons who were under age 18 at the time of commission of the crime.

Another group of individuals recently exempt from capital punishment are those who meet the requirements of mental insanity or retardation. In 1986, Ford v. Wainwright (477 U.S. 399), the Supreme Court banned the execution of insane persons. Then in 1989 in Penry v. Lynaugh (492 U.S. 584), the Court held that executing persons with mental retardation was not a violation of the Eighth Amendment.  However, in 2002 in Atkins v. Virginia, (536 U.S. 304), the Court held that national opinion was in opposition to the execution of the mentally retarded and concluded that such a punishment violates the Eighth Amendment's ban on cruel and unusual punishment.

Support/Opposition

In a USA Today (June 2005) article a Gallup Poll from May 2005 found that 74% of the American public support the death penalty, but backing for capital punishment drops to 56% when respondents are given the alternative punishment option of life without parole (USA Today, June 2005). Multiple socioeconomic factors influence the support or opposition of death penalty as a just punishment; variables such a race, gender, class, age, and political perspective can account for opinions for and against this form of punishment. Baker, Lambert, and Jenkins (2005) found that women were four times less likely to support the death penalty than men, when controlling for ace, class, and region. Murray (2003) found that in the 1998 Gallup Poll (Jan.16-18) men supported the death penalty over life in prison 24% more than women. Bowman (2005) found in studying federal sentencing that a significant discrepancy existed when comparing similar crimes committed by men and women and capital punishment verdicts. Men were found to have a one in three chance and women had a one in ten chance of being convicted and sentenced to death.

David and Carmichael (2002) found that socio-economic class played a significant role in support or opposition to capital punishment. Their overall perspective is that punishment “is more shaped by the menace of an economic underclass than by racial and ethnic underclass.” They also found that the upper-middle and upper-classes were more likely to support the death penalty based on their belief that crimes are committed because of deviance. Those from lower socio-economic classes mainly oppose the death penalty due to the belief that crimes are committed due to economic, educational, and political injustices. Similarly, Baker, Lambert, and Jenkins (2005) found that those who classified themselves as middle to upper class are more favorable towards the death penalty than those in lower class standings.

While gender and class are two determining variables in support for the death penalty, age plays a noteworthy role. Hammond (2005) found that individuals under the age of 60 are more likely to be sentenced to capital punishment than those older than 60. Baker, Lambert, and Jenkins (2005) found that people over the age of 45 were more likely of support capital punishment than those under 45. Furthermore, Baker et al. (2005) found that older the individual the more likely they are to support the death penalty, but they also are the least likely to receive capital punishment.

A significant amount of research on the death penalty focuses on the variable of race. Baker, Lambert, and Jenkins (2005) found that blacks were more likely to oppose the death penalty than whites, when controlling for age, gender, and academic level. Jacobs and Carmichael (2005) also found that race played a large role in opposition/support for the death penalty. In comparing census data, interviews, and legal documentation such as court transcripts, blacks were primarily in opposition to the death penalty and were the most likely to receive capital punishment. Whites were found to be supportive overall of the death penalty and the least likely to receive a sentence of capital punishment. Murray (2003) found that people of all races stated that the death penalty is less fairly applied than it should be. He states, in the Gallup and Newport report (1991), three-quarters of the black respondents found there to be a racial bias in the administration of capital punishment. Less than one-half of the white respondents felt the same way. Young (2005) found that the justifications behind support for the death penalty among blacks and whites are profoundly different; whites in capital cases and the judicial system favored “responsibility” while blacks related primarily to degree of trust in the police but not to the perception of sentencing inequalities.

To summarize these earlier studies, those who are the least likely to receive a verdict of death are the same groups who are generally in favor of the death penalty. When the chance of receiving the death penalty is not likely and those who are the most similar to you are not in danger, research shows that these groups are more likely to favor death as a punishment. The only exception is women. Women are far less likely to receive capital punishment, yet they report a greater degree of opposition to this sentence.

Yet another factor in the support or opposition of capital punishment is the political perspective from which an individual is viewing this matter. “Conservatives, and political parties that are more conservative than their rivals, are more likely to support harsh sanctions” (Jacobs and Carmichael, 2003). Jacobs and Helms (1996) looked at changes in prison admissions and find that “increases in political strength of the Republican party produce subsequent growth in these rates.”

Biases

Differences in support for and opposition of the death penalty are also found in the application of the sentence. Race, gender, age and class weigh heavily on how a trial will be conducted, who will sit on the jury, and how sentences will be handed down. Race also factors into the sentencing of convicted individuals. Richey and Feldman (2005) found that racial biases can be found in the process leading up to capital cases. They found that in two major capital cases, racial biases were found during jury selection. Both cases were appealed and both defendants were later set free based on the realization that there were not tried by a jury of their peers. Both men who were exonerated were black. Radelet (1981) found that when controlling for the race of a victim, the race of the defendant impacts the indictment and sentencing in capital cases. Radelet (1981) also found that from 1930-1967, 54% of those executed, nonmilitary, “involved non white offenders.”

The race of the defendant plays an integral part in capital verdicts, but the race of the jurors’ and the victim influences decisions past as well. Hammond (2005) found that in a study by the U.S. General Accounting Office, that the race of the victim influenced decisions in about 82% of the cases that had been reviewed. Amnesty International (2005) found that the Supreme Court upheld the notion that a defendant accused of an interracial capital crimes is “entitled to have prospective jurors informed of the victim’s race and questioned on the issue of racial bias.” While this ruling is meant to prosecute those who may have committed a hate crime, it also set up potential bias since a jury is now faced with how race may have been a factor in the crime. Since 1986, however, the Supreme Court has stated that there is a place in the jury selection process for the intentional exclusion of prospective jurors because of their race. Amnesty International (2005) found that at least one in five of the 300 black people who have been executed in the United States since 1977 were tried before on all-white jury, and that almost 90% of the 55 individuals convicted were convicted of killing white people.

Exonerated

Partially due to identified biases, many convicted individuals have been exonerated. Amnesty International (2005) finds that of the 972 people that have sentenced to death since the 1970s, 119 have since been exonerated because of evidence they received an unfair trial or were wrongly convicted, and overall, 45% of exonerated individuals were black, 42% were white, and 11% were Latino. In June 2000, a Columbia University study examined death penalty cases between 1973 and 1995 and found “that the rate of prejudicial error in capital cases was 68%.” This means that “courts found serious, reversible error in almost 7 out of 10 of the thousands of death sentences” handed out in a little under 20 years. The study also found that the “most common errors were inadequate legal representation and the suppression of evidence by prosecutor or police.” (Amnesty International: 2005) Overall, the number of people exonerated has substantially increased. Because of the vast number of wrongfully convicted individuals, it is important to look for patterns in demographics to gain a better grasp of the deficiencies that plaque the judicial system.

SOCIAL CONSTRUCTION OF CRIMINALS

Sociologists generally hold that each person lives in two different worlds simultaneously, a physical world and a world of constructed meanings. Social Construction Theory is concerned with how humans construct the meanings they attach to the physical world. Socially constructed meanings tell us more than what an object is; they help define morality and social hierarchies as well as what is expected of individuals in the larger society. Meanings are not objective but, instead, reflect a subjective understanding of the world. Understanding meaning is at the core of Social Construction Theory, and this theoretical perspective will be used to better understand how innocent people can be wrongfully convicted.

Loseke presents an overview of Social Construction Theory in Thinking about Social Problems: An Introduction to Constructionists Perspective (1999). She argues that social problems are the things that are deemed wrong or in need of change in a certain society at a particular time. Given the recent increase in exonerated individuals, wrongful conviction of individuals is viewed by some as a social problem.

Loseke (1999:16-17) suggests that “the meanings that humans create can be categorized through “typifications,” or an image of what we consider to be the typical.” A “typification” often reflects broader cultural stereotypes, for example stereotypes about race and crime (i.e. black people committed more crimes than white people).

According to Loseke (1999:19), constructing meaning about any social problem can be understood as similar to a game. For Loseke, in the social problems game the goal is to convince people to do something abut the problem. The “claims-makers” are people who try to convince others to believe and act on a social problem. In the debate over the death penalty, the legal system is making a claim that certain individuals can be and are subject to the death penalty. A “claim” is a particular meanings or social construct about a certain cultural phenomenon. The claim in this debate is that people who meet certain requirements and/or hold certain characteristic are subject to death as a justifiable punishment. The “audience” is whomever the claims-makers are trying to get to believe their claim and take action. The audience in this case is the general public. “Competition” is an obstacle to winning the claims-making game as various claims-makers compete for the audiences’ attention. One form of competition that exists here is between those who support the death penalty and those whom are against this punishment.

Loseke (1999:26) notes that in the social problems game there are different types of claims. The first type of claim is a verbal claim, which constructs meaning through words. The second type of claim is a visual claim, which uses pictures or images to persuade to people to believe a claim (Loseke 1999:27). The third type of claim is behavioral claims which to causes people act or do something about a claim, such as a sit-inn or a demonstration (Loseke 1999:27). Loseke believes that “claims” are also designed to appeal to either the logic or emotional thought process. A “logic claim” states rational reasons why the audience should define a particular condition as troublesome. An emotional claim encourages the audience to feel in a particular way about a problem. For example, a pro-death penalty claim encourages people to believe that justice must be served. Another claim is that people should feel the pain and suffering of the victim and their family, thus support the death penalty as a just punishment. Loseke (1999:28) argues whether a claim is factually true or not does not matter; what matters is whether the audience believes the claim to be true.

According Loseke (1999:28) “claims-makers” can be any person or group. The individuals who actively work in social change organizations such as government agencies as well as politicians and lobbyists are the most important claims-makers because their work involves doing something about social problems (Loseke 1999, p.29)

Social factors of race, gender, regional area of conviction and age are used to build claims about who should be convicted and receive a death sentence. Thus, this study applies social construction theory to death penalty cases in order to better understand why people are wrongfully convicted of crimes.

METHODS

This study identifies demographic characteristics of exonerated criminals including age at conviction, class, race, gender, and regional conviction. Regional conviction defined as the state in which the trial was conducted and the verdict handed down.

In order to obtain data for this study, a content analysis of existing websites was conducted. A content analysis as defined by Neuman (2003:530) is “research in which one examines patterns of symbolic meaning within written texts, audio, visual, or other communication medium.” Specifically, listing of 121 exonerated individuals was obtained at (DPIC) on September 30, 2005. The individuals with insufficient data for all four demographic categories have been dropped, thus the total number of individuals included in this study was 84.

The DPIC website gives the individual’s name, a brief history of the case, the state in which the trial was held and the sentencing done, and the race of each individual. The criterion for inclusion on this list is as follows:

The definition of innocence that the DPIC use in placing defendants on the list is that they had been convicted and sentenced to death and subsequently either a) their conviction was overturned and they were acquitted at a re-trial, or all charges were dropped; or b) they were given absolute pardon by the governor based on new evidence of innocence.

Data was obtained by analysis of actual case log of selected individuals. Information on death row inmates in 2004 was gathered from the NAACP Legal and Educational Fund 2004 Winter Report on death row inmates. Additional data was obtained through the NAACP website on November 1, 2005.

In attempting to determine socio-economic class of each exonerated individual, information about the defense lawyer was collected. Those individuals in the middle or upper classes generally have the resources to obtain a private defense attorney, while individuals who are assigned a public defense attorney will most likely be in lower socio-economic level. Thus I coded simply as “own defense” and “assigned defense” to try in some way to asses social class. This information was obtained through case log research from . Other information gathered here were: race, gender, age, state of conviction, year of conviction, and year of dismissal. (See Appendix A)

FINDINGS

The findings of this study indicate how the exonerated individual is being socially constructed in the United States. Table 1 shows that the gender of on exonerated individual is overwhelming male (98.81%). Also, the majority of those who have been exonerated are black (52.38%), which is in contrast with the total number of black death row inmates (42%). However, this study found no individuals who were identified as American Indian, Asian, or other were exonerated.

TABLE ONE: Demographic Characteristics of Exonerated Individuals

| |Death Row Inmates |Exonerated |

| |2004 |2004 |

| |N=3510 |N=83 |

| |Number Percentage |Number Percentage |

|Gender | | |

|Male |3458 98.52% |83 98.81% |

|Female |52 1.48% |1 1.19% |

|Age at time of conviction | | |

|0-21 | |3 3.5% |

|22-43* |*2% under the age of 17 |3 3.5% |

| |*Average age 28 | |

|Race | | |

|Black |1473 42% |44 52.38% |

|White |1602 46% |30 36.71% |

|Latino |353 10% |9 10.71% |

|American Indian |40 1% |0 00.00% |

|Asian |41 1% |0 00.00% |

|Other/Unknown |1 .03% |0 00.00% |

Statistics on 2004 inmates taken from the 2004 quarterly report by the Criminal Justice Project of the NAACP Legal Defense and Educational Fund, Inc. and the U.S. Bureau of Justice 2004 Justice Statistics.

According to divisions set up by the United States Bureau of Statistics, the South, containing the state of Alabama, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina , Texas and Virginia make up the overwhelming majority of individuals on death row (2262). California holds the most people on death row (634) followed closely by Texas (458). Florida had the most exonerated (381), followed by Illinois (15). Illinois[1] was an anomaly because during 2004 Gov. George Ryan called for a moratorium on the death penalty following multiple cases of bias in court proceedings. That year seven individuals including the eight already on death row were exonerated based on these new findings.

TABLE 2: Exonerated Individuals by STATE in 2004

| |On Death Row |Exonerated |Percentage of Exonerated |

| |N=3096 |N=83 | |

|Alabama |196 |4 |2.04% |

|Arizona |128 |3 |2.34% |

|California |634 |2 |0.32% |

|Florida |381 |17 |4.46% |

|Georgia |114 |5 |4.39% |

|Idaho |21 |1 |4.76% |

|Illinois* |8 |15 |*** |

|Indiana |39 |1 |2.56% |

|Kentucky |37 |1 |2.7% |

|Louisiana |92 |5 |5.34% |

|Massachusetts |12 |2 |16.67% |

|Mississippi |69 |2 |2.9% |

|Missouri |60 |1 |1.67% |

|Nebraska |7 |1 |14.29% |

|North Carolina |205 |4 |1.95% |

|Ohio |213 |1 |0.47% |

|Oklahoma |106 |5 |4.71% |

|Pennsylvania |237 |3 |1.27% |

|South Carolina |76 |2 |3.46% |

|Texas |458 |7 |1.53% |

|Washington |11 |1 |9.09% |

Statistics on 2004 inmates taken from the 2004 quarterly report by the Criminal Justice Project of the NAACP Legal Defense and Educational Fund, Inc.

As table three illustrates, the majority of convictions occurred in the 1980s (55.42%) with the least amount of convictions, in between the 1960s to the end of the 1990s, would be the 1960s due to only having data for 1963 and 1968 from these particular individuals. After the 1980s, however, the number of exonerations tapered to 21.68%.

TABLE 3: Year of Conviction and Dismissal

| |Number of Convictions |Percentage |Number of Dismissals |Percentage |

|1960s |3 |3.61% |0 |0.00% |

|1970s |16 |19.27% |9 |10.84% |

|1980s |46 |55.42% |21 |25.30% |

|1990s |18 |21.68% |35 |42.17% |

|2000s |No complete data | |18 as of 2004 |21.68% |

Most individuals had their own defense lawyers/ teams 65.06%. But because many cases were tired and found to have errors in the trial, many individuals were given free legal service and did not disclose this information. Thus it is impossible to assess the socio-economic status of exonerated individuals from this data.

TABLE 4: Type of Defense of Exonerated

|Type of Defense/ S.E.S |N=83 |Percentage |

|Had own Defense |54 |65.06% |

|Appointed Defense Team |20 |24.10% |

|Appointed then Own/Pro Bono* |9 |10.84% |

DISCUSSION

Social Construction Theory consists of analyzing claims-makers, the claims they put forward, and the reactions from the larger audience to the claims. Currently, the claims-makers in the United States who are in favor of the death penalty have presented their claims about the necessity of the death penalty in a more effective manner than those opposed to the use of the death penalty. Additionally, criminals have been constructed in the media as primarily black, males, in southern states. Because por-death penalty claims-makers have been able to successfully construct this image, the black, male populations in most southern states may not received fair and just trials, thus representing the overwhelming numbers of those convicted to death row.

However, claims about the unjust legal system and its ramifications are gaining ground. Perhaps this can be attributed to the increasing attention in the media to the numbers of exonerated individuals. The claims appear to receive more media coverage due to the focus on cases of exonerated individuals, thus more capital punishment convictions are under review. Groups such as Amnesty International and the Death Penalty Information Center have been able to successfully publicize the injustices that have been plaguing the legal system.

Perhaps more importantly, unfair and accurate stereotypes about certain groups, particularly racial minorities, in the Untied States are changing. The societal norms regarding race are becoming more accepting of different racial and cultural groups. Multiculturalism is allowing for possible changes in the legal system in the near future that move away from racial profiling. Ideas about intrinsic human rights of all are becoming realized, but additional steps in legal practices about non-dominate groups still need to be taken. If anything, this study points out the need for more research about death row convictions and exonerations in order to develop a more fair legal system.

REFERENCES

Anonymous. 2005. “Death Penalty Debate Finally Produces Useful Result. “USA Today,

June 22, 2005:14a

Anonymous. 2002. “Wrongful Convictions, Crime Data Support Moratorium.” USA

Today, April 16, 2002:12a

Anonymous. 2005. “Humans Make Mistakes.” Economist 376(8436):31

Adelman, Stanley E. 2005. “Supreme Court Bans Death Penalty for Under-18

Offenders.” Corrections Today August: 58-61

American Magazine Organization 2005. “Innocence and the Death Penalty.” American

Press Inc. Retrieved August 31, 2005. ()

Amnesty International. 2005. “Death By Discrimination-The Continuing Role of Race in

Capital Cases.” Retrieved August 31, 2005. ()

____. 2005.”Open Letter to the President on the Death Penalty.” Retrieved August

8, 2005 ()

____. 2005. “United States of America: Too Flawed to Fix: Time For Courage on the

Death Penalty.” Amnesty International. Retrieved August

31, 2005 ()

Baker, David. N., Eric G. Lambert, Morris Jenkins. 2005. “Racial Differences in Death

Penalty Support and Opposition.” Journal of Black Studies 35(4):201-221

Bowman, Frank. 2005. “The Failure of the Federal Sentencing Guidelines: A Structural

Analysis.” Columbian Law Review 105:1316-1332.

Buck, Amanda. 2005. “Innocence Projects.” The IRE Journal. May/June:18-19

Death Penalty Information Center. 2005, Retrieved September 30, 2005.

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Fenney, Tom. 2003. “Reaffirming the Rule of Law in Federal Sentencing. “Criminal

Justice Ethics. Winter/Spring: pg.2, 67-73.

Hammond, Sarah Brown. 2005. “Questioning Capital Punishment.” State Legislatures

September: 32-33

Lott, John R. Jr. 1987. “Should the wealthy Be Able to Buy Justice?” The Journal of

Political Economy 95(6):1307-1317.

Loseke, Donileen.1999. Thinking about Social Problems: An Introduction to

Constructionists Perspectives. New York, NY. Aldine de Gruyter.

Jacobs, David, Jason T. Carmichael. 2002. “The Political Sociology of the Death Penalty:

A Pooled Time-Series Analysis.” American Sociological Review 67(1):109-131

MacDonald, Arthur.1910. “Death Penalty and Homicide.” The American Journal of

Sociology 16(1):88-116.

Merritt, Gilbert. S. 2005. “The Death Penalty in Tennessee: Reforming a Broken

System.” Tennessee Bar Journal September 2005.

Murray, Gregg R. 2003. “Raising Considerations: Public Opinion and the Fair

Application of the Death Penalty.” Social Science Quarterly 85(4): pg.753-770.

Neuman, W. Lawrence. 2003. Social Research Methods. Fifth Addition. Pearson

Education, Inc.

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Justice Report Winter 2004. Washington, D.C. NAACP. Retrieved November 12, 2005. ()

Radelet, Michael.1981. “Racial Characteristics and the Imposition of the Death Penalty.”

American Sociological Review 46(6):918-927

Richey, Warren. Linda Feldman. 2005. “Courts Hits Jury Race Bias.” Christian Science

Monitor 97(140):pg.1-2.

United States Bureau of Justice. 2004. Criminal Statistics: Death Penalty. Washington,

D.C. U.S. Bureau of Statistics. Retrieved November 12, 200

(ojp.)

Young, Robert L. 2004 “Race, Conceptions of Crime and Justice, and Support for the

Death Penalty.” Social Psychology Quarterly 54(1):67-75

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Reform of the Model Penal Code.” Columbian Law Review 105(1396):1397-

1414.

APPENDIX A

RACE

White/Caucasian 1

Black 2

Latino/a 3

Pacific Islander 4

Asian 5

Unknown dropped from study

GENDER

Male 1

Female 2

Unknown dropped from study

AGE AT CONVICTION

21. 1

22-43 2

REGIONAL CONVICTION

State abbreviations used for each case.

SOCIO-ECONOMIC STANDING

Own defense 1

Assigned defense 2

Unknown dropped from study

YEAR OF CONVICTION AND DISMISSAL

1960 1

1970 2

1980 3

1990 4

2000 5

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[1] Illinois’ number reflects all individuals on death row plus seven more individuals convicted that same year (2005).

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