Monday, March 8, 2010

Hank Skinner Will Be The 55th Innocent Person Executed by Texas

“They told me there would be no math.” -- Chevy Chase as President Gerald Ford on Saturday Night Live, 1975.

Texas is eager to execute, reluctant to exonerate. Since 1976, Texas has executed 450 people. That’s more than a third of all executions from all 50 states combined. On the other hand, Texas has exonerated only 11 people from death row. That means in 2 cases out of every 100, Texas spared a person rather than executing him, usually at the insistence of a state or federal court.

The other forty-nine states have been somewhat less eager to execute but substantially more willing to exonerate. Since 1976, the forty-nine other states have executed a total of 743 people while exonerating 122 from death row. That means in 14 cases out of every 100, the other forty-nine states have spared a person rather than executing him.

Before proceeding to the shocking implication of these numbers, I want to clarify what I mean by the term “exoneration.” Elsewhere, we at The Skeptical Juror Project declared Hank Skinner to be “factually exonerated.” We based our declaration in large measure on post-conviction DNA testing conducted by the State of Texas, and on the significance the State assigned to that testing prior to receiving the results. We used the term “factually exonerated” to indicate Hank Skinner was exonerated by probative facts, even though he has not been legally exonerated by the courts, even though Texas plans still to execute him.

For this analysis, on the other hand, I use the term “exoneration” without qualification. I use it instead as defined by The Death Penalty Information Center, from where I obtained the list of exonerees. To be included in their list, the defendant must have been convicted, sentenced to death and then subsequently acquitted at re-trial, or had all charges dropped, or had been granted an absolute pardon by the governor based on new evidence of innocence.

Hank Skinner would not be considered exonerated based on the definition used in this analysis. Also excluded by this definition would be any person who had his death sentence reduced to life in prison based on some failing of the State during the death penalty phase of the trial. One example from that category would be Cory Maye of Mississippi.

Put simply, the exonerees included in this analysis should never have been on death row in the first place, based on evidence learned only after the trial.

One final delay before the shocking implications. I want make clear two assumptions. First, I’m assuming the juries (in some cases the judges) in Texas are neither more foolish nor more wise than their counterparts in the other forty-nine states. This means I’m assuming the same percentage of factually innocent people have been sent to death row in Texas as in the other states.

My second assumption is that not every innocent person on death row is identified and exonerated. Some, pehaps many, are executed. If I’m correct in this assumption, the results which follow are less disturbing than they should be. If I'm wrong in this assumption, if every innocent person is identified and spared before execution, then that would be of great comfort. Unfortunately, as we shall see, I’m probably not wrong.

Okay. Everything is in place. Here we go.

If Texas juries are neither more wise nor more foolish than their counterparts in the other states, then Texas juries placed the same percentage of innocent people on death row as did the other states. We can estimate that number using the death row exonerations-to-executions ratio from the other forty-nine states. Recall that number was 14 exonerations for each 100 persons executed or exonerated.

Since Texas executed 450 people while freeing 11, we can calculate they should have exonerated 14% of the 461 individuals. That equals 65 and a fraction.

They should have exonerated 65 people, give or take some statistical variation. They exonerated 11.

The difference is 54 wrongfully executed people who should have been exonerated.

Hank Skinner will be 55.