How Often Is The Death Penalty Overturned?

by Melanie Schmitz

On Friday afternoon, a panel of jurors in the trial of Boston Marathon bomber Dzhokhar Tsarnaev sentenced him to death for his part in the 2013 twin bombings at the finish line of the historic race. Jurors deliberated for nearly 14 hours before producing a verdict and presenting reactions to the several counts against the stoic Tsarnaev. Of course, the process isn't over: the 21-year-old's lawyers will likely appeal the verdict, dragging the process out for years. The question now becomes whether Tsarnaev's death penalty sentence could be overturned as so many capital punishment verdicts in modern court cases often are.

According to a Bureau of Justice report from 2014, the chances of a sentence like Tsarnaev's being overturned are relatively high. The study, released in December of that year, further indicated that the likelihood of someone in Tsarnaev's age range being executed was slim (only five prisoners between the ages of 20 and 24 had their sentences admitted in 2013, the latest available year for aggregated statistics).

"From 1973 to 2013, 8,466 sentences of death were handed down by U.S. courts," reported The Washington Post that month, "and 1,359 individuals were executed." That's just 16 percent, if you're doing the math in your head. The report also stated that execution was only third on the list of possible outcomes for sentenced prisoners, after having their sentence overturned due to appeal and living out the rest of their sentence on death row awaiting execution.

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An earlier report out of Columbia University in 2000 found that, on average, two out of three death penalty sentences were overturned for various reasons, including concerns about sentencing errors.

"There is an extra level of vigilance and caution in death penalty cases, appropriately so," former White House Press Secretary Ari Fleischer told The New York Times that June, citing the removal that year of 13 Illinois death row inmates after new evidence cleared them of their charges. Still, he added, most of the time "it's not an error about their innocence, it's just a question of the appropriate punishment."

In April, the family of Boston Marathon bombing victim Martin Richard, 8, published an op-ed in The Boston Globe decrying the use of the death penalty, indicating that the process only drags out and re-opens victims wounds with each appeals process. Wrote Richard's parents, Bill and Denise:

We understand all too well the heinousness and brutality of the crimes committed. We were there. We lived it. The defendant murdered our 8-year-old son, maimed our 7-year-old daughter, and stole part of our soul. We know that the government has its reasons for seeking the death penalty, but the continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives. We hope our two remaining children do not have to grow up with the lingering, painful reminder of what the defendant took from them, which years of appeals would undoubtedly bring.
As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours. The minute the defendant fades from our newspapers and TV screens is the minute we begin the process of rebuilding our lives and our family.

A few states have already begun reviewing the exhausting process through which death row inmates so often appeal their sentences: in California last July, one judge referred to the standing legal verdict as "life in prison, with the remote possibility of death."

"For those that survive the extraordinary wait for their challenge to be both heard and decided by the federal courts, there is a substantial chance that their death sentence will be vacated," wrote California Judge Cormac J. Carney of United States District Court. "As of June 2014, only 81 of the 511 individuals sentenced to death between 1978 and 1997 had completed the post-conviction review process ... two died of natural causes before the State acted to execute them."

Carney suggested that the current process was unconstitutional because it could be considered "cruel and unusual punishment" to drag out the legal back-and-forth.

However Tsarnaev's lawyers intend to appeal to the courts for their client's life will no doubt be the talk of the media firestorm for the next several years. One can only hope that if that happens, someone close to the family of Martin Richard will be able to forewarn his parents before they have a chance turn on the television.

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