Samuel R. Gross

Racial Profiling Under Attack

The events of September 11, 2001, have sparked a fierce debate over racial profiling. Many who readily condemned the practice a year ago have had second thoughts. In the wake of September 11, the Department of Justice initiated a program of interviewing thousands of men who arrived in this country in the past two years from countries with an al Qaeda presence - a program that some attack as racial profiling, and others defend as proper law enforcement. In this Essay, Professors Gross and Livingston use that program as the focus of a discussion of the meaning of racial profiling, its use in a variety of contexts, and its relationship to other police practices that take race or ethnicity into account.

Lost Lives: Miscarriages of Justice in Capital Cases

One of the longstanding complaints against the death penalty is that it “distort[s] the course of the criminal law.” Capital prosecutions are expensive and complicated; they draw sensational attention from the press; they are litigated—before, during, and after trial—at greater length and depth than other felonies; they generate more intense emotions, for and against; they last longer and live in memory. There is no dispute about these effects, only about their significance. To opponents of the death penalty, they range from minor to severe faults; to proponents, from tolerable costs to major virtues. Until recently, however, the conviction of innocent defendants was not seen as a special hazard of capital punishment. Everybody agreed, of course, that condemning innocent defendants is a singular wrong, but it was not widely viewed as a major problem, and certainly not as a problem of special significance for capital cases. In the past decade, this complacent view has been shattered. In case after case, erroneous conviction for capital murder has been proven. I contend that these are not disconnected accidents, but systematic consequences of the nature of homicide prosecution in general and capital prosecution in particular—that in this respect, as in others, death distorts and undermines the course of the law. There are three factual premises behind the argument that capital convictions of innocent defendants are vanishingly rare. The first is that erroneous convictions are rare in criminal prosecutions of any sort, and that their danger

Loss of Innocence: Eyewitness Identification and Proof of Guilt

IT is no news that eyewitness identification in criminal cases is a problem; it is an old and famous problem. Judges and lawyers have long known that the identification of strangers is a chancy matter,1 and nearly a century of psychological research has confirmed this skeptical view.2 In 1967 the Supreme Court attempted to mitigate the problem by regulating the use of eyewitness identification evidence in criminal trials;3 since then

Rate of false conviction of criminal defendants who are sentenced to death

Significance The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. We use survival analysis to model this effect, and estimate that if all death-sentenced defendants remained under sentence of death indefinitely at least 4.1% would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States. The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place. As a result, very few false convictions are ever discovered, and those that are discovered are not representative of the group as a whole. In the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to death. This makes it possible to use data on death row exonerations to estimate the overall rate of false conviction among death sentences. The high rate of exoneration among death-sentenced defendants appears to be driven by the threat of execution, but most death-sentenced defendants are removed from death row and resentenced to life imprisonment, after which the likelihood of exoneration drops sharply. We use survival analysis to model this effect, and estimate that if all death-sentenced defendants remained under sentence of death indefinitely, at least 4.1% would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.

Determining the Neutrality of Death-Qualified Juries Judicial Appraisal of Empirical Data*

*This article was written at the invitation of the Issue Editor. tStanford Law School, Stanford, California 94305 1391 U.S. 510 (1968). 2The studies that were presented to the court were Wilson (1964) and early, partial drafts of Zeisel (1968), and Goldberg (1970). These studies, as well as the other published research on death qualification, are reviewed elsewhere in this volume. (See Cowan, Thompson, and Ellsworth, 1984.)

Beyond Repair?: America’s Death Penalty

Can the death penalty be administered in a just way—without executing the innocent, without regard to race, and without arbitrariness? How does capital punishment in the United States fit with international human rights law? These are among the questions that leading legal scholars and journalists explore in Beyond Repair? All new, the essays in this collection focus on the period since 1976, when the Supreme Court held that capital punishment, in and of itself, does not violate the Constitution. In addition to reflecting on the most recent developments in the law, the contributors draw on empirical research to consider connections between newly available data and modern American death penalty procedures. A number of the essays scrutinize thinking about capital punishment. They examine why, following almost two decades of strong public support for the death penalty, public opinion in favor of it has recently begun to decline. Beyond Repair? presents some of the findings of the Capital Jury Project, a nationwide research initiative that has interviewed over one thousand people who served as jurors in capital trials. It looks at what goes through the minds of jurors asked to consider imposing the death penalty, how qualified they are to make such an important decision, and how well they understand the judge’s instructions. Contributors also investigate the risk of executing the innocent, the role that race plays in determining which defendants are sentenced to death, and the effect of expanded restrictions on access to federal appellate relief. The postscript contemplates the peculiarities of our contemporary system of capital punishment, including the alarming variance in execution rates from state to state. Filled with current insights and analysis, Beyond Repair? will provide valuable information to attorneys, political scientists, criminologists, and all those wanting to participate knowledgeably in the debates about the death penalty in America. Contributors. Ken Armstrong, John H. Blume, Theodore Eisenberg, Phoebe C. Ellsworth, Stephen P. Garvey, Samuel R. Gross, Sheri Lynn Johnson, Steve Mills, William A. Schabas, Larry W. Yackle, Franklin E. Zimring

The American Advantage: The Value of Inefficient Litigation

In a recent article, The German Advantage in Civil Procedure,1 Professor John Langbein claims that the German system of civil litigation is superior to the American; in an earlier article he makes a parallel claim about German criminal procedure.2 Roughly, Professor Langbein argues that by comparison to the German process, American litigation is overly complex, expensive, slow, and unpredictable in short, inefficient.3 Professor Langbein is not the first and will not be the last to criticize American legal institutions in these terms, but he expresses this criticism particularly well: he is concise and concrete, he describes American practice by reference to a specific and important foil, and he has a clear and articulate point of view. Professor Langbein is also quite convincing; some may disagree but I, for one, have no basis to dispute his claims, and no impulse to try. The point of this paper is different: to question the assumption that efficiency in adjudication is a virtue. This seems, at first blush, an odd argument: not merely that efficiency is a goal that must at times be compromised to accommodate other goals, but rather that in some contexts efficiency (as commonly measured) may be incompatible with other values, and that for some purposes inefficiency may be desirable in itself. Perhaps this strange position deserves a more committed advocate. I advance a number of arguments against efficiency in litigation, but I am not entirely convinced by them; I only neglect the opposing arguments because they are more obvious and better stated by others. My point is more modest: that efficiency is a poor measure of the quality of a procedural system, one way or the other.

Bayes Wars Redivivus - An Exchange

An electronic exchange among 10 evidence scholars that began with a discussion of the restyled Federal Rules and grew into a significant restatement of debates in evidentiary scholarship over the last 50 years, touching on relevance, probative value, inference, Bayesianism and the foundations of evidence, with an introduction by Michael Risinger.

How Many False Convictions are There? How Many Exonerations are There?

The most common question about false convictions is also the simplest: How many are there? The answer, unfortunately, is almost always the same and always disappointing: We don’t know. Recently, however, we have learned enough to be able to qualify our ignorance in two important respects. We can put a lower bound on the frequency of false convictions among death sentences in the United States since 1973, and we have some early indications of the rate of false convictions for rape in Virginia in the 1970s and early 1980s. These new sources of information suggest – tentatively – that the rate of false convictions for serious violent felonies in the United States may be somewhere in the range from 1% to 5%. Beyond that – for less serious crimes and for other countries – our ignorance is untouched.

The Death Penalty and Adversarial Justice in the United States

In a volume devoted to comparing adversarial and inquisitorial procedures in Western countries, the subject of the death penalty is an anomaly. Any system of adjudication must address several basic tasks: how to obtain information from parties and witnesses, how to evaluate that information, how to utilize expert knowledge, how to act in the face of uncertainty, how to review and reconsider decisions. By comparing how competing systems deal with these tasks we can hope to learn something about the strengths and weaknesses of alternative approaches to common problems. The death penalty, however, is not an essential function of a system of justice; it is not even a common element. Not a single Western country with an inquisitorial system of justice has retained the death penalty, and neither has any major Western country that uses an adversarial system—except the United States. As a result, it is impossible to compare how modern adversarial and inquisitorial systems handle the difficulties of administering capital punishment. Instead, I will address a different question: How well does the American system of adversarial justice manage the difficulties of capital cases?