On January 18, the ultra-conservative propagandist Ann Coulter published a scathing attack against the innocence movement and a rallying cry to revive America’s fading romance with the death penalty.
Her writing is, as always, engaging, even playful, and clear in its purpose to “own the libs.” It is also, however, untethered from facts and evidence.
The mere fact that the death penalty drew Coulter’s attention highlights the progress death penalty opponents have made in changing the way Americans think about capital punishment.
Coulter would not have bothered with an attack were it not for that progress. Her effort seems like a rear-guard action at a time when conservative politicians across the country now are calling for an end to the death penalty.
More about that in a minute.
Let‘s start by asking how we have gotten to a point of dramatic change in the way the American people and many public officials think about capital punishment.
Evidence of that change is abundant.
As the Death Penalty Information Center (DPIC) notes in its 2022 year-end report, death sentences across the country have fallen from 315 in 1996 to 22 last year. The number of executions has followed a similar trajectory, declining from a high of 98 in 1999 to 18 in 2022. That number was the lowest since 1991.
The DPIC also reports that “thirty-seven states—nearly three-quarters of the country—have now abolished the death penalty or not carried out an execution in more than a decade.” Moreover, the population of death row “declined in size for the 21st consecutive year.”
Coulter argues that there is one reason and one reason only for these changes.
As she puts it, “Notwithstanding the absence of a single example, the possibility of executing the ‘wrong man’ has been the left’s main line against the death penalty for decades. It’s the only argument,” she continues, “that has ever lessened Americans’ support for capital punishment.”
Coulter offers no evidence for these assertions.
So let’s look at the facts.
She is right that Americans are concerned about the risk of executing innocent people. In 2021, the Pew Research Center reported that 78% of the respondents to a national public opinion survey agreed that “There is some risk that an innocent person will be put to death.”
But, contra Coulter, polls demonstrate that the American public has doubts about capital punishment that go well beyond their worries about executing the innocent.
63% of respondents to the Pew survey said that the death penalty does not “deter people from committing serious crimes” and 56% believe that Black people are more likely than white people to be “sentenced to the death penalty for committing similar crimes.”
Coulter’s readers would never know about those worries from reading her January 18 piece.
Coulter seems convinced that only liberals have concerns about executing the innocent. The polls show that concern to be pervasive – more intense among Democrats, but hardly confined to them. Another Pew poll found that “79% of Democrats believed that the death penalty carried a risk of putting an innocent person to death, as contrasted with 71% of Independents and 61% of Republicans.”
Prominent conservatives have gone public with their own worries about the risk of executing the innocent.
For example, in 2012, Kentucky’s Republican Senator Rand Paul acknowledged that “Even in the United States where we have the best due process probably in the world, we have probably executed people wrongfully for the death penalty, then found out through DNA testing many people on death row are there inaccurately. And even Republicans have pulled back their beliefs some on death penalty.”
The Fox News host Laura Ingraham shares Paul’s concerns. “I’m troubled,” she says, “by the fact that there are people that have been exonerated through DNA. That’s horrific. And we have to do something about that. ….There could be innocent people probably today on death row.”
As to the evidence that gives rise to these concerns, the DPIC admits that “There is no way to tell how many of the 1561 people executed since 1976 may also have been innocent. 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.”
But it offers a list of 20 cases of people who were executed in spite of what it calls “strong evidence of innocence.”
Colter’s piece does not mention any of them or examine the evidence of innocence that the DPIC provides. Instead, she falsely asserts that there isn’t a “single example” of an innocent person being executed and asks her reader to take her assertion on faith.
Another source that Coulter ignores is the Innocence Project.
This well-known anti-death penalty group notes that DNA testing has proven that 18 people convicted of capital crimes and sentenced to death were actually “innocent” before being freed from death row.
It lists the cases where these false convictions occurred. Coulter doesn’t bother to try to refute the evidence of their innocence.
And a study published in 2014 in the Proceedings of the National Academy of Sciences offers what it calls a “conservative estimate” of the “rate of erroneous conviction of innocent criminal defendants” in capital cases. It estimates that 4.1% of those convicted of capital crimes are innocent.
Again, Coulter pays no attention to the facts that explain why Americans and some of her conservative allies are justifiably concerned about the risk of false convictions.
In the end, Coulter, relies on the old conservative canard, that opponents of capital punishment only support using DNA when it helps, as she writes, put “murderers on the street…(Just not their streets)”, but not when it is used to secure convictions.
She offers the American Civil Liberties Union as a leading example of this view.
No matter that the ACLU is explicit in its support for the “use of DNA testing to help confirm the innocence or guilt in capital cases.” Or that Peter Neufeld, one of the founders of the Innocence Project, says that his hope is that DNA evidence can help police and prosecutors to “get to the truth” so that “victims can be more satisfied, defendants can be more satisfied and the public can rest assured that we have reached the right result.”
Coulter is untroubled by these facts because she is in the outrage business.
That outrage should be redirected toward the death penalty itself. More Americans of all political stripes now recognize that, as the DPIC puts it, the death penalty system “will never be as infallible as capital punishment is irreversible,” and “with its failures now so evident, those who would be executioners ought to display more humility.”