"A Broken System", by James Liebman, published in 2000, found a 68% error rate in US death penalty cases, from 1973-1995 (1).
Based upon a neutral source, the overturning rate, for that period, is 30% and, likely, lower (2).
Of the 5555 sentenced to death, from 1973-1995, the period of the study, 1648 cases, or less than 30%, were overturned because of some error in conviction or sentence (2).
Even the 30% is too high, based upon the Reviews, below, as some of those "error" cases (1) were overturned because of either new legislative or case law that didn't exist at the time of the trial or (2) were reversed upon final appeal and had their death sentence reinstated or (3) were improperly included as reversed by error, all of which should have exclude them from being listed as reversed by error within James Liebman's study.
With all those cases excluded, it would be surprising if the error rate was more than 25%.
How could the author have made such blatant errors? He is an anti death penalty defense attorney/law professor.
I looked at the BJS database of all death penalty cases, from 1981-1985, which all had 20-25 years of appeals. Of the 1288 sentenced to death, 560 were overturned because of conviction or sentencing errors, or 43%, minus any "new law" and any reinstated death penalty cases. (3)
Still, very high, indeed, but, likely, still 40-50% lower than the 68% claimed in "A Broken System", maybe lower, when removing all the improper "error" cases
In addition, sentences are overturned at twice the rate of convictions, 20% vs 10% (4) , which, in context, likely, tell us more about the bias of many judges against the death penalty (5) , more than it does about errors in sentencing. The judicial bias against the death penalty in states such as Pennsylvania and New Jersey is, or was, respectively, blatant.
Some examples of the criticism of James Liebman's "A Broken System".
"(A Broken System") counts cases thrown out when the United States Supreme Court overturned all existing death penalties in the 1970's. He also counts cases that were reversed on appeal, even if that reversal was itself reversed on further appeal, reinstating the original conviction. Obviously, none of these reversals says anything about the fairness of the current administration of capital punishment." (6)
NOTE: 629 cases were "thrown out when the United States Supreme Court overturned all existing death penalties in the 1970's", none of which can be counted as error within Liebman's report. During the 1973-1995 period, 489 death row cases were overtuned because of statute problems, not errors in conviction or sentencing (4)
"Using the authors' misleading definition, the "study" does, however, conclude that 64 Florida post-conviction cases were rife with "error" - even though none of these Florida cases was ultimately resolved by a "not guilty" verdict, a pardon or a dismissal of murder charges." " Indeed, in more than a third of the 64 cases cited by the "study," the death sentence was reimposed, while in other cases the State agreed to accept a plea of life to spare the families of victims the trauma of additional court proceedings. These cases should not be included in a true "error rate" analysis, and if factored out, would show far less "error" in post-conviction cases than the "study" suggests." "(The study) may leave readers with the false impression that Florida put the wrong individual away for an offense, when no such claim is supported by competent evidence." (7)
Note: In Florida, it appears, "A Broken System" may have made errors in excess of 40%.
"Death penalty records are kept by the Nevada Supreme Court, Attorney General, Department of Prisons, 17 district attorneys and 17 court clerks, yet Liebman got his from criminal defense attorneys (who apparently reported their wins, but not their losses) and the NAACP Capital Punishment Project (whose agenda is the abolition of the death penalty)." "Second, it appears Liebman picked and chose his cases, tailoring the study to get certain results. He took cases from 1973-1995 for some results; 1993-1995 for other results; and 1973-April, 2000 for others. He used only published opinions for some results, but used unpublished opinions for others. He used only Nevada Supreme Court or federal appeal cases for some results, but added lower state court cases to increase reversals. Liebman didn't count all Nevada cases. He excluded killers who discontinued their appeals. (He presumed they did so due to frustration with the system, not because they were proved guilty and accepted it.) Incredibly, he didn't even count the eight men executed in Nevada since 1977!" (8)
NOTE: Could "A Broken System" be that misleading?
Philadelphia Deputy District Attorney Ronald Eisenberg;
"The refusal to share underlying data with researchers is particularly troubling in light of the media misrepresentation of Liebman as a neutral professor heading a Columbia University study. In truth, Liebman maintains an active criminal defense practice, and has been litigating against the death penalty since long before he became a professor. His study was funded in large part by a grant from the anti-capital punishment Soros Foundation, with the stated purpose of "find[ing] effective ways to curb the [death] penalty's use." (Preface to Latzer and Cauthen article) (9)
"Upon our request, Prof. Liebman (the primary author) declined to release his data to us. We therefore could not examine the cases or verify the decisions in the "Broken System". (10)
To decline releasing such data should be viewed as the final nail in the coffin of no credibility for "A Broken System".
(1) A Broken System: The Persistent Patterns of Reversals of Death Sentences in the United States, (2000), James Liebman, http://www2.law.columbia.edu/instructionalservices/liebman/
with updates at http://www2.law.columbia.edu/brokensystem2/index2.html
(2) 1973-1995 data taken from Appendix table 1. Prisoners sentenced to death and the outcome sentence, by year of sentencing, 1973-98, "Capital Punishment, 1998", Tracy Snell, Bureau Of Justice Statistics, originally published December, 1999, last updated 1/6/00
(5) Judges Responsible for Grossly Uneven Executions
(10) endnote 11, page 28. "Another Recount: Appeals in Capital Cases", Latzer and Cauthern, The Prosecutor, January/February 2001. http://www.lib.jjay.cuny.edu/docs/prosecutor.pdf
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