I think it's reasonable to say that in most states where there is a significant minority population, the results in McCleskey could be duplicated. Part of the explanation is in more mundane things. Among those death sentences, only 5 percent were carried out. The same thing is true with prosecutorial misconduct, and with jury instructions.
Fourth, we looked at what happened to these cases when the error was discovered and the case was sent back for retrial.
But when the Supreme Court announces its new procedural rule, you've got to do it differently. William Schabas: But, in the United States, you've come close to judicial abolition twice in the last 25 years. In South Africa, post-apartheid resistance to the death penalty was associated--far greater than in the United States, and despite the enormous crime rates-- with repression, with racism, with apartheid.
Only around 6 percent of death sentences are overturned on state collateral review.
Stone: Yes, I think those are good reasons, but I think racism is one of the driving forces, particularly if you look at, historically, who the death penalty has been imposed on and for what crimes.
There is no doubt that in capital cases the procedural rules that the courts have created were created in large measure because everybody recognized what the stakes were. They are errors that give you pause.