THE PROBLEM OF INNOCENCE
One key element of the justice system, guaranteed by the Constitution, is due process. The state must respect the legal rights of the citizen. This includes the right to appeal a conviction. Generally the appeal will be unsuccessful. If the detectives and the district attorney have done their job, they will have caught and prosecuted the right guy. But nobody is perfect, and they occasionally get it wrong. A successful appeal will release a prisoner with their reputation restored. An innocent person will return to society and begin rebuilding his or her life.
Sometimes it is not an appeal that releases an innocent person. It can be new evidence. In the past this was unlikely, but with advances in forensic science it becomes easier and easier to unearth new facts. One thing that has made a huge difference is DNA profiling. Three decades ago, blood could be grouped into A, B, AB, and O. So blood at a crime scene could be consistent with a suspect. But there was no way of telling for certain that the blood came from the actual suspect. Now we can tell exactly who the blood, semen, or saliva came from. There have been many cases of blood and semen samples being reexamined for DNA evidence, which pinpointed someone other than the person convicted. Some DNA samples remain viable for testing for decades after a crime. The most famous example of this was when a Victorian shawl from London was examined in 2014, which might prove that the unknown killer Jack the Ripper was a Polish immigrant, Aaron Kosminski.
If later evidence proves someone was not a killer or that someone else was the killer, justice can be done and the innocent person released. That is part of due process, guaranteed by the Constitution.
However this is not possible in the case of the death penalty. Once someone is executed, conclusive proof of innocence is no good to the executed individual. They are dead. Execution is irreversible.
How common is this in practice? With good detective work and well-regulated trials, wrongful convictions should be a rarity. Unfortunately, major studies of false conviction show that this faith in the legal system is badly misplaced. One in twenty-five on death row may be completely innocent of the crime for which they will eventually be executed. That is a staggering amount of wrongful judicial deaths—roughly seventy since the moratorium on executions was lifted in 1976.
In 2014, the Proceedings of the National Academy of Sciences of the United States published an article entitled “Rate of False Conviction of Criminal Defendants who are Sentenced to Death.” The article, by respected researchers Samuel Gross, Barbara O’Brien, Chen Hu, and Edward Kennedy, began:
In the past few decades a surge of hundreds of exonerations of innocent criminal defendants has drawn attention to the problem of erroneous conviction. All the same, the most basic empirical question about false convictions remains unanswered: How common are these miscarriages of justice?
To actually estimate the proportion of erroneous convictions we need a well-defined group of criminal convictions within which we identify all mistaken convictions, or at least most. It is hard to imagine how that could be done for criminal convictions generally, but it might be possible for capital murder.
The rate of exonerations among death sentences in the United States is far higher than for any other category of criminal convictions. Death sentences represent less than one-tenth of 1 percent of prison sentences but they accounted for about 12 percent of known exonerations of innocent defendants from 1989 through early 2012. A major reason for this extraordinary exoneration rate is that far more attention and resources are devoted to death penalty cases than to other criminal prosecutions, before and after conviction.
The figures analyzed make frightening reading. Since the mid-seventies, 143 convicts on death row have been exonerated. Some had been on death row as long as thirty-three years before their sentence was overturned and their innocence proved. A previous study had found that 2.3 percent of all death sentences between the lifting of the moratorium and 1989 resulted in exoneration. Another study suggested that if modern DNA analysis had been available, 3.3 percent of convictions would not have happened because the DNA evidence would have cleared the suspect.
Following a detailed analysis of the more than four thousand inmates on death row, the report concluded that at least 4.1 percent of these would be exonerated if they remained on death row, adding: “We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.”
There are roughly 3,100 American prisoners on death row at the time of publication. Are 127 of these men and women completely innocent?
In 2001, The Center on Wrongful Convictions at the Northwestern Law School in Chicago analyzed eighty-six cases of exonerations and showed that the leading cause of wrongful conviction was false or shaky eyewitness testimony, followed closely by police and/or prosecution misconduct. Sloppy forensic science, false confessions (either as a result of mental illness or of police pressure), and information from snitches given in exchange for reduced sentences, were also contributing factors.
The Innocence Project was founded in 1992 by Barry Scheck (one of O. J. Simpson’s legal team) and Peter Neufeld. It is a nonprofit organization committed to exonerating wrongly convicted people. They often use DNA testing and they are also committed to reforming the criminal justice system to prevent future wrongful convictions. In more than twenty years, they have secured the release of 318 innocent people, including eighteen from death row.
They point out that through their efforts and the efforts of others, twenty people who have been sentenced to death have been proved innocent and exonerated by DNA evidence—and in half of those cases the DNA analyses pointed to the real killers. Those twenty innocent men and women had spent an average of nearly fourteen years behind bars, proclaiming their innocence. The majority were of color. This is a concern, because one of the reasons why death sentences were suspended after the Furman decision was that the penalty was applied arbitrarily and unevenly, and black defendants were more likely to be sentenced to the chair. Now the death row population more closely resembles the general population—but are black defendants getting a raw deal still? It would seem that way if the majority of exonerations continue to be of people of color.
The problem of innocence is one that the US justice system will have to urgently tackle if the death penalty is to remain in use.