Introduction

ON APRIL 3, 2014, Tommy Lee Sells was put to death at the Texas State Penitentiary in Huntsville for fatally stabbing a thirteen-year-old girl in Georgia fifteen years earlier. The execution, carried out by lethal injection, went smoothly. Sells closed his eyes and took a few deep breaths. Thirteen minutes later he was pronounced dead. The efficiency of the procedure surprised no one. The death house in Huntsville is the place to go if one wishes to see executions carried out to perfection. Texas, after all, is the capital punishment capital of America. Since 1976, the state has been home to nearly half of the 1,382 executions in the United States. Executing prisoners is a Texas pastime whose popularity is exceeded only by football.

The story of Sells’s execution was noteworthy only because it was the first to follow a decision by the United States Supreme Court rejecting the right of the condemned to know the source or the contents of the drug being used to kill them. Just a few weeks later, the issue of lethal injection and the question of the death penalty itself began tugging at the nation’s conscience when a botched execution resulted in the prolonged, agonizing death of an Oklahoma inmate.

Late in the afternoon of April 29, Clayton D. Lockett was wheeled into the death chamber at McAlester, Oklahoma, to be executed for the murder of a nineteen-year-old woman in 1999. Second only to Texas in applying the death penalty, Oklahoma might have been expected to carry it off without incident. But things started going wrong within just a few minutes. At 6:23, a sedative, midazolam, which the state had not previously used, was injected into Lockett’s arms. About five minutes later, Lockett started blinking and his eyes turned glassy and then closed, according to reports from the scene by Ziva Branstetter, an editor at The Tulsa World, and Dean Sanderford, the condemned man’s attorney. At 6:33, the physician in charge said Lockett was unconscious and the team began to administer two lethal drugs, one to paralyze the prisoner and one to make his heart stop. Within three minutes, Lockett’s body started twitching; he rolled his head from side to side. He mumbled something inaudible and tried to lift his upper body from the gurney. At 6:39, sixteen minutes after the procedure had begun, the state’s director of corrections halted the execution when the physician found that Lockett’s vein had ruptured. Following another twenty-seven minutes of what some described as torture, Lockett was declared dead of a “massive heart attack” by Department of Corrections Commissioner Robert Patton. About six weeks after the incident, an independent autopsy commissioned by Lockett’s attorneys concluded that the problem was caused by the failure of the executioners to place the injection properly in a vein in Lockett’s groin. As a result, the drugs were not pumped directly into the prisoner’s bloodstream. According to the autopsy, Lockett’s vein had not collapsed, as the Oklahoma prison official had reported.

The “botched execution,” as it has been called, attracted notice not only throughout the country but around the world, particularly in Europe. The death penalty is banned in the European Union which also has restricted the export of drugs used in lethal injections. Members of the EU view the United States’ addiction to the death penalty with disdain. An anonymous tweet on Twitter seemed to capture the prevailing feeling on the continent. It read: “How could Oklahoma botch an execution? If there’s one thing I would expect Americans to know how to do by now, it’s kill somebody.”

But apparently they did not, at least not those who were in charge of executing prisoners. For just a few months later, in July, an even more horrific execution was conducted in Arizona. It took the state nearly two hours to kill Joseph R. Wood III who, according to witnesses, repeatedly gasped while the execution was carried out. During that time, Wood’s attorney filed an emergency appeal to a Federal District Court and placed a call to US Supreme Court Justice Anthony M. Kennedy asking that the procedure be halted because it was in violation of the “cruel and unusual” clause of the Eighth Amendment. Kennedy turned down the request and Wood died before the district court responded. Arizona officials said they used the same combination of drugs that had been used in Ohio months earlier on Dennis McGuire, who also suffered through an execution that lasted longer than expected. The day after Wood’s execution, the attorney general of Arizona called a temporary halt to executions in the state.

Lethal injection was adopted as the procedure of choice in the United States beginning in 1977. It replaced, in reverse chronological sequence, the electric chair, the gas chamber, hanging, and the firing squad. Deemed to be the most humane form of execution, estimates nonetheless indicate that 7 percent of such executions have gone bad. As recently as 2008, a divided Supreme Court ruled that death by lethal injection did not violate the Eighth Amendment’s prohibition of “cruel and unusual” punishment. In his decision, Chief Justice John Roberts wrote: “Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of objectively intolerable risk of harm that qualifies as cruel and unusual.” Justice Antonin Scalia, the court’s leading advocate of the death penalty, offered even more extreme views on more than one occasion. “Where does it come from that in the execution of a person who has been convicted of killing people we must choose the least painful method possible? Is that somewhere in our Constitution?” The court, he said, was considering “an execution, not surgery.” In another instance, Scalia mused, “How enviable a quiet death by lethal injection,” as he contrasted the death of a condemned killer with that of his victim.

The dispute over “cruel and unusual” puts the United States in the ironic position of striving to perfect a procedure that has become obsolete in most of the civilized world. Of the 195 independent states that are UN members or have UN observer status, 100 (51 percent) have abolished capital punishment completely; 7 (4 percent) retain it for ordinary crimes in exceptional circumstances, such as war; 48 (25 percent) permit its use for ordinary crimes but have not used it for at least ten years and are considered de facto abolitionist states. In 2013, five countries joined the abolitionist ranks—Chad, DR Congo, Cuba, Qatar, and Zimbabwe. Only forty countries, 20 percent of the total, maintain the death penalty in both law and practice. In 2012, according to statistics compiled by Amnesty International, the United States ranked fifth worldwide in the number of executions behind China, Iran, Iraq, and Saudi Arabia.

But even in the US, the appetite for capital punishment, though still robust, has shown signs of abating. In 2004, twelve states had abolished the death penalty. Ten years later, the number had grown to eighteen and in two others—Oregon and Washington—that formally retain the death penalty, the governors have pledged never to impose it. A 2014 poll found that the percentage of the public that supports capital punishment, though still a majority, has dropped to 56 percent from 80 percent in 1996. The loss of favor is driven chiefly by the number of wrongful death row convictions that have been uncovered in recent years, largely through the use of DNA evidence.

In an earlier book, The Wrong Men (Carroll & Graf, 2003), I cited 102 cases of what was described as America’s epidemic of wrongful death-row convictions. Since then, more than 40 new cases of exoneration from death row have been recorded. Of course, no one knows for certain whether any of the average of forty-plus people executed annually in the United States between 2010 and 2013 have been innocent or wrongfully convicted. What we do know is that since 1973 more than 150 prisoners on death row have been exonerated. Many were freed after serving long terms, sometimes several decades, in solitary confinement. Some escaped execution just hours before their dates with death. Given the sheer weight of numbers and the random play of chance, it is not unreasonable to assume that a fair number of those put to death were either actually innocent or wrongfully convicted. A recent independent study estimates that 4.1 percent of all inmates on death row were convicted on false charges. Other estimates run as high as 10 percent.

It was the advent of DNA technology that turned the light on the glaring inadequacies of a system that convicts innocent people by the hundreds and sentences a substantial number of them to death. DNA evidence was first used in United States courts in 1987, but did not make its way into popular use until the mid-nineties. By 2003, more than eighty wrongfully convicted people had been exonerated by DNA evidence, at least a dozen of them freed from death row. That number has increased exponentially in the past decade.

The Wrong Men, which documented each of those cases, attracted a good bit of attention, some of it from unexpected sources. I received letters from several prisoners seeking my help in one way or another. One naively asked if I would come to Florida and represent him on appeal, as he felt his attorney was not sufficiently diligent in his defense. Another asked if I could help him locate a specific attorney in North Carolina who successfully represented a fellow prisoner. In each instance I responded as best I could. It was unlikely that I made much of a difference. But the correspondence served to put a human face on what in time and number threatens to become an abstraction.

In this new venture, Convicting the Innocent, I will describe in detail the forty-plus cases of death-row exoneration that have occurred since 2002. Some of the earlier cases, in which there have been new developments, will be reviewed more briefly. Also included will be a number of wrongful convictions that did not involve the death penalty, but in which the prisoner served many years of a life sentence. Every case is an illustration of the grim consequences that ensue when the legal mechanism has gone awry. And every case is haunted by the specter that an innocent man, under other circumstances, might have been put to death. The reasoning is elementary: If it has been established with scientific certainty that dozens, if not scores, of people have been wrongly convicted and sentenced to death, can one reasonably doubt that others were no less innocent, just less fortunate?

Justice Scalia, who appears to view capital punishment as a recreational activity, seems little troubled by the prospect of executing an innocent man. Considering the fate of Troy Davis who was executed in 2011 despite the apparent crumbling of the prosecution’s case over the previous ten years, Scalia offered the suggestion that the guilt or innocence of the condemned man is not of paramount importance. “This court,” he said, “has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a court that he is ‘actually’ innocent.” That opinion was consistent with a 2006 pronouncement by the good justice that “not a single case—not one—[exists] in which it is clear that a person was executed for a crime he did not commit.”

Scalia was wrong on two counts. He was factually incorrect; the actual innocence of a person who has been executed has been established more than once. More critically, his remark was intentionally misleading. For the justice is well aware that following an execution all further investigation is halted. Neither the state nor the defense has a stake in proving the innocence of a man already put to death. The execution of the innocent is not a chimera that troubles the imagination of the faint of heart. It is part of a broken system of justice.