Hidden Costs: Liability Judgments for Wrongful Capital Prosecutions Cost Taxpayers in Death-Penalty States Hundreds of Millions of Dollars

Studies have con­sis­tent­ly found that a sys­tem of crim­i­nal law in which the death penal­ty is avail­able as a pun­ish­ment is far more expen­sive than a sys­tem in which the most severe pun­ish­ment is life with­out parole or a long prison term. Now, as the num­ber of mur­der exon­er­a­tions mounts across the United States, a pre­vi­ous­ly hid­den cost is emerg­ing: the cost of lia­bil­i­ty for police and pros­e­cu­to­r­i­al mis­con­duct asso­ci­at­ed with the wrong­ful use or threat­ened use of the death penalty. 

The inno­cence move­ment has shown that, in addi­tion to the increased costs asso­ci­at­ed with inves­ti­ga­tion, pre­tri­al deten­tion, pros­e­cu­tion, jury selec­tion, tri­al and sen­tenc­ing, appeal, and incar­cer­a­tion in death-penal­ty cas­es, wrong­ful cap­i­tal pros­e­cu­tions are cost­ing state and local tax­pay­ers hun­dreds of mil­lions of dol­lars. Two fac­tors dri­ve up the costs of wrong­ful con­vic­tion judg­ments: offi­cial mis­con­duct and length and sever­i­ty of incarceration. 

Both fac­tors are increas­ing­ly present in death-row exon­er­a­tions. DPIC’s February 2021 Special Report: The Innocence Epidemic found that the aver­age time between a death-row con­vic­tion and exon­er­a­tion has risen every decade since the 1970s, to more than 21 years for the 29 exon­er­a­tions in the 2010s and more than 25 years for the 7 exon­er­a­tion so far this decade. More than 90% of the cas­es in which it took two or more decades to exon­er­ate a per­son who had been wrong­ful­ly con­vict­ed and sen­tenced to death involved police or pros­e­cu­to­r­i­al mis­con­duct. Most of the time, that offi­cial mis­con­duct occurred in con­cert with per­jured wit­ness tes­ti­mo­ny or false accu­sa­tion, which was present in 85% of the death-row exon­er­a­tions that took 20 years or more.

In May 2021, a fed­er­al jury in North Carolina award­ed intel­lec­tu­al­ly dis­abled death-row exonerees Henry McCollum and Leon Brown (pic­tured) $75 mil­lion dol­lars for the wrong­ful impris­on­ment stem­ming from their con­vic­tions and death sen­tences in the 1983 rape and mur­der of an 11-year-old girl. No phys­i­cal evi­dence linked the broth­ers to the mur­der, but they were con­vict­ed on the basis of false con­fes­sions extract­ed by coer­cive police inter­ro­ga­tions. The North Carolina courts over­turned the death sen­tence imposed on Brown, who was 15 at the time of the mur­der and 16 when he was sen­tenced to death. He spent 30 years in jail before being exon­er­at­ed. McCollum, who was 19 at the time of the offense, spent three decades on death row.

In May 2020, the city of Cleveland agreed to pay $18 mil­lion dol­lars to set­tle a civ­il rights law­suit by three for­mer death-row pris­on­ers who, as a result of police mis­con­duct, spent more than a com­bined 80 years impris­oned for a mur­der they did not com­mit. Kwame Ajamu, his broth­er Wiley Bridgeman (who died June 27, 2021), and Rickey Jackson were con­vict­ed in 1975 of the rob­bery and mur­der of Harold Franks based on the coerced false tes­ti­mo­ny of a 12-year-old boy. Police also fab­ri­cat­ed evi­dence and with­held evi­dence of the men’s innocence. 

An inves­tiga­tive report by the Philadelphia Inquirer found that at least 13 wrong­ful mur­der pros­e­cu­tion law­suits were pend­ing against the city of Philadelphia as of June 13, 2021, with the cas­es of sev­en oth­er mur­der exonerees still with­in the time lim­i­ta­tion for fil­ing suit. Samantha Melamad reports that “[t]ogether, the plain­tiffs served 365 years in prison for con­vic­tions that were over­turned by courts for rea­sons rang­ing from sig­nif­i­cant legal errors to egre­gious mis­con­duct by police or pros­e­cu­tors to com­pelling evi­dence of inno­cence.” Many of the cas­es involved the threat or use of the death penal­ty against defen­dants or wit­ness­es. The sev­en set­tle­ments since 2018 have cost a total of $34 mil­lion to the city of Philadelphia and cas­es involv­ing the use or threat of the death penal­ty make up more than $16 mil­lion of that total. 

In May 2021, Theophalis Wilson filed a civ­il rights suit against Philadelphia fol­low­ing dis­cov­ery by the Philadelphia District Attorney’s Conviction Integrity Unit’s (CIU) that the prosecution’s lead wit­ness had false­ly tes­ti­fied against Wilson after homi­cide detec­tives threat­ened him with the death penal­ty. Wilson is one of at least eight Philadelphia homi­cide exon­er­a­tions since 2018 in which police or pros­e­cu­tors threat­ened defen­dants or wit­ness­es with the death penal­ty if they did not false­ly con­fess or tes­ti­fy for the pros­e­cu­tion. Anthony Wright, who was cap­i­tal­ly charged, but sen­tenced to life impris­on­ment when the jury did not reach a unan­i­mous sen­tenc­ing ver­dict, received a set­tle­ment of $9,850,000 after being exon­er­at­ed and suing for wrong­ful pros­e­cu­tion in 2018. 

The Philadelphia cas­es are part of nation­al trend of civ­il lia­bil­i­ty judg­ments or set­tle­ments for the wrong­ful use or threat of cap­i­tal pros­e­cu­tion. In 2016, a fed­er­al jury in Nebraska ren­dered a $28 mil­lion judg­ment against Gage County Nebraska for police mis­con­duct in the wrong­ful pros­e­cu­tion of the Beatrice Six, who were con­vict­ed of rape and mur­der after false­ly con­fess­ing when threat­ened with the death penal­ty. In 2018, the city of Norfolk and the Commonwealth of Virginia agreed to pay a com­bined $8.4 mil­lion dol­lars to the ​“Norfolk Four.” In that case, four sailors were wrong­ful­ly con­vict­ed of rape and mur­der based on false con­fes­sions coerced by a cor­rupt detec­tive who threat­ened them with the death penal­ty. The detec­tive, Robert Glenn Ford, was sub­se­quent­ly con­vict­ed of extor­tion and lying to the FBI in other cases.

A DPIC review of National Registry of Exonerations data found that the threat­ened or actu­al pur­suit of the death penal­ty con­tributed to the wrong­ful con­vic­tions of 18 peo­ple who were exon­er­at­ed in 2019 alone, and was impli­cat­ed in a non-cap­i­tal Philadelphia mur­der case in which pros­e­cu­tors threat­ened to seek the death penal­ty against an exon­er­a­tion wit­ness if he came for­ward to admit to the killing.