Innocence and the Crisis in the American Death Penalty

Posted on Sep 01, 2004

Executive Summary Top

This report cat­a­logs the emer­gence of inno­cence as the most impor­tant issue in the long-sim­mer­ing death penal­ty debate. The sheer num­ber of cas­es and the per­va­sive aware­ness of this trend in the public’s con­scious­ness have changed the way cap­i­tal pun­ish­ment is per­ceived around the coun­try. The steady evo­lu­tion of this issue since the death penal­ty was rein­stat­ed in 1976 has been accel­er­at­ed in recent years by the devel­op­ment of DNA tech­nol­o­gy, the new gold stan­dard of foren­sic inves­ti­ga­tion. This sci­ence, along with a vig­or­ous re-inves­ti­ga­tion of many cas­es, has led to the dis­cov­ery of a grow­ing num­ber of trag­ic mis­takes and freed inmates. 

The evi­dence in this report presents a com­pelling case for many Americans that the risks asso­ci­at­ed with cap­i­tal pun­ish­ment exceed accept­able bounds. One hun­dred and six­teen peo­ple have been freed from death row after being cleared of their charges, includ­ing 16 peo­ple in the past 20 months. These inmates cumu­la­tive­ly spent over 1,000 years await­ing their free­dom. The pace of exon­er­a­tions has sharply increased, rais­ing doubts about the reli­a­bil­i­ty of the whole system.

This evi­dence has pro­duced a dra­mat­ic reduc­tion in the use of the death penal­ty as mea­sured by the steep decline in death sen­tences around the coun­try. Death sen­tences have dropped by 50% over the past 5 years. Nearly every state has expe­ri­enced a sig­nif­i­cant reduc­tion in death sen­tenc­ing between the 1990s and the cur­rent decade. Many states are record­ing their low­est death sen­tenc­ing rates in 30 years, and the num­ber of inmates on death row has declined after steady increas­es for decades. Even exe­cu­tions have declined. And pub­lic sup­port for the death penal­ty in opin­ion polls is sig­nif­i­cant­ly down from its high point in the 1990s.

But the offi­cial gov­ern­ment response to the cri­sis of errors has been tepid at best. Most leg­is­la­tors lag behind the pub­lic in chang­ing their per­spec­tive on this pun­ish­ment. Only one state has an offi­cial mora­to­ri­um on exe­cu­tions. Token reforms have been passed in some juris­dic­tions, but a thor­ough rein­ves­ti­ga­tion of the whole death penal­ty ratio­nale and process has been avoid­ed almost everywhere.

Ultimately, the issue of inno­cence, ground­ed in reports such as this, rep­re­sents a cri­sis for the death penal­ty in America. The public’s tol­er­ance for sac­ri­fic­ing inno­cent lives for the sake of main­tain­ing a demon­stra­bly unfair gov­ern­ment pro­gram with ques­tion­able ben­e­fit to soci­ety is notice­ably ebbing. New voic­es are emerg­ing to chal­lenge the death penal­ty: judges, law enforce­ment offi­cials, con­ser­v­a­tive com­men­ta­tors, and some leg­is­la­tors are dis­card­ing the for­mer polar­iza­tion of the issue as one between crim­i­nals and vic­tims. Instead, peo­ple are not­ing that the injus­tices are often per­pe­trat­ed by those man­tled with the pub­lic trust, and that the vic­tims are some­times those con­demned to death.

This is not only a cri­sis of pub­lic con­fi­dence but one with con­sti­tu­tion­al dimen­sions as well. Some jus­tices, in both legal opin­ions and pub­lic state­ments, are call­ing for a new legal analy­sis to address the chal­lenges posed by so many mis­takes in capital cases.

The death penal­ty may con­tin­ue to decline in the U.S. Or it may, final­ly, be sub­ject­ed to a more search­ing scruti­ny. As exam­ples in this report demon­strate, there is no short­age of pro­pos­als regard­ing the changes need­ed to secure a more reli­able and just sys­tem. Yet, it is always easy for the next high-pro­file crime to over­shad­ow the mem­o­ry of so many past mis­takes. Official iner­tia remains the biggest obsta­cle to change. But beyond reform, many are say­ing that it may be time to acknowl­edge that this exper­i­ment has run its course.