DPIC Special Report: The Innocence Epidemic

In 1993, the House Judiciary Committee’s Subcommittee on Civil and Constitutional Rights con­duct­ed hear­ings on what was then a rel­a­tive­ly unknown ques­tion: How sig­nif­i­cant was the risk that inno­cent peo­ple were being wrong­ful­ly con­vict­ed and sen­tenced to death in the United States. After tak­ing tes­ti­mo­ny from four exonerees who had been wrong­ful­ly con­demned to death row, Representative Don Edwards, the sub­com­mit­tee chair­man, asked the Death Penalty Information Center to research the issue and com­pile infor­ma­tion on how fre­quent­ly these mis­car­riages of jus­tice were occur­ring and what were the reasons why. 

DPIC began look­ing more close­ly into death-row exon­er­a­tions in the U.S. in the twen­ty years since the Supreme Court ruled in Furman v. Georgia in 1972 that the death penal­ty as then admin­is­tered was uncon­sti­tu­tion­al­ly arbi­trary and capri­cious. That research — under­tak­en before the avail­abil­i­ty of the inter­net — uncov­ered 48 cas­es in which a wrong­ful­ly con­vict­ed per­son had been released from death row because of inno­cence. The results of DPIC’s research were released in a Staff Report by the Subcommittee on Civil and Constitutional Rights Committee on the Judiciary, One Hundred Third Congress, First Session, Innocence and the Death Penalty: Assessing the Danger of Mistaken Execution, issued on October 21, 1993, and became DPIC’s first Innocence List.

The orig­i­nal list of 48 cas­es includ­ed 43 in which the defen­dant had sub­se­quent­ly been acquit­ted or par­doned or all charges had been dropped. Three cas­es involved com­pro­mise res­o­lu­tions in which inno­cent defen­dants were imme­di­ate­ly released upon plead­ing guilty or no con­test to a less­er offense. One of the oth­er two defen­dants was released from prison after the parole board became con­vinced of his inno­cence, and the oth­er was acquit­ted at a retri­al of the cap­i­tal charge but con­vict­ed of less­er related charges. 

DPIC made the deci­sion at that time to main­tain as com­pre­hen­sive an inno­cence list as pos­si­ble going for­ward. However, because of the inher­ent sub­jec­tiv­i­ty of declar­ing a per­son inno­cent when some facts may remain in dis­pute, DPIC has adopt­ed the objec­tive cri­te­ri­on of ​“legal exon­er­a­tion” for an indi­vid­ual to be includ­ed. What that means is that indi­vid­u­als who had been wrong­ful­ly con­vict­ed and sen­tenced to death were:

• Subsequently acquit­ted of all charges relat­ed to the crime that placed them on death row, either at retri­al or by an appel­late court deter­mi­na­tion that the evi­dence pre­sent­ed at tri­al was insuf­fi­cient to convict;
• Had all charges relat­ed to the crime that placed them on death row dis­missed by the pros­e­cu­tion or had repros­e­cu­tion barred by the court in cir­cum­stances impli­cat­ing the reli­a­bil­i­ty of the evi­dence of guilt; or
• Been grant­ed a com­plete par­don based on evi­dence of innocence.

This deci­sion means that dozens of inno­cent indi­vid­u­als who had been coerced into enter­ing pleas as a con­di­tion to obtain­ing their free­dom after con­vic­tion for crimes they did not com­mit are not includ­ed in the list. It also means that indi­vid­u­als who are inno­cent of mur­der but still have a record of con­vic­tion for some offense relat­ed to the crime in which a per­son was killed are also not includ­ed on the list. As a result, the Innocence List is a con­ser­v­a­tive esti­mate that like­ly sub­stan­tial­ly under­states the num­ber of inno­cent peo­ple who have been wrong­ful­ly con­vict­ed and sen­tenced to death, and in some unknown and untrack­able num­ber of cas­es been wrongfully executed.

Since the House subcommittee’s release of DPIC’s ini­tial Innocence List, the Death Penalty Information Center has been track­ing new exon­er­a­tions to add to the list and has occa­sion­al­ly removed cas­es from the list when new dis­cov­er­ies indi­cat­ed that the indi­vid­ual had not been ful­ly exon­er­at­ed. During that time, the list has more than quadru­pled from 43 to 174 death-row exon­er­a­tions. However, DPIC had not had the oppor­tu­ni­ty to take a new look at old cas­es to see if there were exon­er­a­tions we had not detect­ed in our initial research.

In 2017, DPIC embarked on a mul­ti-year project to ascer­tain the sta­tus of every death sen­tence imposed in the United States since the Furman deci­sion. As part of this death-row cen­sus project, we have obtained and reviewed infor­ma­tion from state depart­ments of cor­rec­tions, researchers, pros­e­cut­ing and defense offices, court files and dock­ets, and news archives for more than 9,600 state, fed­er­al, and mil­i­tary death sen­tences imposed in the United States since July 1972. The project — the most ambi­tious to date in track­ing mod­ern U.S. death sen­tences — uncov­ered near­ly two dozen old­er cas­es that at first glance appeared to qual­i­fy as death-row exon­er­a­tions. Further research nar­rowed that num­ber to the eleven cas­es we have now added to the Innocence List, expand­ing the list to 185 exonerations.

With these eleven pri­or exon­er­a­tions added to the list, DPIC has under­tak­en an analy­sis of many of the geo­graph­ic and demo­graph­ic fea­tures of these cas­es and an exam­i­na­tion of the fac­tors con­tribut­ing to wrong­ful cap­i­tal con­vic­tions. The results are dis­turb­ing — not mere­ly because of the fre­quen­cy with which U.S. states wrong­ful­ly con­demn the inno­cent to die but because of the reasons why. 

It is wide­ly acknowl­edged that any sys­tem that is run by human beings inevitably makes mis­takes and that, despite our best efforts, inno­cent peo­ple will be sen­tenced to death. But our analy­sis of death-row exon­er­a­tions shows that inno­cent peo­ple are sen­tenced to death in most states and in every region of the coun­try that autho­rizes cap­i­tal pun­ish­ment. They can be sen­tenced to death any­where, but are most often wrong­ful­ly con­demned in states and coun­ties with a his­to­ry of aggres­sive pur­suit of the death penal­ty or that autho­rize out­lier prac­tices that make it eas­i­er to impose capital sanctions.

Moreover, the data show that most wrong­ful cap­i­tal con­vic­tions and death sen­tences are not mere­ly acci­den­tal or the result of unin­ten­tion­al errors. Instead, they are over­whelm­ing­ly the prod­uct of police or pros­e­cu­to­r­i­al mis­con­duct or the pre­sen­ta­tion of know­ing­ly false tes­ti­mo­ny. More like­ly than not, they involve a com­bi­na­tion of the two. 

The data show that for every 8.3 exe­cu­tions car­ried out in the United States, a wrong­ful­ly con­demned death-row pris­on­er is exon­er­at­ed. That is an appalling­ly and unac­cept­ably high rate of error. And as the United States approach­es the 50^th anniver­sary of the Furman deci­sion, it rais­es the fun­da­men­tal ques­tion of whether we can trust our state and fed­er­al gov­ern­ments to fair­ly, hon­est­ly, and reli­ably car­ry out capital punishment.

Since states began reen­act­ing cap­i­tal pun­ish­ment statutes in the wake of the Supreme Court’s 1972 deci­sion in Furman v. Georgia strik­ing down exist­ing death penal­ty laws, at least 185 peo­ple who were wrong­ful­ly con­vict­ed and sen­tenced to death have been exon­er­at­ed. These wrong­ful cap­i­tal con­vic­tions have hap­pened in 29 dif­fer­ent states and in 118 dif­fer­ent coun­ties, show­ing that, in what­ev­er part of the coun­try they are tried, cap­i­tal defen­dants face an inher­ent risk of wrongful conviction.

Florida has had the most death-row exon­er­a­tions of any state, with 30 since 1973, fol­lowed by Illinois with 21, and Texas with 16. Cook County, Illinois leads all coun­ties with the most death-row exon­er­a­tions (15) since 1973, fol­lowed by Cuyahoga County, Ohio; and Philadelphia County, Pennsylvania, with six exon­er­a­tions each. Maricopa County, Arizona; and Oklahoma County, Oklahoma had five each. 

Those five coun­ties, each with a his­to­ry of police and pros­e­cu­to­r­i­al mis­con­duct and of being out­liers in their exces­sive pur­suit of the death penal­ty, account by them­selves for a fifth (20%) of the nation’s death-row exon­er­a­tions. And more than 95 per­cent of wrong­ful cap­i­tal con­vic­tions and death sen­tences from those coun­ties involved some com­bi­na­tion of police or pros­e­cu­to­r­i­al mis­con­duct and wit­ness per­jury or false accusation.

26 coun­ties have more than one death-row exon­er­a­tion, col­lec­tive­ly account­ing for 50.3% of all of the wrong­ful cap­i­tal con­vic­tions that have result­ed in exonerations.

Other key find­ings of DPIC’s research include:

• Of the 185 exon­er­a­tions that have occurred since 1973, 69.2 per­cent (128) have includ­ed offi­cial mis­con­duct by police, pros­e­cu­tors, or oth­er gov­ern­ment offi­cials. Official mis­con­duct was much more like­ly in cas­es involv­ing defen­dants of col­or, cas­es in which exon­er­a­tions took two decades or more, and cas­es in which DNA evi­dence was a sig­nif­i­cant fac­tor in proving innocence.
  • Misconduct was a fac­tor in more than three-quar­ters of cas­es in which Black defen­dants were exon­er­at­ed (78.8%), more than two-thirds of cas­es involv­ing Latinx defen­dants (68.8%), and 58.2 per­cent of cas­es with white defendants.
  • Misconduct occurred in 55.6 per­cent (55 cas­es) of the 99 cas­es in which exon­er­a­tion took a decade or less, ris­ing to 81.1 per­cent (43 of 53 cas­es) in exon­er­a­tions tak­ing 11 – 20 years, 88.0 per­cent (22 of 25) in the cas­es in which exon­er­a­tion took 21 – 30 years, and in all 8 of the exon­er­a­tions that took more than three decades.
  • Misconduct was present in 85.7 per­cent of the cas­es in which DNA evi­dence con­tributed to prov­ing a death-row exoneree’s inno­cence, sug­gest­ing that the denial of DNA test­ing or absence of DNA evi­dence has caused inno­cence to be unde­tect­ed or con­tributed to the denial of relief in oth­er innocence cases.

• Two-thirds (125) of exon­er­a­tion cas­es (67.6%) have includ­ed a false accu­sa­tion or per­jury. Like offi­cial mis­con­duct, per­jury or false accu­sa­tion was more like­ly in cas­es involv­ing defen­dants of col­or (70.7% of Black and 93.8% of Latinx exonerees), and in cas­es in which exon­er­a­tions took longer (84.8% of cas­es in which exon­er­a­tion took 21 or more years). False or mis­lead­ing foren­sic evi­dence was present in 31.9 per­cent (59) of exon­er­a­tion cas­es and false or fab­ri­cat­ed con­fes­sions were impli­cat­ed in 16.2 per­cent (30) of exonerations

• Underscoring the often inten­tion­al nature of wrong­ful cap­i­tal con­vic­tions, more than half of all exon­er­a­tions (100 cas­es, 54.1%) involved both offi­cial mis­con­duct and per­jury or false accu­sa­tion, and at least one or the oth­er was present in 153 of the 185 exon­er­a­tions (82.7%). Among coun­ties with mul­ti­ple wrong­ful cap­i­tal con­vic­tions, at least one of these fac­tors was present in 84 of the 93 death-row exon­er­a­tions, or 90.3 per­cent of the time.

• Exoneration took sig­nif­i­cant­ly longer for Black defen­dants who were wrong­ly con­vict­ed and sen­tenced to death. DPIC found that it took Black death-row exonerees an aver­age of 4.3 years longer to be cleared than their white coun­ter­parts. African Americans have account­ed for 12 of the 13 post-Furman wrong­ful con­vic­tions that have tak­en 30 years or longer to exonerate.

• Outlier prac­tices con­tribute to send­ing inno­cent peo­ple to death row. More than 15 per­cent of all death-row exon­er­a­tions in the U.S. are in cas­es in which tri­al judges over­ruled jury rec­om­men­da­tions for life or imposed the death penal­ty based on non-unan­i­mous jury votes for death. At least 23 exon­er­a­tions in Florida, five in Alabama, and one in Delaware involved this outlier practice.

In July 1972, the Supreme Court struck down all exist­ing cap­i­tal pun­ish­ment statutes in the United States, rul­ing in Furman v. Georgia that the death penal­ty was being admin­is­tered in an uncon­sti­tu­tion­al­ly arbi­trary and capri­cious man­ner across the coun­try. States imme­di­ate­ly began reau­tho­riz­ing cap­i­tal pun­ish­ment through statutes and state appeal pro­ce­dures that were sup­posed to ensure that the death penal­ty would be car­ried out con­sis­tent­ly and reli­ably. But even before the first exe­cu­tion took place under the new laws in January 1977, ten inno­cent men who had been wrong­ful­ly con­vict­ed and con­demned under those laws had already been exonerated.

Since Furman, at least 185 peo­ple who were wrong­ful­ly con­vict­ed and sen­tenced to death have been exon­er­at­ed in the United States. The wrong­ful con­vic­tions that have led to these exon­er­a­tions have occurred in 118 dif­fer­ent coun­ties in 29 dif­fer­ent states. The breadth and geo­graph­ic arbi­trari­ness of these exon­er­a­tions demon­strate that wher­ev­er cap­i­tal cas­es may be tried, inno­cent defen­dants face a risk of being wrong­ful­ly sent to death row.¹

From Furman through February 15, 2021, 1,532 pris­on­ers have been exe­cut­ed in the United States. Prior to DPIC’s death-row cen­sus project, it had been esti­mat­ed that there had been one exon­er­a­tion for every nine exe­cu­tions. The new data show that the ratio of exon­er­a­tions to exe­cu­tions is even worse. For every 8.28 death-row pris­on­ers who are exe­cut­ed, one for­mer death-row pris­on­er who was wrong­ful­ly con­vict­ed and wrong­ful­ly sen­tenced to die has been exonerated.

States

Florida has the most doc­u­ment­ed death-row exon­er­a­tions of any state, with 30 since 1973. Four of those exon­er­a­tions are for con­vic­tions under pre-Furman death-penal­ty statutes. The state’s 26 exon­er­a­tions in death sen­tences imposed since Furman are also the most in the coun­try. Illinois is sec­ond in the num­ber of exon­er­a­tions with 21, fol­lowed by Texas (16), Louisiana and Ohio with 11 each, and Arizona, Oklahoma, and Pennsylvania with ten each. 

Florida also has the most coun­ties with death-row exon­er­a­tions, with 20. Texas (13) and North Carolina (11) are the only oth­er states to have wrong­ful cap­i­tal con­vic­tions and death-row exon­er­a­tions in more than ten coun­ties. Georgia, Illinois, and Oklahoma have had wrong­ful cap­i­tal con­vic­tions in six coun­ties that have result­ed in exon­er­a­tions and Alabama, California, Louisiana, Mississippi, Ohio, and Pennsylvania have had death-row exon­er­a­tions in five counties each.

Eighteen of Illinois’ 21 death-row exon­er­a­tions (85.7%) have involved police or pros­e­cu­to­r­i­al mis­con­duct, the most mis­con­duct-relat­ed exon­er­a­tions in the nation. Its 19 death-row exon­er­a­tions involv­ing per­jury or false accu­sa­tion are also the worst in the nation. Florida has the next largest num­ber of mis­con­duct-relat­ed death row exon­er­a­tions with 13, fol­lowed by Louisiana with 11. Ohio and Texas are next with ten each. Every death-row exon­er­a­tion in Louisiana has involved official misconduct.

More than 90% of Illinois’ death-row exon­er­a­tions involve wrong­ful con­vic­tions obtained as a result of per­jury or false accu­sa­tion. Two oth­er states — Florida (17) and Texas (11) — have more than ten death-row exon­er­a­tions involv­ing per­jury or false accu­sa­tion, fol­lowed by North Carolina, Ohio, and Pennsylvania with nine each. 

One sig­nif­i­cant con­tribut­ing fac­tor in Florida’s exon­er­a­tions is the prac­tice of allow­ing death sen­tences with­out a unan­i­mous jury rec­om­men­da­tion for death. Until 2016, Florida per­mit­ted tri­al judges to impose death sen­tences despite jury rec­om­men­da­tions for life or based on non-unan­i­mous jury votes for death. (See Outlier Practices, below.) Of the 25 Florida death-row exon­er­a­tions for which the jury vote is known, 22 involved judges who imposed the death penal­ty by over­rid­ing a jury rec­om­men­da­tion for life or fol­low­ing a non-unan­i­mous jury rec­om­men­da­tion for death. 

Counties

Capital defen­dants in 118 U.S. coun­ties have been exon­er­at­ed after being wrong­ful­ly con­vict­ed and sen­tenced to death. While 92 coun­ties have one exon­er­a­tion each, the 26 coun­ties with mul­ti­ple exon­er­a­tions col­lec­tive­ly account for 50.3% of all of the wrong­ful cap­i­tal con­vic­tions in the U.S. that have result­ed in exonerations. 

Fewer than a quar­ter of coun­ties with wrong­ful cap­i­tal con­vic­tions that have result­ed in exon­er­a­tions have had more than one exon­er­a­tion (22.0%). However, the more exon­er­a­tions a coun­ty has, the more like­ly the exon­er­a­tions are to involve wrong­ful con­duct rather than just human error. 

The 26 coun­ties with mul­ti­ple death-row exon­er­a­tions account for 63.3% of all of the exon­er­a­tions involv­ing false con­fes­sions, 57.0% of the exon­er­a­tions with offi­cial mis­con­duct, 56.8% of the exon­er­a­tions involv­ing false accu­sa­tions or per­jury, and 48.6% of the mis­tak­en iden­ti­fi­ca­tion exon­er­a­tions. 90.3% of the exon­er­a­tions in these coun­ties involve either offi­cial mis­con­duct or perjury/​false accu­sa­tion or both.

Cook County (Chicago), Illinois wrong­ful­ly con­vict­ed and con­demned 15 death-row exonerees since 1973, more than dou­ble the num­ber of any oth­er coun­ty in the United States. It is fol­lowed by Cuyahoga County (Cleveland), Ohio; and Philadelphia County, Pennsylvania, with six exon­er­a­tions each. Maricopa County (Phoenix), Arizona; and Oklahoma County (Oklahoma City), Oklahoma had five each. 

What these five coun­ties have in com­mon are a his­to­ry of police and pros­e­cu­to­r­i­al mis­con­duct and their his­tor­i­cal­ly exces­sive pur­suit of the death penal­ty. By them­selves, they account for 37 death-row exon­er­a­tions, one fifth (20%) of the nation’s total. And more than 95 per­cent of their wrong­ful cap­i­tal con­vic­tions and death sen­tences involved some com­bi­na­tion of police or pros­e­cu­to­r­i­al mis­con­duct and/​or wit­ness per­jury or false accusation.

Because death-row exon­er­a­tions rep­re­sent one of the most glar­ing break­downs of the legal sys­tem, a large num­ber of exon­er­a­tions marks a coun­ty as a true out­lier. In their land­mark 2000 study, A Broken System: Error Rates in Capital Cases, Columbia University law pro­fes­sor James Liebman and his col­leagues found that the more aggres­sive­ly a juris­dic­tion pur­sued the death penal­ty and obtained death sen­tences, the high­er the per­cent­age of cas­es in which courts found prej­u­di­cial con­sti­tu­tion­al error. That same phe­nom­e­non appears to be the case with exon­er­a­tions from wrong­ful capital convictions.

DPIC’s review of the 185 exon­er­a­tions found that high num­bers of exon­er­a­tions are cor­re­lat­ed to heavy use of the death penal­ty. It is not coin­ci­den­tal that every coun­ty with five or more exon­er­a­tions also appeared in DPIC’s October 2013 report, The 2% Death Penalty, among the 2% of U.S. coun­ties respon­si­ble for more than half of the U.S. death-row pop­u­la­tion or for car­ry­ing out a major­i­ty of the nation’s exe­cu­tions. The link between dis­pro­por­tion­al­ly heavy use of the death penal­ty and offi­cial mis­con­duct is well estab­lished, so it is not a sur­prise that the coun­ties with the most exon­er­a­tions also have dis­pro­por­tion­al­ly high rates of mis­con­duct. Of the 37 exon­er­a­tions orig­i­nat­ing in the top 5 coun­ties, 32 (86.5%) involved offi­cial mis­con­duct. Among all exon­er­a­tions, 67.6% involved official misconduct. 

Illinois’ Cook County (Chicago) stands out for its enor­mous num­ber of exon­er­a­tions. Its 15 death-row exon­er­a­tions are direct­ly relat­ed to endem­ic police cor­rup­tion, as the noto­ri­ous ​“Burge Squad,” oper­at­ing under Chicago Police Commander Jon Burge, and dis­graced Chicago detec­tive Reynaldo Guevara sys­tem­at­i­cal­ly tor­tured or coerced inno­cent sus­pects into con­fess­ing to mur­ders they did not com­mit. Illinois’ high rate of wrong­ful con­vic­tions in death cas­es was a major fac­tor in the state’s 2011 repeal of cap­i­tal pun­ish­ment, as state offi­cials decid­ed there was no way to cor­rect the inac­cu­ra­cy of the state’s death penalty system. 

The data on the caus­es of wrong­ful con­vic­tions in the Cook County death-row exon­er­a­tions doc­u­ment the sys­temic mis­con­duct that made the coun­ty a nation­al exam­ple of cor­rupt police prac­tices. All but one death-row exoneree in Cook County has been a per­son of col­or – 13 were Black and one was Latino. All of the exon­er­a­tions involved either per­jury or false accu­sa­tion or offi­cial mis­con­duct and the 12 with offi­cial mis­con­duct involved both. 14 of the exon­er­a­tions involved per­jury or false accu­sa­tions. Verneal Jimerson​’s case is typ­i­cal of the Chicago wrong­ful cap­i­tal con­vic­tions. Jimerson was con­vict­ed on the basis of tes­ti­mo­ny that the wit­ness lat­er recant­ed, say­ing police had coerced her into lying. In exchange for her false tes­ti­mo­ny, pros­e­cu­tors reduced her sen­tence from 50-years impris­on­ment to 2‑years pro­ba­tion. Jimerson spent 11 years on death row before he was exon­er­at­ed in 1996.

Nearly half (7) of Cook County’s exon­er­a­tions also involved false con­fes­sions. One illus­tra­tive case is that of Gabriel Solache, who was sen­tenced to death in 2000 and exon­er­at­ed in 2017. Solache and his co-defen­dant, Arturo DeLeon-Reyes, were beat­en, deprived of sleep, and giv­en lit­tle to eat or drink over three days of inter­ro­ga­tion by Detective Guevara. Though he spoke only Spanish, the con­fes­sion that Solache pur­port­ed­ly gave to police was writ­ten entire­ly in English. Guevara has been impli­cat­ed in more than 50 wrong­ful murder convictions.

The two coun­ties with the next most exon­er­a­tions — Cuyahoga County (Cleveland), Ohio and Philadelphia County, Pennsylvania — have six exon­er­a­tions each. In both coun­ties, every exon­er­a­tion involved offi­cial mis­con­duct. As did Cook County, Philadelphia and Cuyahoga coun­ties also have high rates of per­jury or false accu­sa­tion. In Philadelphia, half of death-row exon­er­a­tions also involved inad­e­quate legal defense, a by-prod­uct of the city’s well-doc­u­ment­ed fail­ures in the selec­tion and com­pen­sa­tion of appointed counsel. 

Wrongful cap­i­tal con­vic­tions and pros­e­cu­tions in Philadelphia go far beyond the six offi­cial death row exon­er­a­tions. In the three years since Philadelphia District Attorney Larry Krasner estab­lished the office’s Conviction Integrity Unit, it has been instru­men­tal in 18 exon­er­a­tions, includ­ing those of death-row pris­on­ers Christopher Williams and Walter Ogrod. Williams had been wrong­ful­ly charged with six dif­fer­ent mur­ders and was acquit­ted in two tri­als and exon­er­at­ed of the oth­er four murders. 

A sev­enth like­ly death-row exoneree, Frederick Thomas, died before he could be released, while the Philadelphia District Attorney’s office, know­ing Thomas had ter­mi­nal can­cer, fought defense efforts to expe­dite the pros­e­cu­tors’ appeal of the court order that had grant­ed him a new tri­al. Before Thomas was grant­ed a new tri­al in 2002, the state’s two eye­wit­ness­es recant­ed their tes­ti­mo­ny and police offi­cer James Ryan — who the defense said had framed Thomas — was con­vict­ed on cor­rup­tion charges aris­ing out of his con­duct in oth­er cas­es, includ­ing fal­si­fy­ing police reports and mak­ing false arrests. Unknown even to his lawyers at the time of Thomas’ death — and with­held by Philadelphia pros­e­cu­tors — Ryan and the same infor­mant who tes­ti­fied against Thomas had also framed anoth­er inno­cent man in a dif­fer­ent murder case.

James ​“Jimmy” Dennis, who also was wrong­ful­ly con­vict­ed of mur­der, spent more than 25 years on Pennsylvania’s death row. After his con­vic­tion was over­turned for mul­ti­ple instances of pros­e­cu­to­r­i­al mis­con­duct, he pled no con­test to less­er charges to secure his release in 2017. Dennis, along with Anthony Wright and Percy St. George, were wrong­ful­ly cap­i­tal­ly pros­e­cut­ed in the ear­ly 1990s as a result of evi­dence fab­ri­cat­ed or hid­den by homi­cide detec­tives Manuel Santiago and Frank Jastrzembski. 

Thomas and Dennis were both pros­e­cut­ed by Assistant District Attorney Roger King, who at one point had been respon­si­ble for 20% of all the death sen­tences imposed in Pennsylvania. King also pros­e­cut­ed death-row exoneree William Nieves, despite evi­dence that an eye­wit­ness had described the shoot­er as being a dif­fer­ent race and hav­ing a dif­fer­ent body type than Nieves. King also attempt­ed to pros­e­cute four inno­cent men in Philadelphia’s ​“Lex Street Massacre,” the worst mass mur­der in the city’s his­to­ry. No phys­i­cal evi­dence linked any of the men to the killings, but King moved for­ward with one ques­tion­able wit­ness and the coerced con­fes­sion of one of the defen­dants. After 18 months in prison with­out being tried, the court dis­missed all charges against the men.

The Cuyahoga County triple-exon­er­a­tion of Ricky Jackson, Wiley Bridgeman, and Kwame Ajamu exem­pli­fies the fac­tors that con­tribute to wrong­ful con­vic­tions. The three men were con­vict­ed in 1975 on the tes­ti­mo­ny of a 12-year-old boy. Decades lat­er, a journalist’s exam­i­na­tion of the case prompt­ed the wit­ness to come for­ward and explain that he had lied to police, and when he attempt­ed to recant his iden­ti­fi­ca­tion of the men before their tri­al, he was intim­i­dat­ed and coerced by police into main­tain­ing his tes­ti­mo­ny. Jackson, Bridgeman, and Ajamu were exon­er­at­ed in 2014, 39 years after their convictions.

Cuyahoga County pros­e­cu­tors have a long his­to­ry of mis­con­duct in cap­i­tal cas­es and of stonewalling efforts to release death-row pris­on­ers who have been wrong­ful­ly con­vict­ed. Joe D’Ambrosio and Thomas Keenan were wrong­ful­ly con­vict­ed and sen­tenced to death in 1989 for the mur­der of Anthony Klann, whose body was found in a creek in a Cleveland park. No phys­i­cal evi­dence linked either man to the crime. They were con­vict­ed based on the false tes­ti­mo­ny of Edward Espinoza, who pled guilty to less­er charges and served 12 years in prison in exchange for his testimony. 

Both men over­turned their con­vic­tions because of pros­e­cu­to­r­i­al mis­con­duct. A fed­er­al court grant­ed D’Ambrosio a new tri­al in March 2006, after prison chap­lain, Rev. Neil Kookoothe uncov­ered excul­pa­to­ry evi­dence that that the Cuyahoga County Prosecutor’s office had con­cealed from the defense. That evi­dence includ­ed that Espinoza’s ver­sion of the mur­der was false, that Klann had not even been mur­dered at the creek, and that Klann may instead have been mur­dered by a man who had pre­vi­ous­ly raped D’Ambrosio’s room­mate and who then deflect­ed atten­tion from him­self by false­ly impli­cat­ing D’Ambrosio in Klann’s mur­der. County pros­e­cu­tors con­tin­ued to with­hold oth­er excul­pa­to­ry infor­ma­tion from the defense, and then, a week before the tri­al, for the first time dis­closed the exis­tence of blood sam­ples and soil sam­ples. Then, after the tri­al was delayed, they wait­ed for sev­er­al more months before dis­clos­ing that Espinoza had died and so could not be cross exam­ined about his false testimony. 

In 2010, the fed­er­al court barred the coun­ty prosecutor’s office from retry­ing D’Ambrosio and he was final­ly exon­er­at­ed in 2012 after pros­e­cu­tors exhaust­ed their appeals of that order. The prosecutor’s office then fought for eight more years to deny D’Ambrosio com­pen­sa­tion for his wrongful conviction.

Keenan also over­turned his 1989 con­vic­tion because of pros­e­cu­to­r­i­al mis­con­duct but was retried and resen­tenced to death in 1994. A fed­er­al court over­turned that con­vic­tion as well, cit­ing ​“egre­gious” pros­e­cu­to­r­i­al mis­con­duct. A state tri­al court then dis­missed all charges against Keenan in 2012 and barred pros­e­cu­tors from retry­ing him. However, coun­ty pros­e­cu­tors suc­cess­ful­ly appealed that order and, to avoid fac­ing a third cap­i­tal tri­al, Keenan pled guilty to less­er charges in 2016. He was sen­tenced to time served. 

Cuyahoga County pros­e­cu­tors con­tin­ue to stonewall oth­er pos­si­ble exon­er­a­tions, fight­ing DNA test­ing and lying to the court about with­hold­ing evi­dence for decades in the case of Melvin Bonnell for the 1987 mur­der of Robert Bunner. In April 2020 — two months after Bonnell was sched­uled to be exe­cut­ed — Bonnell’s lawyers found three envelopes con­tain­ing bul­lets and shell cas­ings in the prosecutor’s files. The Cuyahoga County Prosecutor’s Office had claimed for 30 years that the evi­dence had been lost or destroyed, con­tin­u­ing to tell the court in 2017 that they had no phys­i­cal evi­dence from the case and that the box­es in which the defense ulti­mate­ly found the bul­lets and shell cas­ings ​“con­tained only paper doc­u­ments.” Even after Bonnell’s lawyers had found the evi­dence, assis­tant pros­e­cut­ing attor­ney Frank Zeleznikar lied to the court that ​“the items in ques­tion were not pre­served for test­ing. … This has nev­er been a secret. The State nev­er hid it from Bonnell.”

Two more coun­ties that are noto­ri­ous for death-penal­ty abus­es — Maricopa County (Phoenix), Arizona; and Oklahoma County (Oklahoma City), Oklahoma — have the next most death-row exon­er­a­tions, with 5 each. 

Maricopa County has an exten­sive his­to­ry of mis­con­duct in cap­i­tal cas­es. Since 2012, two of the county’s pros­e­cu­tors — Andrew Thomas and Juan Martinez — have been dis­barred for mis­con­duct. The coun­ty seeks the death penal­ty so often that in 2017 it ran out of defense attor­neys qual­i­fied to han­dle new­ly-charged cap­i­tal cas­es. One of the county’s death-row exonerees, Debra Milke, spent 23 years on death row before a court barred her retri­al because of ​“egre­gious” police and prosecutorial misconduct.

Ray Krone, an hon­or­ably dis­charged Air Force vet­er­an, was wrong­ful­ly con­vict­ed and sen­tenced to death in 1992 for the mur­der of a wait­ress in a Phoenix bar. The prosecution’s case against him rest­ed on cir­cum­stan­tial evi­dence and the junk-sci­ence tes­ti­mo­ny of a lat­er dis­cred­it­ed expert wit­ness who false­ly tes­ti­fied that bite marks found on the vic­tim matched Krone’s teeth, which had been dis­fig­ured in an acci­dent. The Arizona Supreme Court over­turned Krone’s con­vic­tion, find­ing that pros­e­cu­tors had sand­bagged the defense by with­hold­ing until the tri­al was under­way a video exhib­it pur­port­ing to demon­strate that Krone’s teeth matched the bitemark on the vic­tim. He was retried and con­vict­ed again based upon the junk bitemark testimony. 

Subsequently, the post-con­vic­tion court grant­ed Krone’s request for DNA test­ing. The results exon­er­at­ed Krone and when they were sub­mit­ted to a nation­al DNA data­bank, iden­ti­fied the actual killer.

In Oklahoma County, death-row pris­on­ers Julius Jones and Richard Glossip face exe­cu­tion despite strong evi­dence of inno­cence. Both allege that they were wrong­ful­ly con­vict­ed under the admin­is­tra­tion of noto­ri­ous pros­e­cu­tor ​“Cowboy” Bob Macy. Macy sent 54 peo­ple to death row dur­ing a 21-year tenure as District Attorney that was marked by pros­e­cu­to­r­i­al mis­con­duct. Jones says that a com­bi­na­tion of racial bias, poor rep­re­sen­ta­tion, and false infor­mant tes­ti­mo­ny led to him being sen­tenced to death for a crime he did not commit. 

Glossip was sen­tenced to death for the 1996 mur­der of motel oper­a­tor Barry Van Treese. No phys­i­cal evi­dence linked Glossip to the mur­der, and the only evi­dence impli­cat­ing him came from the mul­ti­ple con­flict­ing sto­ries of the actu­al killer, Justin Sneed, a 19-year-old metham­phet­a­mine addict who was spared the death penal­ty in exchange for tes­ti­fy­ing that Glossip had offered to pay him to kill Van Treese. 

Glossip’s lawyers charge that the Oklahoma County DA’s office has engaged in wit­ness intim­i­da­tion to impede Glossip’s attempts to prove his inno­cence. After two for­mer pris­on­ers who knew Sneed came for­ward with infor­ma­tion that Sneed had act­ed alone and that it was com­mon knowl­edge in the prison that Sneed had lied about Glossip to receive a reduced sen­tence, the defense says, cur­rent Oklahoma County District Attorney David Prater had arrest war­rants issued for both men. Glossip came with­in hours of exe­cu­tion in September 2015, but the exe­cu­tion was halt­ed when prison offi­cials dis­cov­ered that they had been pro­vid­ed the wrong drug to car­ry out the execution.

23 of Macy’s cap­i­tal con­vic­tions relied heav­i­ly on the tes­ti­mo­ny of dis­graced police chemist Joyce Gilchrist, who an FBI inves­ti­ga­tion in 2001 con­clud­ed had offered tes­ti­mo­ny ​“that went beyond the accept­able lim­its of sci­ence.” An inter­nal police inves­ti­ga­tion found that evi­dence in many of Gilchrist’s major cas­es was miss­ing, along with three years of her blood analy­sis files. In the case of Curtis McCarty, one of three death-row exonerees pros­e­cut­ed under Macy, Gilchrist false­ly tes­ti­fied that hairs found at the crime scene matched McCarty’s and that his blood type matched the semen found on the victim’s body. A lat­er inves­ti­ga­tion revealed that Gilchrist had altered her notes to impli­cate McCarty and that the hairs she had test­ed were miss­ing. McCarty was exon­er­at­ed in 2007 after inde­pen­dent DNA test­ing exclud­ed him as a sus­pect. Almost half of the 23 peo­ple who were sen­tenced to death in tri­als in which Gilchrist tes­ti­fied were exe­cut­ed before their cas­es could be reviewed.

Death sen­tences imposed by tri­al judges over­rid­ing jury votes for life or dis­re­gard­ing the life votes of indi­vid­ual jurors account for the vast major­i­ty of death-row exon­er­a­tions in the three states — Florida, Alabama, and Delaware —that per­mit­ted these prac­tices. Twenty-nine of the 32 exon­er­a­tions in these states (90.6%) for death sen­tences imposed dur­ing a peri­od in which the state per­mit­ted a death sen­tence based on a non-unan­i­mous jury rec­om­men­da­tion for death or the judi­cial over­ride of a jury’s vote for life involved one or the oth­er of these practices. 

Florida. Florida’s 30 death-row exon­er­a­tions since 1973 are the most in the nation, as are the 26 exon­er­a­tions in cas­es tried since Furman. Allowing judges to impose death sen­tences despite one or more jurors vot­ing for life is a major rea­son why. DPIC has been able to deter­mine the jury votes in 25 of the 26 death-row exon­er­a­tions involv­ing Florida’s post-Furman judi­cial over­ride/non-una­nim­i­ty statute. In those 25 cas­es, juries unan­i­mous­ly rec­om­mend­ed death only twice. 23 times, one or more jurors vot­ed for life, includ­ing five instances in which judges over­rode jury rec­om­men­da­tions for life.

The prac­tice also dis­pro­por­tion­ate­ly affect­ed defen­dants of col­or. Nearly sev­en­ty per­cent (16 of 23) of the wrong­ful cap­i­tal con­vic­tions in which Florida judges imposed death sen­tences despite the votes of one or more jurors for life involved defen­dants of col­or. Eleven of these wrong­ful death sen­tences (47.8%) were imposed on Black death-row exonerees. Another five (21.7%) were imposed on Latinx exonerees. Seven white exonerees (30.4%) were also wrong­ful­ly sen­tenced to death by Florida judges under these practices.

Alabama. Seven for­mer death-row pris­on­ers have been exon­er­at­ed in Alabama after post-Furman death sen­tences. At least one juror vot­ed for life in five of the six exon­er­a­tions in which sen­tenc­ing juries were impan­eled. In three of the cas­es, judges over­rode jury rec­om­men­da­tions for life — Larry Randal Padgett (9 – 3 jury vote for life); Daniel Wade Moore (8 – 4 for life); and Walter McMillian (7 – 5 for life). Two oth­er wrong­ful­ly con­vict­ed death-row pris­on­ers, Anthony Ray Hinton and Wesley Quick, were sen­tenced to death after non-unan­i­mous sen­tenc­ing rec­om­men­da­tions by their juries. DPIC’s research sug­gests that the jury that wrong­ful­ly con­vict­ed Charles Bufford in 1978 unan­i­mous­ly rec­om­mend­ed that he be sen­tenced to death. Alabama’s sev­enth death-row exoneree, Gary Drinkard, waived a jury sentencing altogether.

Delaware. There has been one post-Furman death-row exon­er­a­tion in Delaware. Isaiah McCoy was sen­tenced to death by his tri­al judge fol­low­ing the jury’s 10 – 2 sen­tenc­ing rec­om­men­da­tion for death. Jermaine Wright, anoth­er like­ly inno­cent Delaware death-pris­on­er who was sen­tenced to death after a non-unan­i­mous jury vote, won a new tri­al because of pros­e­cu­to­r­i­al mis­con­duct in his case. He was lat­er released from cus­tody upon plead­ing no con­test to lesser charges. 

DPIC’s analy­sis of the data from the 185 exon­er­a­tions now on our Innocence List sug­gests that most inno­cent peo­ple who are wrong­ful­ly con­vict­ed and sen­tenced to death don’t end up on death row by mis­take. Instead, the data show that far more fre­quent­ly, and par­tic­u­lar­ly with peo­ple of col­or, inno­cent death-row pris­on­ers were con­vict­ed because of a com­bi­na­tion of police or pros­e­cu­to­r­i­al mis­con­duct and per­jury or oth­er false tes­ti­mo­ny. An inno­cence case with a sin­gle con­tribut­ing cause is the excep­tion, not the rule. More than three-quar­ters of death-row exon­er­a­tions have mul­ti­ple types of errors.

Beyond mere human fal­li­bil­i­ty, the data raise seri­ous ques­tions as to whether the crim­i­nal legal sys­tem has the capac­i­ty or the will to insti­tute reforms to pre­vent wrong­ful cap­i­tal con­vic­tions. For while eye­wit­ness and inter­ro­ga­tion pro­ce­dures, jury instruc­tions and sci­en­tif­ic evi­dence can be improved, no pro­ce­dure or sci­en­tif­ic advance can elim­i­nate inten­tion­al mis­con­duct. Of the 185 exon­er­a­tions that have occurred since 1973, more than 80% have involved offi­cial mis­con­duct by police, pros­e­cu­tors, or oth­er gov­ern­ment offi­cials or perjury/​false accu­sa­tion, and more than half have involved both.

Official mis­con­duct and perjury/​false accu­sa­tion are by far the lead­ing caus­es of wrong­ful cap­i­tal con­vic­tions. 69.2% (128) of the death-row exon­er­a­tions have includ­ed offi­cial mis­con­duct by police, pros­e­cu­tors, or oth­er gov­ern­ment offi­cials. 67.6% (125) have includ­ed false accu­sa­tion or per­jury. One or the oth­er was present in 153 of the 185 exon­er­a­tions (82.7%) and they were both present in 100 of the cas­es (54.1%).

False or mis­lead­ing foren­sic evi­dence is the next lead­ing con­tribut­ing fac­tor in wrong­ful cap­i­tal con­vic­tions, present in 31.9% (59) of wrong­ful con­vic­tions. Mistaken wit­ness iden­ti­fi­ca­tions — often accom­pa­nied by sug­ges­tive or manip­u­lat­ed iden­ti­fi­ca­tion pro­ce­dures — were present in 20.0% (37) of the exon­er­a­tions and false or fab­ri­cat­ed con­fes­sions were present 16.2% of the time (30 cas­es). Finally, appel­late courts found that exonerees had been con­vict­ed based on insuf­fi­cient evi­dence in 9.2% (17) of the cas­es. In at least 47 cas­es — more than a quar­ter of the exon­er­a­tions (25.4%), inad­e­quate legal rep­re­sen­ta­tion failed to present key defense evi­dence or failed to con­test erro­neous or improp­er pros­e­cu­tion evi­dence or argument.

Just as wrong­ful cap­i­tal con­vic­tions were usu­al­ly the prod­uct of inten­tion­al mis­con­duct, they were rarely the prod­uct of a sin­gle iso­lat­ed error. DPIC’s analy­sis of the caus­es of wrong­ful cap­i­tal con­vic­tions found that the con­vic­tion rest­ed on a sin­gle type of error in only 21.6% of the cas­es (40 cas­es), and 11 of those cas­es were exon­er­a­tions based on the insuf­fi­cien­cy of the evi­dence. 70 of the con­vic­tions (37.8%) were the prod­uct of two dif­fer­ent types of wrong­ful fac­tors, but most fre­quent­ly, three or more fac­tors con­tributed to the wrong­ful cap­i­tal con­vic­tions (75 cas­es, 40.5%).

The data show — and indi­vid­ual cas­es illus­trate — that the com­bi­na­tion of these fac­tors often go hand-in-hand as part of a pros­e­cu­to­r­i­al strat­e­gy to con­vict. They include pros­e­cu­tors offer­ing incen­tives for coop­er­at­ing wit­ness­es to tes­ti­fy favor­ably to state, with­hold­ing infor­ma­tion about the witness’s expec­ta­tion of favor­able treat­ment, and elic­it­ing false tes­ti­mo­ny from the wit­ness. Likewise, a code­fen­dant who is threat­ened with poten­tial cap­i­tal charges has a strong incen­tive to impli­cate oth­ers in exchange for a favor­able plea deal. In one of the recent­ly dis­cov­ered exon­er­a­tions, Anthony Carey was sen­tenced to death in Mecklenburg County, North Carolina for the 1973 rob­bery and mur­der of a gas sta­tion employ­ee. James Mitchell, the actu­al shoot­er, agreed to plead guilty and impli­cate four oth­er peo­ple in the mur­der in exchange for a non-cap­i­tal sen­tence. Carey’s con­vic­tion was over­turned on appeal, and pros­e­cu­tors dropped charges after Mitchell recant­ed his false testimony.

Government offi­cials have also pres­sured wit­ness­es to pro­vide false tes­ti­mo­ny. In Alfred Brown​’s case, his girl­friend truth­ful­ly tes­ti­fied before the grand jury that he had been on the phone with her in her apart­ment short­ly before the mur­der, mak­ing it phys­i­cal­ly impos­si­ble for him to have got­ten to the mur­der scene in time to have com­mit­ted the crime. Harris County, Texas pros­e­cu­tors obtained phone records in an attempt to refute her tes­ti­mo­ny. But when the records actu­al­ly cor­rob­o­rat­ed Brown’s ali­bi, assis­tant dis­trict attor­ney Dan Rizzo with­held those doc­u­ments from the defense and jailed Brown’s girl­friend for sev­en weeks until she changed her tes­ti­mo­ny to false­ly impli­cate him. In Cuyahoga County, Ohio, Kwame Ajamu, Wiley Bridgeman, and Ricky Jackson were con­vict­ed based on the tes­ti­mo­ny of a 12-year-old boy who was pres­sured by police to tes­ti­fy against them. Police threat­ened to jail the boy’s par­ents at a time when his moth­er was bat­tling can­cer. Police also fab­ri­cat­ed evi­dence and with­held evi­dence of the men’s innocence.

Wrongful cap­i­tal con­vic­tions are not race neu­tral. DPIC’s exon­er­a­tion data shows that exonerees of col­or, and par­tic­u­lar­ly those who are Black, are more like­ly to be vic­tims of offi­cial mis­con­duct and false accu­sa­tion, more like­ly to be wrong­ful­ly con­vict­ed and con­demned, and more like­ly to spend longer peri­ods fac­ing exe­cu­tion or under the con­tin­u­ing shad­ow of their wrong­ful con­vic­tion than white death-row exonerees.

This should come as no sur­prise. As we explained in our September 2020 report, Enduring Injustice: The Persistence of Racial Discrimination in the U.S. Death Penalty, implic­it and explic­it racial bias per­me­ate every stage of a cap­i­tal case, from polic­ing prac­tices, to arrest and clear­ance rates, to pros­e­cu­to­r­i­al charg­ing, to jury selec­tion, to the rep­re­sen­ta­tion pro­vid­ed by defense coun­sel, to sen­tenc­ing and the deter­mi­na­tion of ​“death­wor­thi­ness,” and, as the new data show, to exon­er­at­ing those who are wrong­ful­ly con­demned to die. 

But the sys­temic ordi­nar­i­ness of this dis­crim­i­na­tion should make the num­bers more dis­turb­ing, not less. In the con­text of racial jus­tice and the sup­pos­ed­ly race-neu­tral admin­is­tra­tion of the law, it amounts to a state­ment that mem­bers of com­mu­ni­ties of col­or are more dis­pos­able and that, espe­cial­ly, inno­cent Black lives matter less.

As of October 1, 2020, an already dis­pro­por­tion­ate 57.9% of those on death row in the United States or fac­ing cap­i­tal retri­als or resen­tenc­ing pro­ceed­ings were peo­ple of col­or. 41.6% were Black; 13.4% were Latinx. An even more racial­ly dis­pro­por­tion­ate 63.8% of wrong­ful­ly con­vict­ed death-row exonerees are peo­ple of col­or, 53.5% of whom are Black. 

The wrong­ful con­vic­tions of Black exonerees are also much less like­ly to have been acci­den­tal. DPIC’s exon­er­a­tion data also shows that that offi­cial mis­con­duct — defined as mis­con­duct by police, pros­e­cu­tors, or oth­er gov­ern­ment offi­cials² — is dis­pro­por­tion­ate­ly preva­lent in death-row exon­er­a­tions of defen­dants of col­or, espe­cial­ly Black defen­dants. The same is true of per­jury and false accu­sa­tion, which very often occurs in tan­dem with government misconduct. 

Official mis­con­duct occurred in more than two-thirds of death-row exon­er­a­tions (69.2%) and was present in a major­i­ty of cas­es irre­spec­tive of the exoneree’s race. However, mis­con­duct occurred with sig­nif­i­cant­ly greater fre­quen­cy if the exoneree was Black or Latinx. Official mis­con­duct was a con­tribut­ing fac­tor in the wrong­ful con­vic­tions of 78.8% of Black death-row exonerees and 68.8% of Latinx death-row exonerees, as com­pared to 58.2% of exon­er­a­tions of wrong­ful­ly con­vict­ed white death-row survivors. 

Official mis­con­duct occurred in 20.6% more cas­es with Black exonerees and 10.6% more cas­es with Latinx exonorees than in cas­es involv­ing white exonerees. The odds that offi­cial mis­con­duct con­tributed to a death-row exoneree’s wrong­ful cap­i­tal con­vic­tion were 2.7 times greater if the exoneree was Black than if he or she was white, and 1.6 times greater if the exoneree was Latinx.³

Similarly, false accu­sa­tion or per­jury was a fac­tor in more than two-thirds (125) of death-row exon­er­a­tions (67.6%). Like offi­cial mis­con­duct, per­jury or false accu­sa­tion was more preva­lent in cas­es involv­ing exonerees of col­or (72.9% of cas­es), affect­ing 70.7% of Black exonerees and 93.8% of Latinx exonerees. It also was a fac­tor in the wrong­ful con­vic­tions of 58.2% of white exonerees, the same num­ber as were affect­ed by official misconduct.

Perjury/​false accu­sa­tion occurred at a rate that was 35.6 per­cent­age points high­er for Latinx exonerees and 12.5 per­cent­age points high­er for Black exonerees than for their white coun­ter­parts. The odds that per­jury or false accu­sa­tion con­tributed to a death-row exoneree’s wrong­ful cap­i­tal con­vic­tion were 1.7 times greater if the exoneree was Black than if he or she was white, and 10.8 times greater if the exoneree was Latinx.⁴ However, the com­par­isons with respect to Latinx exonerees are less mean­ing­ful because of the rel­a­tive­ly small sample size.

False or fab­ri­cat­ed con­fes­sions and mis­tak­en eye­wit­ness iden­ti­fi­ca­tion, while less preva­lent as fac­tors con­tribut­ing to wrong­ful cap­i­tal con­vic­tions, also were dis­pro­por­tion­ate­ly present in cas­es involv­ing Black exonerees. A DPIC analy­sis found that 18.2% of Black death-row exonerees’ cas­es involved false or fab­ri­cat­ed con­fes­sions, as com­pared with the cas­es of 18.8% of Latinx exonerees and 13.4% of white exonerees. Mistaken iden­ti­fi­ca­tion occurred in 26.3% of Black exonerees’ cas­es, in con­trast to 13.4% of cas­es involv­ing white exonerees (the same per­cent­age as for false con­fes­sions) and in only 6.3% of cas­es with Latinx exonerees. 

False or mis­lead­ing foren­sic evi­dence was a fac­tor in a greater num­ber, but small­er per­cent­age of wrong­ful cap­i­tal con­vic­tions involv­ing Black exonerees (29 cas­es, 29.3%) than in cas­es involv­ing white exonerees (23 cas­es, 34.3%). It was present in sev­en cas­es (36.8%) involv­ing oth­er exonerees of color.

9.2% of exon­er­a­tions involved appel­late acquit­tals as a result of insuf­fi­cient evi­dence. Appellate acquit­tals com­prised 13.4% of exon­er­a­tions involv­ing white death-row exonerees and 12.5% of exon­er­a­tions involv­ing Latinx exonerees, but only 6.1% of Black exonerees.

In addi­tion, DPIC’s analy­sis of exon­er­a­tion data has found that Black death-row exonerees spend, on aver­age, 4.3 years longer wait­ing to be exon­er­at­ed than white exonerees. This trans­lates into more time on death row, more time in prison, and more time after release liv­ing under the cloud of a wrongful conviction.

Part of this dif­fer­ence can be attrib­uted to the high­er rates of offi­cial mis­con­duct and per­jured tes­ti­mo­ny in cas­es involv­ing Black exonerees — types of inten­tion­al mis­con­duct that pros­e­cu­tors have a greater incen­tive to hide and charges against which they tend to more aggres­sive­ly defend. Official mis­con­duct is a fac­tor in 30 of the 33 cas­es (90.9%) in which exon­er­a­tion took more than two decades. Perjury or false accu­sa­tion were present in 28 of those cas­es (84.8%). But race itself plays a role in delay­ing exon­er­a­tion. Even after con­trol­ling for the pres­ence of offi­cial mis­con­duct, a study by the National Registry of Exonerations still found that race affects how long a per­son spends in prison. The study con­clud­ed that “[i]nnocent African Americans who are con­vict­ed of mur­der are at a dis­ad­van­tage not only because their con­vic­tions were more like­ly to have been influ­enced by offi­cial mis­con­duct, but also sim­ply because of their race.”⁵

The racial dis­par­i­ty can be illus­trat­ed by who takes the most time to be exon­er­at­ed. Twelve of the 13 cas­es in which exon­er­a­tion from post-Furman wrong­ful cap­i­tal con­vic­tions took 30 years or longer involved African-American exonerees. Sentenced to death in 1976 under North Carolina’s uncon­sti­tu­tion­al manda­to­ry death penal­ty statute, it took 43 years before Charles Ray Finch was exon­er­at­ed. His wrong­ful con­vic­tion was a prod­uct of false foren­sic tes­ti­mo­ny and an eye­wit­ness iden­ti­fi­ca­tion manip­u­lat­ed by police mis­con­duct. In March 2019, just months before Finch’s exon­er­a­tion, the new­ly cre­at­ed Conviction Integrity Unit in Duval County, Florida freed Clifford Williams, Jr. after 42 years in prison. He had been con­vict­ed in 1976 as a result of fab­ri­cat­ed eye­wit­ness tes­ti­mo­ny that was con­tra­dict­ed by the phys­i­cal evi­dence. However, his tri­al coun­sel failed to con­test that tes­ti­mo­ny and ignored 40 ali­bi wit­ness­es who placed him else­where at the time of the murder.

Capital cas­es take a long time to work their way through the courts. That is true both for exe­cu­tions and the even larg­er num­ber of cas­es in which defen­dants come off death row after over­turn­ing their con­vic­tions or death sen­tences. But it is also true of exon­er­a­tions, many of which take even longer because of the fail­ure of courts to detect and acknowl­edge inno­cence dur­ing the course of ordi­nary appellate review.

From 1973 through February 15, 2021, death-row exonerees wait­ed an aver­age of 12.0 years from the date of their ini­tial con­vic­tion to be exon­er­at­ed. However, this aver­age includes 17 appel­late acquit­tals based on the insuf­fi­cien­cy of the evi­dence pre­sent­ed at tri­al, which aver­aged less than three years each, and more than a dozen cas­es in which per­jury was exposed almost imme­di­ate­ly after tri­al. Death-row exonerees whose cas­es reached ten years with­out res­o­lu­tion could expect to wait an aver­age of anoth­er decade before they were cleared. That has become the real­i­ty for the vast major­i­ty of recent death row exonerees. Between 2011 and 2020, as cas­es tried in the 1990s, 1980s, and even 1970s con­tin­ued to yield new exon­er­a­tions, the aver­age time between an exoneree’s ini­tial death sen­tence and exon­er­a­tion had length­ened to 22.6 years. 

Florida exoneree Clifford Williams and North Carolina exoneree Charles Ray Finch have wait­ed the longest, both being exon­er­at­ed more than 42 years after their ini­tial wrongful convictions. 

Wrongful con­vic­tions that take decades to redress are often the result of suc­cess­ful on-going efforts by gov­ern­ment offi­cials to sup­press mis­con­duct and false tes­ti­mo­ny or accu­sa­tions. In all eight of the cas­es in which an exon­er­a­tion occurred 31 or more years after con­vic­tion, offi­cial mis­con­duct was one of the rea­sons for the wrong­ful con­vic­tion. Official mis­con­duct was also a fac­tor in 88% of the twen­ty-five cas­es in which exon­er­a­tions occurred 21 – 30 years after the conviction. 

Moreover, these exon­er­a­tions are not exam­ples of a delayed appeal process final­ly work­ing. Most of these cas­es escaped detec­tion in the nor­mal course of court pro­ceed­ings. Leon Brown and Henry McCollum were exon­er­at­ed in 2014, 30 years after their wrong­ful con­vic­tions in North Carolina, not through the courts, but as a result of an inves­ti­ga­tion by the North Carolina Innocence Inquiry Commission. Finch was exon­er­at­ed after he had unsuc­cess­ful­ly exhaust­ed the nor­mal course of appeals, and he was only able to obtain relief because of the pro bono assis­tance of the Duke Law School Wrongful Convictions Clinic. Williams’ exon­er­a­tion required the work of the Conviction Review Unit estab­lished by State Attorney Melissa Nelson in 2018, which exposed offi­cial mis­con­duct by pre­de­ces­sors in the office. Christopher Williams and Walter Ogrod were exon­er­at­ed in Philadelphia after 26 and 24 years on death row, after the new­ly cre­at­ed Philadelphia District Attorney’s Conviction Integrity Unit found wide­spread police and pros­e­cu­to­r­i­al mis­con­duct in their cases. 

Pervis Payne​’s still-pend­ing case in Shelby County, Tennessee, demon­strates how offi­cial mis­con­duct can length­en pro­ceed­ings and delay the adju­di­ca­tion of wrong­ful con­vic­tion claims. Payne’s lawyers have argued that Shelby County pros­e­cu­tors, who have a his­to­ry of mis­con­duct in cap­i­tal cas­es, vio­lat­ed Payne’s rights by with­hold­ing excul­pa­to­ry evi­dence and mak­ing racist argu­ments to the jury dur­ing his tri­al. Payne was sen­tenced to death in 1988, but his ini­tial peti­tion for DNA test­ing was denied in 2006 based on a now-over­ruled court deci­sion. Prosecutors con­tin­ued to object to DNA test­ing in his case, and evi­dence was final­ly test­ed pur­suant to a court order in late 2020. In the process of seek­ing test­ing, Payne’s lawyers have argued that hid­den evi­dence has been dis­cov­ered and that cru­cial evi­dence such as fin­ger­nail scrap­ings remains missing. 

False tes­ti­mo­ny or accu­sa­tions have also played a sig­nif­i­cant role in decades-long wrong­ful con­vic­tion cas­es. Perjury or false accu­sa­tion was a fac­tor in 87.5% of cas­es in which exon­er­a­tions occurred 31 or more years after the con­vic­tion and in 84% of the cas­es with exon­er­a­tions 21 – 30 years after the conviction. 

DNA evi­dence is unlike­ly to be a fac­tor in exon­er­a­tions that take place short­ly after con­vic­tion. It is present in just 7.1% of exon­er­a­tions that are com­plet­ed in a less than a decade. However, it is an increas­ing­ly preva­lent fac­tor in cas­es that take longer than that to reach res­o­lu­tion. When exon­er­a­tions occurred more than ten years after con­vic­tion, excul­pa­to­ry DNA evi­dence is present approx­i­mate­ly one-quar­ter of the time. 

Part of this is attrib­ut­able to pros­e­cu­to­r­i­al resis­tance to DNA test­ing, result­ing in the need for exten­sive lit­i­ga­tion that delays both the test­ing itself and the res­o­lu­tion of the case. Moreover, post-con­vic­tion DNA test­ing typ­i­cal­ly is not avail­able until a defen­dant has com­plet­ed his or her ini­tial state court appeal. The first DNA exon­er­a­tions for death-sen­tenced pris­on­ers occurred in the 1990s, and DNA played a role in 17 – 18% of exon­er­a­tions in the decades between then and 2020. It has been a major fac­tor in the most recent exon­er­a­tions, with five of the sev­en exon­er­a­tions this decade (71.4%) involv­ing DNA evidence. 

On the oth­er end of the spec­trum, exon­er­a­tions for insuf­fi­cient evi­dence are exclu­sive­ly seen in exon­er­a­tions with­in 1 – 10 years of con­vic­tions. That is because most states require appeals courts to con­sid­er the suf­fi­cien­cy of the evi­dence of a cap­i­tal con­vic­tion on direct appeal, the first stage of appel­late review. If the evi­dence is insuf­fi­cient to con­vict, the court need not review any oth­er issue, sig­nif­i­cant­ly reduc­ing the time nec­es­sary to decide the case. As a result, these exon­er­a­tions hap­pen more quick­ly than in the bulk of exon­er­a­tion cas­es, which typ­i­cal­ly require exten­sive inves­ti­ga­tion and litigation. 

Time Between Conviction and Exoneration by Race

Since offi­cial mis­con­duct is more like­ly to occur in Black exonerees’ cas­es, the preva­lence of offi­cial mis­con­duct in long-unreme­died cas­es of wrong­ful con­vic­tions con­tributes to the longer time Black defen­dants wait for exon­er­a­tion. It took Black death-row exonerees an aver­age of 4.3 years longer to be cleared than their white coun­ter­parts. African Americans have account­ed for 12 of the 13 death-row exon­er­a­tions that have tak­en 30 years or longer. Exonerations tend to exhib­it a racial pref­er­ence: two-thirds of white death-row exonerees are freed with­in 10 years of con­vic­tion, while 56% of cas­es in which Black exonerees who are wrong­ful­ly con­vict­ed and sen­tenced to death require more than a decade to resolve.

Race and Exonerations Over Time

Historically, the major­i­ty of death-row exonerees have been peo­ple of col­or. Although this gen­er­al trend has been sta­ble, Latinx rep­re­sen­ta­tion among exonerees has fluc­tu­at­ed with time and the per­cent­age of Black exonerees has grown in the last decade. Between 1980 and 2010, approx­i­mate­ly half of all exonerees each decade were Black, but since 2011 near­ly 60% of exonerees have been Black. That may be attrib­ut­able to the fact that the ​“new” exon­er­a­tions are dis­pro­por­tion­ate­ly cas­es that have tak­en longer to resolve and which over­whelm­ing­ly involve pros­e­cu­to­r­i­al mis­con­duct. Both of those case char­ac­ter­is­tics are dis­pro­por­tion­ate­ly present in cas­es involv­ing wrong­ful con­vic­tions of Black exonerees.

Most Americans erro­neous­ly believe that DNA is respon­si­ble for the bulk of exon­er­a­tions from death row in the United States. That belief is sim­ply a myth. Of the 185 doc­u­ment­ed death-row exon­er­a­tions since 1973, DNA evi­dence has been an exon­er­at­ing fac­tor in only 28. That trans­lates to 15.1%, or one out of every 6.6 exon­er­a­tions. By the time Kirk Bloodsworth became the first for­mer death-row pris­on­er exon­er­at­ed by DNA in 1993, there had already been 57⁶ oth­er death-row exonerations.

That, how­ev­er, does not mean that DNA is not increas­ing­ly and tremen­dous­ly impor­tant. Beginning with Mr. Bloodsworth’s exon­er­a­tion, DNA has con­tributed to 21.9% of death-row exon­er­a­tions, or 1 in every 4.6. It helped exon­er­ate 8 for­mer death-row pris­on­ers in the 1990s, 10 in the 2000s, 5 in the 2010s, and anoth­er 5 in the first 13 months of the 2020s.

The lessons from the DNA evi­dence are two-fold: it has the pow­er in many cas­es to prove a person’s inno­cence. And per­haps equal­ly impor­tant, it can show us the unre­li­a­bil­i­ty, inac­cu­ra­cy, or men­dac­i­ty of the oth­er evi­dence pros­e­cu­tors, courts, and juries rou­tine­ly and erro­neous­ly relied upon in con­vict­ing inno­cent peo­ple and send­ing them to death row. For when the DNA proves that a prisoner’s inno­cence claim is right, it also proves that every oth­er piece of evi­dence relied upon to con­vict was wrong.

There is a sense in which the DNA cas­es are a truth serum for iden­ti­fy­ing the pro­file of a poten­tial ​“inno­cence case,” for there is no rea­son to believe that the con­duct of police, pros­e­cu­tors, experts, and infor­mants in cas­es in which they don’t know DNA will become avail­able will be dif­fer­ent from their con­duct when it is in fact unavail­able. Because there should be no dif­fer­ences between the caus­es of wrong­ful con­vic­tions in the DNA cas­es and in the cas­es with no DNA, the dif­fer­ences that do exist give us impor­tant clues about cir­cum­stances in which courts should not be deny­ing access to DNA test­ing and what poten­tial­ly false evi­dence they should not be cred­it­ing in the absence of DNA evidence.

Yet, while there is no appar­ent causal rela­tion­ship between the avail­abil­i­ty of DNA evi­dence and the pres­ence of any par­tic­u­lar risk fac­tor for wrong­ful con­vic­tion, the dif­fer­ences in the pro­files of DNA exon­er­a­tions and exon­er­a­tions with­out DNA are stun­ning. The pres­ence of every risk factor except per­jury or false accu­sa­tion⁷ is dra­mat­i­cal­ly dif­fer­ent in the DNA-exon­er­a­tion cas­es as com­pared to other exonerations:

• Official mis­con­duct was a con­tribut­ing fac­tor in 85.7% of the DNA exon­er­a­tions (24 of 28), com­pared to 66.2% in the cas­es with­out DNA, a 19.5 percentage-point difference.
• False or fab­ri­cat­ed con­fes­sions are present in 46.4% of the DNA exon­er­a­tions, 4.3 times more fre­quent­ly and 35.6 per­cent­age points greater than the 10.8% of non-DNA exon­er­a­tions in which it is present.
• False or mis­lead­ing foren­sic evi­dence is pre­sent­ed in 71.4% of the DNA cas­es, 2.9 times the rate and 46.6 per­cent­age points more fre­quent­ly than the 24.8% of non-DNA exon­er­a­tions in which it occurs.
• Inadequate legal defense occurs 35.7% of the time and 1.5 times more fre­quent­ly in DNA exon­er­a­tions than it does in the non-DNA exon­er­a­tions, where its 23.6% lev­el of pres­ence is 12.1 per­cent­age points lower.
• Mistaken wit­ness iden­ti­fi­ca­tions occur in 35.7% of the DNA exon­er­a­tions. That is 2.1 times the 17.2% rate at which it occurs in exon­er­a­tions with­out DNA, an 18.5 percentage-point difference.

The num­bers strong­ly sug­gest that a sig­nif­i­cant num­ber of addi­tion­al wrong­ful con­vic­tions involv­ing mis­con­duct, dis­put­ed con­fes­sions, and ques­tion­able foren­sic or wit­ness tes­ti­mo­ny have not been detect­ed. The dif­fer­ent rates at which these caus­es appear in DNA ver­sus non-DNA exon­er­a­tions — espe­cial­ly when there are alle­ga­tions of more than one of them in an indi­vid­ual case — sug­gest that they are red flags for DNA test­ing. Yet, states con­tin­ue to deny death-row pris­on­ers the oppor­tu­ni­ty to test DNA evi­dence that may prove their innocence. 

The result may well be wrong­ful exe­cu­tions — and cir­cum­stances sug­gest that this has already occurred. Posthumous DNA test­ing indi­cates that Claude Jones, exe­cut­ed in Texas in 2000, was like­ly inno­cent. Tennessee exe­cut­ed Sedley Alley in 2006 after deny­ing him DNA test­ing that might have estab­lished his inno­cence. The state courts lat­er acknowl­edged that they mis­in­ter­pret­ed their post-con­vic­tion DNA-test­ing law and that Alley’s request for DNA test­ing should have been grant­ed. After new evi­dence emerged point­ing to a ser­i­al killer as the pos­si­ble per­pe­tra­tor, Alley’s estate, with the assis­tance of the Innocence Project, request­ed posthu­mous test­ing. It is still unknown whether the Tennessee courts will allow the test­ing to proceed.

In Florida — the state with the most death-row exon­er­a­tions in the nation — a Tampa Bay Times inves­ti­ga­tion in 2018 found that the state’s courts had refused death-row pris­on­ers access to DNA test­ing at least sev­en­ty times, deny­ing 19 men — eight of whom have been exe­cut­ed — any test­ing at all and pre­vent­ing nine oth­ers from obtain­ing test­ing of addi­tion­al evi­dence or more advanced DNA test­ing after ini­tial tests had been inconclusive. 

Courts have denied DNA test­ing in oth­er cas­es in which con­demned pris­on­ers have pre­sent­ed sub­stan­tial claims of inno­cence, includ­ing a num­ber of recent cas­es in which pos­si­bly inno­cent death-row pris­on­ers have been exe­cut­ed.⁸

DPIC dis­cov­ered 11 addi­tion­al exon­er­a­tions dur­ing its research of all mod­ern-era death sen­tences. These 11 indi­vid­u­als were tried and sen­tenced to death in Alabama, Arizona, Georgia, Montana, North Carolina, Ohio, and Texas. Their con­vic­tions took place between 1973 and 1993. Nine of the cas­es involved offi­cial mis­con­duct, and five involved both mis­con­duct and per­jury or false accusation. 

The new­ly dis­cov­ered cas­es share sim­i­lar char­ac­ter­is­tics to those in DPIC’s broad­er list of exonerations.

• Charles Tolliver, who is Black, was con­vict­ed in Ohio by an all-white jury, and after his case was reversed because of the dis­crim­i­na­to­ry use of peremp­to­ry strikes, he was acquit­ted at retrial. 
• John Thomas Alford was joint­ly tried in North Carolina with a code­fen­dant who had con­fessed to the mur­der. At tri­al, Alford pre­sent­ed evi­dence and wit­ness­es that he was not at the scene of the crime but the court refused to per­mit him to present evi­dence of his codefendant’s con­fes­sion. He was acquit­ted after the North Carolina Supreme Court ordered that he be tried sep­a­rate­ly from his codefendant.
• The Arizona Supreme Court vacat­ed Andre Minnitt​’s con­vic­tion because pros­e­cu­tor Ken Peasley inten­tion­al­ly elicit­ed false tes­ti­mo­ny from an infor­mant. Peasley was even­tu­al­ly dis­barred for his misconduct.

The 11 recent­ly dis­cov­ered exon­er­a­tions bring DPIC’s exon­er­a­tion list from 174 to 185 indi­vid­u­als; how­ev­er, this num­ber just scratch­es the sur­face of the inno­cence ques­tion. DPIC’s list excludes many peo­ple in whose cas­es strong evi­dence of fac­tu­al inno­cence has been uncovered. 

Numerous death-row pris­on­ers with strong evi­dence of inno­cence have nev­er­the­less tak­en plea deals to guar­an­tee their imme­di­ate release and to avoid the pos­si­bil­i­ty of anoth­er wrong­ful con­vic­tion. Prosecutors often offer such plea deals after a rever­sal to end the pro­ceed­ings with­out an offi­cial exon­er­a­tion. In some instances, these deals are offered as a face-sav­ing device by pros­e­cu­tors who refuse to admit wrong­do­ing or that mis­takes were made, because pros­e­cu­tors are attempt­ing to pre­serve the rep­u­ta­tion of the office, so pros­e­cu­tors can escape lia­bil­i­ty for wrong­ful pros­e­cu­tion or wrong­ful impris­on­ment, or to insu­late the state from paying compensation.

After spend­ing 43 years in prison, includ­ing 26 on death row, Johnny Lee Gates took a plea deal to secure his release from prison. Gates, who is Black, was sen­tenced to death by an all-white jury in 1977 for the rape and mur­der of a white woman. Gates ini­tial­ly con­fessed to the mur­der, fol­low­ing what his lawyers charged was coer­cive police inter­ro­ga­tion, and the pros­e­cu­tion with­held key evi­dence in the case from the defense. Prosecutors claimed that no phys­i­cal evi­dence exist­ed in the case until a 2015 Georgia Innocence Project inves­ti­ga­tion uncov­ered phys­i­cal evi­dence which was DNA test­ed to exclude Gates. On May 15, 2020, Gates entered an Alford plea, main­tain­ing his inno­cence but accept­ing pun­ish­ment to charges of manslaugh­ter and armed rob­bery in exchange for a sen­tence of 20 years on each charge and his immediate release.

Several poten­tial exonerees have died before relief was final. For exam­ple, Frederick Thomas’ name is not on the list because he died on death row while Philadelphia pros­e­cu­tors appealed a court rul­ing that would have exon­er­at­ed him. Thomas was con­vict­ed on shaky eye­wit­ness tes­ti­mo­ny and with­out any phys­i­cal evi­dence against him. Before Thomas was grant­ed a new tri­al in 2002, the state’s two eye­wit­ness­es recant­ed their tes­ti­mo­ny and police offi­cer James Ryan — whom the defense said had framed Thomas — was con­vict­ed on cor­rup­tion charges aris­ing out of his con­duct in oth­er cas­es, includ­ing fal­si­fy­ing police reports and mak­ing false arrests.

In Alabama, death-row pris­on­ers Donnis Musgrove and David Rogers both died on death row before their inno­cence claims could be adju­di­cat­ed. Musgrove suc­cumbed to lung can­cer on November 25, 2015 while his inno­cence claim was pend­ing before a fed­er­al dis­trict court judge. Rogers had pre­de­ceased him in 2004. 

Rogers’ lawyer, Tommy Nail — who was a state court judge at the time of Musgrove’s death — observed that the case shared ​“eerie” sim­i­lar­i­ties with that of death-row exoneree Anthony Ray Hinton. The cas­es were tried by the same pros­e­cu­tor before the same judge, and the pros­e­cu­tion pre­sent­ed ques­tion­able weapons tes­ti­mo­ny from the same bal­lis­tics expert. The bal­lis­tics tes­ti­mo­ny in Hinton’s case was con­tra­dict­ed by three oth­er bal­lis­tics experts, and pros­e­cu­tors decid­ed not to retry him after say­ing they could not link the bul­lets from the crime to a gun that belonged to Hinton. Like Hinton, Musgrove and Rogers also had pre­sent­ed sol­id ali­bi evi­dence, Nail said.

In addi­tion to sim­i­lar­ly unre­li­able bal­lis­tics tes­ti­mo­ny, Musgrove’s con­vic­tion was taint­ed by fal­si­fied eye­wit­ness tes­ti­mo­ny, pros­e­cu­to­r­i­al mis­con­duct, and false tes­ti­mo­ny by a jail­house infor­mant who later recanted.

Procedural bar­ri­ers and arbi­trary court rul­ings also may keep indi­vid­u­als with strong inno­cence claims from being ful­ly exon­er­at­ed. Tennessee exe­cut­ed Sedley Alley in 2006 after hav­ing denied him DNA test­ing that his lawyers believed could have estab­lished his inno­cence. Five years lat­er, the Tennessee Supreme Court dis­avowed its deci­sion in Alley’s case, say­ing they had mis­ap­plied Tennessee’s post-con­vic­tion DNA test­ing act. Alley’s fam­i­ly is now seek­ing DNA test­ing on behalf of his estate, but pros­e­cu­tors are con­test­ing the case. They argue that Tennessee law does not allow his fam­i­ly to pur­sue his case after his death. If pros­e­cu­tors suc­ceed, a court could block the con­sid­er­a­tion of DNA evi­dence that could lead to Alley’s posthumous exoneration.

The addi­tion of eleven more exon­er­a­tions to DPIC’s Innocence List high­lights the sys­temic fail­ure of the U.S. crim­i­nal legal sys­tem to pro­tect inno­cent defen­dants from wrong­ful cap­i­tal con­vic­tions and, ulti­mate­ly, from wrong­ful exe­cu­tion. The doc­u­ment­ed fail­ure rate of the judi­cial process in these cas­es is alarm­ing: one exon­er­a­tion for every 8.3 exe­cu­tions. But while DPIC’s exon­er­a­tion list is an impor­tant barom­e­ter in assess­ing the risk of wrong­ful con­vic­tion that inno­cent cap­i­tal defen­dants face, it is a con­ser­v­a­tive mea­sure of innocence. 

Knowing that our nation’s cap­i­tal pun­ish­ment sys­tem faces a con­tin­u­ing inno­cence epi­dem­ic, it is fair to ask whether cap­i­tal pun­ish­ment is worth the risk of impris­on­ing and exe­cut­ing inno­cent cap­i­tal defen­dants. At what point do the loss of lives or life­times to a crim­i­nal legal pol­i­cy that can­not con­sis­tent­ly and reli­ably deter­mine guilt or inno­cence become too high a price to pay? And when must we say that our state and fed­er­al gov­ern­ments can­not be trust­ed with such a dangerous policy?

This report was updat­ed on March 3, 2021.