Capital Punishment: Execution of Innocents

Until recent years, the execution of innocents was mostly an abstract debate. Although abolitionists would point to a handful of cases where innocent individuals allegedly had been put to death, capital punishment supporters dismissed these examples and rejected the notion of wrongful execution as a mere theoretical possibility. Moreover, the U.S. Supreme Court’s seminal decision in this area, the 1993 case of Herrera v. Collins, held that a free-standing claim of actual innocence was not a basis for federal habeas corpus review in a death penalty case. Throughout most of the modern era of capital punishment, the bulk of discussion involved issues apart from wrongful conviction, such as racial disparities in the death penalty.

Around the time of the Herrera decision, a budding innocence movement began to take shape, largely as a result of advances in DNA technology. In 1992, Barry Scheck and Peter Neufeld started the Innocence Project at Cardozo Law School to investigate possible cases of wrongful conviction, and similar programs were initiated across the nation. But it would take a string of events in Illinois to draw public attention to the issue of actual innocence in capital punishment, beginning with a 1998 conference at Northwestern University that brought together scholars, practitioners, and a number of exonerated former death row inmates. Shortly after the conference, Lawrence Marshall and others helped secure the release of Anthony Porter, a wrongfully convicted man who came within two days of execution. In turn, the Chicago Tribune published a series of articles describing grave flaws in Illinois’s capital punishment system. Since the reinstatement of the death penalty in 1976, the state had executed twelve individuals, whereas thirteen of its death row inmates had been exonerated. In 2000, Illinois Governor George Ryan declared a moratorium on capital punishment on the basis of this information, and three years later Ryan commuted all remaining death sentences.

According to some sources, the modern era of capital punishment has witnessed the release of more than 100 individuals based on evidence of innocence. Leading causes of wrongful conviction include erroneous witness identifications, police or prosecutor misconduct, defective or ‘‘junk’’ science, false confessions, poor legal representation, and dishonest informants. In light of these problems, several states and the federal government have instituted studies of their capital punishment systems, and a number of reforms have been proposed, such as required videotaping of police interrogations and legislation providing post-conviction access to DNA testing. Most recently, the U.S. Supreme Court agreed to hear the case of Paul House, a death row inmate whose case was described by one judge as ‘‘a real-life murder mystery, an authentic ‘who-done-it’ where the wrong man may be executed.’’

Supporters of capital punishment still contend that no demonstrably innocent individual has been executed in the modern era, that few if any innocents remain or will be placed on death row, and that the minimal risk of wrongful execution is outweighed by the retributive and utilitarian benefits of the death penalty. Nonetheless, the issue of actual innocence has become central to today’s debate over capital punishment in America.

ERIK LUNA

References and Further Reading

  • Armstrong, Ken, and Steve Mills. ‘‘The Failure of the Death Penalty in Illinois.’’ Chicago Tribune (November 14–18, 1999). 
  • Bedau, Hugo Adam, and Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, Stanford Law Review 40 (1987): 21–179. 
  • Center on Wrongful Convictions. Web site available at http://www.law.northwestern.edu/wrongfulconvictions. 
  • Dwyer, Jim, Peter Neufeld, and Barry Scheck. Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted. New York: Doubleday, 2000. 
  • Godsey, Mark A., and Thomas Pulley, The Innocence Revolution and our ‘‘Evolving Standards of Decency’’ in Death Penalty Jurisprudence, University of Dayton Law Review 29 (2004): 265–292. 
  • Innocence Project. Web site available at http://www.innocenceproject. org. 
  • Liebman, James S., et al., Capital Attrition: Error Rates in Capital Cases, 1973–1995, Texas Law Review 78 (2000): 1839–1865. 
  • Markman, Stephen J., and Paul G. Cassell, Protecting the Innocent: A Response to the Bedau-Radelet Study, Stanford Law Review 41 (1988): 121–160. 
  • Marshall, Lawrence C., The Innocence Revolution and the Death Penalty, Ohio State Journal of Criminal Law 1 (2004): 573–584. 
  • Radelet, Michael L., Hugo Adam Bedau, and Constance E. Putnam. In Spire of Innocence: Erroneous Convictions in Capital Cases. Boston: Northeastern University Press, 1992. 
  • Rosen, Richard A., Innocence and Death, North Carolina Law Review 82 (2003): 61–113. 
  • Symposium: Innocence in Capital Sentencing. Journal of Criminal Law & Criminology 95 (2005): 371–636. 

Cases and Statutes Cited

  • Herrera v. Collins, 506 U.S. 390 (1993) 
  • House v. Bell, 386 F.3d 668 (6th Cir. 2004), cert. granted, 125 S.Ct. 2991 (U.S. Jun 28, 2005) (No. 04-8990) 
  • Schlup v. Delo, 513 U.S. 298 (1995) 

See also Capital Punishment; DNA and Innocence; Eyewitness Identification; False Confessions; Herrera v. Collins, 506 U.S. 390 (1993); Pardon and Commutation

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