Report: Too many death row defendants may be innocent

| Nov 25, 2019 | Wrongful Convictions |

Since 1973, 166 people on death row have been exonerated of the crimes they were convicted of. That’s 166 times when prosecutors and judges were certain, beyond any reasonable doubt, of the person’s guilt and were nevertheless wrong.

According to the National Registry of Exonerations, there are a number of problems in the criminal justice system that appear to be causing this. For example, as of 2015, 8% of all exonerees were found to have been convicted based on false testimony by jailhouse snitches. And, the more serious the crime, the more likely the prosecution relied on testimony from a jailhouse snitch.

Bad or exaggerated forensic science is another common factor. In 2009, the National Academy of Sciences issued a report criticizing virtually all forensic techniques used in the criminal courts. Except for nuclear DNA analysis, the report says, “no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”

Other common reasons for false convictions include mistaken eyewitness testimony, suggestive identification lineups, coerced confessions, coerced guilty pleas, and misconduct by police or prosecutors, according to the Registry.

Now, the advocacy group Injustice Watch has released a study of 24 death row cases in which the defendant has credibly claimed to be innocent and where new evidence is available that supports that claim.

Unfortunately, these people often don’t get much support as they try to prove their innocence. Injustice Watch notes that some of the defendants have not been exonerated despite substantial evidence that they are innocent. Others have been released from death row but never fully exonerated. Some have died in prison with their innocence claims unaddressed. At least one has been executed.

We can do better, and we have to

What policy changes could reduce the likelihood of innocent people being convicted of capital crimes? Injustice Watch suggests two.

The first has to do with how we pick juries. During jury selection, each side is given a limited number of preemptory challenges, which allow them to strike a person from the jury without a specific cause. Unfortunately, there is some evidence that prosecutors sometimes use these preemptory challenges to keep African-Americans off of juries. Injustice Watch recommends we do away with preemptory challenges altogether, forcing the parties to seat every qualified juror.

The other policy suggestion is to have two separate juries in capital cases. One would determine the defendant’s guilt or innocence, while the second would decide whether the defendant deserves the death penalty.

It’s more than alarming that so many death row inmates have credible innocence claims. Capital cases should always be handled with the greatest possible care, as the penalty is irreversible. Unfortunately, that doesn’t always happen.

The fact that so many on death row may be innocent also suggests that wrongful convictions abound in our justice system. It can be a challenge, but people who are innocent of the crimes they have been convicted of can challenge their convictions with the help of experienced civil rights attorneys.