More than any other nation, the US still imposes death for capital crimes. In fact, these three very scary words—DEATH ROW EXONERATION– are enough to make you upchuck.
Consider what it must be like if you have been convicted for a crime you did not commit and are now being sentenced to death.
This blog is concerned with the relationship between the growing number of exonerations and the death penalty.
In 1972 the US Supreme Court in a vote of 5 to 4 invalidated all death penalty laws in the country saying they were being arbitrarily applied. Justice Potter Stewart concurred saying: the Constitution could not “permit this unique penalty to be so wantonly and freakishly imposed.”
The arbitrary nature of applying the death penalty and especially the issue of the race and class status of the majority of the defendants eventually sentenced to death warns that caution definitely needs to be practiced.
Add to this the David Baldus’ findings on the lop-sided application of the state mandated execution of non-Whites and especially Blacks, which also warns that caution needs to be practiced. Baldus (June 23, 1935 – June 13, 2011) ushered in new ways to study social phenomena. His pioneering research on the death penalty nearly convinced the US Supreme Court in the 1987 Supreme Court decision McCleskey v. Kemp. The Supreme Court decided, though, that statistics did not matter!
Regardless, the Baldus research uncovered a major finding that demonstrated that Blacks were significantly and most importantly disproportionately more likely to be sentenced to death than whites. In addition, regardless of the race of the defendant, those who killed white victims were four times more likely to be sentenced to death than those accused of killing Black victims.
The gist of the Baldus research is this: a death sentence is more likely to be based on the race of the victim, not the offender.
Former Supreme Court Justice John Paul Stevens, spoke to this issue in a New York Review of Books column. He put it thus:
That the murder of black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent southern lynchings.
This becomes all the more important in that most capital murder defendants are poor and unable to mount a legal defense. And, when court appointed attorneys are representing them they are more likely than not to receive inferior counseling. Or, a defense that suffers from the ability to harness the resources—-private investigators, scientific experts, independent DNA analysis—that are often critical to successfully establishing one’s innocence.
The systemic nature of injustice is everywhere, leaving this writer to draw the hypothesis that YES, there must be innocent people who have been executed in the United States of America.
Executing the Innocent
The death penalty clearinghouse currently has listed on its web site 11 executions of individuals who may have been innocent. These are:
Carlos DeLuna Texas Conviction: 1983 Executed: 1989
Ruben Cantu Texas Convicted: 1985 Executed: 1993
Larry Griffin Missouri Conviction: 1981 Executed: 1995
Joseph O’Dell Virginia Conviction: 1986 Executed: 1997
David Spence Texas Conviction: 1984 Executed: 1997
Leo Jones Florida Convicted: 1981 Executed: 1998
Gary Graham Texas Convicted: 1981 Executed: 2000
Claude Jones Texas Convicted 1989 Executed 2000
Cameron Willingham Texas Convicted: 1992 Executed: 2004
Troy Davis Georgia Convicted: 1991 Executed 2011
Lester Bower Texas Conviction: 1984 Executed: 2015
Many of these executions have drawn considerable attention, some none. The Cameron Willingham case in the Texas arson probe has again gathered considerable attention.
Since the death penalty was reinstated in the US in 1976, there have been 1,425 executions. Snapshot of the last six years:
Executions in 2016 = 3
Executions in 2015 = 28
Executions in 2014 = 35
Executions in 2013 = 39
Executions in 2012 = 43
Executions in 2011 = 43
Kirk Bloodsworth would have been one of those executed, had it not been for DNA evidence. Bloodsworth, a jolly White male, is one of many young men sentenced to death for crimes they did not commit; he was convicted in March of 1985 for the brutal killing and sexual assault of a nine year-old girl. Bloodsworth was exonerated 8 years later. And, according to Bloodsworth he is the first inmate released from death row based on post-conviction DNA evidence (Junkin 2004).
Prosecutors who take capital cases know that the possibility of executing an innocent person (most likely a male) is a very real possibility. In the Missouri case of Larry Griffin prosecutor Jennifer Joyce, St Louis circuit attorney, understood this when she said:
Every prosecutor conceptually has the notion that someone innocent can be convicted.
There is strong evidence that the US Justice System has executed innocent men and women. But we don’t talk about such atrocities. In a society where only six or seven states have halted “state mandated executions” the execution of men and women still remains a part of the normal processes of everyday life.
Fewer than 20 states have either abolished outright or have placed a moratorium on the death penalty. This leaves over 50% of states still in the business of executing men and women.
And, up until recently the US executed youth under the age of 18, with most states following recent Supreme Court decisions no longer doing so (Scott 2005).
With nearly 400 exonerations coupled with the long history of carrying out the death penalty it stands to reason that innocent people have been executed. Because death by state sanction is irreversible, it makes sense to be absolutely certain –“beyond a reasonable doubt”—that the person being executed is guilty.
Yet, there is not even agreement on the US Supreme Court about the level of certainty required to substantiate the imposition of the death penalty.
In 2006 U.S. Supreme Court Justice Antonin Scalia wrote:
It should be noted at the outset that the dissent does not discuss a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby. The dissent makes much of the new-found capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt.
Despite Justice Scalia’s assurances that we have never executed an innocent person, exonerations are like the canary in the mine. They raise serious concerns that we have in fact executed innocent people.
What Justice Scalia fails to address or be concerned with the fact that the appellate process is very narrow in what it allows to be considered in capital cases. He overlooks, in his assessment that new data—including DNA—is not usually allowed to bring forth a new examination of the case. Rather he suggests that the original trial by jury that resulted in a conviction based on evidence “beyond a reasonable doubt” and the appeals process that takes place in all death penalty convictions is sufficient to ensure that innocent people are not executed.
Even for those who support the death penalty I argue that “beyond a reasonable doubt” while it plays out in movies and TV programs, assuring the viewer that all evidence has been considered, it is too low a standard for something that is irreversible as an execution.
DNA testing [has] established conclusively that numerous
persons who had been convicted of capital crimes (by
‘proof beyond a reasonable doubt’) were, beyond any
–Judge Jed Rakoff, United States District Court
Southern District of New York United States v. Quinones (2002) (in Gross, 2013)
There are so many cases of faulty justice in death sentences that books could be written about them. Unfortunately few have been published to date. One such case is that of Earl Washington.
On January 20, 1984, Earl Washington, a Black man—defended for all of forty minutes by a lawyer who had never tried a death penalty case—was found guilty of rape and murder in the state of Virginia and sentenced to death. After nine years (9) on death row, DNA testing cast doubt on his conviction and saved his life. However, he spent another eight years (8) in prison before more sophisticated DNA technology proved his innocence and convicted the guilty man.
Because of this and so many other cases there should be a 50 state moratorium on the death penalty until we put in place policies and procedures that allow one to be 100% certain that the person being executed did the crime.
Tim Junkin, 2005. Bloodsworth: The True Story of One Man’s Triumph over Injustice. A Shannon Ravenel Book. http://amzn.to/11kXIMZ
Garrett, Brandon, 2012. Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Cambridge, MA: Harvard University Press.
David Grann, 2009, “TRIAL BY FIRE: Did Texas execute an innocent man? SEPTEMBER 7, 2009 http://bit.ly/1Ukabdi
Gross, Samuel R., 2013. “How Many False Convictions are There? How Many Exonerations are There”? Pp. 45-60 in C. R. Huff & M. Killias eds., Wrongful Convictions and Miscarriages of Justice: Causes and Remedies in North American and European Criminal Justice Systems. New York: Routledge,
Gross, Samuel R. 2012 “David Baldus and the Legacy of McCleskey v. Kemp.” Iowa Law Review, Vol. 97, No. 6.
Scott, Charles, MD, 2005, “Roper v. Simmons: Can Juvenile Offenders be Executed?” Journal of American Academy of Psychiatry and Law 33:4:547-552.