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End of Innocence

The death penalty’s self-defeating foes.

A moment of high drama interrupted the Supreme Court’s summer recess last year. Troy Davis, a Georgia death-row inmate, had filed an emergency appeal in May arguing that he was innocent of the 1989 murder for which the state condemned him—and that new evidence proved it. His lawyers asked the justices to override the usual limits on death-penalty appeals and give Davis an opportunity to make his case. On August 17, to the astonishment of Court watchers, the justices granted Davis a stay of execution and a new hearing before a federal district judge. The ruling capped a global campaign on Davis’s behalf and implied that the Court shared activists’ broader concerns about deadly errors.

The anticlimax came a year later, when Davis’s lawyers presented his case to Judge William Moore Jr. Much of the “new” evidence turned out to be recycled from previous litigation. Davis’s lawyers failed to call some promised exculpatory witnesses; those who did appear fared badly on cross-examination. On August 24, 2010, Judge Moore released a 174-page opinion in which he called Davis’s argument “largely smoke and mirrors.” “Davis is not innocent,” the judge declared, echoing the conclusions of the trial jury and every other court that had reviewed the case.

Instead of a crushing blow to the death penalty, the Davis case looks a bit like an embarrassment to the death penalty’s foes. It eerily resembles the case of Ohioan John Byrd, who got a federal appeals court to give him an emergency stay of execution and a fresh hearing in 2001—only to have his claim of innocence crumble amid revelations that his lawyers had misled the courts and his sister had coached and performed sexual favors for an alibi witness. Byrd was later executed.

Davis’s lawyers are fighting Judge Moore’s ruling, which is their duty. But the anti-death-penalty movement should learn from it. The clear lesson is that opponents of capital punishment should stop staking their credibility on the overblown notion that death row is thickly populated with innocent men and women.


The movement’s emphasis on the risk of a wrongful execution was, at one time, an understandable strategic choice. Public opinion has stubbornly resisted moral arguments against capital punishment, so elected officials have resisted them as well. The Supreme Court foreclosed abolition based on unconstitutional racial discrimination more than two decades ago. In this climate, doubts about the accuracy of verdicts, rooted not only in the undeniable fallibility of criminal justice but also in what were said to be actual cases, seemed like the only way to sway voters or, eventually, the Court.

The fact is, however, that there have been just over 1,200 executions in the United States since 1977, when the “modern” capital-punishment era began, and, though doubts have been raised in many cases, none has yet been proven wrongful. There have been close calls, as a scandal over 13 flawed capital convictions in Illinois showed a decade ago. The Death Penalty Information Center (DPIC) lists 138 prisoners exonerated and released from death row since 1973. But the near-misses can be seen as evidence that the system’s fail-safes work. What’s more, even that tabulation of near-misses—which would represent less than 2 percent of the over 7,300 death sentences since 1977—is probably an exaggeration.

At least 20 people on the DPIC list were tried and sentenced before the Supreme Court rewrote the rules for capital cases in the mid-’70s, and thus have no bearing on the current system’s propensity for error. The remaining 118 include some, like Kirk Bloodsworth, who were no longer facing execution when exonerated. By the time DNA set him free in 1993, Bloodsworth had won a new trial in which, though he was again wrongly convicted of murder, his sentence was set at life in prison.

The DPIC list includes anyone whose conviction and sentence were overturned on appeal, followed by acquittal at retrial, dismissal of the charges, or a pardon based on new evidence. But acquittal is not always equivalent to wrongful accusation. Take Jeremy Sheets, one of the “innocents” on the DPIC list. A Nebraska jury convicted him in 1997 based on a tape-recorded description of the murder by his accomplice, who had committed suicide after confessing. On appeal, Nebraska’s supreme court ruled the tape inadmissible since Sheets couldn’t cross-examine a deceased witness. The state had no choice but to drop the charges.

Not only has the problem of “actual innocence” in death-penalty cases been overstated, it is probably shrinking—for at least two reasons. The first is the impact of DNA. To date, there have been just 17 DNA-related death-row exonerations. Most involved cases left over from the years before DNA testing was widely available. Now, that backlog has been cleared, and DNA analysis is well established, which increases the reliability of capital trials. The second reason is that the number of death sentences is down. There were only 111 in 2008, down about 66 percent from the 1994 peak of 328. This decline reflects the plummeting murder rate, which has fallen by roughly 50 percent over the last two decades. You can’t have capital punishment without capital crimes.


Focusing on wrongfulexecutions puts capital-punishment opponents in an awkward position: It’s in their political interest for the system to produce miscarriages of justice. After a 2006 DNA test proved definitively that Roger Coleman was, in fact, guilty of the crime for which he was executed in 1992, The Washington Post reported that “[t]he results stunned and disappointed those who have fought a 25-year crusade to prove that Roger K. Coleman was innocent. They also dashed hopes among death penalty foes that the case would catalyze opposition to capital punishment across the country.”

Repeatedly mislabeling killers as martyrs can make capital punishment’s foes seem more interested in politics than truth. It can make them seem more sympathetic toward convicted murderers than their victims. And, at times, death-row inmates have tried to exonerate themselves by falsely accusing others. Troy Davis pointed the finger at a man named Sylvester “Red” Coles. Roger Coleman’s attorneys eventually had to pay to settle a libel lawsuit by an innocent man they had implicated in Coleman’s crime.

One of the anti-death-penalty movement’s goals is to create a new basis for habeas corpus litigation, so that lawyers can plead that new evidence proves the innocence of their clients, without also having to prove an alleged constitutional violation, such as ineffective assistance of counsel. A victory for Troy Davis before Judge Moore would have advanced that cause; his defeat probably set it back. The Supreme Court is bound to look more skeptically at the next urgent claim of innocence to come their way.

Opponents of the death penalty would be better off devoting more time and energy to more significant—but less media-friendly—problems with capital punishment. They should lobby to increase paltry state budgets for capital defense. They should urge state legislatures to narrow the criteria for capital punishment, so that it is restricted only to mass murder and other crimes that clearly qualify as “the worst of the worst,” rather than run-of-the-mill liquor store holdups. These are good fights principled death-penalty opponents can and should fight, without staking their credibility on tales told by the likes of Troy Davis, Roger Coleman, and John Byrd.

Charles Lane writes for The Washington Post and is the author of Stay of Execution: Saving the Death Penalty from Itself. This article ran in the November 11, 2010, issue of the magazine.

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