DNA has forever altered the death penalty debate—but how and why? Two death penalty cases illustrate what DNA tests have done to affect some death penalty cases, but not others. In this essay, I compare the DNA exoneration of Kirk Bloodsworth with the case of Troy Davis, who was not exonerated by DNA or anything else. Very few death penalty cases—and homicides generally—have testable DNA evidence, but a small number of cases that do have resulted in exonerations, raising larger questions that have had a broad impact on the public and policymakers. This has produced legislative efforts to make the death penalty more accurate, fascinating debates among judges and policymakers, and changes in public attitudes. DNA and accuracy can cut both ways for those who want to abolish the death penalty and also for those who want to defend the institution.

Kirk Bloodsworth was the first person exonerated from death row based on post-conviction DNA testing. What is an exoneration? The word exoneration refers to an official decision to reverse a conviction based on new evidence of innocence. Kirk Bloodsworth was sentenced to death for a Maryland rape and murder of a nine-year old girl in 1984. How was he convicted? Five eyewitnesses placed him near the crime scene, and the prosecution put on testimony by a forensic analyst claiming to modestly link a shoe print to Bloodsworth. His conviction was reversed on appeal, where the Maryland Court of Appeals found that the prosecutors had concealed evidence.[1]

At his second trial he was not sentenced to death, but to life in prison. This time, the conviction stuck. Indeed, the Maryland Court of Appeals upheld the trial court’s refusal to allow an expert to testify about the dangers of eyewitness misidentifications. The trial judge excluded this testimony on the grounds that such evidence would be unnecessary and would “confuse or mislead” the jury.[2] We now know, of course, that the jurors were in fact gravely misled when they believed the eyewitnesses in that case. Yet that decision is still the law in Maryland.

I will return to the state of the death penalty in Maryland. We know far more now about the fragility and malleability of eyewitness memory. As in Bloodsworth’s case, it is a red flag if eyewitnesses are initially uncertain but become more certain at trial. Social scientists have powerfully shown just how malleable and fragile eyewitness memory is. Few police departments had written procedures on how to properly conduct lineups in the 1980s, and few were aware of how powerfully police can affect and even alter the memory of an eyewitness, just based on how they conduct an identification procedure. For example, at least one of the eyewitnesses recalled being told to pick out the person he had seen, not that the suspect might or might not be present in the set of photos. In addition, each had only had a brief look at the man they saw near the crime scene.

In 1993, Bloodsworth was released based on DNA tests by Dr. Edward Blake. The finding was then confirmed by the FBI and he was pardoned. At the time of Bloodsworth’s trial, no testing was done on semen stains on the victim’s underwear. While prosecutors had said none were found, Dr. Blake later reported that the stains had been circled yet apparently never tested by the FBI.[3] It also took some time for those DNA results to be run in the DNA databank. Years later when this was done, they matched another man in the databank, who was charged and pleaded guilty to the murder in 2004. Bloodsworth had been imprisoned at the same time as that man and had even delivered the actual killer books from the prison library. That man was a known serial rapist, who lived near where the victim lived, had committed sexual assaults in the area, and had just been released from jail before the murder. Perhaps if properly done, the forensics would have excluded Bloodsworth at the time of trial, and perhaps police would have turned to other leads and caught the culprit—or perhaps not.

Another more recent death penalty case also involved multiple eyewitnesses: the case of Troy Davis. His case was a far more typical murder, a shooting of an off-duty police officer intervening in a fight at a Burger King parking lot, where there was no physical evidence to do DNA testing on. There were no forensics, except some ballistics on bullets at the scene. Instead, as a federal court found, the case “center[ed] on eyewitness testimony.”[4] However, after trial, seven of the nine witnesses at trial recanted and new witnesses implicated another man. The original eyewitness identifications were themselves troubling, just as in the Bloodsworth case, and suggestive procedures were used. Immediately after the murder, police had made a five photo array with Davis’ picture in it. Yet they waited several days to show it to the eyewitnesses. In the meantime, wanted posters with that same photo were plastered all around the neighborhood and ran widely in the media. Witnesses saw those photos and later described pressure to identify Davis.

Three key eyewitnesses, before they were asked to look at the lineup or photo array, were brought back to the crime scene for a staged reenactment. The police tried to get the eyewitnesses to agree one who was standing where. They placed one man, who Davis’ lawyers maintained was the real perpetrator of the murder, to play the role of an innocent bystander in this reenactment. Perhaps as a result, their initially inconsistent stories started to merge. Later they were shown photo arrays, which were not conducted properly in a double-blind fashion; many departments still have not improved their eyewitness identification procedures. Some of these eyewitnesses recalled at trial being uncertain about whether the shooter was Troy Davis, or even being unable to identify him initially; after all, they were under stress, perhaps focusing on a weapon, in the dark, and their initial descriptions were erratic. But at trial they were sure.[5]

However, there was no physical evidence to test in Troy Davis’ case. Although the Supreme Court, in a rare move, granted a habeas petition filed directly with the Court and asked a district judge to look into the new evidence of innocence, courts ultimately did not believe the eyewitness recantations had enough weight to justify relief, and the Georgia Board of Pardons denied clemency (interestingly, after deciding it did not have time during its hearing to hear from a leading expert on eyewitness memory). Troy Davis was executed in September 2011, despite national and international attention to the case. We will never know for sure, of course, if he was innocent.

We do know a substantial amount about the unreliability of eyewitness identification evidence, particularly where police use suggestive procedures.

I read the trials from the cases of the first 250 people exonerated by DNA testing when writing my book Convicting the Innocent.[6] Like Kirk Bloodsworth, more than three-fourths of those people had eyewitnesses in their cases. Still more troubling, 36 percent had multiple eyewitnesses who got it wrong, some as many as three or four of five. Nearly all had eyewitnesses who were positive at trial that the defendant was the person they had seen commit the crime. Yet 57 percent had not been certain when they first identified the defendant; they became certain by the time of trial. And suggestive procedures were used in 78 percent of the trials that I studied, although none had re-enactments staged with multiple eyewitnesses like in Davis’ case. Far more subtle and unintentional police procedures can cause eyewitnesses to identity an innocent man.

Revelations of innocent persons on death row have permanently altered the death penalty debate. Regardless of whether one believes that the death penalty is justified in some circumstances, the knowledge that innocent people have been sentenced to death can shake one’s confidence that the death penalty can be soundly imposed. A few DNA exonerations have involved crimes that carried the death penalty. Seventeen of the exonerees were sentenced to death, and several came within days of execution. Often it was sheer fortuity that at the eleventh hour, crime scene evidence was discovered that could be DNA tested. As we have seen, the vast majority of capital cases do not involve biological evidence that can be DNA tested. The exonerees’ cases suggest others on death row might also be innocent, but again, we will never know how many. Capital convictions are notoriously reversal prone. Many of the DNA exonerees who had been sentenced had their convictions reversed even before they were exonerated, and endured two or even three trials before they were ultimately freed by DNA tests.

Six of the seventeen death penalty exonerations involved jailhouse informants. Seven involved false confessions, three of which were confessions by mentally disabled persons. Eleven were cases in which the post-conviction DNA testing not only exonerated the defendant but identified the actual perpetrator. One of the most haunting features of these exonerations is that so many were discovered by chance. Most convicts who seek post-conviction DNA testing cannot get it. Some lingered in prison for years waiting to get DNA tests or even after they obtained the DNA results.

The few but powerful examples of DNA exonerees who faced execution despite flawed evidence in their cases have influenced judges and policymakers. Let’s start with judges. Perhaps most prominent case, Baze v. Rees, saw U.S. Supreme Court Justice Stevens announce his opposition to the death penalty, citing evidence from DNA exonerations. He wrote:

[G]iven the real risk of error in this class of cases, the irrevocable nature of the consequences is of decisive importance to me. Whether or not any innocent defendants have actually been executed, abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses.[7]

Similarly, federal district judge Jed Rakoff struck down the federal death penalty, arguing: “We now know, in a way almost unthinkable even a decade ago, that our system of criminal justice, for all its protections, is sufficiently fallible that innocent people are convicted of capital crimes with some frequency.” His ruling was later reversed by the Second Circuit Court of Appeals.[8]

Other hardened judges remain untroubled by DNA exonerations, inside or outside the death penalty context. For example, Justice Scalia has suggested (quoting Oregon district attorney Joshua Marquis), focusing on exonerations and the death penalty, that known wrongful convictions are an inconsequential percentage, an error rate of “.027 percent—or, to put it another way, a success rate of 99.973 percent,” if one divides exonerations by the fifteen million felony convictions during the same time period.[9]

Should we really be so reassured by Justice Scalia’s lopsided choice of numerator and denominator? Unfortunately, the argument raises even more cause for concern. I wholeheartedly agree that we should broaden the frame and look at error in cases beyond death penalty cases and beyond known wrongful convictions. However, not only are those millions of cases not a relevant comparison group, but we have never examined those millions of felony convictions.

Most murder cases do not have biological evidence linked to the perpetrator, and most police in the 1980s did not routinely save evidence after a conviction. The DNA “truth-machine” is only useful in a tiny sliver of criminal cases, and these are mostly not death penalty cases. Instead, these tend to be rather unusually serious cases, chiefly from the 1980s before DNA testing was common, that involved a sexual assault and a stranger-perpetrator, and a long enough prison sentence that the convict was still challenging the case by the 1990s when the technology fundamentally changed.

Moreover, we know that some innocent people never try to get DNA testing. Some may become discouraged; it often takes many years to get the DNA test, and some prosecutors continue to oppose relief even in relatively straightforward cases where the DNA is clearly linked to the culprit. It some cases, including many involving a confession, it takes a DNA “hit” on the actual culprit to finally bring judges and prosecutors around. Obviously there is luck involved in the actual culprit committing another crime and getting a profile entered in the DNA databanks.

Death penalty cases can involve a range of error, moreover, that do not involve innocence in the narrow sense of “Is this the person that did it?” Only some murders are eligible for the death penalty, and the sentencing question places jurors in the position of deciding whether this murder was serious enough to deserve the ultimate punishment. A convicted murderer may not be innocent of murder, but may be “innocent” of the death penalty, if this murderer did not clearly deserve to be singled out for the death penalty for a variety of reasons. The Court has confronted many cases, for example, where the defense lawyers failed to tell the jury about the defendant’s severe and abusive upbringing that might explain the vicious behavior. And that said, many noncapital cases may involve serious “innocence of sentence” claims that do not receive the same attention, but that may deserve it.

Death penalty cases may be more likely to produce exonerations simply because death row prisoners tend to have lawyers; most prisoners have no lawyer during habeas proceedings, much less investigators who can try to uncover new evidence of innocence. Innocence projects can help, but they are selective and have very long waiting lists. We may simply know more about death penalty exonerations because of the legal and judicial attention they receive. Focusing just on known death penalty DNA exonerations in the subset of death penalty cases where there was a rape and where DNA testing could potentially be conducted raises wider concerns, as Michael Risinger has developed.[10] Focusing on the larger set of death penalty exonerations also suggests an intolerable exoneration rate, as Sam Gross and Barbara O’Brien have developed.[11]

Looking beyond death penalty cases, DNA testing suggests more about the criminal cases where a DNA test can more commonly be useful, chiefly rape cases. A federal inquiry conducted in the mid-1990s, when police first began to send their samples for DNA testing, found that 25% of “primary suspects” were cleared by DNA before any trial. We have just learned that a recent retesting effort in Virginia has uncovered 76 cases of convicted felons excluded by DNA. According to Urban Institute researchers, these include 37 who are likely innocent—out of just 219 cases in which they obtained a DNA result one way or the other.[12] These people had never even asked for DNA testing, but they may be innocent. I hope there is not is anything approaching a 17% wrongful conviction rate in Virginia or anywhere else—but such disturbing numbers suggest the need for a serious government response. There has been none so far.

Reacting in part to these exonerations, however, states in numbers not seen in decades have adopted reforms and even moratoria on the death penalty. This began in Illinois, with then governor George Ryan announcing a moratorium and, on his last day in office, commuting the sentences of all prisoners on the Illinois death row. The Illinois Commission on Capital Punishment, the first innocence-related commission in the United States, issued a report with detailed recommendations for reform, some of which were adopted. Others attempted to create a “bullet-proof” and more accurate death penalty. The presence of highly probative scientific evidence, such as DNA, can also reinvigorate support for the death penalty. After all, in some cases, as Justice Scalia has noted, it can provide a “scientific means of establishing guilt” and a “highly effective way to avoid conviction of the innocent.”[13]

A 2009 Maryland law followed that approach, narrowing the death penalty and limiting its imposition to cases with certain types of forensic or video evidence, including voluntary videotaped interrogations.[14] The hope was to limit death sentences to cases with more reliable evidence. However, the statute is highly ambiguous; not all “biological evidence” is reliable like DNA tests can be, and what if the video evidence does not shed much light on guilt either? The Massachusetts Governor’s Council on Capital Punishment recommended a series of detailed reforms that would, if the death penalty were reinstated, limit it to cases where there was greater confidence in the accuracy of the verdict. The proposal failed and the death penalty was not reinstated. In contrast are states like Florida, Texas, and Virginia. These all carry out the death penalty and have large death rows; despite high-profile death-row DNA exonerations, no such reforms have been adopted there.

The public has apparently been increasingly concerned. The more recent national and international attention to the Troy Davis case provides one example. Polls also suggest that exonerations may explain lagging public support for the death penalty. Moreover, fewer death sentences continue to be sought and imposed (additionally, violent crime continues to fall). The cost of death penalty trials may play an increased role in public perceptions. However, DNA exonerations may not. There will be fewer and fewer DNA exonerations, since most occur in old cases, while DNA testing is now routine during criminal investigations. Will the impact of exonerations fade over time?

Neither death penalty states nor non–death penalty states have taken much in the way of action to prevent types of errors that can cause wrongful convictions. More police departments and states do record interrogations and have adopted best practices for eyewitness lineups. A few have also improved quality control and standards for forensics. Those reforms are inexpensive and they strongly benefit law enforcement; they help to identify the guilty as well as clear the innocent. Much more remains to be done. In death penalty and in non-death penalty cases, we can do better to get it right.

[1] Bloodsworth v. State, 512 A.2d 1056 (Md. 1986).

[2] Bloodsworth v. State, 543 A.2d 382 (Md. App. 1988).

[3] Stephanie Hanes, ’84 Investigation Quick to Overlook the Culprit, Baltimore Sun, May 22, 2004.

[4] In re Davis, NO. CV409-130, 2010 WL 3385081 *1 (S.D.Ga. Aug 24, 2010).

[5] I previously wrote about the Troy Davis eyewitness evidence in a short piece in Slate. See Brandon L. Garrett, “Eyes on an Execution,” Slate, September 20, 2011.

[6] Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Harvard University Press 2011).

[7] Baze v. Rees, 553 U.S. 35, 85-86 (2008) (Stevens, J. dissenting).

[8] U.S. v. Quinones, 196 F.Supp.2d 416, 420 (S.D.N.Y. 2002) rev’d U.S. v. Quinones, 313 F.3d 49 (2nd Cir. 2002).

[9] Kansas v. Marsh, 548 U.S. 163, 198 (2006) (Scalia, J. concurring).

[10] D. Michael Risinger, Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate, 97 J. Crim. L. & Criminology 761 (2007).

[11] Samuel R. Gross & Barbara O’Brien, Frequency and Predictors of False Conviction: Why We Know So Little, and New Data from Capital Cases, 5 J. Empirical Legal Stud. 927 (2008).

[12] Frank Green, Williamsburg DNA Case Raises Question of Effort, Richmond Times-Dispatch, Feb. 5, 2012.

[13] Kansas v. Marsh, 548 U.S. at 191 (Scalia, J. concurring).

[14] MD. Crim. Law §2-202(a)(3).

Professor Garrett cites one of the relatively few genuine death row exonerations—Kirk Bloodsworth—and then invokes that case to argue that wrongful convictions on death row are epidemic because Georgia murderer Troy Davis’ case did not turn on DNA.

In the space available it is not possible to address all of Garrett’s issues, so I will concentrate on the definition and reality of exonerations using DNA testing.

Garrett repeats the often wishful thinking of death penalty opponents that “the death penalty is dying in America.” Of those states that abolished the death penalty, only Oregon, in 1964, did so by popular vote—and then reinstated it in 1984 by a 75 percent vote. Using the U.S. Department of Justice’s Bureau of Justice statistics, it is clear that in the first decade of the 21st century (2000-09) the states that do execute murderers used the penalty 26 percent more often than in the last decade of the 20th century (1990-1999). And, not coincidentally in the minds of many of us, over the same time period the murder rate in America declined over 20 percent.

DNA came into America’s courtrooms state-by-state, mostly in the late 1980s and early 1990s. It was propounded not by defense attorneys but by prosecutors who noted what happened in England in the case well-portrayed in Joseph Wambaugh’s book The Blooding.[1] In it, the appropriately named Colin Pitchfork was brought to justice through a form of DNA testing that would horrify most American civil libertarians: the British police pretty much required all the males of a certain age to submit to having their blood taken by needles. (DNA can now be collected with a Q-tip like device that swabs the inside of the subject’s mouth.)

For any scientific technique to be accepted or to withstand the attack that it is mere junk science, federal courts have imposed the Daubert standard.[2] Virtually every state either has adopted that standard or has fashioned its own. In Oregon, for example, it is called the Brown/O’Key standard, and it examines “the technique’s general acceptance in the field, the expert’s qualifications and stature, the use which has been made of the technique, the potential rate of error, the existence of specialized literature, the novelty of the invention and the extent to which the technique relies on the subjective interpretation of the expert.”[3]

Since a prosecutor’s role is to seek justice, not simply convictions, it is always in our interest to find the right person—to defeat the claim of SODDI (Some Other Dude Did It). My predecessors in Clatsop County, where I am the DA, finally convinced the Oregon appellate courts, in State vs. Futch, to allow DNA evidence.[4] Defense attorneys had fought it tooth and nail until the Futch decision.

It turned out that in a relatively tiny percentage of cases, DNA would exonerate people. Kirk Bloodsworth’s case makes headlines because it is so rare. There were two poster boys, literally, for death row innocence in the 1990s, both of whose supporters claimed DNA would free them. One of them was championed for over a decade after Virginia legally killed him.

In 1992, Roger Coleman was sentenced to die for the 1981 rape and murder of Wanda McCoy in a tiny Virginia coal mining town. (Victims have names too.) Coleman’s picture graced the cover of Time magazine, and he protested his innocence to Ted Koppel on ABC’s Nightline shortly before his execution. Coleman was represented, like many death row inmates, by a top-flight law firm—Washington, DC’s Arnold & Porter.

The 11 years Coleman languished between his crime and his execution is much shorter than would occur in most of the 35 states with the death penalty. His last words were, “An innocent man is going to be murdered tonight. When my innocence is proven, I hope America will realize the injustice of the death penalty as all other civilized countries have.”

The same Dr. Edward Blake cited by Garrett had the one remaining biological sample from Coleman. It was too small to be tested under the PCR testing available in 1992. When Virginia authorities tried to get the sample post-execution, Blake refused, telling the BBC it was an act of civil disobedience on his part because he was so sure Virginia would try to cover up the execution of an innocent man.[5]

This standoff continued until January 2006, when outgoing Governor Mark Warner brokered a deal to have a neutral Canadian lab test the sample using the latest DNA technology. Coleman’s most dogged supporter, Jim McCloskey of Centurion Ministries, which fights to free the wrongfully imprisoned, planned to announce the results on live TV.[6] He didn’t. The test came back with a 1 in 19 million probability that anyone other than Roger Coleman could have murdered and raped Wanda McCoy.

During the election summer of 2000, the death row practices of Texas came under particular scrutiny. Barry Scheck and the Innocence Project represented Ricky McGinn who had been on Texas’ death row for six years for the rape and murder of his 12-year old step-daughter, Stephanie Flannery. There was a tiny speck of biological material that could not be tested when McGinn went to trial. A Newsweek cover featured McGinn’s face, coincidentally on the same day Scheck testified before the U.S. Senate Judiciary Committee,[7] citing McGinn’s case. (I testified that same day.[8])

Texas Governor George W. Bush did he was allowed (a single 30-day reprieve) so that the speck on Stephanie’s underwear could be tested. But again, you never heard about it. Newsweek never published an update. Hardly anyone remembers the now-executed McGinn because the DNA test proved beyond any possible doubt that he was both a killer and a rapist.

Do these two high profile non-exonerations means we should say “game over?” Of course not.

In response to the Senate hearings, the National District Attorneys Association, on whose board I have sat since 1997, adopted the policy that DNA tests should be afforded at any stage of a proceeding—even after all appeals have been denied—if the testing can reveal actual guilt or innocence. There is little downside to a DNA test for a convicted murderer when the test won’t answer any question regarding guilt. But a defense attorney will demand one because his job is to cast doubt on any part of the state’s case, not just that which establishes guilt or innocence.

Garrett references a study by Professor Samuel Gross that came out of a Northwestern Law School symposium and subsequent issue of their Journal of Criminal Law.[9] I used Gross’ own numbers to estimate the incidence of real-life exonerations, as opposed to those in TV shows or movies. Gross cited about 390 cases from 1989 to 2003 where he and his team believed serious felony sentences were unfairly handed down against innocent defendants. The cases he cited from Oregon hardly met that test. Gross posits there must be many more exonerations than he identified because he asserts (and Garrett repeats) that in many cases DNA or a recantation by a key witness does not exist. So I rounded Gross’s number up to 400 and multiplied it by ten, yielding 4,000 exonerations—far more than I believe exist for the time period. I divided the 4,000 by 15 million, the number of felonies committed during the same period, yielding a “rightful” conviction rate of 99.93%. My article in the New York Times[10] drew howls of protest, many attacking my math, pointing out that my base statistic of 15 million was all felonies.

Okay, so let’s refine the numbers down to just willful homicide and forcible rape. This is narrower than Gross’s sample and amounts to about 1.5 million. Move the decimal one point and you have a “rightful” conviction rate of 99.72%. Small consolation if you are in that .28 of one percent.

The wrongful conviction rate should be lower and prosecutors can do more than anyone in the criminal justice system to make sure that happens by being very discriminating in bringing capital cases. Pharmacists and doctors separately kill 10,000 Americans—by accident—every year, but we don’t ban prescriptions or elective surgery. We try to find out what went wrong and fix it.

Garrett and his fellow opponents of the death penalty—and then true life, and then mandatory sentencing of any sort—claim they really just want to fix the problem. But, as Justice Antonin Scalia acidly pointed out in his concurrence in Kansas v. Marsh,[11] they aren’t interested in fixing the system, but in tearing it down. I have no doubt their beliefs are sincere and deeply held, but if we are to debate such an emotional issue we should do so with context, not ignoring the stories that don’t make the front page or are relegated to the newspaper’s “airplane pages” (B-2, C-5, etc).

States are doing all kinds of things to prevent the errors that led to Kirk Bloodsworth’s convictions—better trained and paid public defenders and prosecutors, and a true national DNA bank, the latter of which is ironically opposed on civil liberties grounds by people apparently unaware that the DNA we use to identify a suspect is considered “junk DNA” for medical purposes. We can’t, for example, find out whether a person is inclined to get Tay-Sachs disease even if we wanted to.

I can understand how libertarians generally don’t trust the government to get things right and accordingly might be even more leery of the government killing someone. Professor Cass Sunstein proposed in “Is Capital Punishment Morally Required: The Relevance of Life-Life Tradeoffs”[12] that if the series of nonideological studies done in the last decade are right, then having a death penalty spares between 10 and 24 innocent victims of murder. How can we abandon indisputably innocent men, women, and children to homicide?

Notes

[1] Joseph Wambaugh, T he Blooding (William Morrow), 1989.

[2] Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

[3] State v. Brown, 297 Or 404, 416, 687 P2d 751 (1984).

[4] State v. Futch, 123 Or App 176, 860 P2d 264 (1993).

[5] “The Roger Coleman Case: Did Virginia Execute an Innocent Man?” Inside Out, WBUR.

[6] William Tucker, “Guilty Again!” American Spectator, January 17, 2005.

[7] Senate Judiciary Committee Testimony of Barry Scheck on Post-Conviction DNA Testing, June 13, 2000.

[8] Senate Judiciary Committee Hearing on Post-Conviction DNA Testing, June 13, 2000.

[9] Symposium: Innocence in Capital Sentencing, Journal of Criminal Law and Criminology, Vol. 95, Issue 2, Winter 2005.

[10] Joshua Marquis, “The Innocent and the Shammed,” New York Times, January 26, 2006.

[11] Kansas v. Marsh, Supreme Court of the U.S. No. 04-1170, 548 U.S. 163 (2006).

[12] Cass Sunstein and Adrian Vermeule, “Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs,” U Chicago Law &Econ, Olin Working Paper No. 239; AEI-Brookings Joint Center Working Paper No. 05-06; U of Chicago, Public Law Working Paper No. 85.

Professor Brandon Garrett’s essay highlights lessons we can learn from DNA exonerations of condemned prisoners. Ultimately, some of the most important issues are about what the exonerations tell us about the capital punishment process. His essay raises several questions, including what is the significance of the quality and number of exonerations, how legislatures should respond to the exonerations, and what the exonerations teach us about non-innocence issues.

How Many Mistakes?

Innocence arguments probably go back to the first execution, with death penalty advocates and opponents debating how often innocent people are convicted. For example, in 1935, a writer in The New Yorker discounted the risk of wrongful executions, noting, “The vision of American criminal law as a ravening monster, forever hounding innocent people into the electric chair, is one with which emotional persons like to chill their blood. It is a substitute for tales of ghosts and goblins.”[1] Similarly, Joshua Marquis here and elsewhere has attacked the popular perception that innocent defendants are often convicted,[2] and Garrett notes that death penalty advocates have argued exonerations are rare. Meanwhile, others have suggested the numbers of wrongful convictions are more significant.[3]

Beyond the numbers, both sides argue about whether or not specific exonerated individuals were actually innocent. And at least one death penalty advocate would debate Garrett’s example of Kirk Bloodsworth as a death penalty exoneration, not because of guilt, but because Bloodsworth was no longer on death row by the time he was exonerated.

While death penalty advocates and opponents debate the numbers and how much weight to give specific cases, at some point the arguments distract from the underlying concern. Nobody doubts there are wrongful convictions and that a number of exonerations occur because of luck more than anything else. For example, Illinois discovered a number of innocent defendants on death row because of the fortuitous work of Northwestern University journalism students. And not every case has DNA evidence. While Innocence Projects and similar organizations have successfully exonerated a number of condemned individuals, other capital defendants who may be innocent but whose cases lack DNA or other similar conclusive evidence may find little help.

Like all endeavors, operating a criminal justice system must involve some risk. Although DNA evidence has exonerated several capital defendants, the numbers are a small percentage of all capital defendants. And the fact that the system finds the errors arguably shows that the system works, at least eventually. Yet we do not know how many innocence cases are not discovered, and it is a mistake to believe that DNA gives us a key to determine guilt with complete accuracy.[4]

In my criminal law class, I ask my students how much error they think we should tolerate in a criminal justice system and what percentage of wrongful convictions is acceptable. 1 in 1,000? 1 in 10,000? 1 in 100,000? In an ideal world, there would be no errors, but in our imperfect world there will always be errors, as Joshua Marquis correctly notes about all human activities where we tolerate risk, such as surgeries.

So, when the federal and state governments take these risks with the lives of its citizens, the question comes down to a balancing of costs and benefits. If one sees a great value in having the death penalty, one may tolerate some risk of error, where if one sees little or no value, one may tolerate less or no risk. Some may see some benefit, as where Mr. Marquis cites Prof. Cass Sunstein’s article arguing that some recent studies might indicate the death penalty saves lives. But others might argue the use of capital punishment increases violence or point to scholarly articles that debunk the research mentioned in Prof. Sunstein’s article.[5] Still, even if one agrees with most criminologists that the death penalty does not deter better than life imprisonment,[6] a death penalty advocate may respond that there are other benefits worth the risk of wrongful convictions. And these arguments will not be solved by DNA.

What Reforms Are Needed?

We need additional protections in the system to decrease the number of innocent people being sentenced to death. Garrett explains that faulty eyewitness identifications have led to some wrongful convictions, and there is a growing amount of scholarship on the problems of eyewitness identification. For example, one study of forty inmates who were exonerated by DNA evidence found that 90% of their trials included faulty eyewitness evidence.[7]

Reforms are a good starting point, but they may be difficult or costly to enact. Marquis is correct in his essay that prosecutors are in an important leadership position and play a key role in improving the system. For example, a few days ago a group of eleven current and former Kentucky prosecutors wrote an op-ed calling for reforms to Kentucky’s death penalty and a moratorium on executions until the reforms are implemented.[8]

Policy makers may respond to the DNA exonerations in several ways, such as (a) deciding the current low level of risk is acceptable; (b) finding the current level of risk is not acceptable but reforms may make it acceptable; or (c) concluding the only way to eliminate the risk of wrongful executions is to abolish the death penalty. States like Illinois and Massachusetts considered reforms but opted to do without the death penalty. Other states have balanced the risks and rejected the death penalty as well.[9] Ultimately it becomes a cost-benefit analysis that balances the necessity of having a death penalty with expenses and reforms. Studies have suggested reforms to various procedures, including interrogation requirements, lineup procedures, and limits on certain types of evidence. DNA exonerations highlight the problems, but DNA is not the complete solution.

What Do DNA Exonerations Teach Us About the Capital Punishment Process?

Finally, Garrett briefly notes that death penalty cases involve errors that go beyond guilt. This important DNA lesson is worth more discussion. Because DNA exonerations show that jurors make mistakes on the question of guilt, then jurors likely make mistakes on more complicated issues like difficult capital sentencing issues.

Since the beginning of the modern death penalty era in 1972 when the Supreme Court struck down the existing death penalty statutes, the Court has tried to curtail arbitrariness when jurors decide whether a guilty defendant should be sentenced to death or life in prison.[10] Legislatures have also struggled to write fair death penalty statutes to guide sentencing juries.

Generally, in capital sentencing proceedings, a jury considers aggravating evidence for death against mitigating evidence in favor of life in prison. Capital sentencing, unlike a question of guilt, requires jurors to bring their own values to the question of whether another person should live in prison or be executed by the state. In making this calculation, jurors not only measure the heinousness of the murder, but in a complex calculation they also evaluate mitigating factors like a defendant’s mental illness.

So if DNA reveals that jurors sometimes get wrong the most objective issue regarding a defendant’s guilt under a high burden of proof, they will sometimes be wrong in their decision about the death penalty. Just as death penalty advocates may argue that there are few true exonerations of capital defendants, they may still argue that jurors usually get it right when they evaluate whether a defendant should live or die. By contrast, death penalty opponents may point to a number of death row inmates who have changed in prison, arguing these individuals should be spared the death penalty.

Unlike cases with DNA innocence evidence, though, there are no objective standards to test the accuracy of a death sentence in most cases. But sometimes there is a sense that a sentence may be wrong. There was no debate that Wilbert Evans was guilty of shooting and killing a deputy sheriff in early 1984, and Virginia jurors confidently sentenced Evans to death after deciding he was a “future danger.” But not long after the jurors made that finding, Evans saved the lives of prison guards and personnel during a prison riot, putting himself between angry inmates and several hostages. Although the convicted murderer deserved harsh punishment, when the state executed him in the electric chair in 1990, his heroics in prison raised the question of whether the jury was right to sentence him to death instead of life in prison.[11]

DNA may help us discover some of the innocence cases, and it may help guide some needed reforms. But DNA evidence and other evidence that reveals errors in some cases cannot eliminate errors in all cases. Beyond the questions about guilt and innocence, such evidence also does not help eliminate sentencing arbitrariness. We can learn a lot from DNA, but it is only a beginning in assessing the way that governments use capital punishment.

Notes

[1] Edmund Pearson, “A Reporter at Large: Hauptmann and Circumstantial Evidence,” The New Yorker, 41 (March 9, 1935).

[2] Joshua Marquis, “The Myth of Innocence,” J. Crim. L. & Criminology 501, 509 (2005).

[3] See, e.g., Leon Friedman, “The Problem of Convicting Innocent Persons: How Often Does It Occur and How Can It Be Prevented”, 56 N.Y.L. Sch. L. Rev. 1053 (2012).

[4] Jay D. Aronson & Simon A. Cole, “Science and the Death Penalty: DNA, Innocence, and the Debate Over Capital Punishment in the United States,” 34 Law & Soc. Inquiry 603 (2009).

[5] See, e.g., Jeffrey Fagan, “Death and Deterrence Redux: Science, Law and Causal Reasoning on Capital Punishment,” 4 Ohio St. J. Crim. L. 255, 314-15 (2006); John J. Donohue and Justin Wolfers, “Uses and Abuses of Empirical Evidence in the Death Penalty Debate,” 58 Stan. L. Rev. 791, 842-45 (2005).

[6] See Michael L. Radelet and Traci L. Lacock, “Do Executions Lower Homicide Rates? The Views of Leading Criminologists,” 99 J. Crim. L. & Criminology 489, 501-05 (2009) (surveying seventy-six criminologists and finding that only 5.3% answered they believe the death penalty is a deterrent to murder).

[7] Gary L. Wells et al., “Witnesses to Crime: Social and Cognitive Factors Governing the Validity of People’s Reports,” in Psychology and Law: State of the Discipline 53, 57 (Ronald Roesch et al. eds., 1999).

[8] John L. Smith, et. al., “Prosecutors: Ky. Capital Punishment Unfair,” Lexington Herald-Leader (March 7, 2012).

[9] Sara Darehshori, Jeffrey L. Kirchmeier, Colleen Quinn Brady, and Evan Mandery, “Empire State Injustice: Based Upon a Decade of New Information, A Preliminary Evaluation of How New York’s Death Penalty System Fails to Meet Standards for Accuracy and Fairness,” 4 Cardozo Pub. Law, Policy & Ethics 85 (2006).

[10] See Furman v. Georgia, 408 U.S. 238 (1972); Gregg v. Georgia, 428 U.S. 153 (1976).

[11] Evans v. Muncy, 498 U.S. 927, 927, 930 (1990) (Marshall, J., dissenting); Stuart Taylor, “We Will Kill You Anyway,” The American Lawyer, Dec. 1990, 55–56.

Invite a philosopher to participate in a discussion of a legal controversy and the conversation will either ascend or descend to a different level, depending on one’s point of view. And if that philosopher also has an intense interest in the history of ideas, including arguments for and against capital punishment, the conversation is bound to veer off into several directions. I will do my best to maintain some measure of focus.

Professor Garrett has given us an excellent overview of the impact of DNA testing on the criminal justice system, especially in capital cases. He correctly points out that the high degree of certainty provided by DNA tests can be invoked by either side of the death penalty controversy. Opponents of the death penalty can point to numerous cases of wrongful convictions in the past, whereas proponents of the death penalty can provide strong assurance that such errors are far less likely to occur in the future, thanks to DNA tests.

The possibility of error in criminal prosecutions, and its implications for capital punishment, have long been discussed by legal philosophers. In An Introduction to the Principles of Morals and Legislation (1780), the utilitarian philosopher Jeremy Bentham pinpointed the death penalty as the most egregious example of a punishment that cannot be corrected in the event of a wrongful conviction:

It may happen that punishment shall have been inflicted, where, according to the intention of the law itself, it ought not to have been inflicted: that is, where the sufferer is innocent of the offence. At the time of the sentence passed he appeared guilty: but since then, accident has brought his innocence to light. This being the case, so much of the destined punishment as he has suffered already, there is no help for. The business is then to free him from as much as is yet to come. But is there any yet to come? There is very little chance of their being any, unless it be so much as consists of chronical punishment: such as imprisonment, banishment, penal labour, and the like…. The most perfectly irremissible of any is capital punishment. For though other punishments cannot, when they are over, be remitted, they may be compensated for; and although the unfortunate victim cannot be put into the same condition, yet possibly means may be found of putting him into as good a condition as he would have been in if he had never suffered. This may in general be done very effectually where the punishment has been no other than pecuniary. [1]

In 1963 the libertarian Nathaniel Branden expressed a common position on capital punishment. He distinguished “two separate aspects” of the controversy, namely, “the moral and the legal.” Capital punishment, viewed from a moral perspective, is fully justified. The man “who commits willful murder, in the absence of any extenuating circumstances, deserves to die.” This position is not a matter of revenge or deterrence but is “the logical and just consequence of his own act,” an “expression of the moral principle that no man may violate the rights of another with impunity….”

The legal question of capital punishment “is of a different order” than the moral question, according to Branden.

If it were possible to be fully and irrevocably certain, beyond any possibility of error, that a man were guilty, then capital punishment for murder would be appropriate and just. But men are not infallible; juries make mistakes; that is the problem….It is the possibility of executing an innocent man that raises doubts about the legal advisability of capital punishment. It is preferable to sentence ten murderers to life imprisonment, rather than sentence one innocent man to death….The problem involved is that of establishing criteria of proof so rationally stringent as to forbid the possibility of convicting an innocent man. [2]

We may presume that DNA testing meets the high standard of certainty required by both Bentham and Branden, but even if this is the case it would not lead those men to endorse the same conclusion. Branden, a natural-rights philosopher, endorsed capital punishment, in theory, on moral grounds, using an approach to punishment known as retribution to argue that a murderer deserves to die. Bentham, who rejected natural rights in favor of a utilitarian standard, opposed the death penalty, primarily because he viewed it as a less effective deterrent than life imprisonment, especially if hard labor is involved.

Nathaniel Branden’s moral stance on capital punishment is similar to that of Immanuel Kant. In The Metaphysical Elements of Justice (1797), Kant argued that an accused criminal “must first be found to be deserving of punishment before any consideration is given to the utility of this punishment, for himself or for his fellow citizens.” The appropriate standard of punishment is “the principle of equality,” as “illustrated by the pointer on the scales of justice.” Undeserved evils that a criminal inflicts on another person should be regarded, in effect, as perpetrated on himself. If I strike another person, I strike myself; if I rob from another person, I rob from myself; if I kill another person, I kill myself. It is only this conception of juridical equality that can determine the quality and the quantity of a just punishment.

Thus, according to Kant, “Anyone who is a murderer – that is, has committed murder, commanded one, or taken part in one – must suffer death.” This punishment is a legal duty demanded by the principles of justice, not a legal option to be decided at the discretion of a judge. [3]

The opposing view on capital punishment, such as that taken by Jeremy Bentham and other utilitarians, relied heavily on the arguments of Cesare Beccaria, the leading philosopher of the Italian Enlightenment and author of the immensely influential Essay on Crimes and Punishments (1764). Beccaria combined a natural rights approach with a utilitarian analysis – a common hybrid during the eighteenth century, until Bentham drove a wedge between the two positions – so Beccaria criticized the death penalty on two grounds.

Beccaria’s brief moral case against capital punishment invokes the notion of a social contract to argue that we would never voluntarily agree to be killed by a government that has a duty to protect our rights. Beccaria wrote:

What manner of right can men attribute to themselves to slaughter their fellow beings? Certainly not that from which sovereignty and the laws derive. These are nothing but the sum of the least portions of the private liberty of each person; they represent the general will, which is the aggregate of particular wills. Was there ever a man who can have wished to leave to other men the choice of killing him? Is it conceivable that the least sacrifice of each person’s liberty should include sacrifice of the greatest of all goods, life? [4]

Kant, who also embraced a version of social contract theory, rudely dismissed this argument as “sophistry” and countered with a succinct and persuasive rebuttal. But Beccaria’s moral case against capital punishment, which I quoted almost in its entirety, was but a small part of his argument. Beccaria’s utilitarian case against capital punishment was more extensive and far more influential, having been used by Voltaire, Bentham, and other legal reformers.

According to Beccaria, punishment has two fundamental objectives: to restrain the criminal from committing additional crimes and to deter other members of society from committing the same crime. The first purpose is served by imprisonment, so we are left with the issue of deterrence. Beccaria’s discussion of deterrence sparked a long and complex debate that continues to this day. Here is a summary of his argument, according to which life imprisonment (with hard labor) is a more effective deterrent than the death penalty:

It is not the intensity of punishment that has the greatest effect on the human spirit, but its duration, for our sensibility is more easily and more permanently affected by slight but repeated impressions than by a powerful but momentary action….It is not the terrible yet momentary spectacle of the death of a wretch, but the long and painful example of a man deprived of liberty, who having become a beast of burden, recompenses with his labors the society he has offended, which is the strongest curb against crimes. That efficacious idea – efficacious, because very often repeated to ourselves – “I myself shall be reduced to so long a miserable condition if I commit a similar misdeed” is far more potent than the idea of death, which men envision always at an obscure distance. [5]

More is involved in Beccaria’s argument than may be immediately apparent, and Jeremy Bentham elaborated upon its implications in (some would say) excruciating detail. Fortunately perhaps, I can plead space limitations and stop here, leaving any additional comments to later in our discussion.

For now, suffice it to say that I think a compelling moral case can be made against capital punishment, so I do not accept the retributive theory of punishment defended by Kant and many other philosophers. Like most critics of capital punishment, I regard the problem of legal certainty, which has supposedly been solved by DNA testing, as little more than a footnote to a much broader and more fundamental moral controversy.

Notes

[1] The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 1. Chapter: CHAPTER XVII.: OF THE PROPERTIES TO BE GIVEN TO A LOT OF PUNISHMENT.

[2] The Objectivist Newsletter, Vol. 2, No. 1 (January 1963), p. 3.

[3] Immanuel Kant, The Metaphysical Elements of Justice, trans. John Ladd (Bobbs-Merrill, 1965), pp. 100-104.

[4] Beccaria, On Crimes and Punishments, trans. Henry Paolucci, in The Enlightenment: A Comprehensive Anthology, ed., Peter Gay (Simon & Schuster, 1973), p. 732.

[5] Ibid., p. 733.

The participants in this exchange certainly seem to have once piece of common ground: that if something does go wrong, we should try to find out what went wrong and fix it. Are we really trying, though? Who is “we”? How could we do better?

Take eyewitness evidence, ubiquitous and used in many tens of thousands of cases each year. Even in the narrow sliver of cases where post-conviction DNA testing can be done and actually is done, we know that eyewitness errors play a troubling role. There is a vast body of scientific research on how to improve identification procedures. More states and police departments have adopted best practices, and national policing organizations recommend as much and the changes are fairly simple – but progress is highly uneven. Traditional, non-blind lineups actually harm law enforcement first and foremost – because they lead to many more “filler” identifications that can “burn” an eyewitnesses credibility. Yet improving those procedures has been slow going. All this despite high profile DNA exonerations, which more than anything else involve eyewitness errors.

But since our primary topic is the death penalty, take a type of evidence more common in homicide investigations – confessions. All but two of the false confessions that I studied were contaminated – the innocent convicts were said to have confessed using details that only the true culprit could have known – we now know that could not have happened. Such was the seeming power of the confessions that quite a few were convicted despite exculpatory DNA tests; it was not until a DNA match with the true culprit occurred that they were cleared. Many hundreds of police departments now videotape entire interrogations, to ensure against contamination – but also to be able to convincingly show that they took a professional and accurate confession. Yet most do not. More states now require this simple inexpensive safeguard, but most do not. Why is that?

Finally, many thousands of cases each year – no one keeps track – are success stories where evidence like DNA clears someone early on in a police investigation. Police clear an innocent person and move on to pursue the culprit. No lessons are learned from such cases. If the eyewitness got it wrong, or the confession was false – and the error was caught – that is a great opportunity to learn from a near miss. Police convene top brass to investigate right away whenever an officer discharges a weapon. They may often conclude use of such force was appropriate – but it is seen as important to quickly find out whether something went wrong. Some prosecutors’ offices are creating conviction integrity units to do that type of work, among other things. Police could do the same. And so should public defenders. Judges are more open to claims of innocence than in the past, as well as requests for DNA testing, in part due to new statutes – but there is more they could do. It does not impugn our criminal justice system to constantly look for ways to improve it, but everyone involved needs to dedicate time and energy to asking questions when something does go wrong, or when it nearly does, but an error is avoided.

There is nothing wrong with “best practices” which certainly includes taping statements. I have purchased thousands of dollars of audio and video recording equipment for often tiny police departments in my county who simply cannot afford it. As a prosecutor I want the statement fully and accurately preserved or the defense attorney will infer dark doings.

But to punish often small under-funded police departments for not doing it is wrong. There have been some innovative suggestions for providing positive incentives if a statement is recorded – like a jury instruction that the jury should give extra weight to a statement that is recorded. In Oregon there is a highly cautionary standard jury instruction about any witness statement.

There are significant issues on so-called sequential line-ups, and a Chicago study that showed they were not only less reliable but also had higher false positives than the more traditional 6-person “throw-down,” which can be easily preserved for the jury to determine if the photos were unduly suggestive in any way.

The other issue is expanding DNA databases, as New York – on a bipartisan basis – just did.

Since DNA can now be collected relatively nonintrusively, there is no reason not to collect it in the same way as fingerprints – which might even include licensed professionals like lawyers, cops, and teachers. There should also not be prohibitions on “warm” or familial DNA comparisons if the real goal is to get to the truth.

We cannot avoid the starkly different roles of prosecutor and defense counsel. The former is obligated to seek justice, not just convictions, turn over anything even vaguely helpful to the defendant while a defense attorney is ethically bound to do anything short of suborning perjury to get their client acquitted.

In the final paragraph of “Rightful Convictions,” Joshua Marquis writes:

I can understand how libertarians generally don’t trust the government to get things right and accordingly might be even more leery of the government killing someone. Professor Cass Sunstein proposed in “Is Capital Punishment Morally Required: The Relevance of Life-Life Tradeoffs” that if the series of nonideological studies done in the last decade are right, then having a death penalty spares between 10 and 24 innocent victims of murder. How can we abandon indisputably innocent men, women, and children to homicide?

At the risk of annoying some readers—as I did Milton Friedman after I raised the same point in an earlier critique of capital punishment (“A Killer’s Right to Life,” Liberty Magazine, November 1996)—I would like to know how a statistical study, no matter how sophisticated, can possibly tell us the subjective motives for acts that were never taken and, moreover, how it can do so with the specificity of telling us approximately how many people did not do what they otherwise would have done under different circumstances. Where are these people? And, more importantly, how would we recognize one if we happened across him or her?

Despite my extreme skepticism about statistical correlations in matters of deterrence, I think it is always best, whenever feasible, to accept the strongest case of the opposing side—so I will assume, for the sake of argument, that the claim of Cass Sunstein and Adrian Vermeule is justified. Here is a key passage from their article:

If omissions by the state are often indistinguishable, in principle, from actions by the state, then a wide range of apparent failures to act—in the context not only of criminal and civil law, but of regulatory law as well—should be taken to raise serious moral and legal problems. Those who accept our arguments in favor of the death penalty may or may not welcome the implications for government action in general. In many situations, ranging from environmental quality to highway safety to relief of poverty, our arguments suggest that in light of imaginable empirical findings, government is obliged to provide far more protection than it now does, and that it should not be permitted to hide behind unhelpful distinctions between acts and omissions. [1]

As Sunstein and Vermeule see the matter, if a government fails to take an action that would lead to desirable outcomes, then its omission makes it as responsible for the undesirable outcomes as it would be if it took a positive action that resulted in undesirable outcomes. Thus if a government fails to provide medical care for someone who would die without such aid, then the government is responsible for that person’s death, just as much as if it had facilitated his death with positive actions.

This is twisted moral reasoning, to say the least. If I and others refuse to contribute to a charity that provides assistance to war refugees, and if some refugees will die without such aid, that does not make us responsible for their deaths. The same reasoning applies to governments.

Likewise, even if we assume that the absence of death penalty statutes will lead to more murders overall, this does not mean that the failure of a government to pass such laws somehow makes it responsible for those additional murders. The individuals who commit the murders are wholly responsible for their actions, period.

In addition, if the deterrent effect of capital laws is their primary justification, then we need to explore some possibilities.

Why not televise executions so they can be viewed by the public at large? This was a major rationale for public executions in earlier centuries, and it makes a great deal of sense. Surely the deterrent effects of capital punishment will be enhanced if people can actually witness the death of a murderer.

Why not make the execution of a criminal long and painful, to the point where it would horrify and thereby deter spectators? Again, this was the point of some earlier methods of execution, such as roasting heretics over a slow fire (it could take 30 minutes or more for the criminal to die), or the process of drawing and disemboweling a criminal, as dramatically and accurately portrayed in the movie Braveheart.

Why not extend the death penalty to serious crimes other than murder, such as rape and child molestation? If capital punishment is an effective deterrent to murder, then it will surely deter some potential rapists and child molesters.

Moreover, if we follow the logic of Sunstein and Vermeule, then a government that fails to impose the death penalty for such crimes is responsible for all the women who get raped and all the children who get molested because no such law exists. If the supposed causal relationship and the moral evaluation that supposedly follows from it apply to the crime of murder, as Sunstein and Vermeule maintain, then exactly the same reasoning would apply to all other crimes. Simply take your pick of crimes that you find especially abhorrent, insist that the death penalty be imposed in such cases, and then blame those who disagree with you for being responsible for the crimes they would allow to happen.

I haven’t even mentioned the classic objection to utilitarian theories of justice, namely that the actual guilt or innocence of the accused would be irrelevant, as long as people believed he was guilty. After all, people will be deterred by what they subjectively believe is true, not by what is true in fact.

My point is a very simple one: The issue of deterrence is nothing more than a sidebar when fundamental matters of justice are at stake. The possible deterrent effect of capital punishment is irrelevant until the justice of capital punishment has been resolved.

Note

[I] Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs (pdf).

As we seek ways to limit the number of innocent defendants sentenced to death, lawyers have suggested a number of ideas to help us get closer to certainty. Two areas that have come up in our discussion are the problems with confessions and with eyewitness identifications, but there are other problems as well.

Prof. Brandon Garrett and others have done important research about inaccurate eyewitness identifications.[1] A number of studies support a sequential identification process—where witnesses evaluate suspects one at a time instead of comparing possible suspects standing next to each other. Many advocate for police to use “double-blind” lineups, in which the person administering the lineup does not know which person is the suspect, thus avoiding any unconscious clues that the administrator might give to the witness. When Illinois and other states did exhaustive studies on practices that can lead to erroneous convictions, their reports made various recommendations, including double-blind and sequential lineups.[2] Joshua Marquis notes that there is ongoing research in the area about the use of sequential lineups in practice. But it is clear that while recognizing the realities and practicalities of police practices, the area of eyewitness identification needs some type of reform.

Other common suggestions include videotaping confessions, creating special evidentiary rules for informant testimony, and providing independent review of scientific evidence used in capital cases. For example, last year California passed a law preventing convictions based solely on informant testimony. I commend Marquis’s work in helping increase the use of recorded confessions and agree with him that it is an excellent idea to give law enforcement positive incentives for following best practices. Still, legislators and judges also have a responsibility to enforce practices if they are essential for accuracy, fairness, and due process.

While DNA evidence helps illustrate the problem of wrongful convictions, science currently cannot solve the problem of wrongful convictions or get us to a place of legal certainty as referenced by George Smith. Mistakes and improper use of forensic evidence itself has contributed to some wrongful convictions. A recent report by the National Academy of Sciences noted problems in the use of forensic evidence and suggested a number of reforms.[3] Still, it is a good start to learn what we can from science, as long as we are using good science. Regarding the advocates for a broad collection of DNA evidence and Marquis’s suggestion that the government might need my DNA because I am a lawyer, I will leave that issue for another discussion, except to say that others have raised concerns both about privacy and overburdening DNA labs.

While the scientific evidence and studies on confessions and identifications may help us understand how conviction errors occur, such information still does not help us establish a science of distinguishing those properly sentenced to life in prison from those properly sentenced to death. George Smith discussed the moral debate on capital punishment among philosophers like Immanuel Kant and Jeremy Bentham. Interestingly, I suspect that neither would change their position on the use of the death penalty in light of DNA exonerations. Kant was certain that there was an unquestionable duty to kill murderers. I admire Kant’s confidence and certainty. But unlike Kant, I find it difficult to see certainty in convictions and death sentences, especially in light of the DNA exonerations. So I find myself aligned with Cesare Beccaria in seeing “that the history of mankind appears a vast sea of errors, among which there float a few confused truths.”[4] And in accepting our infallibility, we might want to be extra careful about using our government’s power to impose death.

Notes

[1] Brandon L. Garrett, “Judging Innocence,” 108 Colum. L. Rev. 55 (2008).

[2] Report of the Illinois Governor’s Commission on Capital Punishment (2002).

[3] Nat’l Research Council, Nat’l Acad. of Scis., Strengthening Forensic Science in the United States: A Path Forward (2009). See also Paul C. Giannelli, “Forensic Science Reform,” 90 Tex. L. Rev. 29 (2011).

[4] Cesare Beccaria, Of Crimes and Punishments 60 (New York: Marsilio Publishers 1996).

Knowing I would likely be a lone voice in this discussion on many topics, I need to respond to Jeffrey Kirchmeier’s comment about DNA collection: “Regarding the advocates for a broad collection of DNA evidence and Marquis’s suggestion that the government might need my DNA because I am a lawyer, I will leave that issue for another discussion, except to say that others have raised concerns both about privacy and overburdening DNA labs.”

As the New York State Assembly correctly noted, the broader the DNA base the more likely you can convict the guilty and exonerate the innocent. Most lawyers already have to submit to fingerprinting in order to be licensed by their states. Since—as I pointed out—the method of collection (q-tips) is nowhere near as invasive as the syringe of a decade ago, and the only use of such a sample is to identify or exclude that subject, it can’t be used to intrude on your medical privacy. I made the suggestion to show that in an equal society no-one should be “exempt” from such identification. At present most states take sex offenders, more take convicted felons, and now New York proposes to take all arrestees. I would add all law enforcement officers who are also currently fingerprinted so that the DNA database is as wide as possible.

Returning to an important question in Prof. Brandon Garrett’s original essay, one might wonder whether the impact of the recent DNA exonerations will fade over time. While DNA exonerations have highlighted problems with the death penalty in recent years, arguably this effect may fade if such exonerations become less frequent. Garrett notes that most DNA exonerations today occur in old cases because current cases are able to test DNA evidence at trial instead of years after convictions and death sentences. Joshua Marquis notes that a wider use of DNA can lead to more accurate convictions, which too would lead to fewer DNA exonerations in the future. On the other hand, George Smith suggests that the moral issues are the more important questions in the death penalty debate, so fewer DNA exonerations would not affect that debate. Meanwhile, I have agreed with Garrett that the DNA exonerations reveal deep problems in the capital trial and sentencing system that will not disappear.

Many of the issues in this debate are not new. For example, in 1661, two brothers and their mother were convicted of the murder of William Harrison in England. The three were then hanged and gibbeted near Campden for the murder. But a few years after the execution, Mr. Harrison returned to town, explaining that he had disappeared because he was pressed to serve on a sailing ship. The discovery of the living “victim” was a strong argument against capital punishment, but for many, it did not shake their belief in the death penalty. They assumed that the executed mother was a witch who was behind events that were “signs of Satan’s evil designs and of God’s overwhelming mercy.”[1] England retained the death penalty for approximately three hundred more years before abolishing it.[2]

The DNA exonerations and other evidence of wrongful convictions will continue to play a role in the death penalty debate, but even overwhelming evidence of examples of wrongful convictions will not resolve the debate for some. Will the innocence debate gradually disappear? Approximately 350 years after the wrongful hanging in England, we are still debating the significance of innocent people on death row. While recent exonerations are teaching us some lessons on how to improve the criminal justice system, the innocence issue will be with us as long as we have the death penalty.

Notes

[1] Bruce P. Smith, “The History of Wrongful Execution,” 56 Hastings L.J. 1190-92 (2005).

[2] Jeffrey L. Kirchmeier, “Dead Innocent: The Death Penalty Abolitionist Search for a Wrongful Execution,” 42 Tulsa L. Rev. 403, 433 (2006).