Academic journal article Vanderbilt Law Review

Life after Death Row: Preventing Wrongful Capital Convictions and Restoring Innocence after Exoneration

Academic journal article Vanderbilt Law Review

Life after Death Row: Preventing Wrongful Capital Convictions and Restoring Innocence after Exoneration

Article excerpt


In Gregg v. Georgia, the Supreme Court overturned its ruling in Furman v. Georgia and held that the death penalty, as administered by the states, was not per se "cruel and unusual punishment" in violation of the Eighth Amendment.1 Yet errors continue to occur at an alarming rate in the capital punishment system-over one hundred death row inmates have been released pursuant to evidence of actual innocence since 1973.2 Indeed, the number of death row exonerations has been steadily increasing in recent years.3

Of those exonerations, DNA testing played a substantial role in twelve.4 Many more have benefited from the assistance of innocence projects funded and operated by private groups.5 The role of these groups, combined with increased media attention to recent prison and death row releases, has contributed to a resurgence in the public debate over the role of the death penalty in the American criminal justice system.6 A 1993 study showed that fifty-eight percent of voters were concerned about the danger of mistaken executions.7 This percentage has risen steadily in recent years as the number of exonerations has increased.8 In May 2001, a Gallup Poll indicated that overall public support for the death penalty has eroded from eighty percent to sixty-five percent since 1994.9 In addition, an ABC news poll found that fifty-one percent of Americans support a nationwide moratorium on capital punishment while a commission studies its fairness.10 The number of inmates on death row and the number of executions have both been similarly decreasing, although it is unclear whether the decreases are related.11 For the first time since 1976, fewer executions have been occurring each year, even in leading death penalty states.12 This decrease is likely due to both a reduction in the crime rate and decreased public support for the death penalty.13

While there has been a sharp decrease in executions in recent years, the number of inmates on death row nationwide continued to increase until very recently.14 Significant systemic reforms have not accompanied the shift in public opinion concerning the death penalty.15 Neither death penalty statutes nor the manner in which the courts address capital cases has changed significantly in tandem with shifting public support.16 In fact, most recent exonerations have resulted from inmates' determined insistence on DNA testing and the intervention of private advocacy groups, rather than from changes in the prosecution of capital cases or in the administration of the death penalty.17 In other words, innocents' avoidance of execution has often been the outcome of nothing more than a fortunate convergence of unusual circumstances. The criminal justice system is not preventing wrongful executions-private citizens are.18

The consequence of these errors is even more disturbing: proof of innocence on death row means that innocents have almost certainly been executed since 1976.19 Estimates have put the number as high as one innocent person exonerated for every seven executed.20 The mere possibility of this outcome is adequate justification for reform, and reliance on private innocence projects to correct the mistakes of the justice system is neither efficient nor desirable. By retaining the current system, the states and the federal government are implicitly acknowledging either that government action is inadequate to deal with the problem of mistaken convictions or that such mistakes are not actually a problem. Systemic reform to the capital punishment system, at both the state and federal levels, is necessary to prevent-or at least to curtail-the occurrence of wrongful convictions.21 Such systemic reform must be thorough to be effective, beginning with an honest acknowledgement of the problem and the imposition of moratoria on executions at both the state and federal levels while studies clarify the extent of the problem.22

While current proposed legislation,23 including the Innocence Protection Act,24 addresses the problem of wrongful convictions by working to ensure that they never occur, little has been done to address the problems faced by those wrongfully convicted individuals who have recently been released. …

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