Would you get on an airplane if there were a 2.3 percent chance it would crash? The equivalent of this “worse case” outcome in criminal justice is convicting an innocent person. There’s a special horror in convicting an innocent person of a death penalty crime. Well-documented research has found that our criminal justice system’s error rate in capital cases is at least 2.3 percent. This troubling record was underscored recently when senior U.S. District Judge Anita Brody overturned the conviction of James Dennis, who spent 21 years on death row. As reported by the Associated Press, the judge called the case “a grave miscarriage of justice” and said Dennis was convicted on “scant evidence at best.”
This language is similar to that of a 2003 commission report, prompting then-Governor George Ryan to place a moratorium on the Illinois death penalty. Since its reinstatement in 1977, twelve inmates had been executed and thirteen condemned to death had been released. The commission noted, “All thirteen cases were characterized by relatively little solid evidence connecting the charged defendants to the crimes.”
The Innocence Project reports that since 1992, DNA has proven 311 persons wrongfully convicted (completely innocent). Of these, 18 had been on death row. Another 16 charged with capital crimes had not been sentenced to death.
The 2.3 percent error rate for capital crimes is from research by Professor Samuel R. Gross at the University of Michigan Law School and Professor Barbara O’Brien at Michigan State University College of Law. Gross and O’Brien examined actual exonerations among all death sentences in the United States since 1973. Of those who had been sentenced to death at least fifteen years before the end of 2004, professors Gross and O’Brien determined that 2.3 percent had been exonerated. Since there were no doubt other capital defendants in that group who had not been exonerated by the end of 2004, the exoneration rate is a conservative estimate of the rate of wrongful convictions among death sentences.
Professor Gross is editor and co-founder of the National Registry of Exonerations—launched in May 2012—a joint project of University of Michigan and Northwestern Law Schools. This searchable online database of all known exonerations in the U.S. includes wrongful convictions proven by DNA and those cases in which a person was “officially declared innocent or was relieved of all legal consequences of the conviction because evidence of innocence that was not presented at trial required reconsideration of the case.” The database is dynamic; exonerations, current or newly discovered, are added frequently. The recent number of exonerations since 1989 was 1,200 of which 105 or 8.8 percent were cases that resulted in a sentence of death. Due to the exonerations, those executions were not carried out.
When serving as Ohio Attorney General, I became aware of wrongful conviction and the power of compelling, yet unreliable evidence. For example, FBI records in thousands of cases (primarily sexual assaults) in which crime scene DNA was compared with suspect DNA (the suspect usually identified by the victim) revealed a 25-percent error rate! How then can eyewitness testimony alone determine “guilt beyond a reasonable doubt?”
If one piece of unreliable evidence can convict, several—with a dash of circumstantial evidence—make a perfect recipe for wrongful conviction. Juries and judges have been misled by such evidence.
Some believe error may be more frequent in capital cases. Crimes that shock the community put unusual pressure on officials. This may prompt cutting corners or investigative tunnel vision often recognized after wrongful conviction. Obviously, the victim cannot testify. The National Registry of Exonerations data indicates that in these cases, the primary contributor to wrongful conviction is perjury or false accusation, often one suspect’s testimony against another or a prison snitch testifying to get a better deal.
Anti-death penalty groups contend the death penalty is immoral, more expensive than a life sentence, unfairly applied, and not a deterrent. Even death penalty supporters must acknowledge that the frequency of wrongful conviction demands new policies or a moratorium.
One proposal to reduce the risk of wrongful execution is raising the standard of guilt in death-penalty cases from “beyond a reasonable doubt” to “beyond all doubt.” Another is to require more than eyewitness testimony. We must craft policies to reduce use of false confessions (often coerced), misleading forensic testimony (our system “needs overhaul” according to a 2009 National Research Council study), and unreliable snitches and informants.
The United States would not tolerate a 2.3 percent error rate in the airline industry or any other in which the consequence of error is death. DNA-proven wrongful convictions and a growing body of official exonerations have revealed an error rate in criminal justice that makes the death penalty as it now stands unacceptable.
— Jim Petro, former attorney general of Ohio, is co-author with Nancy Petro ofFalse Justice – Eight Myths that Convict the Innocent.
