Of the Problems with the Death Penalty, Wrongful Conviction Might Be One of the Scariest

By: Elyssa Creary-Scher

“…it is far worse to convict an innocent man than to let a guilty man go free.” Justice Harlan, concurring, In re Winship (397 U.S. 358, 372) (1970)

According to the Equal Justice Initiative, for every nine people executed, one person on death row is exonerated. Since 1973, 185 former death-row prisoners have been exonerated of all charges related to the wrongful convictions that placed them on death row.  These numbers are staggering. As long as the death penalty remains in existence, innocent defendants will continue to be sentenced to death and possibly executed.  While President Biden has publicly expressed his opposition to capital punishment, the federal government, as well as 27 U.S. states, still authorize the death penalty. Additionally, former President Trump’s administration carried out more federal executions during the four-year term than any other administration in the previous 56 years combined. Some of those executed under the Trump administration even maintained their innocence in their last words.

Does Exoneration Really Reverse the Problems Created by Wrongful Conviction?

While it’s incredible to see those wrongfully convicted completely exonerated and released before they face execution, not everyone wrongfully convicted on death row has been as lucky. Some have received posthumous pardons after their executions. Others have had their sentences reduced or commuted due to doubts cast on their guilt prior to their executions being scheduled and carried out. While it’s fortunate for those to be spared from death, they still lost numerous years – often decades – spent behind bars for crimes they didn’t commit. Even after exoneration and release, many continue to face the consequences of wrongful conviction for the rest of their lives. After the exciting headlines fade from the news, many exonerees exit prison broke, unable to secure employment or housing, and suffering from mental illness. Sadly, the public rarely acknowledges the difficulties faced by those after exoneration.

The Role of the Innocence Network

The number of innocence organizations around the world has grown exponentially since strides were made in DNA evidence testing in the 1990s. And while wrongful convictions have been receiving more attention in the media and the public eye – thus shifting some views on criminal justice reform – the existence of the death penalty still plays an extremely large part in wrongful convictions. According to a Gallup poll, the number of Americans who now oppose capital punishment has been growing steadily since the 1990s.

No one supports the execution of an innocent person. People know that the system can make mistakes, but at what point do we draw the line? For those sentenced to death, we can – and absolutely should – avoid making those mistakes.

What Can Be Done?

Official misconduct is one of the primary causes of wrongful conviction, so one thing we can do to approach a greater solution is to hold police, prosecutors, and other government officials accountable for their contributory actions. In fact, in 128 of the 185 death row exonerations that have occurred since 1972 – or just about 70% – there was some kind of official misconduct involved.  For the exonerations that took place between 2007 and 2017, this percentage was even higher – 82%.  Unfortunately, there isn’t one remedy for reducing official misconduct; it will best result from procedural rules that dictate the conduct of law enforcement officials as well as changes in our legal and political culture.

In the meantime, the general public should continue to change its attitude on capital punishment, as well. The first step is to acknowledge that this grave margin of error exists.  Step two involves doing research on how the death penalty is disproportionately applied. Read about cases in which there was strong evidence that suggested innocence, and advocate for reform in reducing – or completely abolishing – the nationwide application of the death penalty.

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