Death before Innocence: The truth about America’s Death Penalty and the 4.1%

“The rate of erroneous conviction of innocent criminals defendants is often described as not merely unknown but unknowable” – Samuel Gross.

The 4% of Death Row

Professor Samuel Gross of the University of Michigan Law School recently conducted a study that indicates more than 4% of the people on death row may be innocent.

During the week of June 17, 2014, there were four executions in four states. All of the inmates were convicted of brutal crimes and to many,  the executions meant that justice was served.  But what if even one of the four was actually innocent?

Prisoners: Stand Up and Be Counted

Gross’s study revealed that 1 in 25 death row inmates is likely to be exonerated and released, putting the number at more than 4% of the death row population. Gross told the Guardian, “It’s a disturbing finding, there are a large number of people who are sentenced to death, and besides our best efforts, some of them have been undoubtedly been executed.”

Gross applied survival analysis technique, which uses a variety of statistical devices to calculate the number of cases of hidden innocence. In order to remain unbiased, he also conducted a sensitivity analysis to see how many exonerated convicts were guilty.

According to Gross, from 1994 to 2004 there have been 7,482 death row convictions and 943 executions, and around 2,675 persons have been removed from death row when their convictions came into question, although only a small percentage were fully exonerated and released.

Miscarriage of Justice

The miscarriage of justice is quite common in the criminal justice system. Issues that plague the justice system include:

• False testimonies by eyewitnesses
• Lack of evidence
• Planted evidence by law enforcement officials in a quick attempt to close a case
• Prosecutors seeking reelection and need convictions to boost their careers

As Gross explained, the rate of exonerations among death sentences in the United States is much higher than any other criminal sentence. The death penalty represents less than 1% of prison sentences, but accounts for 12% of known exonerations from 1989 to 2012, which is a disproportion of 130 to 1.

Death Penalty Cases vs. Other Sentences

People awaiting executions were considerably more likely to receive exoneration than other sentences. A serious fact that researchers noted is that 95% of felony convictions in the United States are based on plea agreements through routine procedure with no evidence submitted. Review of such cases are extremely rare. Many of those with a felony conviction usually do not have an attorney after conviction and if they appeal, the appeal is based on a perfunctory look, not on their innocence or guilt.

There is a difference when it comes to the death penalty however – all of these convictions are based on a jury trial and are reviewed upon appeal and almost all are repeatedly reviewed.  Normally death row prisoners will keep their attorney for their length of time on death row.

DNA: Making or Breaking it

This study also reviewed prisoners who spent more than 24.1 years on death row, were not exonerated but were misclassified, resulting in a reduced sentence. Some prisoners on Death Row will be cleared and freed, and some will be executed, but many will remain in prison and die of natural causes or by suicide.

As Elizabeth Loppato of Forbes Magazine pointed out, since the advent of DNA testing, there has been no significant difference in death penalty reversals, as only 18 of 142 exonerations have been due to post-conviction DNA testing.

Death Penalty Debate

Whether or not to abolish the death penalty has been an ongoing debate within the United States for years. According to a 2009 Gallup poll, 65% of Americans believe in the death penalty while 31% percent oppose it, and this trend continues today.

32 of the 50 states still have the death penalty; there are 3,088 people awaiting execution.

According to the Death Penalty Information Center: Texas, Florida, Oklahoma and Ohio had the highest execution rate for 2013.  California has the largest number of death row inmates (741) but has not had an execution since 2006 due to the lethal injection controversy.

Death Row Demographics

Race is a particular topic of interest in the justice system due to areas of geography. Since 1976 there have been 771 Whites executed (56%), followed by Blacks with 477 (34%) , Latinos with 110 ( 8%) and finally other with 24 (2%).  The current death row population by race – Whites with 1335 (43.23%), Blacks with 1,285 (41.61%,) Latino 391 (12.66% ), Other at 77 ( 2.79 %) . How many of these are innocent ?

Where Do We Go From Here?

The risk of someone being executed while innocent is evident. In many cases, the convicted individual’s innocence is proven after the fact; the fortunate few are exonerated and freed.

Even though the majority of American citizens are pro-death penalty, there has been a steady decline of executions performed in recent years and many states have abolished the practice. Where do you stand?