A Strange Thing Happened on the Way to the Execution
In 1999, there were 98 executions in the United States. In that same year, there were 276 new death sentences, and the size of death row reached 3,625 prisoners across the country. That year was not an anomaly: these statistics had been steadily rising over the preceding decade. States like Kansas and New York that had had abandoned the death penalty, reinstated capital punishment in 1994 and 1995 respectively. The federal death penalty was greatly expanded, and legislation was passed to shorten the appeals process.
All signs pointed to a continued rise in the use of the death penalty. The new numbers would blow past the previous highs. But that did not happen. Instead, from then to today, executions, death sentences, and the size of death row have all sharply and steadily declined.
What precipitated this reversal in the course of the death penalty in the U.S.? There are many contributing factors, including concerns about discrimination, improving standards of representation, and greater public attention to this issue. But one factor that brought together both opponents and supporters of capital punishment was the issue of innocence: more executions increased the risk that some innocent defendants would also be killed in the process.
The Issue of Innocence
Since 1999, the innocence issue has not gone away. Most recently, the country reached a disturbing milestone: On July 1, 2024, Larry Roberts in California became the 200th person exonerated from death row since 1973. Roberts had been convicted and sentenced to death for murders committed while he was already in custody. A federal court reviewing his case found that prosecutors had “suppress[ed] exculpatory evidence, suborn[ed] perjury, and present[ed] evidence the prosecutor knew or should have known was false.” The California Attorney General announced that it would not seek to retry Mr. Roberts.
Another exoneration occurred just two weeks earlier in June in a case from Texas. After 46 years of legal battles, also involving gross misconduct, the Texas Court of Criminal Appeals found Kerry Cook to be “actually innocent” of the crime that sent him to death row in 1978. The court wrote: “when it comes to solid support for actual innocence, this case contains it all — uncontroverted Brady (withheld evidence) violations, proof of false testimony, admissions of perjury, and new scientific evidence.”
In response to the 200th exoneration, Herman Lindsey, the Executive Director of Witness to Innocence — a national organization of exonerated death row survivors based in Philadelphia — pointed to the heart of the innocence issue: “End the death penalty, and the tragedy of executing innocent people will be stopped entirely.” Mr. Lindsey, himself, was on death row in Florida until the state supreme court ruled unanimously that he should never have been convicted in the first place, much less sentenced to death.
The issue of innocence was not always so prominent in the death-penalty debate. The assumption of the courts was that a defendant is entitled to a legally fair trial, but not to a reinvestigation of the facts. Science and more thorough investigations have shown there is often more to the story.
The Innocence List
In 1993, the Death Penalty Information Center in Washington, DC (I was the Executive Director at the time), received a request from Rep. Don Edwards (CA), the Chair of the Subcommittee on Civil and Constitutional Rights in Congress. He asked the Center to assess the risk that an innocent person could be executed because of the death penalty.
Rep. Edwards was trying to preserve the Writ of Habeas Corpus, which was under attack by both legislators in Congress and the Chief Justice of the U.S. Supreme Court, who believed it was being used too often by federal courts reviewing state convictions. The Writ is so important that it is protected under Article One of the U.S. Constitution.
Eyes tend to glaze over when lawyers use Latin terms instead of plain English. Perhaps another name for the “Great Writ” would be the “right to fundamental justice.” This right actually takes the form of a civil suit that can be filed in a criminal case. It requires that a person can only be held in custody in the U.S. if the procedures used in the case were constitutional.
The Center prepared a report for the Subcommittee outlining the various ways that evidence of a defendant’s innocence might be missed by the courts in reviewing death penalty cases. The report drew on earlier research by Michael Radelet and Hugo Bedau into individual cases of wrongful convictions. The report listed 48 cases in which prisoners had been freed from death row since 1973. Some of these lives were only saved because of the existence of this right to fundamental justice.
Listing these individual cases allowed the report to introduce the personal stories of people who might have been executed but instead were alive then, contributing to society. It also afforded the opportunity to put a number on the instances of these terrible mistakes.
The battle to preserve a robust right to fundamental justice was eventually lost in 1996 when Congress passed the Anti-Terrorism and Effective Death Penalty Act, which was signed into effect on the anniversary of the Oklahoma City bombing.
The title of this Act is deceiving in two significant ways: first, it has little to do with fighting terrorism, and instead is aimed at curtailing federal review of state criminal cases. Secondly, it limits the appeals process not just in death penalty cases, but in all cases of those incarcerated in the U.S. (In fact, the time between sentencing and execution in death penalty cases has grown longer since the passage of the Act.)
Today’s Death Penalty
The Death Penalty Information Center has continued maintaining the list of exonerees — now numbering 200 — to this day (with heightened standards for innocence). Witness to Innocence uses DPIC’s list of exonerees in determining membership in WTI.
The 100th exoneration occurred in 2002 when Ray Krone was freed in Arizona. Mr. Krone is the co-founder of Witness to Innocence, along with Sister Helen Prejean, author of Dead Man Walking. Krone was a military veteran working for the post office in 1992 when he was convicted and sentenced to death. The evidence used to convict him was mainly circumstantial and junk science involving bite marks. He was exonerated when DNA found at the murder scene identified the actual killer, leading prosecutors to dismiss Krone’s charges.
“In the 20 years I’ve been telling my story, I’ve seen the American public lose its fervor for the death penalty,” said Krone. “Reaching the 200th death row exoneration is truly a bittersweet milestone. Sadly, since my exoneration, there have been 100 more exonerations. It shows that our system is capable of both prosecuting and convicting the innocent. It’s time to end the death penalty experiment.”
Last year there were 21 new death sentences, down from a peak of 325 in the modern death penalty era. There were 24 executions, down from a high of 98. However, there were also four more exonerations, which was about average. The innocence issue has not gone away. The 200th exoneration will no doubt be surpassed by another in the coming months…unless, perhaps, the defendant is executed before his or her innocence can be shown.
-Richard Dieter is an attorney and serves on the Board of Directors of Witness to Innocence. He is the author of “Reflections on a Surprising Universe.” (Photos property of Witness to Innocence).
