The Problem of Being Wrong | Should We Have the Death Penalty? | Part 2

Should We Have the Death Penalty? Part II | The Crime Ledger

Should We Have the Death Penalty? Part II of a three-part investigation. The Problem of Being Wrong: The standard the law uses for putting someone on death row is beyond reasonable doubt. It is one of the oldest phrases in Anglo-American criminal procedure, and it has the comfort of seeming precise. Twelve people have to agree. The evidence has to be strong. The defense has to be heard. The phrase does not, however, mean certainty. It never has. It is a calibration, a tolerance, a margin within which the system has decided it is acceptable to act despite not knowing for sure. For most punishments, this is workable. A wrongful imprisonment, however cruel, is a wrong the state can begin to repair. The prisoner can walk out. There can be testimony. There can be money, however inadequate. There can be apology.

A wrongful execution cannot be repaired. The body cannot be unburied. The breath cannot be returned. The state cannot say it is sorry to a person who is no longer in the room.

This thought, more than any other consideration, is what the modern American debate keeps circling and failing to resolve.

Consider the figure that rarely makes the front page. Since 1973, at least 200 people have been exonerated from death row in the United States. One of the most recent walked out of a California prison on July 1, 2024, after forty-one years inside. A 2014 study published in the Proceedings of the National Academy of Sciences, led by University of Michigan law professor Samuel Gross, estimated that at least 4.1 percent of those sentenced to death in the United States are factually innocent. Four out of every hundred. That is the rate the system itself, examined in its own records, produces.

Some of these cases are stories that should not have been possible.

In 2004, Texas executed Cameron Todd Willingham for the arson murder of his three young daughters. The conviction rested on testimony from arson investigators & experts who described the burn pattern in his home as proof of a deliberately set fire. By the time of his execution, modern fire science had already begun to abandon those very indicators. A nationally recognized arson expert reviewed the case at the request of Willingham's defense and concluded the evidence pointed to an accidental fire. The Texas Forensic Science Commission later opened its own review. Two days before the commission was scheduled to hear the report, Governor Rick Perry replaced three of its members. The hearing did not happen on its original timeline. Willingham was already dead.

In 2015, Anthony Ray Hinton walked out of an Alabama prison after thirty years on death row. He had been convicted on the testimony of a state ballistics analyst who claimed bullets from two unsolved murders matched a revolver belonging to Hinton's mother. The defense, working with a court-appointed expert paid only a thousand dollars, hired a visually impaired civil engineer with no firearms experience. When new analysts examined the bullets decades later, they could not match them to the gun. The state had no other evidence. He had spent half his life waiting.

In 2014, two half-brothers in North Carolina, Henry McCollum and Leon Brown, were exonerated by DNA evidence after thirty years in prison, much of it on death row. They had been teenagers, both with intellectual disabilities, when police interrogated them through the night without lawyers present. Both signed confessions they could not read. The DNA, when finally tested, matched a man who had lived a block from where the victim's body was found and who had killed another young woman in nearly identical circumstances three weeks later. Justice Antonin Scalia had once cited McCollum's case from the bench as a justification for the death penalty.

These are not stories about clerical errors. They are stories about every part of the system functioning the way it was designed to function. Juries deliberated. Appeals courts reviewed. Procedural protections held. And the result was nearly the killing of innocent people, prevented in some cases only by the persistence of a single lawyer, a single piece of evidence preserved by accident, a single new technology arriving in time.

What goes wrong is not very hard to follow. False confessions, especially from juveniles and people with cognitive disabilities, are produced by interrogation techniques the police themselves are trained in, techniques arguably designed to produce admissions, not to discover truth. Eyewitness identifications, which juries find overwhelmingly persuasive, are among the leading causes of wrongful conviction; the work of psychologist Elizabeth Loftus has shown for decades that human memory is not a recording device but a reconstruction, and that suggestion can rewrite it. Forensic disciplines once treated as scientific certainty, including bite-mark analysis and parts of arson investigation, have been retracted or seriously qualified by their own scientific bodies. In 2015, a joint review by the FBI and the Innocence Project found that examiners had given flawed hair-analysis testimony in 96 percent of the trials they were asked to review. Many of those defendants were on death row.

Layered onto this is the question of who gets convicted in the first place. The Baldus study, presented to the U.S. Supreme Court in McCleskey v. Kemp in 1987, found that defendants charged with killing white victims in Georgia were more than four times as likely to be sentenced to death as defendants charged with killing Black victims, even after controlling for hundreds of variables. The Court accepted the statistics, then ruled, five to four, that they were not enough to disturb a single conviction. The Equal Justice Initiative now describes McCleskey as the Dred Scott of the modern criminal law.

None of this proves that the death penalty cannot be administered fairly in some philosophical universe. It demonstrates that it has not been administered fairly here, in fifty years of trying, with every modern procedural safeguard the law has yet imagined.

A wrongful prison sentence is a tragedy that the state can, at the cost of money and time and dignity, partially undo. A wrongful execution is a tragedy the state has built into the architecture of its own punishment.

But it's not as if abolition costs nothing. To say the state should not kill is to say something about what the state should do instead. And the alternative the abolitionists offer, life in prison without the possibility of parole, has become a question of its own. Pope Francis has called it a hidden death penalty. Whether the prison that replaces the gallows is mercy, or only a quieter hand, is the question Part Three must answer.

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By Karma Gray, Editor-in-Chief, The Crime Ledger  Karma Gray is the founder and Editor-in-Chief of The Crime Ledger (crimeledger.org), an independent criminology publication dedicated to analytical, non-sensationalist crime coverage. For more criminology analysis, criminal psychology research, and crime reporting, visit crimeledger.org.