PENALTY

minimum.” 13 Federal district judge Jed Rakoff struck down the federal
death penalty, arguing: “We now know, in a way almost unthinkable
even a decade ago, that our system of criminal justice, for all its protections,
is sufficiently fallible that innocent people are convicted of
capital crimes with some frequency.” His ruling was later reversed
by the Second Circuit Court of Appeals. 14 Statewide moratoriums
and abolition of the death penalty have occurred in part citing the
examples of death row exonerations; the best known was the Illinois
moratorium and Commission on Capital Punishment, for which
“OVER 140 DEATH ROW INMATES HAVE
BEEN EXONERATED SINCE THE 1970S IN
THE UNITED STATES” —Brandon L. Garrett
there was intensive study of the cases of 13 men exonerated from
the Illinois death row. 15 Hearing from a death row exoneree how a
wrongful execution nearly happened can have a powerful effect on
legislators and the public. As noted, the death penalty was abolished
in Maryland; death row survivor Kirk Bloodsworth had lobbied for
the repeal in Maryland and has done so across the country. The director
of Maryland Citizens Against State Executions commented, “No
single individual has changed as many minds as Kirk.” 16
Looking far beyond death penalty cases, DNA testing suggests additional
questions about the more mundane criminal cases. A federal
inquiry conducted in the mid-1990s, when police first began to send
samples for DNA testing, found that 25 per cent of these prime suspects
were cleared by DNA before a trial was held. 17 Where the vast
majority of criminal cases lack any DNA evidence to test, still more
questions are raised concerning accuracy.
13 Kansas v. Marsh, 548 U.S. 163, 194-195 (2006) (Scalia, J. concurring). For a discussion, see
Samuel R. Gross, “Souter passant, Scalia rampant: Combat in the marsh”, Michigan Law Review
First Impressions, vol. 105 (2006), pp. 67 ff.
14 U.S. v. Quinones, 196 F.Supp.2d 416, 420 (S.D.N.Y. 2002) rev’d U.S. v. Quinones, 313 F.3d 49
(2nd Cir. 2002).
15 Governor’s Commission on Capital Punishment, Report of the Governor’s Commission on Capital
Punishment (Springfield, Illinois, 2002), p. 4.
16 Scott Shane, “A death penalty fight comes home”, New York Times, 5 February 2013.
17 Edward Connors and others, Convicted by Juries, Exonerated by Science: Case Studies in the Use
of DNA Evidence to Establish Innocence after Trial (Washington, DC, US Department of Justice,
1996), pp. xxviii-xxix, 20.
More states and local police departments are now recording interrogations
and have adopted best practices for eyewitness lineups. A few
have also improved quality control and standards for forensics. Those
reforms are inexpensive, and they benefit law enforcement; they help
to identify the guilty and clear the innocent. However, they are all
being implemented at the local and state levels.
120
100
80
60
40
20
0
No challenge Verdict reversed Challenge unsuccessful
Eyewitness testimony
56% challenged
Additional reforms could improve the quality of post-conviction
review. One state, North Carolina, has created an Innocence
Inquiry Commission, to focus on judicial review of claims of innocence.
Unlike post-conviction and habeas courts, which are sharply
restricted by complex procedural barriers to relief, this Commission
just investigates whether a person is innocent and should be exonerated
by a three-judge panel. Other courts have made improvements
on the front end by insisting that juries be carefully informed of the
limitations of evidence, such as eyewitness testimony. Much more can
be done, however, both to improve judicial gatekeeping to prevent
wrongful convictions in the first place and to review convictions after
the fact.
CONCLUSION
Forensic testimony
31% challenged
Informant testimony
34% challenged
Confessions
59% challenged
In the United States, because some jurisdictions happened to save
crime scene evidence that could be tested years later, there has been
36 37