A different assessment of "America’s Dangerous Obsession" with innocence on death row

Thirteen years ago, in an article titled Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities, 3 Harv. L.& Pol'y Rev. Online (2008), I explained the basis for my concern that "progressive criminal justice reform efforts concerning innocence issues, abolition of the death penalty, and sentencing disparities may contribute to, and even exacerbate, the forces that have helped propel modern mass incarceration."  That old article feels fresh again upon seeing this new lengthy Atlantic piece by Elizabeth Bruenig titled "America’s Dangerous Obsession With Innocence."  Here are a few excerpts from the piece:

It goes without saying that the state should not kill innocent people, and that it is a good thing to save the innocent from a fate no one thinks they deserve.  I believe it is a good thing, too, to save the guilty from a fate some would argue they have earned.  That the one stance may occlude the other reflects the death penalty’s bizarre moral universe....

According to the national Registry of Exonerations, more than 1,000 people have been exonerated for murder in the United States since 1989.  Many of these cases were initially decided when forensic techniques and technologies were less advanced and less accurate than they are now.  People with plausible innocence claims have, in some instances, been able to bring new technology to bear on preserved evidence to great effect.  That phenomenon spurred the innocence movement in capital-punishment advocacy as we know it.

“Around the year 2000, there’s this ferment all over the place to create innocence programs,” David R. Dow, the founder and director of one such program, the Texas Innocence Network, told me. “They’re kind of sexy. Funders want to fund them. People are beginning to pay attention to the fact that there are innocent people in prison.”

Marissa Bluestine, the assistant director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Carey Law School, told me that more than 50 innocence organizations now operate in the United States.  They differ in size, scope, region, and budget, but they “all have the same goals: They work to identify people who did not commit the underlying crime they were convicted of and they try to exonerate them.”

That’s well and good, except that the number of innocence claims that can be confidently settled in labs is not infinite, and may in fact be dwindling. Dow, who teaches law at the University of Houston, has represented more than 100 clients on death row in his 30 years of practice; out of that number, he counts only eight as credibly innocent. He doesn’t suspect that his future will hold many more....

More generally, a 2014 published by the National Academy of Sciences found that if all of American death-row inmates were to remain condemned indefinitely, approximately 4.1 percent would eventually be exonerated — a proxy for the share of innocent inmates. That’s an admittedly conservative estimate. But even if the number of innocent inmates were doubled, the number of guilty ones would still make up more than 90 percent of death row....

To put it succinctly: Innocence cases indicate that some capital sentences are unfair, but decades of studies on death-qualified juries; race, gender, and immigration-status bias among jurors; law enforcement and prosecutorial misconduct; weak forensic science and poor representation at trial all suggest that a fair capital sentence is virtually impossible.  Ultimately the fight should be waged not against particular injustices, but against the unjust system itself.

Especially for those inclined toward capital abolition, I fully understand the logic of speculating that there many not be that many innocent persons left on death row and so even more fight needs to be directed toward the guilty on death row.  However, the fight against against all of death row has been pretty robust and pretty effective over the last 20 years (surely aided by the innocence movement).  Nationwide, since 2000, death row has shrunk about 30%, the number of executions has shrunk about 75%, and the number of death sentences imposed has shrunk 85%.

But, shifting our focus from formal death sentences to what are sometimes called "death in prison" sentences, the modern story changes dramatically.  As detailed in a recent Sentencing Project report (discussed here), the "number of people serving life without parole — the most extreme type of life sentence — is higher than ever before, a 66% increase since ... 2003."   Moreover, while there are currently around 2500 people on death row who have all been convicted of capital murder, there are now roughly 4000 people "serving life sentences [who] have been convicted for a drug-related offense."  And well over 200,000 persons are now "serving a life sentence, either life without parole (LWOP), life with parole (LWP) or virtual life (50 years or more)."  

If we keep the focus on innocence, and use the 4% number discussed in this Atlantic article and extrapolate, these data mean we could have 100 innocent persons on death row, but also 160 innocent persons serving life for a drug-related offense and over 8000 innocent persons serving LWOP or LWP or virtual life.  If there are lots of innocent groups and not a lot of "good" capital client, there would seem to be no shortage of innocent lifers needing help.  (And, on the data, I am always inclined to speculate that there are now an even larger number of innocent persons serving life than death because capital cases historically get more scrutiny.)

That all said, I obviously share this article's sentiment that guilty persons ought not endure unfair sentences and its advocacy for assailing "the unjust system itself."  However, the capital punishment system, for all its persistent flaws, still strikes me as somewhat less unjust than so many other parts of our sentencing system.  There are no mandatory death sentences, jurors play a central role in every death sentence, and state and federal appellate judges often actively review every death sentence.  There are nearly 100 people serving some type of life sentence for every person serving a death sentence in large part because life sentences are imposed so much more easily as subject to so much less scrutiny. 

Put simply, and I have said before, I worry it is a continued obsession with the death penalty, and not with innocence, that may be problematic in various ways.  But since that very obsession is largely what accounts for capital punishment's modern decline, I am disinclined to be too critical of capital obsessives.