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March 03, 2021

New Innocence Report From DPIC Adds 11 New Individuals to Capital Exoneration List

By Samantha O'Connell, DPRP Intern

DPIC's newly released report on exonerations features interactive graphs that allow users to break them down by race, sex and other factors.

DPIC's newly released report on exonerations features interactive graphs that allow users to break them down by race, sex and other factors.

Death Penalty Information Center (DPIC)

The Death Penalty Information Center (DPIC) just released a special report, The Innocence Epidemic, featuring analysis of the 185 death-row exonerations in the United States since 1973 and an investigation into the factors that contributed to these wrongful convictions. With data derived from 29 states and 118 counties, DPIC concludes that the vast majority of wrongful convictions in the United States are not caused by mere accidents within the legal process. Instead, much more troubling patterns of police or prosecutorial misconduct, use of knowingly false testimony, and racial bias emerged.

New research by DPIC also uncovered 11 previously unrecorded capital exonerations which it has since added to its Innocence List, bringing the nation-wide total from 174 up to 185. DPIC discovered nearly two dozen overlooked capital cases that appeared, at first glance, to possibly qualify as death-row exonerations while compiling data for its death-row census project, an effort to track every death sentence imposed since the 1972 Furman v. Georgia ruling. Ultimately, DPIC narrowed this list down to 11 previously overlooked capital exonerations. Taking these newly recorded exonerations into consideration, DPIC’s data now shows that for every 8.3 executions carried out in the U.S., one wrongfully convicted prisoner is released from death row, even worse than the previously accepted ratio of one exoneration for every nine executions. “That is an appallingly and unacceptably high rate of error,” according to authors of the report.

Even as the total number of death-row exonerations has expanded by 11, DPIC still notes that its Innocence List is “a conservative estimate” of how many innocent people have been sentenced to death in the country and one that does not even take into consideration the “untrackable” number of wrongfully executed prisoners. In an effort to avoid the inherent subjectivity of determining someone’s “innocence,” DPIC decided that individuals who are included on the list must meet the criterion of “legal exoneration,” meaning:

  1. they were acquitted of all charges related to the crime that placed them on death row, in a retrial or appellate decision based on insufficiency of evidence;
  2. the prosecution dismissed all the charges against them related to the death sentence or was barred by the court from re-prosecuting them; or
  3. they were granted a full pardon based on evidence of their innocence.

The report does not consider those capital cases in which courts have yet to rule on claims of actual innocence. As DPIC notes, innocent defendants who were coaxed into plea deals to obtain their freedom or those who were innocent of murder but still have other convictions related to the killing on their record, for example, are not included in this updated total of 185.

Key findings from The Innocence Epidemic demonstrate the prevalence of misconduct and false accusations within wrongful convictions cases, especially ones involving defendants of color. 69.2% of the exonerations included misconduct by the police, prosecutors, or other government officials, and 67.6% included false accusations or perjury. 80% of the wrongful convictions included some combination of these two factors of either misconduct or perjury, and more than half of the exonerations included both, supporting DPIC’s claim about “the often intentional nature of wrongful capital convictions.” It makes sense, therefore, that in the five counties with the most exonerations in the nation, 95% of their wrongful conviction cases involved misconduct or perjury. More than 15% of exonerations also involved non-unanimous jury verdicts, a practice previously allowed in Florida, Alabama, and Delaware.

The statistics DPIC has released in its report are also far from “race-neutral.” While an already racially disproportionate 57.9% of America’s death row is non-white, an even more skewed 63.8% of wrongfully convicted death-row exonerees are people of color. Official misconduct resulted in the wrongful convictions of 58.2% of white exonerees but 78.8% of Black exonerees and 68.8% of Latinx ones. This racial disproportionality, especially for Black and Latinx defendants, applied in wrongful convictions based on other factors such as false accusations, perjury, as well as false confessions and mistaken eyewitness testimony. DPIC also found that Black death-row exonerees spent an average of 4.3 extra years on death row waiting for their freedom, compared to white exonerees, a difference partially explained by the fact that wrongful conviction cases with official misconduct seem to take the longest to overturn. However, DPIC also alludes to a 2017 study by the National Registry of Exonerations where, even when the factor of official misconduct was controlled, race still affected the length of time innocent individuals spent in prison.

National Geographic Magazine featured DPIC’s exoneration data in a story entitled Sentenced to death, but innocent: These are stories of justice gone wrong. The article intersperses DPIC’s compelling innocence research with profiles on death-row exonerees, focusing on the failures of the justice system that resulted in their wrongful convictions, the extreme struggles to adjust to their post-exoneration lives, and their anti-capital punishment advocacy work. (For reference, National Geographic notes 182 total exonerations rather than the 185 uncovered by DPIC because National Geographic chose to only include exonerations of people sentenced since 1973; DPIC includes those who were sentenced before 1973 but exonerated after).

All the exonerees interviewed and featured by National Geographic are part of the advocacy organization Witness to Innocence (“WTI”), led by exonerated death-row survivors and dedicated to abolishing the death penalty in the United States. Kirk Bloodsworth, Executive Director of WTI and “tireless campaigner against capital punishment,” explains, “When I tell people my story and how easy it is to be convicted of something of which you’re innocent, it often causes them to rethink the way the criminal justice system works. It doesn’t require much of a stretch to believe that innocent people have been executed.”

In 1993, Bloodsworth became the first death-row prisoner to be exonerated by DNA evidence. While DPIC hopes to dispel the “myth” that DNA testing has been the key to exonerating most innocent death-row prisoners thus far—it was used in just 28 out of 185 exonerations—DNA remains “increasingly and tremendously important” in our criminal justice system. DNA evidence can both serve as powerful proof of a defendant’s innocence and then also be used to definitively refute all other erroneous evidence relied upon on by the prosecution in trial to convict an innocent person.

DPIC found surprising discrepancies between exoneration cases involving DNA evidence and those that did not: Nearly every risk factor appeared at a substantially higher rate in cases with DNA evidence as opposed to those without it. According to DPIC, these differences seem to suggest a significant number of wrongful convictions may have still slipped through the cracks as a result of the unavailability of DNA testing. Since “DNA may be a critical element in uncovering innocence cases that might otherwise proceed to execution,” DPIC suggests its statistics should provide real incentives for states to allow more death-row prisoners the opportunity to test DNA evidence—especially states like Florida that have denied such requests at least seventy times, including from nine men who were eventually executed.

DPIC concludes its report with an ominous string of questions: “At what point do the loss of lives or lifetimes to a criminal legal policy that cannot consistently and reliably determine guilt or innocence become too high a price to pay? And when must we say that our state and federal governments cannot be trusted with such a dangerous policy?”

The information and views provided in the American Bar Association (“ABA”) Death Penalty Representation Project’s blog do not constitute official statements by the ABA and do not represent official ABA policy. For more information, please visit our policy and statement pages.