Support for the death penalty in the U.S. is at its lowest point in many years. One of the primary reasons is the recent explosion in the number of death-row exonerations, which the Death Penalty Information Center (DPIC) now puts at 127. In response, some proponents of capital punishment have taken to arguing that many of the freed death-row prisoners are not in fact innocent. But their arguments do not hold up under the slightest of scrutiny.
For example, a March 25 New York Times story by Adam Liptak quotes Oregon prosecutor Joshua Marquis as saying that the number of "authentic" death row exonerations since 1973 is not DPIC's 127 but "more like 30." Mr. Marquis also makes this claim in his frequently-cited article, "The Myth of Innocence."
One problem with this claim is that few Americans would agree with Mr. Marquis's narrow understanding of what it means to be "innocent." In 2005 testimony before Congress, Mr. Marquis submitted a document [PDF ]which denied that my former client, Michael Ray Graham, and his co-defendant Albert Burrell were released from Louisiana's death row because they were innocent. The author of the document claimed that they were released "only because there was insufficient evidence of guilt." In fact, Graham and Burrell were released after the Louisiana Attorney General's Office informed a court that there was "a total lack of credible evidence linking Graham and/or Burrell to the crime."
If a finding of a "total lack of credible evidence" is not enough for Mr. Marquis to consider someone innocent, what is?
Another huge problem with Mr. Marquis' "more like 30" claim is that it is unsupportable. In "Myth of Innocence," he attempts to support the claim by citing both Wall Street Journal column that was critical of the abolition movement but made no attempt to calculate the number of innocent former death row inmates, as well as comments by U.S. District Court Judge Jed Rakoff at a February 2004 seminar held by the Federal Bar Counsel of New York.
Judge Rakoff's comments at the seminar apparently were not recorded. However, in two published opinions in 2002 in the federal death penalty case of United States v. Quinones, Judge Rakoff set forth his analysis of the number of freed death-row prisoners who were innocent. Using what he termed a "conservative" approach, the judge concluded that at least 32 and as many as 40 of the 58 death-row prisoners freed from 1991 through 2002 were factually innocent. What prosecutor Marquis fails either to either recognize or acknowledge is that Judge Rakoff's estimate was based on his review of only the death-row prisoners freed from 1991 through 2002, a number DPIC puts at 58. Judge Rakoff's analysis did not consider or include the 44 death-row prisoners freed before 1991, nor the 25 death-row prisoners freed after 2002.
In short, like the Wall Street Journal article, Judge Rakoff's analysis provides absolutely no support for prosecutor Marquis' claim that the number of "authentic" death row exonerations since 1973 is "more like 30."
Instead of denying the reality that many innocent men and women have been sent to death row, proponents of capital punishment would be wiser to, at the very least, join those who call for a death penalty moratorium while they study whether our broken criminal justice system can be fixed to ensure that only the guilty are sent to their deaths. And if they reach the same conclusion that many of us have -- that fallible human beings cannot create an infallible system of capital punishment -- then they should join those of us who advocate abolition of this barbaric punishment. The moral stakes are simply too high -- both for the innocent people wasting away on death row and for the society that put them there.