Attorney General William BarrBill BarrHolding defiant Trump witnesses to account, Jan. 6 committee carries out Congress's constitutional role Jan. 6 panel recommends contempt charges for Trump DOJ official Appeals court questions Biden DOJ stance on Trump obstruction memo MORE recently announced the reinstatement of the federal death penalty — this comes as executions and death sentences in states are at historic lows. While people may differ about the morality of the death penalty, there has been a growing movement at the state level to repeal it because of its deep racial bias, fiscal irresponsibility and proven inaccuracy. The federal government should take note.
Consider the following data: More than 160 innocent people across the nation have been exonerated from death row since 1973. Twenty of those people were exonerated through post-conviction DNA testing. And according to a recent study, at least 4 percent of all defendants sentenced to death in the United States are innocent. More than half the people on death row in this country are people of color. In 2018, the Washington state Supreme Court unanimously struck down the state’s death penalty as unconstitutional and “racially biased.”
There are human faces behind the data. Kirk Bloodsworth was the first man in the United States whose capital conviction was overturned by post-conviction DNA testing. A Marine with no criminal record, he was convicted based on the mistaken identification of five eyewitnesses of having raped and murdered a little girl in Baltimore County, Maryland. DNA testing led the state to vacate his conviction and dismiss the case against him, but Maryland still wouldn’t concede Bloodsworth was innocent.
Ultimately, a DNA profile from semen found in the girl’s underwear was run in the CODIS DNA database system and came up with a “hit” to the real assailant who, astonishingly, had actually lived on the same cell block with Bloodsworth. After two horrifying years on death row awaiting the ultimate punishment, Bloodsworth narrowly escaped with his life.
Sometimes, the mere existence of the death penalty can compel wrongful convictions and grave miscarriages of justice. Christopher Ochoa pled guilty to the rape and murder of an Austin, Texas, woman. Under threat of receiving the death penalty, he confessed to the crime and implicated another man, Richard Danziger. Both men received life sentences and years later, the police, then-Gov. George W. Bush’s office, and the District Attorney’s Office received letters from a man named Achim Marino, claiming that he was solely responsible for the crime for which Ochoa and Danziger had been convicted.
Thirteen years after the commission of the crime, Ochoa and Danziger were exonerated and released from prison. Ochoa, who graduated from law school in 2006, now states that his confession and implication of Danziger were the result of fear of the death penalty.
Bloodsworth and Ochoa’s cases demonstrate the fallibility of eyewitness and confession evidence and there are myriad additional contributing factors to wrongful conviction. The misapplication of forensic science is one. In 2013, the DOJ and the FBI, in collaboration with the Innocence Project and the National Association of Criminal Defense Lawyers, announced that they would conduct a comprehensive review of cases in which FBI Laboratory reports and testimony included statements that were scientifically invalid.
The agencies agreed to undertake the review after three men who had served lengthy prison sentences were exonerated by DNA testing in cases in which three different FBI hair examiners provided testimony that exceeded the limits of science. The review found that out of the 268 cases where examiners provided testimony used to inculpate a defendant at trial, erroneous statements were made in 257 of them — an astounding 96 percent of the cases. Defendants in at least 35 of these cases received the death penalty and errors were identified in 33 (94 percent) of those.
Having worked on death penalty repeal efforts in several states, one of the core realities that resonate with lawmakers on both sides of the aisle is the grave and profound risk of executing an innocent person. Indeed, the number of Republican state lawmakers supporting repeal efforts has spiked in recent years. Many of these Republicans cite their support of repeal to their inability to square the policy with its inborn error rate. Many states acknowledge that given the multitude of contributing factors to wrongful conviction that still remain unaddressed, there is no possible justification to permit the ultimate punishment in their jurisdictions.
The federal system is no different, causing former Chairman of the Senate Judiciary Committee Patrick LeahyPatrick Joseph LeahyLawmakers remember Bob Dole: 'Bona fide American hero' Biden signs four bills aimed at helping veterans The Hill's Morning Report - Ins and outs: Powell renominated at Fed, Parnell drops Senate bid MORE (D-Vt.), himself a former prosecutor, to respond to the Barr announcement this way: “This week I again met with my friend Kirk Bloodsworth. Kirk was in prison 8 years, including 2 on death row, before DNA evidence exonerated him. The DNA testing program named in his honor has exonerated 50 more. The death penalty is too final & too prone to error. It’s beneath us.”
Questioning the appropriateness of the death penalty is a bipartisan endeavor. Hannah Cox of Conservatives Concerned About the Death Penalty also stated that, "A growing number of conservative state lawmakers… realize that capital punishment goes against their principles of valuing life, fiscal responsibility and limited government, and that the death penalty does nothing to make the public safer.”
Given the proven errors, racial bias and chorus of concern expressed by bipartisan state and federal lawmakers, the administration should reverse course on reinstating the death penalty and instead spend its time and limited resources on achieving effective and fair criminal justice reform.
Rebecca Brown is the director of policy for The Innocence Project, which seeks to prevent and reveal wrongful convictions and assure compensation for the wrongfully convicted upon release from prison. She previously served as a policy analyst for the Mayor's Office in New York City and a senior planner at Center for Alternative Sentencing and Employment Services (CASES).