The Death Penalty Has an Innocence Problem — and Its Days Are Numbered

This piece originally appeared at MSNBC.

The demise of the death penalty is upon us. While the Supreme Court ruled this week to allow the continued use of a controversial lethal injection drug, Justice Stephen Breyer’s sweeping dissent invited the nation to question capital punishment’s constitutionality. If you have any doubt about the answer, just ask Henry McCollum or Paul House.

Henry McCollum was convicted and sentenced to death in North Carolina for the murder and rape of a young girl. Paul House was convicted and condemned by the state of Tennessee for raping and murdering a woman. Both men suffered from an all-too-common syndrome in death penalty cases: They were innocent. McCollum was exonerated in 2014, and the state dropped its charges against House in 2009.

But in 1986, two years after McCollum was convicted and sentenced, Justice Antonin Scalia held him up in a separate Supreme Court decision as the kind of person who demonstrates the need for the death penalty. House was Justice John Roberts’ choice in his attempt, joined by Justices Clarence Thomas and Scalia, to narrow the availability of an innocence exception to the death penalty.

Just as Justices Roberts, Thomas, and Scalia thought McCollum and House should be executed, the lower courts too often have condemned innocent people to die. No one should be killed because the government made a mistake, yet 154 people on death row have been exonerated since 1976. We know that this total, which climbs steadily every year, is much lower than the actual number of people on death row who are — or were — innocent. One study estimates that one in every 25 defendants sentenced to death is innocent.

The death penalty’s innocence problem is not lost on the American public. Support for the death penalty is at its lowest point in 30 years. A majority of Americans today prefer life without parole to the death penalty. Nebraska and six other states have repealed the death penalty in recent years. The governors of Colorado, Oregon, Pennsylvania, and Washington have each suspended future executions indefinitely. As a country, we exercise the death penalty less and less — more evidence that we are moving away from capital punishment. Last year, nationwide, we had the lowest number of executions in twenty years (35) and the fewest new death sentences in 40 years (73).

As Justice Breyer noted, geography plays a huge role in who gets a death sentence and who gets life. A tiny fraction of U.S. counties — just 62 counties out of more than 3,000 nationwide — are responsible for sentencing the majority of people to death. The justice pointed to these stark statistics: Half of all of the new death sentences from 2004 to 2009 came from less than 1 percent of the counties in the country, and all of the new death sentences in 2012 came from fewer than 2 percent of the counties in this country.

The death penalty is forever entwined with the history of lynching, and racial disparities continue to taint capital punishment. Many studies show that the race of the victim drives death penalty decisions — no surprise to the BlackLivesMatter movement. When the victims are white, prosecutors are far more likely to seek the death penalty, and juries are far more likely to return death sentences, than when the victims are African-American. Prosecutors routinely prevent black people from serving on capital juries.

Justice Breyer also notes that those facing death sentences typically receive poor legal representation, making death row more likely. The personal preferences of individual prosecutors can also heavily affect who lives and who dies. Together, as Justice Breyer and Ginsburg conclude, this evidence “strongly suggests that the death penalty is imposed arbitrarily.”

The death penalty is not only applied unfairly, it doesn’t even achieve its ostensible purpose: deterrence. After 30 years of research, there is no reliable evidence that executing people stops others from committing crimes. Justice Breyer summarizes this literature and then makes the common sense point: In our system, the death penalty is more likely to be overturned because of error and unfairness than carried out, and the alternative to the death penalty — life without parole — is severe, so why would we expect the threat of the death penalty to influence behavior?

In his dissent, Justice Breyer (joined by Justice Ruth Bader Ginsburg) issued an open invitation for cases that challenge the constitutionality of the death penalty. This is a demand that the supply can meet. Geographically arbitrary, racially biased, and contrary to American standards of decency, each new capital case follows a trail of injustice that will bring down the death penalty.


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Actually, the death penalty is very much alive as the ruling was a strong reaffirmation of capital punishment. Only Breyer and Ginsburg joined Breyer's opinion, meaning that even Sotomayor and Kagan aren't willing to attack the death penalty itself, suggesting that there could be as much as a 7-2 majority in favor of it.


Bring a case and the death penalty will be upheld as it should be. And who ever said its only purpose is a deterrent? It called punishment. And if everybody that committed 1st degree murder was executed by hanging or the gas chamber or electric chair and quickly too I guarantee it would be a deterrent.

No worries though because the death penalty is going nowhere anytime soon.

And one more thing. Liberals advocate life sentences over death but I guarantee that if they got their way they would be fighting against life sentences. Anything to protect the criminal.


Cassy ,

My question to you is this: have you ever lost a loved one such as a mother or father to a brutal rape and murder and the defendant said to the judge I shot her in the head cause I wanted to see it explode. So without a doubt the man that killed my mother in cold blood was guilty as sin . Would you advocate for his life to be spared ? BTW....he killed 3 other people besides my mother and was finally executed 12 years after the murders , so how would you explain to me that his life is worth sparing , since he did not give the same courtesy to my mom and his other victims. So let me say that until you have walked in my shoes or that of other victims relatives please , spare my all your babble concerning how the DEATH PENALTY is cruel or inhumane. Remember that all death row inmates are not innocent while you are attempting to have the death penalty abolished.If you are so intent on turning all death sentences to life without parole why don't you just use all your tax dollars to keep those death row inmates alive for years. I do know that there is in fact innocent people on death row due to over zealous prosecutors in certain cases. Now explain your case of why the man that killed my mother should not have been executed . Please look the case up before you go on your liberal rant to me , the murderers name was Ronald "Rusty" Woomer.


I am so sorry about you mom. That should have never happened saaaad.... But its more expensive to give them the death sentence than keep them locked up for life

Mr Burr

It's me again , the truly saddest thing about all of Cassy's blogs concerning the death penalty is that none of them ever mention the many victims of all of these killers, whether she herself deems them innocent or not. Also all murders are not linked to lynching or have a racist component to them, some killers are just plain evil regardless of the race of the person they choose to kill.

Old Curmudgeon

I truly believe that Mr Burr's desire is not for punishment of the guilty sociopath but for revenge.


We need honest DA's and judges and revamp the death penalty to overwhelming evidence of extremely evil people.


I think LESS LIKELY when white I think a misprint


As a crime victim myself, I understand why other crime victims might want their family member's murderer brought to death, but I have to ask: what does that change? Does the death of the killer bring your loved one back to life? No. Does it undo what has been done? No. All it does is kill more people, bring pain to more families, and run the risk of killing an innocent person 1/25th of the time.

I think that it is a lot better to spend time studying people who kill, so we can learn how to prevent more of these types of things from happening. We should LEARN from the past rather than repeat it. Obviously, killing murderers hasn't stopped murders so far.


I agree with your point that the death of the killer doesn't undo what has been done. I'm from Vietnam and there, they have execution too, just like the US. And here is the story I want to share that actually happened in my country:
In 2012, nearly morning about 4h30am there was a robber intruded into a business house whose owners sold jewelry. There were 4 people in the family. The thief killed all the couples and then killed the 3-4 months baby because he started to cry. Besides, he also tried to kill a 9-year-old girl but luckily, she hid under the bed but the killer still chopped one of her arms. The girl painfully tried to call her uncle using cell phone. At that time, after taking all the jewelry, the killer escaped.
It didn't take long for the police to find out the murder. Now the girl doesn't have any true blood family, she has to live with relatives. However, she and her relatives decided to forgive the murder and let him have another chance to live and better in jail because they knew taking his life wouldn't bring everything back like it used to be.


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