When the State Kills the Innocent: the Death Penalty Can Be a Mistake That Can’t be Fixed

When Gov. Gavin Newsom ordered a halt to all executions in California, a moratorium he announced on March 13, 2019, he cited racial and economic discrimination in the way death sentences were handed down. He also pointed to the lack of evidence that capital punishment serves as an effective deterrent to crime, and to the “billions of taxpayer dollars” it costs to maintain a death row. But the final factor that pushed Newsom to impose the moratorium was more personal.

“I couldn’t sleep at night,” Newsom said at the time. He described being haunted by the possibility that, of the 737 inmates waiting on death row in 2019, many may actually be innocent. In fact, citing statistics from a study by the National Academy of Sciences (NAS), Newsom said that “if we move forward executing 737 people in California, we will have executed more than 30 people that are innocent.”

The NAS study cited by the governor was published in 2014 and based on three decades of data that included all 7,482 death sentences handed down in the United States from 1973 to 2004. The study focused only on death row because false convictions are more likely to come to light in capital punishment cases, due to the long appeals process and resources devoted to examining the trials and procedures involved. The NAS found that 4.1 percent of all convicts condemned to death are likely innocent of the crimes that brought them the death penalty.

The U.S. Supreme Court Approach to Executing the Innocent

In 1972, when the U.S. Supreme Court in the case Furman v. Georgia ruled the death penalty unconstitutional based on the “arbitrary and capricious” way it was handed down and carried out, the possibility of executing an innocent person was definitely foremost in the mind of Justice Thurgood Marshall.

“No matter how careful courts are, the possibility of perjured testimony, mistaken honest testimony, and human error remain all too real. We have no way of judging how many innocent persons have been executed but we can be certain that there were some,” Marshall wrote in his concurring opinion. “Surely there will be more as long as capital punishment remains part of our penal law.”

In 1993, the Supreme Court decided that evidence of actual innocence was simply not relevant to a death penalty case. 

Just four years later the court reconsidered, in the case Gregg v. Georgia. The court, by a 7-2 majority, found that in that remarkably short period of time state laws had been updated enough that they were no longer arbitrary and capricious. Executions could resume—which they did with the execution in Utah of convicted killer Gary Gilmore in January of 1977 by firing squad. 

In the Gregg decision, the possibility that an innocent defendant might be executed was not much of a factor. But in 1993, the court handed down a rather astonishing decision in the case Herrera v. Collins, when it decided that evidence of actual innocence was simply not relevant to a death penalty case. 

Leonel Herrera was a Texas drug dealer convicted in 1982 of murdering two police officers. Several years later, persuasive evidence including eyewitness testimony emerged that the real cop-killer was Herrera’s brother, Raul, who by that time had himself been killed.

Lionel Herrera’s appeals for a writ of habeas corpus reached the Supreme Court, where a 6-3 majority decided that “claims of actual innocence based on newly discovered evidence" simply didn’t matter in death penalty appeals unless they were accompanied by “an independent constitutional violation.” In other words, executing an innocent person was not, in itself, a violation of the Constitution. 

On May 12, 1993—barely three months after the Supreme Court issued its decision in his case—Leonel Herrera was indeed executed by lethal injection, the 202nd person to be executed since the Gregg decision in 1976.

So, Has California Ever Executed an Innocent Person?

Thomas Thompson was a Laguna Beach man who was convicted in the brutal rape-murder of a 20-year-old woman, Ginger Fleischli, in 1981. Thompson was convicted largely on the evidence of two jailhouse informants who claimed that he had confessed to them, informants who later proved unreliable. Thompson had no criminal record or history of violent behavior when he was tried and convicted in 1984. 

Evidence was also later uncovered pointing to Thompson’s then-roommate, David Leitch—who was Fleishi’s boyfriend and did have a violent past, including threats against his girlfriend—as the actual killer. But even though the Ninth Circuit U.S. District Court overturned Thompson’s conviction, the Supreme Court reversed that decision, citing a supposed violation of a procedural rule. 

Thompson was executed on July 13, 1998, the fifth of 13 people executed by the state of California since 1978.

Since 1978, five California death row inmates have been exonerated.

Whether any of the other 12 are innocent may never be known, and the same holds true for the 709 people known to have been executed in California between 1778 and 1972, when the state Supreme Court temporarily halted executions.

But since 1978, five California death row inmates have been exonerated of the crimes that brought them the death penalty. The most recent, in 2018, was former Kern County farm laborer Vicente Benavides, who was convicted in 1993 of an especially heinous crime. Prosecutors clained that he raped, sodomized and beat to death a 21-month-old girl, the daughter of his then-girlfriend.

Benavides, who was mentally disabled, always denied the horrendous accusation, and eventually every expert (but one) who testified about the child’s injuries recanted, now saying that the little girl had not been raped at all. Her fatal head injuries were likely sustained in an accident, the new evidence showed. 

In 2005, the state Supreme Court upheld his conviction, but after Benavides attorneys filed a 395-page habeas corpus petition, the state Supremes threw out the conviction after all, citing evidence of false medical testimony and incompetent defense counsel. Among other issues, at his initial trial, Benavides' lawyers never brought up the fact that he had the intellectual capacity of a seven-year-old child. 

In the 2002 case Atkins v. Virginia, the U.S. Supreme Court ruled that executing people with intellectual disabilities violated the Eighth Amendment ban on “cruel and unusual punishments” and was therefore unconstitutional.

Why Are Innocent People Sentenced to Death?

How frequently are innocent people wrongly convicted and sentenced to die? Again, there's no real way to know for sure. But according to nationwide statistics compiled by the Death Penalty Information Center, there have been 192 death row inmates exonerated since 1973, an average of almost four per year (3.94 to be exact). With 1,569 people executed in that same time period, that means for approximately every eight people put to death, one has been exonerated. 

Black defendants are seven times as likely as whites to be wrongly convicted of murder.

Why are so many people wrongfully convicted? According to data from the Georgia Innocence Project, race plays a significant role. While Black Americans make up only 13 percent of the country’s population, they are 40 percent of the prison population—and 60 percent of all wrongful convictions established by DNA evidence. Black defendants are seven times as likely as whites to be wrongly convicted of murder, the data shows. 

Of course, wrongful conviction is not exclusive to any one race or ethnic group. Findings from exonerations across the board, not only from death penalty cases, have shown that forensic “junk science” has been a frequent source of wrongful convictions, according to research published by the Virginia Law Review in a 2009 study.

Faulty forensic analysis of such evidence as “bite mark, shoe print, soil, fiber, and fingerprint comparisons” and even DNA analysis played a role in 60 percent of convictions of defendants who were later found to be innocent, according to the study. 

Defense lawyers rarely challenged the invalid evidence, according to the study. Which brings up another major cause of wrongful convictions—incompetent or inadequate lawyers. In many cases defense attorneys, especially public defenders, are simply underfunded, according to an American Bar Association report. As a result, they tend to be overworked, underpaid and unable to provide fully competent defense for their clients.

Other major causes of wrongful convictions include false accusations and perjury by witnesses—factors in 60 percent of exonerations, according to the Korey Wise Innocence Project at the University of Colorado-Boulder—as well as false confessions. While it seems unbelievable that people would confess to crimes they know they did not commit, it happened in 12 percent of convictions that have been proven incorrect. In many cases, coercive interrogation techniques used by police induce suspects to confess, hoping that they can end the psychological or even physical abuse by their interrogators.

For that matter, misconduct by police or prosecutors has played a role in 54 percent of known wrongful convictions, the University of Colorado data shows. And in 28 percent, mistaken eyewitness testimony has caused an innocent person to be convicted of a crime.