Larry Swearingen, who maintained his innocence in a 1999 murder for nearly 20 years, was executed by the state of Texas in August, minutes after the U.S. Supreme Court rejected his final appeal. His last words before he succumbed to a lethal injection were, “Lord forgive them. They don’t know what they are doing.”
We will never know for certain how many innocent people courts have sentenced to death. Of more than 8,500 death sentences issued since 1976, only 166 people have won exoneration — just under two percent — but legal experts estimated in 2014 that courts sentence innocent criminal defendants to death at more than twice that rate.
Swearingen was the first of 24 death penalty cases profiled in Injustice Watch’s Unrequited Innocence project. The project was adapted from a Northwestern Journal of Law & Social Policy article authored by Injustice Watch Co-founder Rob Warden and me.
We focused on people sentenced to death in murder cases who have not been exonerated despite significant evidence of innocence. We found systemic flaws in death penalty prosecutions that send innocent people to death row — and identified solutions that might encourage stronger convictions, reduce bias, and avoid errors that can take decades to remedy.
The 24 cases had a lot in common: The victims were often white. The defendant was often a person of color, poor, or a person with an intellectual disability. In many cases, physical evidence was scant to nonexistent, and evidence that might have bolstered defendants’ cases were suppressed or only surfaced after trials. Allegations of police and prosecutorial misconduct were common. False confessions were a major issue. Prosecutions sometimes relied on unreliable witnesses, especially jailhouse informants.
These problems are not the products of a bygone era. As we concluded our research, one death row prisoner after another appeared on our radar who seemingly fit the criteria of the Unrequited Innocence project: Toforest Johnson, James Dailey, and Barry Jones, to name a few.
That leaves a big, lingering question: How can courts stop sentencing innocent people to death? Unrequited Innocence doesn’t have all the answers. However, we presented the following suggestions and more in the original law review article that inspired our online project.
Limit use of “death-qualified” juries
A critical issue in death penalty trials is the requirement that all jurors be “death-qualified,” or willing to consider imposing a death sentence. However, such juries are more likely to reach a guilty verdict than ordinary ones. A way to prevent this bias would be to convene two separate juries for potential death penalty cases. An ordinary jury would determine guilt or innocence. If that jury finds a person guilty, then a death-qualified jury would determine the sentence.
Reduce reliance on questionable testimony
Our review illustrates how problematic it is when defendants face the death penalty based primarily on recanted testimony. Appellate courts routinely rule that recantations are unreliable, but that the recanted trial testimony should remain valid. We suggest that recantations be allowed to establish that a witness lacks credibility after they have given two conflicting statements under oath. That’s the way things work in perjury trials, where attorneys don’t have to establish which conflicting statement is false.
The most egregious form of recanted testimony is that of jailhouse informants, whose testimony has been proven notoriously false in many wrongful conviction cases. An outright ban on jailhouse informants might help protect courts from highly questionable testimony.
Tackle false confessions
False confessions were a common issue in our cases, often involving children and those with intellectual disabilities. The American Academy of Child and Adolescent Psychiatry has recommended that juvenile suspects have attorneys present during interrogation. But implementing that measure for all suspects could remove any question of whether confessions were made voluntarily.
Crack down on prosecutorial misconduct
Nearly half of our cases involved allegations of prosecutorial misconduct. But the U.S. Supreme Court has exempted prosecutors from civil liability, arguing that disciplinary checks and balances are sufficient to keep prosecutors in line. Holding prosecutors liable civilly for misdeeds would serve as a preventive against misconduct.
Abolish the death penalty
These suggestions would eliminate many of the issues we observed moving forward. However, they would not change the reality for innocent people already sentenced to death. Advocates say that the only way to guarantee that the U.S. does not execute another innocent person is to abolish the death penalty entirely.