Do states with the death penalty execute innocent people? That is the fundamental question at the heart of The Wrong Carlos, a book I recently published with student coauthors.
It is also the question facing the American public following a series of devastating developments for death penalty supporters. March brought news of the 144th death row exoneration. In April, we learned that Oklahoma had botched Clayton Lockett’s execution, leaving him awake during a massive drug-induced heart attack. The Supreme Court found in May that Florida remains hell bent on executing defendants too mentally disabled to be condemned. And in June—for the first time—a majority of Americans indicated in a poll that they prefer life without parole to capital punishment.
Death penalty supporters are left clinging to a single promise often made but never substantiated—a promise repeated by Justice Scalia in a 2006 opinion: Whatever else we do, we don’t execute the innocent.
I began thinking about this question between 2000 and 2003, when colleagues and I issued our Broken System studies documenting judicial findings of accuracy-impugning error in two-thirds of all U.S. capital cases reviewed between 1973 and 1995.
Our studies sparked a heated debate over two competing interpretations. Did the courts’ discovery of so many errors prove the system worked? Or do high error rates mean it is almost certain that courts miss other errors, allowing the innocent to be executed?