Skip to main content

U.S. | After 200 death row exonerations, will we finally put an end to the death penalty?

Last week brought new evidence of crippling flaws in America’s death penalty system. The number of people exonerated and freed from death row over the last 50 years reached 200.

Such flaws appear irreparable. They remind us of the damage that capital punishment does to some of our most important legal and political values. They offer powerful reasons as to why America should end the death penalty.

Three years ago, when the number of people exonerated after receiving a death sentence reached 185, the Death Penalty Information Center said that the U.S. was experiencing what it called an “innocence epidemic.” Today, after Larry Roberts’s release from California’s death row on July 1, things have only gotten worse.

Although people who commit serious crimes deserve severe punishments, no one should tolerate a system that takes shortcuts and ends up punishing people who don’t deserve it. Unfortunately, that’s the death penalty system we have.

Traditionally, opposition to the death penalty has been expressed under several guises. Some have opposed it in the name of the sanctity of human life. Even the most heinous criminals, so this argument goes, are entitled to be treated with dignity. In this view, there is nothing that anyone can do, as former Supreme Court Justice William Brennan once argued, to forfeit their “right to have rights.” Others have emphasized the moral horror of the state willfully taking the lives of any of its citizens.

Each of these arguments represents a frontal assault on the retributivist rationale for capital punishment — the idea that killers deserve to be killed. Each puts the opponents of the death penalty on the side of society’s most despised and notorious criminals. Thus, it is unsurprising that traditional abolitionist arguments have not carried the day in the debate about capital punishment in the United States.

Whatever our views about the morality of capital punishment, the 200th death row exoneration suggests it has not been, and cannot be, administered in a manner that is compatible with our legal system’s fundamental commitments to fair and equal treatment.

Instead of being finely geared to assign punishment based on a careful assessment of the crime and the culpability of the offender, the death penalty system, as former Supreme Court Justice Harry Blackmun observed 30 years ago, “remains fraught with arbitrariness, discrimination, caprice, and mistake.”

Even worse, the system is plagued by the kind of official misconduct that resulted in the conviction and exoneration of Larry Roberts.

Roberts was convicted in 1983 for the stabbing and murder of a prisoner and correction officer at the California Medical Center in Vacaville, Calif. At the time, he was serving a life sentence for the murder of a security guard.

As the Death Penalty Information Center notes, “The only witnesses to these stabbings were fellow prisoners who testified against Mr. Roberts.” Deputy Attorney General Charles R.B. Kirk, nicknamed “Mad Dog” by his colleagues after trying more death penalty cases than any other prosecutor in the attorney general’s office, took the lead in the Roberts case. But he didn’t play by the rules.

Kirk obtained a conviction by inducing prison inmate witnesses to provide false testimony against Roberts in return for a promise of leniency and a review of their sentences. After consideration, the U.S. District Court for the Eastern District of California found that he had “suppress[ed] exculpatory evidence, suborn[ed] perjury, and presented evidence the prosecutor knew or should have known was false.” The California attorney general’s office agreed with those findings, and decided not to retry Roberts.

Another case, this time in Georgia, is similarly marked by grave prosecutorial misconduct.

Warren King was tried and sentenced to death in 1998 for the robbery of a convenience store and the murder of a store clerk. The key testimony against him was provided by his cousin, Walter Smith, who had planned the robbery and likely was the actual shooter. On the witness stand, Smith pinned the blame on King; he denied receiving any deal from the prosecution in exchange for his testimony. The prosecutor, John Johnson, also told the judge that he had made no deal with Smith.  

Only recently, when a new district attorney took over the office that had prosecuted King, did King’s lawyers get access to files that revealed the extent of the wrongdoing in his case. Those files contained evidence that Johnson had in fact secured Smith’s testimony by promising him a sentence of life with the possibility of parole.

They also included copies of Johnson’s notes showing he had intentionally excluded potential jurors from serving on the King jury based on their race and sex. At King’s trial, he had used jury strikes “to eliminate 87.5 percent of eligible Black jurors, and only 8.8 percent of the eligible white jurors, all women.” Unfortunately, such discriminatory practices persist in death cases, despite a 1976 Supreme Court case, Batson v Kentucky, that made them illegal.

One might be tempted to write off what happened to Roberts and King as a “bad apples” problem. However, prosecutorial misconduct is quite prevalent in death cases everywhere, including blue states like California and red states like Georgia.

The most common kind of misconduct occurs when a prosecutor does not turn over to the defense evidence that does not support a conviction. This is called a “Brady violation.”

According to the Legal Information Institute at Cornell University, “The Brady rule, named after Brady v. Maryland, requires prosecutors to disclose material, exculpatory information in the government’s possession to the defense. Brady material, or the evidence the prosecutor is required to disclose under this rule, includes any information favorable to the accused which may reduce a defendant’s potential sentence, go against the credibility of an unfavorable witness, or otherwise allow a jury to infer against the defendant’s guilt.”

One study estimates that one in 20 people sentenced to death in this country had trials where prosecutors “acted unethically.”

Death penalty cases invite prosecutorial misconduct. Robert Dunham, former executive director of the Death Penalty Information Center put it this way: “[T]hey garner a lot of public attention. There’s a lot of pressure on the prosecutor to convict and then get the harshest sentence possible…The political reward, historically, for a prosecutor has been the conviction and the sentence. And what happens after that doesn’t have political consequences.”

But it should.

The occasion of the 200th death row exoneration is a good time for Americans to look closely at capital punishment and assess whether we should continue to put up with the frequent miscarriages of justice that plague its use. Not only do those miscarriages of justice destroy the lives of their victims, they also do grave damage to the values of fairness and equal treatment that are enshrined in our Constitution.

That is a cost that the American public should no longer be willing to pay.


Source: The Hill, Austin Sarat, July 11, 2024. Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. 

_____________________________________________________________________








"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."

— Oscar Wilde



Most viewed (Last 7 days)

Florida Set to Execute Man Who Said He Killed to Reach Death Row, Challenging Misconception that Death Penalty Deters Crime

Florida is scheduled to execute James Robertson at noon on Tuesday, October 13, at Florida State Prison. His execution remains scheduled despite the withdrawal of William Lee Thompson’s death warrant, which had called for a 2nd execution that evening. If completed, this will be Florida’s 17th execution of 2026. Floridians for Alternatives to the Death Penalty (FADP) and partners will be holding a series of vigils and demonstrations across the state. 

Christa Pike's Survival Wasn't a Miracle. That's What Should Scare Us.

What happened in Tennessee's execution chamber is one of the most common failures in medicine Christa Pike is awake. A week after Tennessee strapped her to a gurney and gave her two doses of pentobarbital , she is off the ventilator and speaking from a hospital bed, still shackled to it. Her lawyers call her recovery " medically unprecedented. " Legal scholars say she is the first person in American history to survive a lethal injection after the drug was actually given. I understand the impulse to make such claims. I consulted for Pike's legal team, but I have also spent three decades in operating rooms and intensive care units (ICUs), and I want to resist the word "unprecedented" and the word "miracle" that hovers just behind it.

Tennessee | Republicans legislature to investigate other execution methods after failed lethal injections

Republican leaders in Tennessee’s legislature say they will investigate the reliability of lethal injection as an execution method after the state failed to execute two death row inmates in the span of five months. Gov. Bill Lee stopped the May execution of Tony Carruthers after a physician unsuccessfully attempted to insert intravenous lines to begin the lethal injection process for over an hour. Death row inmate Christa Pike survived two failed rounds of Tennessee’s lethal injection protocol on Sept. 30 before the execution was halted. Pike, who was sentenced to death for the 1995 murder of Colleen Slemmer, is receiving medical care in a Nashville hospital. 

Christa Pike: 4 Major Questions As She Returns to Death Row

As Christa Pike returns to death row after surviving Tennessee’s attempt to execute her, several questions remain about her case and what comes next.  Pike, 50, was discharged from hospital and moved back to the Debra K. Johnson Rehabilitation Center, the women’s prison where she was housed for 30 years, her attorneys said on Saturday.  She was hospitalized after surviving 2 doses of the lethal drug pentobarbital as Tennessee attempted to execute her on September 30. Pike was sentenced to death for the 1995 murder of 19-year-old Colleen Slemmer, her classmate at a Job Corps training program in Knoxville, Tennessee. Pike was 18 at the time. 

What Tennessee wants to do next to Christa Pike is beyond grim

Christa Pike, the woman who survived two execution attempts in Tennessee earlier this week, remains hospitalized in critical condition, where presumably medical staff is at work trying to keep her alive.  If she wakes from the coma she had entered, Tennessee officials want to start anew to inject lethal drugs into her seemingly too-small veins to kill her and carry out the state death warrant. Pike also is being treated for “significant injuries to both arms” sustained when two lethal injections of pentobarbital failed to kill her. If she dies, there will be no need to try again.  As we know by now, Tennessee tried to put Pike to death Wednesday night by lethal injection for a murder she committed when she was 18. She would have been the first woman executed in the state in 200 years. 

Florida executes James Robertson

STARKE, Fla. — A Florida prisoner who said he killed his cellmate specifically to get on death row was executed Tuesday, nearly 18 years after the attack. James Robertson, 63, declined to offer any last words before receiving a three-drug injection and was pronounced dead about 10 minutes later. It was a stark contrast to the failed execution of Christa Pike in Tennessee two weeks ago, where she was rushed to the hospital after surviving two lethal doses of pentobarbital.

USA | Firing squad execution to be livestreamed, Pentagon says

The public will be able to watch the execution of a former US Army major by firing squad, US Defence Secretary Pete Hegseth has said. A Defense Department official told the BBC the execution of Nidal Hasan, who shot dead 13 unarmed US soldiers at Fort Hood in 2009, would be livestreamed. It is believed it would be the first public execution in the US in almost a century. The decision to livestream it is "unprecedented in the modern era" and "on uncertain legal terrain", said John Mills, a lawyer who works with inmates sentenced to death.

Tennessee | Christa Pike’s lawyer says she has not regained consciousness since her failed execution

Christa Pike has remained unconscious and on a ventilator at a hospital in the four days since her failed execution in Tennessee, and her prognosis might not be known for days more, one of her lawyers said Sunday. Little has been released about Pike’s condition since Wednesday night’s execution attempt. She has since remained hospitalized under guard as doctors try to get the massive dose of the barbiturate pentobarbital out of her system. When asked whether she ever regained consciousness after the execution attempt, Assistant Federal Defender Stephen Ferrell, Pike’s lawyer, said on CNN’s “State of the Union”: “Not that I am aware of.”

Opinion | I Know Christa Pike’s Medical History. What Tennessee Did Is Unforgivable.

Dr. Zivot is an anesthesiologist and intensive care physician. He consulted on Christa Pike’s case before her attempted execution.   On Wednesday night, Christa Pike lay strapped to a gurney at Riverbend Maximum Security Institution in Nashville while the State of Tennessee injected pentobarbital, a sedative that is lethal in high doses, into her veins. When the 1st dose did not kill her, the execution team gave her a 2nd. At one point, she told the room her arm felt as if it were about to burst. She was nearly correct. More than an hour after the procedure began, an ambulance was called. She was severely injured but still alive. 

After Christa Pike survives lethal injection, America's shameful botched executions

The US is one of the few Western nations that still permits the death penalty, carried out regularly in 27 states. And in a country where regional political culture strongly favours retributive justice, it is no wonder capital punishment remains an enduring part of the American legal system. But following Christa Pike's botched lethal injection last week, fresh questions are being raised over whether executing convicted murderers and rapists outweighs the risks of an innocent person being put to death, or of an execution going so badly that a prisoner is left to die in agony, or even survives the attempt.