Just Another Death Row Exoneration?

Posted in: Criminal Law

Last Thursday, Barry Lee Jones was released from Arizona’s death row after his murder conviction and death sentence were set aside. He had been found guilty in 1994 of sexually assaulting and killing his girlfriend’s four-year-old daughter. He spent nearly 28 years on death row.

Jones is the 12th Arizona prisoner to be exonerated from death row in the last fifty years and the 192nd nationwide in that time period.

The Washington Post quotes Cary Sandman, a federal public defender who has represented Jones in his quest for exoneration, as saying that “the evidence that supported the convictions against Jones ‘flawed’… the death sentence was the result of ‘shoddy and constitutionally deficient defense lawyering, junk science and myopic police work.’”

Sandman notes that “Among the flaws in the prosecution’s case was a medically implausible timeline and heavy reliance on circumstantial evidence.”

Shoddy defense lawyering, junk science, and myopic police work are all regular features of America’s death penalty system.

They are so much a part of the system that they should be regarded as what the sociologist Charles Perrow has dubbed “normal accidents.” A normal accident occurs, Perrow writes, “because systems complexity makes failures inevitable.”

And typical precautions, by adding complexity, actually may lead to even more accidents.

In 2010, James Doyle, a Boston-based criminal defense lawyer, argued that false convictions in death cases are “‘organizational accidents’: …complex events in which small mistakes combined with each other and with latent conditions hidden in the system to produce unexpected tragedies.”

The political theorist Judith Shklar might label such accidents “misfortunes.” They are events for which no human actor will be held responsible.

The concept of normal or organizational accidents or misfortunes, of course, only covers part of the death penalty’s miscarriages of justice story.

False convictions may not be accidental or unfortunate at all; some are the result of conscious choices by culpable actors who knowingly present false testimony, withhold exculpatory evidence, or otherwise undermine the quest for truth in capital cases. They are what Shklar labels “injustices.”

Whether misfortunes or injustices, the story of death row exonerations is often told, as it was in the Post account of the Jones case, using a fifty-year timeframe. That account is disturbing enough as it is, but it may obscure the quickening pace of exonerations.

If we shorten the timeframe and look at a more recent period, the story of miscarriages of justice and exonerations becomes all the more troubling.

Take the five-year period from 2018 to 2022. In that period, there were 93 executions in the United States, and during the same years, 16 people were exonerated and freed from death row.

Or, to put it differently, for every five people who were put to death in the last five years, nearly one person was exonerated. That’s almost 20%.

It is, as the Death Penalty Information Center puts it, “an appallingly and unacceptably high rate of error…. [I]t raises the fundamental question of whether we can trust our state and federal governments to fairly, honestly, and reliably carry out capital punishment.”

Looking at exonerations in the last five years reveals that 11 of the exonerees were Black, three were Latinx, and two were white.

An Innocence Project Report agrees that “The vast majority of people exonerated from death row are Black or Latinx, and more than half of death row exonerees are Black.”

The report continues:

Studies consistently demonstrate that the race of the accused and/or race of the victim plays an arbitrary yet determinative role in the administration of the death penalty. This is significant in the context of wrongful conviction because official misconduct has been documented in three-fourths of the cases of Black exonerees and two-thirds of the cases of Latinx exonerees, while official misconduct is present in less than 60% of the cases of white exonerees.

One can get some sense of the human cost of miscarriages of justice in capital cases by paying attention to the length of time that exonerees lived under the threat of execution. The total time spent on death row for the 16 people exonerated from 2018 to 2022 was 437 years, with the average being 27 years.

Two of the exonerees were each on death row for 43 years. And the shortest time between sentencing and exonerations was 12 years.

These figures make clear that when it comes to death row exonerations, the wheels of justice do not turn quickly. New evidence may come to light only many years after a death sentence is imposed. As a report of Canada’s Miscarriages of Justice Commission rightly observes: “It takes a lot longer to correct an injustice than to create one.”

And contrary what many people might think, exculpatory DNA evidence was not present in most of the last five year’s exoneration cases.

The work of reviewing cases and ferreting out errors in capital cases is almost never easy or straightforward. The Jones case was unusual in that the county district attorney and the state attorney general’s office agreed to review his case and concluded that “the medical evidence in the case did not support proof beyond a reasonable doubt that Jones had caused…[the victim’s] fatal injuries.”

Lawyers representing death row inmates generally meet fierce resistance from prosecutors and families of murder victims who do not want to re-open cases. And it takes a lot to overcome the procedural barriers that make it hard to do so.

These problems have not gotten any better in the last five years even as the fact of wrongful convictions has become a well-known part of America’s death penalty story

Today, abolitionists tend to cast exonerations as stories of injustice. Such stories rightly provoke outrage but they also portray miscarriages of justice as a “bad apples” problem.

As James Doyle notes, such stories may keep alive the hope that the death penalty system can be reformed so as to eliminate miscarriages of justice. Instead, abolitionists should, in his view, embrace the normal accident account, which conveys “the frequency and the terrible ordinariness of the root causes of wrongful convictions.”

Doing so suggests that only by dismantling the death penalty system itself can we end the epidemic of false convictions and the painful reality revealed every time someone like Barry Lee Jones is exonerated.

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