Inmates at San Quentin state prison in San Quentin, Calif., June 8, 2012 (Lucy Nicholson/Reuters)

In response to Gavin Newsom Is Nullifying California Law

Regarding the California death-penalty moratorium Charlie rightly excoriates on process grounds, I wanted to raise an aspect of capital punishment that is not discussed enough: There’s strong evidence that if someone is innocent, they’re far more likely to be exonerated if they’re sentenced to death. This is not conclusive proof the the death penalty is good on balance — far from it — but it deserves to be taken into consideration and rarely is, simply because so few people even know about it.


Back in 2014, there was a much-discussed study finding that “if all death-sentenced defendants remained under sentence of death indefinitely at least 4.1% would be exonerated,” whereas “in a previous study we found that 2.3% of all death sentences imposed from 1973 through 1989 resulted in exoneration by the end of 2004.” As far as the headline result goes, it’s an interesting piece of work, though it relies on some fairly strong assumptions about how many exonerations would happen in a counterfactual world.

But note the careful phrasing describing that counterfactual: The world where these folks are exonerated isn’t one where there’s no death penalty, but one where “all death-sentenced defendants remain[] under sentence of death indefinitely,” meaning they are neither executed nor removed from death row.

Why is this? Because the threat of death is what sets off the incredibly intensive search for evidence of innocence and puts courts on high alert. As the authors explain,

The rate of exonerations among death sentences in the United States is far higher than for any other category of criminal convictions. Death sentences represent less than one-tenth of 1% of prison sentences in the United States, but they accounted for about 12% of known exonerations of innocent defendants from 1989 through early 2012, a disproportion of more than 130 to 1. A major reason for this extraordinary exoneration rate is that far more attention and resources are devoted to death penalty cases than to other criminal prosecutions, before and after conviction. The vast majority of criminal convictions are not candidates for exoneration because no one makes any effort to reconsider the guilt of the defendants. Approximately 95% of felony convictions in the United States are based on negotiated pleas of guilty (plea bargains) that are entered in routine proceedings at which no evidence is presented. Few are ever subject to any review whatsoever. Most convicted defendants are never represented by an attorney after conviction, and the appeals that do take place are usually perfunctory and unrelated to guilt or innocence. Death sentences are different. Almost all are based on convictions after jury trial, and even the handful of capital defendants who plead guilty are then subject to trial-like-sentencing hearings, usually before juries. All death sentences are reviewed on appeal; almost all are reviewed repeatedly. With few exceptions, capital defendants have lawyers as long as they remain on death row. Everyone, from the first officer on the scene of a potentially capital crime to the Chief Justice of the United States, takes capital cases more seriously than other criminal prosecutions — and knows that everybody else will do so as well. And everyone from defense lawyers to innocence projects to governors and state and federal judges is likely to be particularly careful to avoid the execution of innocent defendants.

The disparity remains even within murder cases, which obviously entail severe consequences even when death isn’t on the table. One-quarter of murder exonerations are in death-penalty cases, but only a tiny percentage of murderers are sentenced to death. And as the 2014 study’s author’s note, when death-sentenced inmates are removed from death row and resentenced — usually to life in prison — “their chances of exoneration appear to drop back to the background rate for all murders, or close to it.”


Again, this is hardly a dispositive case for the death penalty (about which I’m conflicted myself). The biggest problem is that putting an innocent person on death row, beyond increasing the chance they’re exonerated, can also . . . you know . . . kill them. One might also easily see all this as evidence that we should ramp up efforts to ferret out innocence in non-death-penalty cases. Given that California hasn’t actually executed anyone in years, though, I wonder if a formal moratorium could do more harm than good.