Wrongful Executions: “Fail-Safe” Judicial Systems Do Fail

By Gretchen Cothron
Forensic Research Consultant

Throughout the history of capital punishment in the United States, innocent people have been wrongfully convicted and executed. U.S. Supreme Court Justice Antonin Scalia opined in State v. Marsh that, “the dissent does not discuss a single case — not one — in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.” However, the context of Scalia’s quote is clearly not in alignment with reality. While the Supreme Court has yet to admit that America has indeed executed innocent people, citizens can no longer rest assured that the criminal justice system and, particularly, capital punishment are fail safe.

There are numerous documented cases that within our borders, authorities have executed factually innocent persons dating as far back as the Salem Witch Trials of 1692. Research of the records(1) from colonial America show that 19 innocent people were hung and one person was horrifically pressed to death. In addition, 4 innocent persons died in prison for certain, while 13 others are believed to have died in prison, but sources conflict on that exact number.

In 1977, Massachusetts’ Governor Michael Dukakis signed a proclamation declaring, “Any stigma and disgrace should be forever removed from the names of Nicola Sacco and Bartolomeo Vanzetti(2) … we are not here to decide whether these men are guilty or innocent … we are here to say that the high standards of justice, which we in Massachusetts take such pride in, failed Sacco and Vanzetti.” This proclamation excited much controversy over the long-questioned case as to whether the two men were guilty of a 1921 robbery-murder. We may never know whether Sacco and Vanzetti were guilty or innocent, but the handgun alleged to have been used in the Sacco-Vanzetti murder had ballistic tests run as late as 1961, alluding to Sacco’s possible guilt and Vanzetti’s possible innocence.

For professionals working in the field of criminal justice, the number of posthumous exonerations hangs heavy on their minds. A 2004 study by Samuel Gross(3) found four cases of posthumous exonerations between 1989 and 2004. Since Gross’ study, at least one other person has been exonerated after death; Timothy Cole was posthumously exonerated earlier this year by Texas judge Charlie Baird. In my current research into probable innocents that have been executed, I have uncovered at least 74 cases in which wrongful executions have most likely taken place.

Discussions within the media and in criminology conferences have noted that posthumous exoneration numbers appear to be very small in comparison to the whole number of documented executions that have taken place in the United States. Possibly the most prominent reason is the difficulty of gaining access to cases after an inmate has been executed. In most cases, all case files and evidence are destroyed following an execution.

According to the Death Penalty Information Center(4), there were approximately 14,489 documented government executions prior to the 1972 Furman(5) moratorium, and there have been 1,188 additional executions since 1976, when the moratorium was overturned. Focusing in more detail on this post-1976 time period, there have been 139 death row exonerations (Innocence(6), 2009), an estimated 39 innocents executed (Executing(7), 2009), and 5 posthumous exonerations (Gross, 2004; & Ryan(8), 2009). The last year for which total death-row population is available was 2007; as of year-end, the Department of Justice listed 3,220 persons on death row in the United States (Capital(9), 2009). Calculating the ratio percentage for the number of actual exonerations (139), versus the number of actual executions (1188), yields the figure 11.7%. This extrapolation leads to a somewhat blurry statistic that may delineate some measure of the possible mistakes being made in capital cases and executions.

When examining cases of possible wrongful execution, it is necessary to delve deeply into them in order to form a basic understanding of what mistakes were causative. Once found, these identified mistakes form the basis to address related problems in the judicial system. Ultimately, reformers are then better equipped to promote changes that ensure an even better system of American justice.

Current research based on examination of numerous cases has highlighted for me one terrifying aspect of the criminal justice system: the near impossibility to prove innocence after conviction. Many factors attribute to a wrongful conviction: mistaken eyewitness identification, now-debunked forensic science, untruthful snitches and informants, impotent defense attorneys, and overzealous police and prosecutors. But once these factors are discovered and brought up in a court of law after an erroneous conviction, there remains a horrendous maze of insurmountable mountains that advocacy groups and attorneys must traverse before an innocent person can be released from prison.

In the course of my research, I have read many articles dealing with opposing viewpoints on the death penalty. Yet very few of these articles expressed the view that state- and country-sanctioned killing of innocent people is acceptable. Since it has unquestionably been proven that innocent people do indeed die on death row, should Americans continue to support the death penalty?

This research into probable wrongful executions began as an attempt to understand how innocent people can fall through the cracks in the capital punishment process, but it has lead to far more questions than it has answered for the author. For example, why do prosecutors refuse DNA testing for an inmate for whom death is imminent? Why do judges refuse to remand cases where upwards of 90% of the evidence has been recanted, debunked, or otherwise proven faulty? Why do governors, the so-called gatekeepers protecting the so-called fail-safe capital punishment system, allow evidence files from acclaimed experts sit on their desk while a very-probably innocent human is executed by the very state that the governor vowed to honor and protect?

The next turn in this course of reforming the criminal justice system must address the difficulties of righting a wrongful conviction. And, additional system reforms need to be put in place that will assist truly innocent people to escape the machinery of death, rather than pushing them to their untimely end.

About the Author: Our guest commentator, Gretchen Cothron, is a forensic consultant who researches wrongful convictions, and provides information to organizations such as The Innocence Project, as well as to individual attorneys. As a senior at the University of Tampa, majoring in criminology and law & justice, she is currently working on a research fellowship, attempting to create a searchable database of cases of wrongful convictions. She has also given presentations on wrongful convictions to the American Society of Criminology, the Southeastern Criminal Justice Association and the National Collegiate Honors Conference. Miss Cothron can be reached at gretchencothron@gmail.com .

1. Salem Witch Trials:
Sutter, T. Victims of the Salem witch trials of 1962, Salemwitchtrials.com, retrieved on:
10.29.09 from: http://www.salemwitchtrials.com/victims.html
2. Sacco and Vanzetti:
Watson, B. (2007). Sacco and Vanzetti: the men, the murders, and the judgment of
mankind. Viking. P.365, Retrieved 10.8.09 from:
3. The 2004 study by Samuel Gross
Gross, S., et al. (2004). Exonerations in the United States, 1989-2003. University ofMichigan. Retrieved 10.22.09 from: http://www.ncjrs.gov/App/Publications/abstract.aspx?ID=206150
4. Execution statistics:
5. What was the Furman moratorium?
Furman v. State of Georgia, 408 U.S. 238 (1972) [the case in which the Supreme Court ruled that the death penalty was cruel and unusual, thus enacting the moratorium until it was overturned by Gregg v. Georgia , 428 U.S. 153 (1976)] Furman: http://www.oyez.org/cases/19701979/1971/1971_69_5003 Gregg: http://www.oyez.org/cases/1970-1979/1975/1975_74_6257
6. Innocence 2009
Innocence List (2009). Death Penalty Information Center. Retrieved 11.3.09 from: http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row
7. Executing 2009
Executing the innocent (2009). Northwestern University School of Law. Retrieved 11.20.09 from http://www.law.northwestern.edu/wrongfulconvictions/issues/deathpenalty/executinginnocent/
8. Gross, 2004 & Ryan, 2009
Gross is listed above.
Ryan. (2009). Timothy Cole exonerated in Texas. Innocence Project of Florida. Retrieved 11.4.09 from: http://floridainnocence.org/content/?p=519
9. Capital, 2009
Capital punishment statistics (2009). U.S. Department of Justice. Retrieved 11.3.09 from:

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