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. 

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.