After representing death sentenced inmates for more than 30 years, I thought I was beyond surprise. Yet, in the past year, I have been surprised — and deeply disturbed — not once but twice.
First, my client Henry McCollum was exonerated after 30 years on death row, exposing a corrupt investigation that ignored key evidence and coerced an intellectually disabled teenager into falsely confessing. Now, new research shows that cases like Henry’s are only the most obvious symptoms of a serious systemic problem — the death penalty is being pursued in many murder cases with the weakest evidence to secure the maximum punishment.
This week, the Center for Death Penalty Litigation, where I have been an attorney for the past 19 years, released a groundbreaking report, On Trial for their Lives: The Hidden Costs of Wrongful Capital Prosecutions in North Carolina. It contains undeniable proof that giving the state the power to seek the ultimate punishment warps the system and encourages abuses. North Carolina is recklessly pursuing the death penalty in cases where it does not even have enough evidence to prove guilt.
Our research started with simple questions raised by Henry’s exoneration and the seven other death row exonerations that came before it: Why are innocent people being charged capitally? And what are the costs, both human and financial, of these errors?
We decided to find the answers by looking at cases that no other study in the United States has investigated: Those where people were charged or prosecuted capitally but were eventually acquitted or had all charges dismissed, often after spending years in jail awaiting death penalty trials. We uncovered 56 such cases since 1989.
While 56 people were wrongly charged and threatened with the death penalty, North Carolina has executed only 40 people during the same period. That means the death penalty has been used more often to wrongly prosecute people with weak evidence, than to carry out its stated goal. Doubtless, there are more wrongful capital prosecutions we did not uncover.
The harm caused by the unfair threat of the death penalty is incalculable. The report presents stories of innocent people who lost their homes, businesses, savings accounts, personal relationships, and, in some cases, their emotional stability because of their wrongful death penalty prosecutions. The 56 people identified by the report spent a combined 112 years in jail, despite never being convicted of a crime. The state spent nearly $2.4 million extra, just in defense costs, to pursue these failed cases capitally.
Equally disturbing was our conclusion that these cases are not simply mistakes. They are the result of a system where the threat of the death penalty is used to pressure suspects into confessing and accepting plea deals. This practice is sometimes a substitute for completing thorough investigations that would ensure the real killer is on trial.
We found troubling evidence of poor investigations: use of discredited forensic evidence, reliance on statements of suspect witnesses seeking compensation or other benefits in exchange for their testimony, or, as in Henry’s case, use of sophisticated interrogation techniques to coerce confessions from vulnerable people. Despite the astonishingly weak evidence in many cases, it took an average of two years for defendants to be cleared of wrongdoing.
Those who support capital punishment often say the death penalty is needed to punish only a small group of the worst offenders. The public expects that a punishment as serious and irrevocable as death will be pursued only in cases with definitive proof of guilt. In one national poll by the Death Penalty Information Center, 75 percent of respondents said death penalty cases should require a higher degree of proof than other criminal cases.
Yet, our research shows that North Carolina charges the vast majority of murders capitally. And prosecutors are pursuing the death penalty with seemingly little regard for whether there is credible evidence that the defendant is guilty.
This practice is dangerous in many ways. It destroys the lives of people who are wrongly accused. It threatens public safety by failing to bring the true perpetrators to justice. It wastes taxpayer money. And it leads to the wrongful convictions of people like Henry McCollum, who are unable to prove their innocence before they are sentenced to death.
I have spent much of my career pushing for reforms intended to correct the inequities and errors that plague our death penalty. I am done with that now.
Ending the death penalty, and replacing it with life in prison without parole, is the only way to ensure that innocent people are not threatened with the death penalty or executed in North Carolina.
Ken Rose is a senior staff attorney at the Center for Death Penalty Litigation in Durham. He represented exonerated N.C. death row inmate Henry McCollum for 20 years.