Not That Innocent

Most people on death row are guilty. That doesn’t mean they deserve their fate.

A man in prison
Justin Sullivan / Getty

About the author: Elizabeth Bruenig is a staff writer at The Atlantic.

If you want to believe that Roger Coleman was the man who raped and murdered 19-year-old Wanda McCoy, his sister-in-law, on the night of March 10, 1981, in her small home in the coal-mining town of Longbottom, Virginia, you have to accept that Coleman managed to park his truck, ford a creek, scramble up some 300 yards of hillside, and commit the entire grisly crime in the span of 30 minutes—all without leaving a single fingerprint at the crime scene or drenching himself in blood, despite slashing the victim’s carotid and jugular arteries.

A Virginia jury convicted 22-year-old Coleman of the rape and first-degree murder of McCoy in 1982, and sentenced him to death by electrocution. For the next 10 years, Coleman and his defense attorneys strenuously protested his innocence. They cited the improbable timeline, the hostile small-town trial venue, and the lack of definitive DNA evidence. Although hairs and semen were found at the scene, testing at the time could sort them only into broad types, not conclusive matches.

By 1992, Coleman’s crusade had evolved into the first modern death-row innocence campaign. In the days before his execution, Time magazine ran a cover story on Coleman that strongly suggested his innocence; Chris Wallace interviewed Coleman in a Nightline feature protesting the upcoming execution; and on the day Coleman was put to death, USA Today ran letters from its readers responding to a question posed by an earlier editorial solicitation: “Does it worry you that innocent people might be executed?” Coleman’s case had apparently unearthed this possibility for a significant segment of the public.

A decade after Coleman’s death, activists were still agitating for his exoneration. By 2003, when a request for posthumous testing of Coleman’s DNA against the samples found at the 1981 crime scene arrived on Virginia Governor Mark Warner’s desk, technological developments had rendered precise comparisons between scant collections of cells possible. In 2006, Warner ordered that the tests be run—the first such order in American history.

Counter to what Coleman’s supporters had suspected, the semen found in McCoy’s body belonged to the man executed for her murder. Apparently, Coleman was a liar, a rapist, a killer, and a guilty man.

But it was still wrong to kill him. The notion that execution would have been wrong had he been innocent was always something of an ethical red herring, one that persists in discourse about capital punishment to this day, at the expense of clearer and more comprehensive arguments against the larger problem of wrongful conviction and, indeed, against the death penalty itself. The outsize focus on death-row innocence cases has created a legal exoneration infrastructure suited to a relatively small number of inmates, leaving little room for the broader range of death-row occupants just as much in need of help.

It goes without saying that the state should not kill innocent people, and that it is a good thing to save the innocent from a fate no one thinks they deserve. I believe it is a good thing, too, to save the guilty from a fate some would argue they have earned. That the one stance may occlude the other reflects the death penalty’s bizarre moral universe.

According to the National Registry of Exonerations, more than 1,000 people have been exonerated for murder in the United States since 1989. Many of these cases were initially decided when forensic techniques and technologies were less advanced and less accurate than they are now. People with plausible innocence claims have, in some instances, been able to bring new technology to bear on preserved evidence to great effect. That phenomenon spurred the innocence movement in capital-punishment advocacy as we know it.

“Around the year 2000, there’s this ferment all over the place to create innocence programs,” David R. Dow, the founder and director of one such program, the Texas Innocence Network, told me. “They’re kind of sexy. Funders want to fund them. People are beginning to pay attention to the fact that there are innocent people in prison.”

Marissa Bluestine, the assistant director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Carey Law School, told me that more than 50 innocence organizations now operate in the United States. They differ in size, scope, region, and budget, but they “all have the same goals: They work to identify people who did not commit the underlying crime they were convicted of and they try to exonerate them.”

That’s well and good, except that the number of innocence claims that can be confidently settled in labs is not infinite, and may in fact be dwindling.

Dow, who teaches law at the University of Houston, has represented more than 100 clients on death row in his 30 years of practice; out of that number, he counts only eight as credibly innocent. He doesn’t suspect that his future will hold many more.

“I think we’ve kind of reached maximum velocity on how much better the technology can get,” Dow said, “And so what that means in terms of innocence work is that you’re not going to have cases where you can do testing five or 10 years from now that you can’t do today. And so if the biological material is collected, it’s obviously going to be tested before the trial occurs.” Mistakes will still happen, Dow acknowledged, but perhaps not the sort of mistakes that lend themselves to decisive rebuttal via scientific revision.

More generally, a 2014 study published by the National Academy of Sciences found that if all of American death-row inmates were to remain condemned indefinitely, approximately 4.1 percent would eventually be exonerated—a proxy for the share of innocent inmates. That’s an admittedly conservative estimate. But even if the number of innocent inmates were doubled, the number of guilty ones would still make up more than 90 percent of death row.

These figures point to a mismatch between the time, energy, and resources devoted to innocence, and the needs of death-row inmates. Although no central organizing entity tracks the budget of every innocence group in the country, and therefore we cannot know how much money is devoted to the cause, Bluestine said it’s very clear where funds aren’t going.

“If you’re looking at wrongful convictions—if you’re looking at cases where investigations weren’t completed properly—there are no resources” for reviewing and litigating those cases, she said. “There are no organizations, no resources for them. And that is horrific, that we can’t address that wrongful conviction because it doesn’t meet an innocence standard.”

John Blume, a Cornell Law professor who has represented more than 100 death-row clients in 37 years, told me that even organizations that do provide legal services to poor clients who may be responsible for the crimes they’ve been convicted of “raise their money around the innocent people they’ve represented … It’s sort of like the fat pig at the trough getting fatter.”

According to Bluestine, unsavory actors have taken advantage of the profusion of innocence organizations to exploit anxious inmates marked for death. “There is this weird cottage industry of folks who are under the radar—and I think they are completely predatory and disgusting,” she said. “They will reach out to folks who are incarcerated, [and] offer to review their case and present it to a conviction-integrity unit, saying it’ll only cost you $2,500. And they have no intention of doing any work.” Bluestine said she has worked with clients who have lost money and resources, such as transcripts with only one extant copy, to scams masquerading as innocence efforts. None of which is to say that genuine innocence programs are responsible for their malicious imposters—only that the proliferation of scattered innocence groups across the judicial landscape has given the fakes room to grow.

Blume pointed out another unintended consequence: The ubiquity of innocence programs and publicity of high-profile exonerations seems to have led rising attorneys at major firms to conclude that there are plenty such cases to work on—which makes recruiting lawyers for pro bono work on current capital-defense cases difficult. That’s bad news for capital-defense teams working with indigent clients, which tend to rely on pro bono assistance to handle their heavy caseloads.

“Oftentimes when people try to recruit pro-bono attorneys from firms,” Blume said, “the first question they ask is: Did they do it?” He sighed. “And usually, the answer is yes.”

Perhaps the most dispiriting fact about the innocence movement is that despite its noble intention and excellent work, it hasn’t accomplished its implicit goal of discrediting capital punishment as an institution. In a poll released by Pew this month, 78 percent of Americans said they believe our criminal-justice system risks the execution of innocent people, but 64 percent still said they favor the death penalty in murder cases.

A broadening of focus may do some good, beyond the possibility of innocent inmates on death row to other unjust outcomes. In a 2010 article in the University of Pennsylvania Journal of Law and Social Change, the Georgetown Law Professor Abbe Smith noted the similarities between the innocent and the “not-quite-so-innocent,” those whose cases were unfairly adjudicated or wrongly decided, though the client was still in some sense culpable:

Examples of the not-quite-so-innocent run the gamut. There are criminal defendants who are guilty of something but not the worst thing they are charged with. There are defendants who are guilty of something other than what they are charged with. There are defendants who committed the crime charged but with significant mitigating or extenuating circumstances. There are defendants who committed the crime, but they had never done anything like this before; they lost control in a trying situation. There are defendants who committed the crime and it is no wonder, in view of how they came into the world and what they endured after.

Robert Dunham, the executive director of the Death Penalty Information Center, concurred. “There are so many other things that can constitute a wrongful conviction” aside from the conviction of a person not remotely involved in the crime they were charged with, he told me. “It is a wrongful conviction when someone is convicted and they haven’t committed a crime at all. But it’s also a wrongful conviction when they’re sentenced to death based on false evidence,” or when they’re convicted of crimes or degrees of crimes more severe than the ones they’re responsible for.

Blume expressed a little hope—shaded with anxiety. Innocence work is often used, he acknowledged, “to point out that this is not an infallible system, and that this is a mistake you can’t fix. And on the other hand, yes: I do think that some of that obscures the other, larger, systemic issues with the death penalty—the intractable issue of race; the bad, horrific trial-lawyering that persists. And all of this infects cases where people aren’t innocent.”

Bluestine echoed his concerns. “The fact that our system is so messed up that we actually wind up convicting people that did not commit the crime—getting people’s heads wrapped around that is the entry point to talking about bad cops, bad lawyers, bad prosecutors,” she said. At least one group that Bluestine mentioned, the Arizona Justice Project, has taken that expansive approach to heart, accepting not only innocence cases, but wrongful convictions involving constitutional and procedural violations. “I wouldn’t say that’s really entering into the zeitgeist discussion yet, but I think it’s the next step. It’s a critical next step.”

To put it succinctly: Innocence cases indicate that some capital sentences are unfair, but decades of studies on death-qualified juries; race, gender, and immigration-status bias among jurors; law enforcement and prosecutorial misconduct; weak forensic science and poor representation at trial all suggest that a fair capital sentence is virtually impossible. Ultimately the fight should be waged not against particular injustices, but against the unjust system itself.

While attorneys like Dow, Bluestine, and Blume continue to advocate for a broader view of the cascading layers of unfairness that eventually land a person in the execution chamber, the greater burden perhaps rests with the American public, whose votes decide, in elections large and small, what manner of judgment will reign over matters of life and death.

What should we make of a man like Roger Coleman, who not only brutalized and murdered a teenager—his own sister-in-law, someone who trusted him—but then lied about it for years on end, expending the resources and compromising the credibility of so many good Samaritans who made the mistake of giving the man a chance?

He shouldn’t have done what he did, none of it; nor should we have given him the opportunity to do what he did from death row, which we did when we created the machinery of capital punishment. Killing never reduces moral risk; there’s no cosmic ledger it can, by subtraction, set right, and no slate it can wash clean with the right amount of blood. In this way the lives of the innocent are no different from the lives of the guilty. The abolition of the death penalty will likely rest on whether we are willing to make that case.