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  • Sarah Pape

Running an inherent risk: Executing the innocent

Updated: Oct 16, 2023

Charles Flores is a man with an innocence claim facing execution on Texas Death Row. Twenty-four years ago, Flores went to prison for the 1998 murder of Elizabeth “Betty” Black, sentenced alongside a white co-defendant already out on parole.

The sole witness made a composite sketch after a police-led hypnosis session and only identified Flores a year later as he sat at the defense table during trial. The witness described the perpetrators as white males with long hair and created a composite sketch fitting that description. Flores is Hispanic and had a shaved head at the time.

Despite the misidentification, the lack of physical evidence and an alibi corroborated by several of Flores’s family members, a Dallas County jury convicted Flores of capital murder and sentenced him to death in 1999. In 2016, two weeks before being executed, the Texas Court of Criminal Appeals granted him a stay of execution to investigate the allegations of prosecutorial misconduct and unreliable hypnosis-induced witness testimony. Unfortunately, Flores is not alone and faces the same fate as countless others: the possibility of being executed despite their innocence.

In 2023, three of the nine people executed so far had open innocence claims. Missouri and Texas executed Raheem Taylor, Arthur Brown and Robert Fratta without any thorough investigation of their claims of innocence.

In 2022, the U.S. executed 18 people. In June of that year, Arizona put to death Frank Atwood, who maintained his innocence until the very end. Then, in July, Texas executed Kosoul Chanthakoummane, after a Collin County prosecutor secured the conviction through bite-mark analysis and witness hypnosis, two types of increasingly discredited forensic testimony. Three months later, Arizona executed Murray Hooper. Despite the lack of physical evidence connecting Hooper to the crime, and the existence of untested DNA and fingerprint evidence, Arizona Judge Stephen McNamee denied his requests to carry out proper testing prior to his execution. The same day, Texas executed Stephen Barbee, who maintained his innocence despite being convicted on the basis of false forensic testimony and a lack of concrete evidence. While the criminal legal system’s ‘intent’ is to only punish the morally blameworthy, it still allows the potential for the innocent to land on the chopping block.

Since 1973, at least 190 people have been freed and exonerated from death row. Since the reinstatement of the death penalty following the Supreme Court’s 1976 ruling in Gregg v. Georgia, for every 8.3 people put to death in the United States, “one person who had been wrongfully convicted and sentenced to death is exonerated.” After more than 30 years of data on death sentences and death row exonerations throughout this country, a study out of the National Academy of Sciences stated that “[o]ne in 25 criminal defendants who has been handed a death sentence in the United States has likely been erroneously convicted.” This study shows that 4.1% of people on Death Row are likely innocent and notes that this number is a conservative estimate of the proportion of false convictions amongst those on death row in the United States.

Prior to this study, several legal professionals—including the late Supreme Court Justice Antonin Scalia—wrongly believed that the number of false convictions generally was close to zero, with Justice Scalia citing a rate of 0.027% of false convictions. In fact, in his concurring opinion to the Supreme Court’s decision in Kansas v. Marsh, the late Justice said:

“[o]ne cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation. But with regard the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum.”

However, current data tells us that there are around 2,500 people on death row in the United States—a conservative estimate of 4% being wrongly convicted still means at least 100 innocent people are facing execution.

Furthermore, the one overarching power that could stall executions or safeguard prisoners’ rights—the Supreme Court—has been unwilling to do so. In the past decades, the Supreme Court has done the opposite of ensuring innocent people are not executed by actively ruling against them and others appealing their convictions on the grounds of prosecutorial misconduct, ineffective assistance of counsel or innocence claims. The Court’s decision in Herrera v. Collins struck a blow to those seeking federal habeas relief based on innocence, holding that Herrera could not bring his innocence claim for error of fact unless he was wrongly imprisoned in violation of the Constitution. Authoring the opinion, Chief Justice Rehnquist wrote that Texas’s refusal to entertain Herrera’s innocence claim and evidence did not violate traditional notions of “fundamental fairness.” Justices Scalia and Thomas, concurring, preferred to answer the question of whether it violates Due Process or the Eighth Amendment to execute one who brings forward new evidence of actual innocence after conviction—the pair stated that there is no textual, traditional or contemporary practice allowing the Court to find a constitutional right to demand consideration of evidence of innocence. In effect, a person could be executed despite actual innocence claims because denying a hearing of that evidence does not violate the Eighth Amendment or the Due Process Clause of the Fourteenth Amendment.

Our criminal legal system is run by humans whose judgment is not immune to mistakes or misjudgment. Undeniably, many have been executed while innocent, and we cannot estimate how many could be in the future or how many already have. In seeking the death penalty as prosecutors and imposing a death sentence as jurors, we gamble with the inherent risk of carrying out an irreversible sentence: the execution of an innocent person.


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