ABSTRACT
A. Correlation v. Causality............................................................................ 210 B. Factors Contributing to the Death Penalty ’s Declining
A central component of the death penalty abolitionists’ argument from the last 250 years has been the problem of erroneous convictions.1 Nonetheless, the first systematic data on the prevalence and characteristics of wrongful convictions in capital or potentially capital cases was not published until 1987.2 Definitive proof of innocence from specimens of DNA left at crime scenes first led to the exoneration of an innocent prisoner in 1989,3 and then to the
exoneration of the first death row inmate in 1993.4 In this Article, I review lessons society learned over the past two decades about erroneous convictions, and I document the falling popularity of the death penalty over the last decade.5 I then identify major factors that explain the death penalty’s declining attractiveness by first focusing on those factors that are not directly related to the innocence question and then zeroing in on the effects of what we are learning about wrongful convictions.6 I argue that the discovery of the innocence problem has not only directly affected the decline in death penalty support over the past decade but also opened the door for reconsideration of racial bias and arbitrariness, both of which, along with innocence, undermine the notion that death row is reserved for the worst of the worst.7 I conclude that a combination of these factors and not innocence alone is propelling a reconsideration of the death penalty in American jurisprudence.8
