Academic Research

Rate of false conviction of criminal defendants who are sentenced to death

Samuel R. Gross, Barbara O’Brien, Chen Hu, and Edward H. Kennedy

University of Michigan Law School, Ann Arbor, MI 49109; Michigan State University College of Law, East Lansing, MI 48824; American College of Radiology Clinical Research Center, Philadelphia, PA 19103; and Department of Biostatistics and Epidemiology, University of Pennsylvania School of Medicine, Philadelphia, PA 19104

Edited* by Lee D. Ross, Stanford University, Stanford, CA, and approved March 25, 2014 (received for review April 5, 2013)

The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place. As a result, very few false convictions are ever discovered, and those that are discovered are not representative of the group as a whole. In the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to death. This makes it possible to use data on death row exonerations to estimate the overall rate of false conviction among death sentences. The high rate of exoneration among death-sentenced defendants appears to be driven by the threat of execution, but most death-sentenced defendants are removed from death row and resentenced to life imprisonment, after which the likelihood of exoneration drops sharply. We use survival analysis to model this effect, and estimate that if all death-sentenced defendants remained under sentence of death indefinitely, at least 4.1% would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.

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The State of Criminal Justice 2014: Capital Punishment

R. Tabak; American Bar Association


The American Bar Association has released a new publication, The State of Criminal Justice 2014, examining major issues, trends and significant changes in America’s criminal justice system. The chapter devoted to capital punishment was written by Ronald Tabak, an attorney at Skadden Arps. Tabak presents evidence of the declining use of the death penalty in death sentences and executions, particularly noting the growing geographic isolation of the death penalty. He also highlights numerous studies and cases regarding innocence and racial bias. He concludes, “[I]t is vital that the legal profession and the public be better informed about what is really going on in the capital punishment system…. Ultimately, our society must decide whether to continue with a system that cannot survive any serious cost/benefit analysis.”


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