Will the Impact of DNA Exonerations Fade Over Time?

Returning to an important question in Prof. Brandon Garrett’s original essay, one might wonder whether the impact of the recent DNA exonerations will fade over time. While DNA exonerations have highlighted problems with the death penalty in recent years, arguably this effect may fade if such exonerations become less frequent. Garrett notes that most DNA exonerations today occur in old cases because current cases are able to test DNA evidence at trial instead of years after convictions and death sentences. Joshua Marquis notes that a wider use of DNA can lead to more accurate convictions, which too would lead to fewer DNA exonerations in the future. On the other hand, George Smith suggests that the moral issues are the more important questions in the death penalty debate, so fewer DNA exonerations would not affect that debate. Meanwhile, I have agreed with Garrett that the DNA exonerations reveal deep problems in the capital trial and sentencing system that will not disappear.

Many of the issues in this debate are not new. For example, in 1661, two brothers and their mother were convicted of the murder of William Harrison in England. The three were then hanged and gibbeted near Campden for the murder. But a few years after the execution, Mr. Harrison returned to town, explaining that he had disappeared because he was pressed to serve on a sailing ship. The discovery of the living “victim” was a strong argument against capital punishment, but for many, it did not shake their belief in the death penalty. They assumed that the executed mother was a witch who was behind events that were “signs of Satan’s evil designs and of God’s overwhelming mercy.”[1] England retained the death penalty for approximately three hundred more years before abolishing it.[2]

The DNA exonerations and other evidence of wrongful convictions will continue to play a role in the death penalty debate, but even overwhelming evidence of examples of wrongful convictions will not resolve the debate for some. Will the innocence debate gradually disappear? Approximately 350 years after the wrongful hanging in England, we are still debating the significance of innocent people on death row. While recent exonerations are teaching us some lessons on how to improve the criminal justice system, the innocence issue will be with us as long as we have the death penalty.


[1] Bruce P. Smith, “The History of Wrongful Execution,” 56 Hastings L.J. 1190-92 (2005).

[2] Jeffrey L. Kirchmeier, “Dead Innocent: The Death Penalty Abolitionist Search for a Wrongful Execution,” 42 Tulsa L. Rev. 403, 433 (2006).

Also from this issue

Lead Essay

  • Professor Brandon Garrett discusses the strengths and weaknesses of DNA as evidence. DNA offers a high degree of certainty in the cases where it is available, but in many cases, like that of Troy Davis, the DNA evidence just isn’t there. Individual exonerations are nonetheless suggestive of a wider pattern of wrongful convictions throughout the criminal justice system. It is difficult to say how large this pattern is, but DNA evidence has certainly made us aware of certain problems that existed prior to its use. Does this increase or decrease our faith in capital punishment? And where will public opinion settle? Garrett asks but does not fully answer these questions.

Response Essays

  • Joshua Marquis points out that prosecutors, not defense attorneys, first demanded the introduction of DNA testing. Defense attorneys fought it—until they realized that they could sometimes use the public’s confusion about the tests to produce doubt in jurors’ minds. Still, DNA secures many more convictions than exonerations. Taken as a whole, Marquis argues that DNA evidence shows our criminal justice system to have a vanishingly low rate of wrongful convictions. He readily grants that even a tiny number of wrongful convictions is too many, and of course we should not let the guilty go free. As a result, he recommends still more extensive DNA recordkeeping and testing.

  • Jeffrey Kirchmeier grapples with the thorny, inescapable problem of human error. He notes that DNA evidence has offered us a way to test other forms of evidence, such as eyewitness testimony and police lineups. But he moves quickly from these to still harder questions. If jurors can err on matters that admit of an objective answer, then what of the subjective questions they must also answer? The choice between capital punishment and life in prison is itself one of these subjective decisions, and it too may be flawed. Unfortunately, we have no way to test it.

  • George H. Smith reviews some of the key philosophical questions that have been raised about capital punishment. He discusses the views of several thinkers, including Jeremy Bentham, Nathaniel Branden, and Immanuel Kant. He also references Cesare Beccaria, who doubted the social utility of the death penalty. Even if DNA does offer certainty in the matter of guilt, Smith suggests that there may be independent and controlling reasons to reject capital punishment.