Vanderbilt Law Review

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In Gregg v. Georgia, the Supreme Court overturned its ruling in Furman v. Georgia and held that the death penalty, as administered by the states, was not per se "cruel and unusual punishment" in violation of the Eighth Amendment.' Yet errors continue to occur at an alarming rate in the capital punishment system-over one hundred death row inmates have been released pursuant to evidence of actual innocence since 1973. Indeed, the number of death row exonerations has been steadily increasing in recent years.

Of those exonerations, DNA testing played a substantial role in twelve. Many more have benefited from the assistance of innocence projects funded and operated by private groups. The role of these groups, combined with increased media attention to recent prison and death row releases, has contributed to a resurgence in the public debate over the role of the death penalty in the American criminal justice system. A 1993 study showed that fifty-eight percent of voters were concerned about the danger of mistaken executions. This percentage has risen steadily in recent years as the number of exonerations has increased. In May 2001, a Gallup Poll indicated that overall public support for the death penalty has eroded from eighty percent to sixty-five percent since 1994. In addition, an ABC news poll found that fifty-one percent of Americans support a nationwide moratorium on capital punishment while a commission studies its fairness. The number of inmates on death row and the number of executions have both been similarly decreasing, although it is unclear whether the decreases are related." For the first time since 1976, fewer executions have been occurring each year, even in leading death penalty states. This decrease is likely due to both a reduction in the crime rate and decreased public support for the death penalty.

While there has been a sharp decrease in executions in recent years, the number of inmates on death row nationwide continued to increase until very recently. Significant systemic reforms have not accompanied the shift in public opinion concerning the death penalty. Neither death penalty statutes nor the manner in which the courts address capital cases has changed significantly in tandem with shifting public support. In fact, most recent exonerations have resulted from inmates' determined insistence on DNA testing and the intervention of private advocacy groups, rather than from changes in the prosecution of capital cases or in the administration of the death penalty. In other words, innocents' avoidance of execution has often been the outcome of nothing more than a fortunate convergence of unusual circumstances. The criminal justice system is not preventing wrongful executions--private citizens are.