Innocence Project Executive Director Christina Swarns Testifies Before the Presidential Commission on the Supreme Court

My name is Christina Swarns and I am the Executive Director of the Innocence Project. For almost 30 years, the Innocence Project has worked to exonerate the staggering number of innocent people who have been wrongfully convicted and, through strategic litigation and policy advocacy, to bring reform to the system responsible for their unjust imprisonment.

By relying on DNA to scientifically establish innocence, our precedent-setting work has not only freed hundreds of wrongfully convicted people, it also exposed the inaccuracy of unvalidated forensic science disciplines and investigative techniques. And, drawing on the lessons learned from our exoneration cases, we have advanced critical law and policy reforms that have fundamentally improved the reliability, accuracy, and fairness of the criminal legal system overall. To that end, the Innocence Project has frequently appeared in the Supreme Court of the United States, not only as party counsel but also as friend of the Court. See, e.g., Johnson v. Arkansas (20- 48); Anstey v. Terry (20-628); Reed v. Texas (19-411); and see Flores v. Texas (20-5923); McMillan v. Alabama (20-193); Ramos v. Louisiana (18-5924).

I am therefore honored to submit testimony to inform this Commission’s analysis of “the contemporary commentary and debate about the role and operation of the Supreme Court in our constitutional system.”1

The Innocence Project is uniquely positioned to contribute to the contemporary public debate around Supreme Court reform in connection with the Court’s death penalty docket. There is no area of the law in which reliability, accuracy, and fairness are more critical than capital punishment. And there is no court more important to the endeavor of trying to ensure the reliability, accuracy, and fairness of “the machinery of death” than the Supreme Court.2

1 Exec. Order No. 14023, 86 Fed. Reg. 19569 (April 14, 2021), https://www.govinfo.gov/content/pkg/FR- 2021-04-14/pdf/2021-07756.pdf.

2 Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting) (“From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored—indeed I have struggled—along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.”).

Nationally, since states began reenacting their capital sentencing schemes in the wake of Furman

1. Georgia,3 185 people have been exonerated after being wrongfully convicted of a capital offense and condemned to death.4 This means that for every eight executions in this country, one person has been exonerated.

Before turning to the three specific reform proposals we urge the Commission to consider with respect to the Supreme Court’s death penalty docket, I would like to make two preliminary points.

First, the risk of convicting and executing an innocent person is real and constitutionally unacceptable. Every year, the Innocence Project receives over 2,000 requests for assistance. Thus, we have assessed, to date, approximately 70,000 cases. The work of assessing those requests for assistance is intense and laborious. Sometimes—regardless of how guilty a person may have originally appeared—after poring over reams of court transcripts, scrutinizing pages of police reports, dissecting crime lab analyses, sifting through evidence and property logs, studying scores of witness statements, and developing new evidence, we are able to prove conclusively that they are innocent. Indeed, through such efforts, we have exonerated no less than 232 wrongfully convicted individuals. Thus, the work of the Innocence Project conclusively establishes that grave mistakes happen in the criminal legal system. People make errors, jump to conclusions, or act on assumptions that were wrong; and innocent people can be (and too often are) condemned to the fate of the guilty.

Second, we recognize that reasonable people disagree about whether the death penalty is a morally appropriate punishment for the most heinous, worst-of-the-worst crimes.5 But, because there is no debate about the fact that no one should be executed for a crime they did not commit, our capital punishment system cannot turn a blind eye to the root causes of wrongful conviction. In the three decades since the Innocence Project was founded, we have identified key causes of wrongful conviction, including: mistaken eyewitness identification, false confession, unreliable jailhouse informant testimony, unreliable or misapplied forensic science, official misconduct, and poor lawyering. Our policy advocacy has produced many notable improvements such as, recently, post- conviction access to fingerprint databases in Tennessee and the recording of custodial interrogations in Ohio and Washington. Yet, none of the key contributors to wrongful conviction is anywhere near full remediation.6

With that background, I turn to Supreme Court reform, noting that we are treating changes to the substantive law governing capital cases as beyond the scope of this Commission’s mandate.

3 Furman v. Georgia, 408 U.S. 238 (1972).

4 See Death Penalty Information Center, DPIC Special Report: The Innocence Epidemic (Feb. 18, 2021), https://documents.deathpenaltyinfo.org/pdf/The-Innocence-Epidemic.pdf.

5 See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 446–47 (2008) (“The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application.”).

Supreme Court review of capital cases happens in two ways. First, of course, is through a “normal” cert petition that results in a granted case. But capital cases often come to the Court through a second important path—through emergency applications. The procedural aspects of those applications are squarely within this Commission’s purview. Emergency applications are brought either by a condemned person who is seeking to stay an execution date set by the state or federal government, or by a state or federal government official seeking to reinstate an execution date that has been stayed by a lower court. Regardless of whether the person condemned to death is the applicant or respondent, the result is the same: matters of life and death are decided by the Court in an extraordinarily condensed time frame, under tremendous pressure, without full briefing and argument, without the time for adequate amicus participation, and often without the time for fully considered decisions by the lower courts.

In that context, errors are inevitable. And Supreme Court stay litigation could not be more high stakes. Accordingly, our three concrete proposals for Supreme Court reform in connection with the Court’s death penalty docket are as follows:

• The rules should be changed to require a stay of execution whenever four Justices would vote to grant a petition for a writ of certiorari in a capital case. People under sentence of death should not be denied a merits hearing in the Supreme Court on the grounds that they will be executed before the Court can hear the case.
• The Court should apply a more rigorous standard of review before overturning a stay granted by a lower court. When a lower court that is closer to the facts deems a stay appropriate, the Court should act with particular caution before overturning that considered judgment.
• The Supreme Court should be required to automatically stay an execution to permit a full review of first-time habeas petitions.

I will address each of those in turn.

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