Patterico's Pontifications



Filed under: Crime — Patterico @ 12:02 am

In a post below, I propose a new way to handle executions: by focusing the ceremony on the guilt of the defendant and the life of the victim, thus reminding the participants why the execution is taking place. In my proposal, I suggest that the death penalty should be imposed only when a jury, in the penalty phase, determines that the defendant is guilty beyond all possible doubt. In a comment to that post, my colleague Xrlq takes issue with this suggestion, saying that this is an unrealistic standard, and that we should simply apply the usual “reasonable doubt” standard and “accept the reality that some mistakes are inevitable.”

I think this is an important enough issue to discuss in a stand-alone post.

I disagree with Xrlq’s view (which is of course the current state of the law) for two reasons. First, we are more likely to execute an innocent person under the current standard. The second issue is related: if it is ever shown that we have executed an innocent person, that could be the beginning of the end of the death penalty in this country.

The most important concern is that an innocent person could be executed. Although death penalty opponents often exaggerate the numbers, no informed person can dispute that innocent people have been sent to Death Row. Several books have been written about specific examples of such cases. One good example is Adams v. Texas, which was the basis of the documentary film “The Thin Blue Line.” Other good books covering innocents on Death Row include Circumstantial Evidence: Death, Life, And Justice In A Southern Town by Pete Earley, and Victims of Justice, by Thomas Frisbie and Randy Garrett — just to name a few.

These books leave no doubt that innocent people have been sent to Death Row. If you think about it, this is a frightening fact.

However, death penalty supporters argue (correctly) that there is no proven case of an innocent person having actually been executed. (Death penalty opponents who argue otherwise are jumping to conclusions based on incomplete evidence.) The absence of examples of executed innocents means that the system works, death penalty supporters say.

This reasoning is wrong. The system doesn’t work. Innocents who have been released from Death Row have almost never gained their freedom through the orderly workings of the system. In many cases, the defendant’s innocence has been established due to the efforts of activists who have no official role in the criminal justice system. The fact that innocents have left Death Row is no tribute to the criminal justice system.

To the contrary, even in cases where the defendant’s innocence has been clearly shown, prosecutors and police often fight to preserve the convictions of the innocent. Once twelve people return a guilty verdict, law enforcement personnel tend to wear blinders. Sometimes, it turns out that law enforcement was in possession of exculpatory evidence all along, but suppressed it — or at least turned a blind eye to it.

The reason for this is also simple. The more heinous the crime, the greater the motivation on the part of everybody in the system to hold someone accountable. Cops are less likely than usual to provide possibly exculpatory material to the defense. Prosecutors may go forward on a weaker case, take more liberties with disclosure of evidence, and put pressure on witnesses to testify a certain way. Jurors will employ a lower standard of proof. Judges all the way up the chain, from the trial court to the Supreme Court of the United States, will strain to uphold the conviction.

The more serious the crime, the more these factors play a role. And the greater the temptation to withhold exculpatory evidence. After all, prosecutors think, we know the guy is guilty! Why give him a chance to raise some bullshit argument based on this so-called “exculpatory” evidence? This is how critical evidence of innocence — including confessions by other people — gets suppressed.

Simply put, the “system” is stacked against a defendant charged with a heinous murder. Almost nobody wants to let him walk — least of all the people in the “system.” As a result, people in the “system” cannot reliably be counted on to work for the release of an innocent person who has been wrongfully convicted of capital murder.

Nor should we take solace in the fact that there is no proof of an innocent having been executed. Simply put, there are few activists who would or could work as tirelessly to exonerate the dead, as they would to exonerate the innocent who are still alive. (Ironically, this is also one of the best arguments for the death penalty: if you are innocent and are condemned to death, you may get activists to look at your case. If you are sentenced to life, you must depend on the efficacy of the system to determine your innocence. Good luck.)

What does this mean? It means, quite simply, that sooner or later some innocent person is going to be put to death. It may have happened already.

And thus we come to our second point: if it is ever proven, with rock-solid evidence, that an innocent person has been put to death, that will be the beginning of the end of the death penalty in this country. Poll numbers already suggest that the public has concerns about innocents being wrongfully convicted. Common sense says that, if a concrete example of an executed innocent came to light and were widely publicized, the polls would swing wildly against the death penalty. It would take time, but such an example would (in my opinion) mark the beginning of the end of executions in this country.

For these reasons, I think it is critical that we reserve death for people who we are certain have committed deliberate, premeditated murder. Unlike Xrlq, I don’t think this is a standard that is unrealistic or impossible to meet. Undoubtedly, it would lead to many unquestionably guilty people serving only life in prison. In my opinion, this is a preferable result to the almost certain result of an innocent being executed.

UPDATE: Xrlq responds here. I will probably have more to say about this. This is what makes the blogosphere great: civil debate about important issues.

UPDATE x2: I have posted my response to Xrlq here.


  1. Outstanding – I don’t know if this is original to you (I suspect that it may be), but it is in fact the first fully-reasoned and lucid argument I have read in favor of (simultaneously) 1) continuing the application of the death penalty and 2) requiring a sufficient level of proof to clearly justify that application.

    I also read your previous post regarding a new methodology for such executions. Although the exact form of the ceremony may be arguable, I would agree that the concept has considerable merit.

    Comment by JB (f3fd6e) — 1/26/2004 @ 9:00 am

  2. the system is stacked against a defendant charged with a heinous murder. Almost nobody wants to let him walk — least of all the people in the system.

    You offer common-sense arguments to support this assertion. I suspect another contributing factor is that many people in prison have done many bad things. The inmate who is innocent of the murder that landed them on death row may well have committed other crimes. The suspicion that this is generally so would be a disincentive to work tirelessly for a wrongly-convicted person’s exoneration.

    Comment by AMac (3cb088) — 1/26/2004 @ 1:17 pm

  3. Patterico,

    Does this mean that you currently oppose capital punishment in its present state? Would you call for a moratorium until the higher standard becomes law?

    Comment by food diary (7b58c9) — 1/26/2004 @ 6:03 pm

  4. I’m torn. I have no problem with the concept — obviously. The problem lies in the execution . . .

    I don’t like the idea of a moratorium because it is such a crude tool. Wholesale moratoriums lead to wholesale commutations, which are lazy and spare the lives of many whose lives don’t deserve to be spared.

    I would rather analyze each situation, case by case, but with more concern for the possibility of executing innocent people.

    Comment by Patterico (f7b3e5) — 1/26/2004 @ 6:11 pm

  5. I obtained a death verdict as a prosecutor and I know the instructions called only for proof beyond a reasonable doubt. I approached the case as requiring proof beyond all possible doubt for my peace of mind and the jurors. In reality, jurors need to sleep at night and the beyond all possible doubt allows them to do that. This is a practical observation. I don’t know that it would be reasonble to modify the existing standards.

    Comment by Roberta (fb5a9c) — 1/26/2004 @ 8:16 pm

  6. I agree with the need for a death penalty, but I don’t accept the idea that occasional mistakes are OK. This is one “mistake” from which there can be no recovery. The maintenance of a flawed status quo should not take precedence over innocent human life.

    If anyone in this country can get caught up in one of these nightmare situations, then it can happen to you. Don’t kid yourself that it could never happen to you. It doesn’t matter what circles you move around in, how educated you are, or how much money you make. It could happen to you.

    Comment by steve M. (52320d) — 1/26/2004 @ 8:52 pm

  7. Roberta,

    Were I to prosecute a death penalty case, I would take the same approach you did. Were I not absolutely convinced of the defendant’s guilt, I would not ask for death.

    The reason I think the standard should be changed is that I do not trust other prosecutors (particularly in still-racist areas like portions of the Deep South) to apply the same rigid standards that you applied.


    Thanks for the kind words. I don’t specifically recall seeing this idea discussed elsewhere, but I can’t believe it is original with me.

    Comment by Patterico (f7b3e5) — 1/26/2004 @ 11:30 pm

  8. You’re right in one sense, but Xrlq is ultimately right. The standard of absolute guilt is unattainable. There is always a chance of innocence. Even in cases where a confession has been made and physical evidence is present, guilt isn’t guaranteed.

    For example, a man on Tennessee’s death row right now says he is innocent. Prosecutors proved he was the mastermind behind a murder plot. Four co-conspirators testified against him. There’s a chance he didn’t conspire in this act, but a jury came to the conclusion he did. Under your standard, there’s no way he could be put to death.

    Comment by CJ (cbe318) — 1/27/2004 @ 12:20 am

  9. Roberta: your point is well taken. However, proof beyond any subjective doubt on the part of the prosecutor and the jury is one thing, and proof beyond all possible doubt is another. As I explained more fully in the linked entry, once the reasonableness requirement is reomved, there will always be a possibility of doubt.

    Steve: another point I belabored in the same entry is that the death penalty is far from the only government action where mistakes can cost human lives. The same goes for our space program, gun control (too much, too little, or even the wrong kind under the wrong circumstances), prison sentencing (too long OR too short), speed limits, etc. Even the death penalty isn’t a one way street in this department, as there is considerable evidence that its under-utilization costs lives, as well. So while I agree we should do everything reasonably possible to prevent mistakes, I also think that “erring on the side of caution” is a lousy substitute for erring on the side of not erring.

    Comment by Xrlq (816c74) — 1/27/2004 @ 8:47 am

  10. Food Diary and Patterico,

    Whether or not the Illinois governor’s commutation last year was justified, the recommendations of his commission on the procedures in capital cases should be in front of the legislators of every state allowing executions. The commission proposes mandatory standards, mainly to police procedures. Some would be expensive, though probably not when compared to the expense of a life or a death sentence. Most are common sense, e.g. videotaping of all interrogations, and having lineups run by officers who are uninvolved in the case at hand.

    When my wife was the unwilling star of a “minor” armed robbery and shooting, the case against the perpetrator was dismissed before trial because the police had failed to follow their own less-stringent S.O.P.s. This first-hand experience tells me that these sorts of reforms are not practiced by big-city police departments as a matter of course.

    Comment by AMac (3cb088) — 1/28/2004 @ 3:36 pm

  11. Other than out of my mouth this is the first time I’ve heard of a new standard for the death penalty. Thank you for articulating it so well. As for the master mind and conspiracy, that is a clear case where we can’t execute. Co-conspirators and eye-witnesses are known to be less than reliable.

    As a P.S. to the post about video-taped confessions. They hold up much better than other confessions. I believe sloppy line-up procedures still work in courts today.

    Comment by JimM (e66cd8) — 2/21/2004 @ 11:05 am

  12. Proof Beyond an Unreasonable Doubt
    Free Mumia! Abolish the death penalty now! For the record, I do not believe this is a fair characterization of Patterico’s position on the death penalty. It is, however, a fair characterization of where that logic ultimately leads. This paragraph…

    Trackback by damnum absque injuria (2c5473) — 1/26/2004 @ 4:36 pm

  13. Carnival of the Vanities #72
    Smiles, everyone smiles…My dear guests, I am Mr. Pete, your host. Welcome to Carnival of the Vanities #72. Putting together this edition of the Carnival has been an interesting experience. I’ve been exposed to a number of blogs I don’t…

    Trackback by A Perfectly Cromulent Blog (cabd9f) — 2/4/2004 @ 6:35 am

  14. Carnival of the Vanities #72
    Smiles, everyone smiles…My dear guests, I am Mr. Pete, your host. Welcome to Carnival of the Vanities #72. Putting together this edition of the Carnival has been an interesting experience. I’ve been exposed to a number of blogs I don’t…

    Trackback by A Perfectly Cromulent Blog (cabd9f) — 2/4/2004 @ 6:39 am

  15. Carnival of the Vanities #72
    Smiles, everyone smiles…My dear guests, I am Mr. Pete, your host. Welcome to Carnival of the Vanities #72. Putting together this edition of the Carnival has been an interesting experience. I’ve been exposed to a number of blogs I don’t…

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  16. [...] I can’t definitively say that this is the first example of a clearly innocent person having been executed in the United States — but it sure seems that way. At the very least, he shouldn’t have been convicted. This is why I have argued that no death sentence should be imposed unless the defendant’s guilt is proved beyond all possible doubt. As more cases like this crop up, more people will agree with me. [...]

    Pingback by Patterico’s Pontifications » An Innocent Person Executed? (421107) — 11/22/2005 @ 12:13 pm

  17. [...] In response to my argument that no death sentence should be imposed unless the defendant’s guilt is proved with absolute certainty, some have argued that my standard is unworkable. I disagree. How can we know who is right? [...]

    Pingback by Patterico’s Pontifications » Is a “Beyond All Possible Doubt” Standard for the Death Penalty Workable? (421107) — 11/24/2005 @ 1:53 pm

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