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.