POLITICS SEPTEMBER 27, 2011
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Georgia’s execution of Troy Davis last week was a poignant reminder of the continued presence of capital punishment in the United States. The Davis execution generated extraordinary interest because of troubling doubts about his guilt. Some observers have already speculated that the Davis case might serve as the spark that could reignite the movement to abolish the death penalty. But lost in some of the attention that the execution has generated is the death penalty’s unmistakable and precipitous decline over the past decade. If the battle has not been won by death penalty opponents, they are much closer to their goal than they realize.
Death sentencing has dropped remarkably over the past fifteen years, making what was already a marginal practice (in terms of the frequency with which murder is actually punished with death) an exceptionally rare one. Whereas over 300 defendants were condemned to die per year in the mid-1990s, the most recent figures show a nationwide average closer to 115 per year—a more than 60 percent decline. Executions, too, have fallen significantly—by about 33 percent if one compares 1997-2003 (about 75 executions nationwide per year) and 2004-2010 (about 50 executions nationwide per year).
As a matter of politics, the momentum is clearly on the side of restriction rather than expansion. The past four years have seen the legislative abolition of capital punishment in New Jersey, New Mexico, and Illinois. Numerous other states have come close to abolition or have adopted new limitations on the death penalty (such as Maryland’s requirement that death sentences rest on biological evidence or on a videotaped recording of either the offense or a confession by the offender). As a matter of law, the death penalty appears more fragile jurisprudentially than at any other time in American history, save the brief period of judicial invalidation in the early 1970s.
Indeed, and in addition to legislative action, several members of the U.S. Supreme Court have expressed deep skepticism about the efforts to ensure reliable and fair administration of the death penalty. Moreover, in its decisions abolishing the death penalty as applied to juveniles, offenders with mental retardation, and offenders convicted of raping children, the Court has found those practices contrary to “evolving standards of decency” based on new gauges of contemporary morality—such as elite and professional opinion, international opinion, and polling data—in addition to legislative decisions and jury verdicts. In the cases involving juveniles and offenders with mental retardation, the Court declared the practices contrary to evolving standards despite the fact that a majority of death penalty states did not (yet) prohibit the challenged practice.
In light of this dramatic decline of the American death penalty in practice, politics, and law, rather than portraying the Davis case as the “spark” that could inspire a new generation of anti-death penalty activism, we perhaps should view the Davis case as additional fuel on a fire that is already burning. The difficult question for opponents is whether and how to focus this renewed energy. On the one hand, the Supreme Court’s new approach to gauging “evolving standards of decency” offers a potentially powerful constitutional litigation strategy. If the trend toward abolition and restriction on the state legislative front continues along its current trajectory, it will become easier for abolitionist litigators to marshal evidence of the death penalty’s domestic decline in support of a constitutional ban—and easier for courts to deem capital punishment an outlier practice that falls outside of an emerging constitutional consensus.
This approach is attractive for two reasons: It is likely the only way to uproot capital punishment in certain entrenched jurisdictions (like Texas), and it provides a “backstop” against legislative backsliding in the inevitable moments of anger and fear that attend particularly heinous crimes—in much the same way that the European Convention on Human Rights serves as a backstop against backsliding for European countries, as reinstatement of capital punishment precludes membership in the European Union.
However, constitutional litigation always carries with it the risk of backlash, as a previous era’s experience demonstrates. The movement to abolish American capital punishment in the 1960s and 70s proved to be successful in the short-term but tragic in the long-term. After bringing executions to a halt in 1967 and providing the first extended period in American history without executions (almost a decade), the brief moratorium was followed by enormous reaction. The dying practice of capital punishment returned with a vengeance following the U.S. Supreme Court’s invalidation of prevailing statutes in 1972. Georgia’s Lieutenant Governor Lester Maddox captured the moment by characterizing the Supreme Court’s intervention as a “license for anarchy, rape and murder.” The Supreme Court bowed to the prevailing fury and upheld a new generation of death penalty statutes only four years after its constitutional abolition. The nation’s death row grew five-fold between the Court’s decision and the late 1990s—when it reached its all-time high of over 3,500 death-sentenced inmates.
Nonetheless, there are some reasons to think that court-driven abolition would engender less opposition in the current moment than it did in the early 1970s. The three major forces driving the contemporary decline in the American death penalty are remarkably new to the debate surrounding capital punishment. The first and likely most important precipitant of the recent decline has been the discovery of wrongfully-condemned offenders, particularly the discovery of numerous innocents on Illinois’s death row in the late 1990s. Although concern about executing the innocent is as old as the death penalty, the emergence of sophisticated technology for revisiting past convictions (particularly DNA) has highlighted to an unprecedented degree the extent to which our criminal justice system is susceptible of error, even (and perhaps especially) in capital cases.
The second major development is concern about excessive cost in capital cases. Prior to the recent era, cost concerns were rarely cited as a reason to withhold the death penalty, given the cost of long-term incarceration. But the price of capital punishment has increased dramatically, in part because of the heightened constitutional regulation of capital cases (including at trial and in various appeals), and in part because of the difficulties in translating capital sentences into actual executions. More than ever before, the decision of whether to seek death is as much a financial one (even in high execution states like Texas) as it is an abstract question of just punishment. Unlike the Depression—which produced the most executions in our nation’s history—the recent (and continuing) financial downturn has produced a new reticence to seek the death penalty.
And finally, the current era marks the first time in American history that states have widely embraced life-without-possibility-of-parole (LWOP) as an alternative to the death penalty. Much modern support for the death penalty is rooted in fear of recidivism by offenders (Texas, for example, requires a jury to find that a defendant constitutes a “future danger” to impose the death penalty), and the introduction of LWOP has removed one of the most salient “pro”-death penalty considerations. Indeed, despite continued high polling support for capital punishment among Americans on the simple question of whether murder should be punished by death, the level of support drops significantly when the poll offers LWOP as a specific alternative. Moreover, unlike in the 1970s, violent crime and homicide rates are not on the upswing, despite the widespread unemployment that has attended the nation’s economic crises.
Thus, although American history is replete with (over)confident predictions of the death penalty’s impending demise, the present moment brings the genuine possibility of permanent abolition via judicial decision. The high drama of particular executions makes the American death penalty appear more entrenched and routine than it truly is, and obscures the broader trends and transformations. Such executions can also accelerate the movement toward abolition. And the execution of Troy Davis captures many of the vices—doubt, unfairness, expense—that could well cost the death penalty its life.
Carol S. Steiker is the Henry J. Friendly Professor of Law at Harvard Law School. Jordan M. Steiker is the Judge Robert M. Parker Endowed Chair in Law at the University of Texas School of Law.
43 comments
If the case in favor of Troy Davis is so strong, why did the Supreme Court unanimously reject his appeal? Four members of the Court are hard core liberals, and one is a centrist. ****** Advocates of the death penalty might ask the following: what do we do with the someone convicted of the rape-murder of a child? My answer is to sentence him to life and offer him no protection in prison. Someone among the inmates will stick a shiv in his gut and spare the taxpayer the millions of dollars it would cost to execute him.
- bulbman1066
September 27, 2011 at 1:58am
The only evidence in the Troy Davis case is the memory of a handful of witnesses and one of the bullets. The analysis of the bullet has been shown to be spurious, leaving the witnesses' memory. The methods used assess their memory (lineups with the suspect highlighted in contrast with the fillers, reenactment of the crime with a group of witnesses) have been shown to result in the implication of innocent suspects. That evidence is now irreparably tainted so that it is impossible to determine who killed MacPhail. As far as I'm concerned, the question as to whether the witnesses' recantation is valid is moot, their identification of Davis was never valid evidence to begin with. The most unfortunate thing is that all the attention of the case is on the death penalty and little attention on the role of evidentiary standards both at trial and post-conviction. Is what happened with the Norfolk four any more just? (Though there is a death penalty angle in that the threat of the death penalty was used in extracting confessions.) "If the case in favor of Troy Davis is so strong, why did the Supreme Court unanimously reject his appeal?" Appellate courts routinely set a standard of proof well beyond a reasonable doubt in order to overturn a conviction. If you say that facts established at trial should be accepted in that way, I ask do you consider trials to be a search for the truth? If so, in what other search for truth do you require that all new evidence, or suggestions that your evidence is not as strong as you thought it was, be clear and convincing once you reach your first conclusion?
- sighthnd
September 27, 2011 at 9:00am
"If the case in favor of Troy Davis is so strong, why did the Supreme Court unanimously reject his appeal?" Because appellate courts, and especially the Supreme Court, are not looking at "the case." They are not reviewing the overall evidence and coming to their own conclusions about what the outcome should be, they are reviewing the process: whether the proper rules were followed. And the rules make it very, very difficult to reverse a trial court outcome. The Supreme Court has held that a claim of actual innocence based on new evidence does not state a ground for federal habeas corpus relief. http://en.wikipedia.org/wiki/Herrera_v._Collins So if you don't get things right at trial, it's hard to correct anything later on even if you're actually not guilty.
- dsimon
September 27, 2011 at 9:33am
(Damn TNR's posting mechanism that sometimes cuts off comments when providing links...why can't they fix this?) The Supreme Court has held that a claim of actual innocence based on new evidence does not state a ground for federal habeas corpus relief. http://en.wikipedia.org/wiki/Herrera_v._Collins So if you don't get things right at trial, it can be very tough to correct anything afterward.
- dsimon
September 27, 2011 at 10:56am
Excellent essay. This statement among others struck me: ...Numerous other states have come close to abolition or have adopted new limitations on the death penalty (such as Maryland’s requirement that death sentences rest on biological evidence or on a videotaped recording of either the offense or a confession by the offender... There is a clear principled argument to be made for capital punishment in the most egregious and heinous of cases based on the retributive aspect of criminal law sentencing. A brick wall this this argument runs into is error, error which is of course irreversible being fatal. The incidence of error was a large reason why the states noted in the essay have abolished captial punishment. The larger reasoning is that while theoretically justifiable, error, the impossibility of satisfactory practical application, subsumes the the theoretical argument or, put another way, renders it just that-theoretical. So, I'm wondering whether the restrictions evident in the statement I quoted are the beginning of an answer to that reasoning. I'd like to see and consider the arguments why not.
- basman
September 27, 2011 at 12:15pm
....Appellate courts routinely set a standard of proof well beyond a reasonable doubt in order to overturn a conviction... I'm not a criminal lawyer but is this right? My thought is that reasonable doubt has an objective component. So while it's the jury's domain to weigh and assess the evidence and find the facts, an evidentiary basis for reasonable doubt could seem to rise to a principled reason by which the jury's verdict could be overturned on appeal or sent back for retrial. Granted the appellate court can't substitute its fact finding for the jury's but it can say "here is evidence that any properly instructed jury would find raises a reasonable doubt." An analogy might be from civil appeals, with which I'm more familiar, in which, for example, (and apart from appeals against the weight of the evidence) once the facts are found, the appellate court is in as good a position to draw inferences from the facts as the original fact finder. That would seem to give appellate scope especially in circumstantial evidence cases. Mind you, I've read a few evidence based American criminal appeal opinions. I get the sense of what a thicket it is.
- basman
September 27, 2011 at 12:32pm
sighthnd writes: "The only evidence in the Troy Davis case is the memory of a handful of witnesses and one of the bullets." And if I walked up and shot someone on the 50 yard line at halftime of a football game and than ran outside the stadium into the night, what evidence would there be? A larger handful of witnesses watching from a further distance and one of the bullets. That's it. What evidence would you expect there to be? Are you saying that wouldn't be enough to convict? Now, consider several of the eyewitness DID know the man personally. Two testified that Davis admitted to the shooting. The state presented 34 witnesses. 7 have recanted. The jury was 7 blacks, 5 whites. A dozen courts have looked at this. If they thought the evidence was shaky and they didn't speak up, I'd be very, very surprised. In fact, the supreme court--for the first time ever in 50 years--ordered a federal court to rehear all the evidence. They didn't say a word as they re-affirmed the lower courts. That said, I don't like the death penalty. But if in light of all of the above we cannot declare this man guilty, then the bar is so high that we seriously should let 90% of the folks out of jail.
- seattleeng
September 27, 2011 at 1:08pm
dsimon writes:"Because appellate courts, and especially the Supreme Court, are not looking at "the case." They are not reviewing the overall evidence and coming to their own conclusions about what the outcome should be, they are reviewing the process: whether the proper rules were followed. And the rules make it very, very difficult to reverse a trial court outcome." In this case, the supreme court ordered a RE-HEARING of all the evidence. The first time they've done this in 50 years. This took place in June 2010. The conviction was upheld. scotus then passed on the case without a word. But their action followed by silence speaks volumes, does it not?
- seattleeng
September 27, 2011 at 1:16pm
I don't know to much about the Davis case, but seattleeng's posts seem compelling in the first instance as to guilt beyond a reasonable doubt and why the request for a stay was knocked down unanimously.
- basman
September 27, 2011 at 1:43pm
For once I agree with Seattle. I think the death penalty needs to go the way of the dodo, but if advocates are looking for a pretty clear case of a (likely) innocent man being executed, they should use the CT Willingham execution in Texas, not this case.
- Tristan
September 27, 2011 at 2:11pm
seattle, this case aside, there have been dozens and dozens of known instances where innocent people were put to death and thir innocence proven only afterwards. This is beyond question. We know that the death penalty claims innocent victims. So the question I put to you is this: are you comfortable with our judicial system condemning innnocents to death? If not, how do we ensure that no people are wrongly put to death?
- tealeaves
September 27, 2011 at 2:44pm
Tealeaves: forgive me, but could you provide some insight into the "dozens and dozens" who were executed and then proved innocent? Again, I'm against the death penalty but I'm unaware of any such cases. I'm familiar with several (the Willingham one being the most recent and in my mind most obvious example) cases where evidence certainly POINTS to innocence, and certainly to enough reasonable doubt to reasonably demand a stay of execution and a new trial... but I know of no case here in the US where it has been "proven" (by whom? By a court?) that an executed person was innocent. As someone who thinks the death penalty should be banned, that info would certainly be helpful... thanks
- Tristan
September 27, 2011 at 2:54pm
Here's a list I found after a cursory search. Note that not all of these people were fully proven innocent (in most cases the facts were simply too uncertain to convict) but many were. Usually the cases where certain proof exists involve DNA (17 on that list) but in some cases someone else confesses to the crime(s) in question. Feel free to click through on the links there. They have summaries of the cases for most. http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row
- tealeaves
September 27, 2011 at 3:31pm
Oh I'm sorry - you were looking for executions. I'll look for those. Here's one from Britain: http://www.guardian.co.uk/uk/2003/jun/11/ukcrime.owenbowcott
- tealeaves
September 27, 2011 at 3:39pm
Just to clarify, I was referring to the Supreme Court's refusal to issue a stay this past week, not its prior decision in 2009. Even in 2009, the Court was deciding a procedural question: whether the trial court should hear new evidence (and only evidence that could not have been obtained at the time of the original trial that would "clearly establish" Davis's innocence), and not reviewing "the case" as a whole. But the fact remains that appellate courts are almost always looking at if the proper process was followed, and overturn factual findings only if they are egregiously wrong. And while most trial verdicts may be correct, that makes a flawed trial verdict very difficult to reverse. While I know of no certain examples of an innocent person having been executed--though the Willingham case should certainly raise serious doubts--there have been many people on death row whose cases have been through multiple levels of judicial review and were later exonerated when new evidence came to light. Our system is imperfect, and I think supporters of the death penalty should accept that even if an innocent person has not yet been executed (which we don't know), eventually some will be. Imperfection is not a reason to abandon the entire criminal justice system, but it may be a reason to abandon the harshest, most irreversible consequence of inevitable error. I oppose the death penalty simply because I think it's wrong even if we could impose it without error. For just about every crime, we punish by depriving the offender of liberty, and I'm not sure why certain kinds of killings should be exceptions. It's true that one can't restore a temporary deprivation of liberty in the case of a mistake, but at least there's the chance of partial rectification. I think supporters of capital punishment have to concede that there is no rectification of a wrongly imposed state-sponsored killing, which I believe is inevitable if it hasn't already happened.
- dsimon
September 27, 2011 at 3:40pm
Here's one where the only witness recanted. No physical evidence was presented. http://partners.nytimes.com/library/politics/camp/051400wh-bush-cases.html
- tealeaves
September 27, 2011 at 3:47pm
Here's one where the whole case rested on a strand of hair, later found to be someone else's: http://www.texasobserver.org/cover-story/texas-observer-exclusive-dna-tests-undermine-evidence-in-texas-execution
- tealeaves
September 27, 2011 at 4:02pm
A man executed based on since-disproven arson theories: http://www.chicagotribune.com/news/nationworld/chi-0412090169dec09,0,1173806.story That's the last one I'll post but the fact is that our justice system puts to death people who are almost certainly innocent. I may have exaggerated when I said "dozen and dozens" but bear in mind that the death penalty is rare and wrongful executions obviously more so. Further, most courts don't entertain evidence after an execution (it's seen as a waste of scarce resources for something that cannot be rectified) so there are very likely more cases out there we don't know about.
- tealeaves
September 27, 2011 at 4:20pm
Thanks for the links, and I agree with your ending comment.
- Tristan
September 27, 2011 at 4:26pm
seattleeng: "And if I walked up and shot someone on the 50 yard line at halftime of a football game and than ran outside the stadium into the night, what evidence would there be?" I'm not claiming that it is impossible to reliably extract the truth of what happened from that evidence. However, the methods that the police used, including lineups with the suspect set off with a different background and a recreation of the crime in front of a group of witnesses, hopelessly tainted the evidence such that after those procedures it would have been impossible to do so. "Now, consider several of the eyewitness DID know the man personally. Two testified that Davis admitted to the shooting. " Jailhouse snitches are notorious for not discriminating between guilty and innocent suspects. It is one of the major categories for wrongful convictions. You can see all the major ones at http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php . Under "Informant" and "Case", you can find out about Wilton Dedge who was convicted on the basis of an informant supposedly telling of him confessing. But, It all turned out to be an elaborate lie. However, Dedge was convicted at his second trial, and he was not exonerated until 2004, after serving 22 years in prison. The informant had his sentences shortened by 120 years in exchange for testifying against Dedge and others. "The state presented 34 witnesses." All of whom identified Davis with the help of the police (such as by having lineups with the Davis set apart from the fillers) and were subsequently coached (such as by the police interviewer saying something like "good job, you picked the right one) in how to be certain of their identification. Of the 190 people exonerated of crimes for which they were convicted on the basis of eyewitness testimony, a good number of them (it will take some time for me to find the correct number) had multiple eyewitnesses identify them. "A dozen courts have looked at this. If they thought the evidence was shaky and they didn't speak up, I'd be very, very surprised. In fact, the supreme court--for the first time ever in 50 years--ordered a federal court to rehear all the evidence. " No, the Supreme Court did not order a rehearing of ALL the evidence, only a hearing of the NEW evidence. As for why the appellate courts did not speak up about the evidence, they never challenge evidence once it is accepted at trial, unless conclusive proof is brought showing a wrong result. "But if in light of all of the above we cannot declare this man guilty, then the bar is so high that we seriously should let 90% of the folks out of jail." If a witness can identify the suspect in a double-blind lineup (that is one in which the interviewer does not know who the suspect is) with high confidence declared at the time of seeing the lineup and a few other changes to avoid spurious identifications, then there is a good chance the suspect should be considered guilty. A good number of people in prison today were convicted by means that are known to implicate the innocent and should be freed. Saying that should not be taken to mean that evidence which is not associated with wrongful convictions should be disregarded.
- sighthnd
September 27, 2011 at 5:36pm
tealeaves: The examples you give show a problem with our criminal justice system. What they show is not cases of people executed and then evidence presented that they were innocent, but cases of people executed and subsequent evidence showing that the evidence on which they were convicted was not evidence. To show what I mean, consider someone claiming that you were at a particular concert and as proof produces a card from your wallet that was found at the concert. Consider that you show that the card was not from your wallet, that would show that the "accuser's" evidence was not evidence, but it would not show that you were not at the concert. Now consider that you find a photo of yourself at some other location verifiably timestamped for the time of the concert. That would be evident that you were not at the concert. The problem in our jurisprudence is that while it generally runs quickly to free people who present evidence like the second, it routinely ignore the first.
- sighthnd
September 27, 2011 at 5:46pm
I have a question for supporters of the death penalty. If the probability that an innocent person will be executed is p, what is the largest value for p that you would find acceptable. If p =.01 1 chance in 100 would you execute. If p = .001 1 part in 1000 would you execute. If p =.0001 1 part in 10000 would you execute. Death is irreversible. It is one thing to imprison when there is a small chance the person might be innocent. Since there is always the possibility of a mistake the death penalty must be abolished.
- andre5851
September 27, 2011 at 7:37pm
sighthnd writes: "No, the Supreme Court did not order a rehearing of ALL the evidence, only a hearing of the NEW evidence." No. The court wrote that Davis needed to prove by "clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." So, it was possible for new evidence to overturn old evidence. If new evidence included slipshod lineups and police work that had since been refuted by criminologists, then surely it would have been done. But it was not. Do you not think this guy was guility?
- seattleeng
September 28, 2011 at 3:11am
andre5851 writes: " It is one thing to imprison when there is a small chance the person might be innocent. " No, this is just as bad. Not as final, but just as bad.
- seattleeng
September 28, 2011 at 3:19am
sighthnd: I realize this. Yet, the conclusion that I've come to is that at least some, maybe most, of the people who were executed with no meaningful evidence presented against them must have been innocent, statistically speaking. Iron-clad proof rarely, if ever, exists and so we must view these cases for what they are: situations where there is a high probability that justice was miscarried. When you roll the dice enough times, even a 1/1000 chance will come up inevitably. In the exact same way, when we execute people who the state has not properly tried, the chance that one of them is innocent will come up inevitably. And it's much more probable than 1/1000. I say again: our justice system executes innocent people. It's a fact. And even if all of them were guilty, something we know not to be true, I would still point to our guiding principle of presumtion of innocence until proven guilty. That someone is imprisoned or executed, even if guilty, without proper evidence of their guilt is a moral ill in and of itself. Indeed, this is a founding principle of our justice system. Banning executions will not change the fact that a human justice system will never be perfect but it will go a long way towards approaching that goal by mitigating the worst possible consequence of judicial error.
- tealeaves
September 28, 2011 at 10:15am
"Do you not think this guy was guility?" I think there is no evidence that is inconsistent with his not being guilty and that all the evidence of who did it has been hopelessly contaminated. The reconstruction of the eyewitnesses' memory in the Davis case was a basket case of improper procedures. The issue of what qualifies as creditable evidence is what types of evidence correlate most highly with proven wrongful convictions. Do you think Maryland's prohibition of the death penalty when the only evidence is eyewitness testimony is a statement that a crime without evidence besides eyewitness identification is any less heinous? "So, it was possible for new evidence to overturn old evidence." What is not possible is demonstrating that the old evidence is bogus. The court ruled that the evidence presented of the witness recantation was "smoke and mirrors," but made no assessment as to whether the initial evidence was anything more than "smoke and mirrors." "The court wrote that Davis needed to prove by 'clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.' " That is something that needs to change. I would be willing to considering reducing the standard for securing convictions if that is the cost of a more fact-based post-conviction procedure. Before commenting, read something on the reliability of the forms of evidence presented in the Davis case. For starters, here are a few: Brandon Garrett's articles on wrongful convictions in general (http://www.slate.com/id/2291061/entry/2291063/) and the Troy Davis case in particular (http://www.slate.com/id/2304221). The Innocence Project's article on methods of wrongful convictions and how to procedures can be reformed to more reliably distinguish between guilt and innocence (http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php). The last one has brief descriptions of the issues pertaining to eyewitnesses, forensics, confessions, informants, representation and law enforcement. Each category includes a case in which a person or group was wrongly convicted (with wrongfulness demonstrated conclusively by DNA evidence) describing how the errant procedures led to conviction, and reforms to prevent wrongful identification of the innocent.
- sighthnd
September 28, 2011 at 10:33am
tealeaves: I'm not complaining about what you wrote. I'm complaining that the courts don't accept it. I am in complete agreement with everything you wrote, aside from anything that would suggest that our courts operate that way.
- sighthnd
September 28, 2011 at 10:40am
"If the probability that an innocent person will be executed is p, what is the largest value for p that you would find acceptable." I'm not sure that the probability of evidence can be reliably measured in any individual case. What we can do is set standards for what constitutes reliable evidence. If evidence if inferred through best practices, that is by methods which have been shown to have low rates of implicating the innocent, that evidence implicates a particular suspect and post-conviction review allows for retesting that evidence, then we can be reasonably certain of not executing an innocent person.
- sighthnd
September 28, 2011 at 10:48am
sighthnd: Fair enough. It seemed like you were disputing that the cases I linked to were proof enough that executions of innocents happen. I definitely agree that our juries and judges sometimes seem too disposed towards conviction when the evidence is not certain or even meaningful. Once evidence has been presented and accepted previously, it has a lingering significance in peoples' minds that tends to defy evidence to the contrary. I attribute it to psychology - people not liking the idea that they were misinformed or misled.
- tealeaves
September 28, 2011 at 11:21am
"I definitely agree that our juries and judges sometimes seem too disposed towards conviction when the evidence is not certain or even meaningful." I'd modify that a bit. Judges and juries are prone to accepting that evidence is certain and meaningful when there are reams of evidence that it is not. For instance, jurors tend to view an eyewitness's certitude as a sign that his/her narrative is more likely to be correct and discount the possibility that the certitude reflects a lack of evaluation of potential alternatives or they view confessions as definitive without considering how the Reid method unless the see actual footage of the how the Reid method was deployed. "Once evidence has been presented and accepted previously, it has a lingering significance in peoples' minds that tends to defy evidence to the contrary." That is what needs to be addressed. "I attribute it to psychology - people not liking the idea that they were misinformed or misled." That might explain why MacPhail's family was adamant that Davis was guilty and complained about the interminable appeals process. I don't think it's adequate to explain why the judicial system is that way. I don't have an explanation for that part.
- sighthnd
September 28, 2011 at 2:14pm
Does the possible or even probable execution of innocent people mean that we should not execute Adolf Eichmann?
- Proteus
September 28, 2011 at 4:29pm
I've always said that I support the death penalty in theory but not in practice. If we could have metaphysical certainty of a murderer's guilt, I would have no moral objection to state execution. I'm comfortable saying (in theory) that it's part of the social contract: if you take a life, you forfeit a life. However, at the same time I feel society cannot tolerate the wrongful execution of even one innocent person. We know the justice system is fallible; capital punishment is irreversible, ergo, it is intolerable. I don't even think we need to go down the fraught path of proving actual cases of wrongful execution; it's enough to just imagine a hypothetical in which some evil genius COULD convincingly frame someone for murder. I can imagine it. The only alternative to abolition I see is something like the Maryland approach, where the actual standard of evidence is higher. This is a departure from tradition, where the same standard of reasonable doubt applies to both capital and non-capital cases. Death penalty consideration now turns on ancillary questions of background, remorse, "heinousness", etc. Perhaps it's time to introduce an even stricter NO doubt standard for death. I'm not sure in practice if anything could satisfy this, but video evidence is a possibility.
- frb631
September 28, 2011 at 5:34pm
"Does the possible or even probable execution of innocent people mean that we should not execute Adolf Eichmann?" For me, the possible execution of innocent people has no bearing on whether we should not execute Adolf Eichmann. I think we shouldn't execute anyone, period. And that's the position all of our peer nations take. The possibility of error is a problem only for those who support the death penalty in some instances. For those who oppose it in principle, it's a non-issue.
- dsimon
September 28, 2011 at 6:07pm
"I think we shouldn't execute anyone, period." I disagree. I think that some crimes are so heinous that the death penalty is the only just response.
- Proteus
September 28, 2011 at 9:47pm
"I think that some crimes are so heinous that the death penalty is the only just response." Yes, and many others agree. But then those people have to address the possibility of error, either constructing a system so that there is no error in administering the death penalty or accepting the execution of an innocent defendant as an acceptable cost. Those who oppose the death penalty in principle don't have that issue.
- dsimon
September 29, 2011 at 10:50am
Explain, then, why you oppose the death penalty in principle, apart from the possibility of error. Why is it unjust to execute Eichmann (or Hitler or Stalin or Bin Laden...).
- Proteus
September 29, 2011 at 10:57am
Proteus: "Explain, then, why you oppose the death penalty in principle, apart from the possibility of error." If society takes the position that killing is wrong, then it should not engage in unnecessary killing. It should lead by example. We do not respond to those who torture by torturing them. We do not respond to those who steal by stealing from them. We have decided to punish offenders by depriving them of liberty. I don't see why there should be exceptions. And I would feel this way even if a member of my family were a victim. (Again, all of our peer nations have come to the same conclusion.) Now your turn: do you think there can be error-free application of the death penalty? If not, are you willing to accept the eventual execution of innocent defendants so that we can also execute the Eichmanns and Hitlers and Bin Ladens?
- dsimon
September 29, 2011 at 8:22pm
I believe that justice has a retributive function, and not just a deterrent, protective or rehabilitative one. (So do you, by the way. Lengthy prison sentences cannot be explained without reference to retribution, and you seem to be on board with those). As for the ultimate penalty, society does not always take the position that killing is wrong. War is an obvious example. Did you object to the shooting of Bin Laden? Would you have objected to his execution if he had been taken alive and put on trial? Some criminals effectively wage war on society. I have no qualms about executing serial killers, torture killers, mass murderers and architects of genocide, and I think that we should. I think there is no other just or humanly adequate response. I think we must reconcile the need for that response with the need to avoid executing the innocent, and I think that we can.
- Proteus
September 30, 2011 at 10:57am
Proteus, I appreciate your response, but you didn't answer my questions: do you think it is possible to have an error-free application of the death penalty, and if not, are you willing to accept the eventual execution of innocent defendants? I do have sympathy for the retributive function of punishment. But note that I wrote that society should oppose "unnecessary killings," so that takes care of your war example. I don't think it's hardly necessary to kill someone who is easily taken into custody and punished. I would have far preferred that bin Laden be taken into custody if reasonably possible, tried, convicted, and spent the rest of his life in prison. I would not execute him or anyone. Same for all the other killers you listed. Now, any response to my questions?
- dsimon
September 30, 2011 at 11:10am
As the last sentence of my previous post indicated, I do believe we can have an error-free application of the death penalty. It can be limited to cases where guilt is clear, and there are many such cases. I also think that the proven execution of an innocent person should not prevent us from applying the death penalty where guilt is clear and the crime enormous.
- Proteus
September 30, 2011 at 11:37am
There are morally tenable arguments both for and against state execution. What tips the balance in favor for me (again, in principle, not current practice) is the inherent capacity for pleasure in life, even a life behind bars. I would find it intolerable, for example, if a murderer who forever foreclosed all possibilities of experience to a loved one of mine, continued to experience the pleasure of a conversation, a book, a song, physical exercise, sex in any form, eating, drinking, thinking, dreaming, etc. You can't possibly deprive an inmate of enough gratifying human experience without getting into cruel and unusual punishment. Better to just turn out the lights. This is my admittedly subjective take on it, but I also give deference to the many families of murder victims who appear to feel the same and doggedly pursue that final closure. Back to practicalities: if you can imagine a scenario of perfect certainty, you might be able to design rules for it. The standard should be very high, such that perhaps only one or two cases a year meets it. I would start with video recording.
- frb631
September 30, 2011 at 12:30pm
"It can be limited to cases where guilt is clear" I think that's very optimistic, given all the exonerations that have already happened in cases where people thought guilt was clear. (Though it wasn't a homicide, I remember the NYC "Central Park jogger" case where everyone thought the defendants were clearly guilty; they had confessed and were convicted. And they were all innocent.) But if you're willing to accept the execution of the innocent in order to be able to execute the guilty, then it's not a problem for you.
- dsimon
September 30, 2011 at 2:54pm
frb631: "This is my admittedly subjective take on it, but I also give deference to the many families of murder victims who appear to feel the same and doggedly pursue that final closure. " The justice system does not exist to administer vengeance to victims or to achieve "closure." It is supposed to apply justice in a neutral matter. Whether a family wants a criminal who wronged them to die, or to spend life in prison, or forgives the wrongdoer and promotes release, is not relevant in my opinion to the administration of justice. The system looks at the act as a wrong against society, and society administers the punishment accordingly. I know some families are hurt as long as the murderer of a loved one continues to live. But frankly I don't think it's their call, just as any other punishment for any other crime is not the call of those who have been victimized.
- dsimon
September 30, 2011 at 3:49pm