It’s of course terrible that the state of Georgia will execute Troy Davis today despite considerable evidence that he may be innocent. But to make a policy point, I think the right one is Mark Kleiman’s — this raises not so much broader questions about the death penalty as it does broader questions about the operation of the criminal justice system:
[W]ould it really be better to lock an innocent man up for the rest of his life? The deeper problem is a criminal justice system where “due process” produces infinite delay but where the doctrine of “finality of judgment” makes it impossible to review in any forthright manner cases where the wrong guy get bagged for the crime.
The notion that a man can be executed – or kept in a cage forever – because his lawyers failed to prove his innocence (after a flawed, but procedurally correct, initial conviction) ought to outrage everyone with a sense of natural justice.
The broad public, I think, massively misunderstands the tradeoffs involved. The common perception is that punishing guilty criminals reduces crime, and that at the margin procedural reforms that are likely to lead to exonerations of the innocent will also make it more difficult to punish the guilty. Thus on the social level, we have to choose between protecting the innocent and reducing crime. The truth is quite different. The total quantity of punishment meted out to the guilty is a factor of two things. One is the Department of Corrections budget which determines the state’s capacity to incarcerate convicts. The other is the accuracy of the judicial process which determines the extent to which convicts are actually guilty of something. There’s no genuine tradeoff between procedural protections for the potentially innocent and handing out prison-years of sentencing to the guilty. These miscarriages of justice are avoidable, and there’s no cost to avoiding them.