Innocence And The Death Penalty

My view is that we shouldn’t execute people. We shouldn’t execute mass murderers. We shouldn’t execute cop killers. We shouldn’t execute child rapists. We shouldn’t execute terrorists. We should be seeking, so far as possible, to minimize the level of officially sanctioned violence and killing in order to promote a healthier, less bloodthirsty public culture. Executing murders is clearly not in any sense a necessary element of an effective crime control regime, so we should do without it.

This to me seems like a separate issue from the fact that the American criminal justice system too often punishes the innocent. I see three main facets of that problem. One is that we don’t provide adequate legal representation to many indigent defendants. The prevailing wisdom seems to be that underfunding public defender officers is somehow “tough on crime” as if railroading innocent people is a close substitute for punishing guilty ones. The second is that we rely heavily on eyewitness testimony even though it’s known to be unreliable, and police departments often don’t seem very interested in improving witness identification procedures. The third is that we give convicts far too little ability to present newly discovered evidence of innocence. But none of this has anything in particular to do with the death penalty. If an innocent man is in prison for a grisly rape/murder based on eyewitness testimony that would be debunked by DNA evidence that wasn’t available at the time of his conviction, that’s terrible even if he’s not being executed.


Troublingly for my logic-based approach to this issue, I’ve seen some of the Frank Baumgartner research behind The Decline of the Death Penalty and the Discovery of Innocence. It’s clear that, empirically, the innocence issue is a winning argument for death penalty abolitionists. At the same time, the innocence argument doesn’t seem to have spurred any particularly noteworthy systematic reforms on other fronts. It’s a bit of a depressing dynamic.