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Thursday, July 13, 2006

Is innocence a "distraction"?

A few weeks ago, David Dow -- a law professor who is expert on death-penalty matters -- had a provocative opinion piece in the New York Times, "The End of Innocence," in which he suggested, among other things, that "innocence is a distraction" in the capital-punishment debate:

For too many years now, though, death penalty opponents have seized on the nightmare of executing an innocent man as a tactic to erode support for capital punishment in America.

Innocence is a distraction. Most people on death row are like Roger Coleman, not Paul House, which is to say that most people on death row did what the state said they did. But that does not mean they should be executed.

Focusing on innocence forces abolitionists into silence when a cause célèbre turns out to be guilty. When the DNA testing ordered by Gov. Mark Warner of Virginia proved that Mr. Coleman was a murderer, and a good liar besides, abolitionists wrung their hands about how to respond. They seemed sorry that he had been guilty after all.

I, too, am a death penalty opponent, but I was happy to learn that Mr. Coleman was a murderer. I was happy that the prosecutors would not have to live with the guilt of knowing that they sent an innocent man to death row.  . . .

As Justice Scalia has said elsewhere, of course we are going to execute innocent people if we have the death penalty. The criminal justice system is made up of human beings, and fallible beings make mistakes.

But perhaps that is a price society is willing to pay. If the death penalty is worth having, it might still be worth having, despite the occasional loss of innocent life.  . .

[We] ought to focus on the far more pervasive problem: that the machinery of death in America is lawless, and in carrying out death sentences, we violate our legal principles nearly all of the time.

Dow makes a good point, I think.  To be sure, any decent people will and must care about the accuracy of the results of its criminal-justice process.  At the same time, a decent people will and must accept the possibility -- indeed, the reality -- of error, even in the context of a criminal-justice process that is morally justifiable.  It seems to me -- and I have argued elsewhere -- that the heart of the matter is whether and why it is wrong for the political authority to kill a human being, lawfully convicted of murder, via a process that is defensibly accurate and fair, as punishment for that murder.  But maybe I have this all wrong -- maybe to insist on the centrality of this question serves to "give a pass" to, and rush too quickly by, glaring and intolerable defects in the process?

Posted by Rick Garnett on July 13, 2006 at 02:03 PM in Criminal Law | Permalink


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Reading Dow's piece reminded me of an essay my former colleague, David Feige, wrote for The New York Times Magazine three years ago (http://www.davidfeige.com/innocencepage.htm). Feige raised many of the same points as Dow, though Feige addressed the innocence movement's problems for criminal defense generally (not just in the death penalty context). It's an interesting read.

Personally, I am agnostic on this issue. Though I agree that innocence can serve as a distraction, at the same time I am happy with anything that crystallizes opposition. There is an apparent corollation between the innocence movement and shifting public attitudes toward the death penalty. Practically speaking, I don't see that as an entirely bad thing, notwithstanding the misfocus.

Posted by: Josh Bowers | Jul 18, 2006 12:20:12 PM

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