I live in a city (Philadelphia, PA) whose District Attorney seeks the
death penalty more often, and with greater success, than any other D.A. in the United
States. In Philadelphia, as elsewhere in the U.S., the majority of defendants in capital
trials are poor, and rely on court appointed defense lawyers paid by the local
jurisdiction. It is no coincidence that a city which sends large numbers of convicted
murderers to death row has "an unusually impoverished system" for representing
indigent defendants. According to Tina Rosenberg, where private attorneys
"routinely" charge $50,000 to defend a capital case, Philadelphia pays
court-appointed lawyers a $1700 flat fee for preparation and $400 for each day in court.
The executive administrator of Philadelphia's courts reckons that this averages $3519 a
case.(1)
Those numbers help to explain why District Attorney Lynn Abraham's
department has such a high percentage of homicide defendants sentenced to death. They also
suggest that Philadelphia runs an especially great risk of sending to death row some
persons who are innocent of the crime for which they were convicted. But why does
Philadelphia ask for the death penalty so often—in Rosenberg's words,
"virtually as often as the law will allow"? (320) D.A. Abraham says that she
considers herself the representative of the victim and the victim's family, and that the
death penalty is the right thing to do for them. (321) This is essentially a retributive
rationale for capital punishment.
The risk of executing innocent human beings is the focus of this paper.
I believe that this risk is so significant that it constitutes a decisive reason for the
abolition of capital punishment in the United States. My argument essentially is 1) that
the only possibly successful justification of capital punishment is retribution; 2) that
justice and desert are central to retributive arguments; 3) that mistakes are possible in
administering any criminal punishment, but "death is different" in ways
that put mistaken executions in a class by themselves; 4) that accepting the significant
risk of putting innocent persons to death shows a deep disrespect for human life which
contradicts the supposed justification for capital punishment; and 5) the United States
accepts such risk and thus undermines whatever positive features the death penalty may
have. I believe this case can be made on the basis of factual innocence alone; it
becomes very much stronger if we consider, as well, the morally innocent: those
who, by reason of insanity or other mental incapacity, are not morally responsible for
their offense. This class could also include the partially innocent, those whose
moral responsibility is diminished so that while they deserve punishment, they do not
deserve the most severe punishment of death. In this short paper, however, I will restrict
myself to factual innocence.
Death as Retribution
Arguments for punishing criminals have traditionally included the
following: deterrence (special and general); incapacitation; rehabilitation; victim
compensation; and retribution. In the context of capital punishment, only general
deterrence, incapacitation, and retribution have possible relevance. Advocates of the
death penalty for the sake of incapacitation and deterrence must show that these
legitimate goals cannot be accomplished by less severe measures than execution; life in
prison without parole, for example. Otherwise, these goals do not justify capital
punishment.
The United States prison system clearly has the capacity to detain and
restrain (incapacitate) its most dangerous inmates without having to kill them. Deterrence
presents the more complex issue. The deterrence question is not whether most
people would be deterred from committing murder by the threat of possible execution.
Rather, it is whether there are people who are not deterred by the threat of a lengthy
prison term who would be deterred by the threat of death. A tiny percentage of those
who murder are sentenced to death, even fewer are ever executed, and the time that elapses
between crime and execution is typically many years, so that it is hard to see how even a
rational person would be much deterred by the odds that s/he will be put to death for a
crime. It is intuitively implausible that the death penalty as we have it now is effective
as a deterrent. Most experts concede that the data on deterrence is at best inconclusive.
(There is some evidence that murder rates actually increase immediately after an execution
has taken place, suggesting that state-sanctioned killing may encourage killing.)(2)
In any case District Attorney Abraham does not believe the death
penalty is a deterrent. Her rationale is essentially retributive. "I've looked at all
those sentenced to be executed. No one will shed a tear. Prison is too good for them. They
don't deserve to live." (Rosenberg, 321) The appeal here is to justice;
punishment is deserved whenever certain conditions of wrongdoing and responsibility are
met. J. L. Mackie claims, for example, that it is a basic intuition that "those who
are guilty deserve to suffer in proportion to the pain they have caused."(3)
In focusing on what people deserve, retributive arguments assume the validity of the
notions of guilt and responsibility. They appeal to the most abstract and formal principle
of justice, treat equals equally, in a context of guilt. Thus the retributivist's
fundamental principle is: Punish all and only the guilty, in proportion to their desert.
The problem of distinguishing justifiable retribution from dangerous
and corrosive revenge-seeking is a serious one. Thus, something further must be said to
make a retributive justification of punishment plausible. I believe that District Attorney
Abraham's sense of owing something to murder victims and their families points to what
that "something further" might be. Murder is probably the extreme of
disrespecting another human being, as treating a person "merely as a means". We
acknowledge this when we stand up for the victim, reaffirming her dignity in the face of
its diminishment by the criminal. Society cannot be neutral as between the claims of the
victim and those of her murderer, and still do justice.
The appropriate societal responses are expressions of indignation, and
retribution. For a crime as serious as murder, the response that does respect the victim
must be a severe one. Jean Hampton, in Forgiveness and Mercy, distinguishes two
aspects of retribution: 1) Punishment as a defeat of the wrongdoer, a defeat
which reasserts the moral truth of the victim's equal moral status as a person in the face
of its denial by the offender (124); and 2) Punishment as vindicating the value not only
of the victim but of all other innocent persons. (138)
This is a promising analysis. The civil authority judges that the
victim has been wronged and that the one who has committed the wrong deserves to be
punished. Thus the vindication of the victim is the ultimate "point" of
retribution; taking her side; setting the record straight about her true worth. If this
does her no real good, because she is no longer alive, it still affirms a truth that we
would do wrong to neglect, a truth that families of murder victims especially need to have
reinforced.
Many people are inclined to leap from this retributive rationale for
severe punishment for murder, to "therefore, a life must be taken for a life,"
the lex talionis. However, the argument does not entail that murders must be
punished by execution; it simply implies that the crimes society recognizes as most severe
should receive the most serious penalties available. This is essentially the principle of
"proportional retributivism." My claim is only that retribution is the
strongest argument in favor of the death penalty, not that it is ultimately decisive.
It is also important to notice here that what a person deserves is
based not just on his actions, not just on actions plus consequences, but on some complex
configuration of actions, intentions, motives, and (perhaps) character. Thus if
retribution is the central or strongest argument in favor of the death penalty, the issue
of executing the innocent is central to it. Moreover, the relevant sense of
"innocent" must take into account moral responsibility for the crime.
Executing the Innocent
Social policies regarding criminal justice must balance two moral
imperatives: punish the guilty and acquit the innocent. Depending on the precise
procedures established for investigations, trials, appeals, etc., systems will set the
balance between these two duties differently. In the United States, for example, the
requirement of a unanimous jury finding of "guilty beyond a reasonable doubt" in
criminal trials makes it more likely that a guilty person will go free than that an
innocent one will be convicted. It does not guarantee that no innocent person
will be punished, however. As Ernest Van Den Haag says, "The conviction of some
innocents is an unintended, yet unavoidable, byproduct of bringing the guilty to
justice."(4)
It seems a small step to claim, further, that we cannot have the
institution of capital punishment without running the risk that innocent persons will be
put to death. This risk is especially serious. In a number of decisions the U.S. Supreme
Court has expressed the view that "death is different" from any other penalty.
In the majority opinion in Gregg v. Georgia, Justice Stewart writes:
While Furman did not hold that the infliction of the
death penalty per se violates the Constitution's ban on cruel and unusual
punishments, it did recognize that the penalty of death is different in kind from any
other punishment imposed under our system of criminal justice.... [428 U.S. 153 (1976)]
This position has been reiterated a number of times; for examples, Beck
v. Alabama (1980), Godfrey v. Georgia (1980), Lockett v. Ohio
(1978). The Lockett decision states: "The need for treating each defendant
in a capital case with that degree of respect due the uniqueness of the individual is far
more important than in noncapital cases."(5)
To say that death is different is not simply to maintain that
it is a step more severe than the longest possible prison term, as if you could add more
years to "life without parole." Rather, it must be weighed on another scale. But
what is different about death? Jeffrie Murphy's response to this question is compelling:
death is uniquely "incompensable," and it deprives the one executed of a morally
crucial opportunity: to develop as a person, to create one's character and give meaning to
(and find meaning in) one's life. (His formulation is "the development of a morally
coherent personality.")(6) Prison does not preclude
this, as much "prison literature" makes clear. Death, on the other hand,
shortcircuits the process by depriving one of the time in which to reflect on one's life,
and perhaps to change its direction. Thus the deprivation of life itself is more serious
than most losses that occur within life.(7)
The context of Murphy's discussion is the question whether capital
punishment can ever be attended with adequate procedural safeguards to prevent
mistaken executions. It will not do to point out the obvious truth that mistakes are made
at all levels of the criminal justice system, and that many of these errors do significant
(perhaps irreparable) harm. The more severe the harm, the higher the procedural
requirements to prevent it. This is what the Supreme Court's "death is
different" doctrine recognizes.
The obvious objection at this point is that the execution of the
innocent is not intended, and therefore not, in the strict sense, something we do.
It may, however, be foreseen. Further, this objector might claim, the actual number of
innocents who are mistakenly put to death is insignificant; and the care taken to avoid
such mistakes itself expresses our society's extremely high regard for innocent human
life. In response to these familiar claims I will argue the following: 1) that features of
the U.S. criminal justice system as it actually operates make it very likely that some of
those put to death will be innocent; and 2) the United States has come perilously close to
knowingly putting innocent persons to death. I will have to be extremely brief
here, and save elaboration for the discussion. I will make my points by referring to two
illustrative U. S. Supreme Court decisions of the 1990s.
Roger Keith Coleman was charged with murder in 1981. Throughout the
eleven years between his arrest and his execution in May, 1992 he maintained that he was
innocent; substantial evidence in the case pointed to another individual. A
court-appointed attorney represented him at his trial. Coleman is widely believed by those
who have followed his case to have been innocent, and to have received incompetent legal
representation. The issue in the Supreme Court case was not actual innocence, however, but
whether he could be denied an appeal in the Virginia Supreme Court simply because his
attorney filed notice of appeal three days after the 30-day deadline. A key argument in
the 6-3 decision is that the "petitioner" (Coleman) bears the risk for attorney
errors. Justice O'Connor writes for the majority:
There is no constitutional right to an attorney in state
post-conviction proceedings.... Consequently, a petitioner cannot claim constitutionally
ineffective assistance of counsel in such proceedings. [Coleman v. Thompson, June
24, 1991]
One moral of this story seems to be that raising substantive issues
after the original trial is extremely difficult, especially if one lacks the resources for
adequate legal representation.
The Leonel Herrera case is more striking, though a similar lesson might
be drawn from it. Leonel Herrera, convicted of murder in Texas, claimed that new evidence
available eight years after his conviction showed that he was innocent of the murder and
that his brother had committed (and confessed to) it. His appeal to the United States
Supreme Court was denied in a 6-3 decision and he was executed. The essential rationale
for the denial was stated by Chief Justice Rehnquist, writing for the majority:
Claims of actual innocence based on newly discovered evidence
have never been held to state a ground for federal habeas relief absent an independent
constitutional violation occurring in the underlying state criminal proceeding....This
rule is grounded in the principle that federal habeas courts sit to ensure that
individuals are not imprisoned in violation of the Constitution—not to correct errors
of fact. [Herrera v. Collins, June 25, 1993]
In other words, unless the petitioner can show that his constitutional rights were
violated, his plea of "actual innocence" will not entitle him to a hearing.
"Actual innocence" by itself is not a constitutional claim. The court
majority recommends that those who have evidence of actual innocence seek executive
clemency from the governor of the state. (In the present political climate of the U.S.
this prerogative of the chief executive is almost never exercised or even considered.)
Later in the opinion Justice Rehnquist notes, "As the foregoing discussion
illustrates, in state criminal proceedings the trial is the paramount event for
determining the guilt or innocence of the defendant." Thus the only point at which an
accused but innocent person has a substantial opportunity to be vindicated is at the
original trial. After that, s/he is presumed guilty; though appeals are possible, their
scope is quite narrow—particularly in the view of the present U. S. Supreme Court.
However, it is often precisely at the trial level that accused persons receive incompetent
representation.(8) The lower the fees paid by state or
county to attorneys for indigent defendants, the greater the risk that they will receive
an inadequate defense. The issue is not only incentives for attorneys to work hard at the
case, but also attorneys' ability to hire investigators, ensure the presence of alibi
witnesses, and consult forensic experts.
Nations could probably not do without a system of criminal punishments; however, most
western nations manage without the institution of capital punishment. I believe the United
States could as well and that, therefore, the risk of executing the innocent is an
avoidable one. If I am correct that the most plausible justification for capital
punishment is that it expresses society's respect for the innocent lives lost to
murderers, then it must be administered in a manner that demonstrates meticulous care to
avoid mistaken executions. Justice Blackmun wrote in his scathing dissent from the Herrera
decision:
Of one thing, however, I am certain. Just as an execution
without adequate safeguards is unacceptable, so too is an execution when the condemned
prisoner can prove that he is innocent. The execution of a person who can show that he is
innocent comes perilously close to simple murder.
The risk of state-committed murder under the guise of legal execution is especially
great in the city of Philadelphia, with its over-zealous D.A. and its miserly allotment
for the defense of indigent accused persons. However, I believe carelessness with human
life within the criminal justice system—mirroring the rampant violent crime for which
the United States is known—is a national problem. Such carelessness is a scandal and
a decisive argument for abolition of capital punishment.
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