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Human Rights

Executing the Innocent

Elizabeth A. Linehan
St. Joseph's University

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ABSTRACT: The risk of executing innocent persons is a decisive objection to the institution of capital punishment in the United States. Consequentialist arguments for the death penalty are inconclusive at best; the strongest justification is a retributive one. However, this argument is seriously undercut if a significant risk of executing the innocent exists. Any criminal justice system carries the risk of punishing innocent persons, but the punishment of death is unique and requires greater precautions. Retributive justifications for the death penalty are grounded in respect for innocent victims of homicide; but accepting serious risks of mistaken executions demonstrates disrespect for innocent human life. United States Supreme Court decisions of the 1990’s (Coleman v. Thompson and Herrara v. Collins) illustrate the existence of serious risk and suggest some explanations for it.

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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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(1) "The Deadliest D.A.," New York Times Magazine (July 16, 1995). Reprinted in Hugo Adam Bedau (Ed.), The Death Penalty in America: Current Controversies (New York: Oxford U. Press, 1997), p. 331.

(2) William J. Bowers, "The Effect of Executions is Brutalization, Not Deterrence," in Kenneth C. Haas and James A. Inciardi, Eds., Challenging Capital Punishment: Legal and Social Science Approaches (Newbury Park, CA.: Sage Publications, 1988), pp. 49 - 89.

(3) Jean Hampton, "The Retributive Idea," in Jeffrie G. Murphy and Jean Hampton, Forgiveness and Mercy (Cambridge: Cambridge University Press, 1988), p. 113.

(4) Jeffrey Reiman and Ernest Van Den Haag, "On the Common Saying That It Is Better That Ten Guilty Persons Escape Than That One Innocent Suffer: Pro and Con," in Ellen F. Paul, Fred D. Miller, Jr., and Jeffrey Paul (Eds.), Crime, Culpability and Remedy (Cambridge, MA: Basil Blackwell, Inc., 1990), p. 241.

(5) Quoted by Kent L. Miller and Michael L. Radelet, Executing the Mentally Ill: the Criminal Justice System and the Case of Alvin Ford (London: Sage Publications, 1993), p. ?

(6) "Crime and Punishment," in Jules Coleman and Jeffrie Murphy, Philosophy of Law, p. 156.

(7) The one possible exception is the permanent loss of self-identity that occurs in the late stages of Alzheimer's, or in some incurable psychoses.

(8) Paris Carriger, whose case is under appeal in Arizona, had a court-appointed attorney at his first trial who 1) had never tried a capital case before; and 2) by his own admission, had spent only eleven hours preparing the case prior to trial. Again in this case, there is substantial reason to believe that Carriger is innocent.

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