David Dow, a University Distinguished Professor of Law at the University of Houston, is one of nation’s leading experts on the death penalty and the author of Executed on a Technicality: Lethal Injustice on America’s Death Row (Beacon 2006) (previous death penalty posts here). Rick Garnett passes along this NY Times op-ed from several weeks ago in which Professor Dow makes the interesting point that “innocence is a distraction” in the political and legal debate over capital punishment:
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. . . [M]ost 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 cÈlËbre turns out to be guilty. When the DNA testing [proved that such a defendant] 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 [the defendant] 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.
Professor Dow nails the key issue in the death penalty debate. Proponents of the death penalty reason that it is not wrong for the state to kill a person as punishment for murder where that person was lawfully convicted in a fair and accurate criminal justice process. However, reasonable proponents of the death penalty must confront the reality that errors will occur in carrying out the death penalty in even a morally-justified criminal justice system. By making the above-stated moral justification the central issue in the debate, proponents of the death penalty are overlooking the glaring defects in the process that undermine the moral justification.
I disagree, Tom.
That Scalia comment comes of as so casual, it almost beggars belief. Why should opponents of the death penalty have to concede that loss of innocent life ought to be tolerated, in order to make the argument that the machinery of death is fallible? First of all, the arguments are not mutually exclusive, in fact, quite the opposite. Secondly, the counter-argument: “well, we are human after all and we can’t expect everything to be handled perfectly” is not only alluring, it is also in this context, convincing.
The number one reason the death penalty is wrong is that loss of innocent life is intolerable. It has no place in a civilized society, because our respect for the sanctity of human life is what makes us civilized in the first place.
Furthermore, the systemic argument–valid as it is– simply lacks emotional punch. No one is going to be won over by a purely rational argument that even goes as far as to concede that the morality of the death penalty is not in dispute. Proponents of the death penalty will simply find another excuse to preserve the status quo. That is, after all, what they need to if “it doesn’t work properly!” is all opponents can come up with.
Tom, thank you for your many wonderful posts. Your subjects are interesting and your methods are very useful. I appreciate what you are doing.
I find it hard to believe that there is even one innocent person on death row. I have heard people talk about this but have never seen any evidence to support it. If an innocent person is put to death undeservedly then the system should be changed. The problem that I see from the death penalty opponentís argument is the lack of a solution. I used to be for the death penalty because I considered it to be more humane than just locking someone in a cell for the rest of their life. The system that we have now is not great but until someone comes up with a different system, the one that we have now is the best that we have.
[We] ought to focus on the far more pervasive problem: that the machinery of death in America is lawless
Not flawed, but lawless? Dow really believes that?
There are reasonable arguments for and against the death penalty, and then there is hyperbole. The excerpt above is an example of the latter, not the former.
Kevin, from reading Dow’s other writings, I suspect that he is referring to the more corrupt aspects of the legal process relating to death penalty cases when he refers to “lawless.” One such example would be the process in many jurisdictions under which judges appoint friendly but incompetent defense lawyers to defend capital murder cases.