Perhaps the most moving polemic against the death penalty is Albert Camus' Reflections on the Guillotine. Camus' sharp opposition to the death penalty may have derived from the force of the one story that he repeatedly heard about his father, who had died before Camus was one year old: (1)
Shortly before the war of 1914, an assassin whose crime was particularly repulsive (he had slaughtered a family of farmers, including the children) was condemned to death in Algiers. He was a farm worker who had killed in a sort of bloodthirsty frenzy but has aggravated his case by robbing his victims. The affair created a great stir. It was generally thought that decapitation too mild a punishment for such a monster. This was the opinion, I have been told, of my father, who was especially aroused by the murder of the children. One of the few things I know about him, in any case, is that he wanted to witness the execution, for the first time in his life. He got up in the dark to go to the place of execution at the other end of town amid a great crowd of people. What he saw that morning he never told anyone. My mother relates merely that he came rushing home, his face distorted, refused to talk, lay down for a moment on the bed, and suddenly began to vomit. He had just discovered the reality hidden under the noble phrases with which it was masked. Instead of thinking of the slaughtered children, he could think of nothing but that quivering body that had just been dropped onto a board to have its head cut off. (2) My (3) emotional response to the death penalty came about under quite different circumstances, and unlike Camus, left me agnostic about the death penalty. The main work that I did in the early years of my career centered on formal aspects of the process of proof, including the constitutional interest in proof beyond reasonable doubt. It so happened that derivatives of these questions were present in every capital case tried during that time, and thus I was consulted by both sides in the legal battles, and began taking some pro bono cases. In representation of this sort, engagement with the record is critical, but as I dug into the records in some of the cases I was repelled by what I found my clients had done. Truth is both stranger and crueler than fiction, and reading about some of my clients' inhuman acts left me unclear as to what it meant to be human, and thinking that execution of these individuals might be no different from putting a mad dog to sleep or cutting out a cancer. At the same time, I found that another incompatible notion exerted an influence on me, even though it seemed strange and almost mystical. Consciousness brings light into a cold and dark universe, and every speck of it, even in these cold-hearted killers, is the product of an infinite evolution that ought not to be extinguished lightly. These two views left me in equipoise, like the proverbial donkey dying of thirst because it was exactly halfway between two wells and found itself unable to decide which one to turn to. I resolved the conflict through agnosticism but one which demanded that the government take appropriate care prior to executing someone; and I was willing to be part of the process of trying to hold the government's feet to the fire through legal representation of capital defendants.
Over the years my agnosticism matured from an irresolvable emotional conflict to a rational conclusion. Like the opposition of equal but opposite emotional forces, the consequentialist arguments for and against the death penalty are likewise in equipoise, in our (4) opinion, although one would not know it by hanging around either law schools generally or conferences such as the one that precipitated this article particularly. Conferences on the death penalty in American law schools typically are self-righteous displays of commitment to revealed truth, the truth being that opposition to death penalty goes without saying and the only issue is how strongly its proponents can be tarnished with either their illogic or moral depravity. Indeed, the opposition (i.e., the proponents of the death penalty) are typically represented, if at all, by someone who is supposed to utter barely comprehensible rantings about victims and deterrence, but the real point of the display is to demonstrate the horrifying moral shortcomings of one who wishes deliberately to take another's life.
Obviously, we do not possess a commitment to this part of the received view of the American law school professoriate, although nor do we adhere to its opposition. Our view is that whether to have capital punishment is an enormously difficult and complex problem with no a priori correct solution. That in turn means that the type of arguments often heard at academic gatherings that are presented as serious indictments of capital punishment we do not believe to be very convincing, although neither are their obverses. Given the typical imbalance at conferences like this, we intend to examine the limitations of the abolitionist arguments.
First, a clarification. Two types of arguments bear on the death penalty debate, as they do on most debates, normative and consequential. We put normative arguments aside, not out of disrespect but primarily because we do not think an essay can alter them--we share Judge Posner's skepticism that moral arguments greatly influence adult beliefs or actions; they may instead simply reflect individual life experiences. Consequentialist arguments, by contrast, influence everybody all the time, and it is here where views may be affected. Our topic, though, will not be precisely what is implied by the title of this symposium, but it will soon become obvious how it relates. While our concern is not so much Innocence in Capital Sentencing, it is very definitely related to Innocence and Capital Sentencing, as innocence plainly bears on the question of the propriety of capital sentencing. However, its bearing on that question is more complex than it appears at first glance.
There are obviously plausible arguments against the death penalty. First, of course, and the primary focus of this conference, is the risk of error. The bete noir of those favoring capital punishment is the execution of an innocent person. In Illinois, there is a related parochial problem, which is the endemic corruption that infects politics here, which has had its grip at various times on all branches of government. Although apparently rampant corruption in the Secretary of State's and Governor's offices has been most in the public eye in recent years, it bears remembering that not long ago widespread corruption was uncovered in the Cook County judiciary that involved allegations of both wrongful acquittals for bribes and convictions imposed as cover-ups. Risk of error is bad enough, but compounding that risk with the risk of corruption makes the case compelling, or so it would seem. And, of course, there are other supplemental arguments, such as the high cost of executions, their brutalizing effects on the population, and the risk of discriminatory application. That these are plausible arguments, we grant; that they are compelling we deny.
Begin with what is by far the most important issue, the risk of error. The argument that the risk of executing an innocent person is a sufficient justification to eliminate capital punishment is a paradigmatic example of the regrettable consequences flowing from debates within the realm of criminal justice seeming to occupy their own conceptual space that exists without contact with other, related fields of regulation. Although it seems to have escaped the attention of the death penalty debate, a common feature of social planning is that it affects the incidence of death. Virtually all social policies and...