The seduction of innocence: the attraction and limitations of the focus on innocence in capital punishment law and advocacy.

• Author: Steiker, Carol S.

INTRODUCTION

Over the past five years we have seen an unprecedented swell of debate at all levels of public life regarding the American death penalty. Much of the debate centers on the crisis of confidence engendered by the high-profile release of a significant number of wrongly convicted inmates from the nation's death rows. Advocates for reform or abolition of capital punishment have seized upon this issue to promote various public policy initiatives to address the crisis, including proposals for more complete DNA collection and testing, procedural reforms in capital cases, substantive limits on the use of capital punishment, suspension of executions, and outright abolition. Advocates for the retention and vigorous use of capital punishment have been sympathetic to some, but by no means all, of these proposals. Disagreement over the nature and scope of responses to the crisis has inevitably and quite properly led to debate about the significance of the wrongful conviction of the innocent in the administration of capital punishment.

This symposium presents two common criticisms of the current focus on innocence in the debate over the death penalty in America--one from an "agnostic" on the issue of capital punishment and one from a whole-hearted supporter. Professor Ron Allen, the self-described agnostic, along with his co-author Amy Shavell, makes the argument often made by supporters of capital punishment that there is nothing distinctive about the problem of wrongful death in the capital punishment context. Rather, the execution of some innocent people is simply the unavoidable cost of implementing capital punishment and thus is comparable to the foreseeable deaths that occur whenever the government undertakes an important social project, such as building a bridge or constructing a dam. (1) Joshua Marquis, a vocal and high-profile supporter of capital punishment, criticizes those who focus on the problem of innocence in the death penalty debate for overstating the problem by overestimating the actual number of completely innocent people convicted and sentenced to die. According to Marquis, the true number, while not zero, is low enough to constitute an acceptable cost of a valuable social policy. (2)

Although it is not our focus in this paper to refute them, we think that these common critiques of innocence are deeply flawed. Allen & Shavell's critique completely misses at least two distinctive harms that flow from executing the innocent. First, unlike the innocent victims of governmental bridge-building, those who are innocent and sentenced to death suffer the additional devastation of being blamed for a terrible crime; their names, families, and entire lives are forever tainted by such ignominy, quite apart from the death of their bodies. Moreover, when such errors are discovered, as some but by no means all of them eventually will be, they deeply undermine the legitimacy of the entire criminal justice system. This latter cost, though unquantifiable, is tremendously important. Public fear of unjust violence at the hands of the state, which has a monopoly on the legitimate use of force, is the hallmark of totalitarian regimes, one of the indices that most distinguish them from free and democratic societies. There is thus ample reason to weigh erroneous executions quite differently from unavoidable deaths in the regulatory context.

We are more sympathetic to Marquis's argument about exactly who should count as an "innocent" person, but we find the conclusion that he draws from his revised number equally flawed. Marquis claims that if we apply a more rigorous definition of innocence--such as "had no involvement in the [crime], wasn't there, didn't do it" (3)--the number of wrongly convicted and sentenced to die goes down to twenty-five or thirty, out of the 7000 murderers sentenced to death since 1976. Such a ratio, argues Marquis, represents an episodic rather than epidemic rate of error. The problem with Marquis' argument is that, even if we completely grant him his revised numerator, he is using the wrong denominator. It is simply not the case that all 7000 capital convictions have been subject to the same kind of scrutiny. The twenty-five or thirty exonerations (by Marquis's count) largely derive from a much smaller subset of cases in which there was significant postconviction scrutiny of the accuracy of the underlying conviction, such as cases involving preserved and testable DNA evidence. That such a significant fraction of these cases turned out to be erroneous suggests by extrapolation that the number of erroneous convictions in the entire set is much larger than Marquis allows and thus is not a number that we should accept with regretful equanimity.

Despite our profound disagreement with these two arguments against innocence, we have our own discomfort with the prominence of innocence in the current debate about capital punishment. In what follows, we articulate and develop a different set of concerns about the focus on innocence, concerns that derive from a perspective sympathetic to reform or abolition of the death penalty. Our discussion proceeds in three parts. In Part I, we offer an explanation for why innocence has become so prominent in the debate over the death penalty at this point in time (and why it played such a minor role in the earlier debate of the 1960s and '70s). In Part II, we question the normative distinctiveness of innocence as a problem in the administration of capital punishment in comparison with other, more endemic problems, such as disproportionate, arbitrary, or discriminatory imposition of capital punishment. In Part III, we question the strategic value of focusing on innocence in the effort to reform or abolish capital punishment. In what follows, we seek to question and at least qualify the apparently widespread assumption that the execution of the innocent is both the worst problem that the administration of capital punishment faces and the best strategic hope for reform or abolition of the death penalty in America.

1. MOMENTS OF REFORM IN THE MODERN ERA OF THE AMERICAN DEATH PENALTY

   At the present time, the United States is fairly regarded as an outlier in its enthusiastic embrace of the death penalty. (4) Most Western countries have abolished the death penalty altogether and few of the retentionist countries around the world are active in carrying out executions. In light of this present moment, it is easy to overlook the more complicated story of the American death penalty. In its early history, the United States was at the forefront of death penalty reform. Almost immediately after the Constitution was ratified, many states sought to limit the perceived excesses of capital punishment. By the early nineteenth century, states generally reduced the number of crimes punishable by death to a handful of crimes whereas England recognized over 200 capital offenses. (5) The reformist impulse was also manifest in states' efforts to limit the automatic application of the death penalty for murder. First, many states developed a hierarchy of murder, distinguishing between "degrees" of the crime such that only "first degree" murder could generate a capital sentence. Later, states gravitated toward discretionary sentencing even with respect to those defendants convicted of murder in the first degree. By the mid-twentieth century, virtually all American jurisdictions retaining the death penalty afforded jurors substantial discretion to withhold the punishment based on circumstances of the offense and offender. (6)

   Notwithstanding these reforms, the death penalty has occupied an important practical and symbolic role in the American criminal justice system. Substantial numbers of executions have been carried out throughout our history, including a decade high of over 1500 during the 1930s. (7) The death penalty has also occupied a peculiar--and undoubtedly significant--role in American race relations and American politics more generally. The American death penalty has disproportionately targeted African-American offenders (both as a matter of law in the antebellum South and as matter of practice throughout our history (8)), and executions (including extralegal executions--lynchings) have been an important mechanism for subordinating African-Americans, particularly in the period between Reconstruction and the modern era. Perhaps because of its connection to race, the death penalty has received extraordinary attention in electoral politics at both the local and national levels, despite the absence of a significant federal death penalty. Overall, the broad history of the American death penalty reflects a deep ambivalence about the wisdom and role of the death penalty, and the two centuries separating early amelioration and modern robustness saw alternating waves of reform and retrenchment.

   The modern era has seen two significant reformist moments. The first began in the early 1960s as the number of executions drastically fell and advocates of reform and abolition looked to the federal courts--particularly the United States Supreme Court--to limit or abolish the death penalty. (9) In retrospect, the 1960s look like a "perfect storm" for restricting or abolishing the death penalty. The Civil Rights movement reached its peak in the early 1960s with the passage of the Civil Rights Act of 1964. Concerns about racial discrimination and the death penalty had pushed the NAACP Legal Defense Fund to the forefront of anti-death penalty efforts, (10) and the Southern face of the death penalty--executions were increasingly marginalized to southern and border states--naturally made capital punishment a target for groups concerned about racial justice. Given this context, it is not surprising that the United States Supreme Court's first significant gesture toward the constitutional regulation of the death penalty was the statement of three Justices that the Court should consider the...