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June 17, 2006

On innocence and the death penalty

Following up on the Supreme Court's House ruling (basics here, commentary here), Professor David Dow has this interesting New York Times op-ed suggesting (as I have in some prior posts linked below) that death penalty opponents ought not give undue attention to innocence concerns.  Here is a snippet:

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.  Most people on death row are like Roger Coleman, not Paul House, which is to say that most people on death row did what the state said they did.  But that does not mean they should be executed....

Of the 50 or so death row inmates I have represented, I have serious doubts about the guilt of three or four — that is, 6 to 8 percent, about what scholars estimate to be the percentage of innocent people on death row. In 98 percent of the cases, however, in 49 out of 50, there were appalling violations of legal principles: prosecutors struck jurors based on their race; the police hid or manufactured evidence; prosecutors reached secret deals with jailhouse snitches; lab analysts misrepresented forensic results....

The House case will make it hard for abolitionists to shift their focus from the question of innocence, but that is what they ought to do. They 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.

Responding to this op-ed, Ann Althouse and her commentors have a lot of interesting thoughts here.

Some related posts:

June 17, 2006 at 05:07 PM | Permalink


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