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October 16, 2006

The insidious distraction of innocence (and death)

In yesterday's Washington Post, law professor David Dow had this great commentary bemoaning the excessive focus on innocence issues in modern critiques of the death penalty.  Here are some snippets:

[T]he focus on innocence has insidiously distracted the courts.  When I represent a client in a death penalty case, judges want to know whether there is any chance that client is innocent.  If he isn't, then they are not much concerned about anything else I have to say.  Oh, so blacks were excluded from the jury?  So what, he's guilty; any jury would have convicted him.  Oh, so police hid evidence?  Big deal, there was plenty of other evidence that he did it.  Oh, so his lawyer slept through trial?  Why does that matter?  Clarence Darrow himself couldn't have kept him from the gallows.

This past week the Supreme Court agreed for the second time to hear the appeal of LaRoyce Smith, a death row inmate in Texas, because the Texas courts, convinced of Smith's guilt, believed they could therefore ignore the fact that his right to a fair trial was violated.  Yet the Supreme Court itself is partly to blame.  In the recent case of Kansas v. Marsh, Justices Antonin Scalia and David Souter engaged in an extraordinary debate over ... whether any innocent person has been executed in the modern death penalty era.

Of course, only the most naive person -- or perhaps the most disingenuous -- would think that we miraculously identify everyone who is innocent just in the nick of time. But what was even more astonishing about this debate was that the arcane legal issue in Marsh had absolutely nothing to do with the question of whether Marsh was innocent or even with the issue of innocence in general.

Innocence is a distraction because most people on death row are not in fact innocent, and the possibility of executing an innocent man is not even remotely the best reason for abolishing the death penalty.

Regular readers know that I think Dow is exactly right.  But I also think charges of "insidious distraction" could and should also be lodged against the death penalty more generally.  When I lament an unjust sentence, if the death penalty is not involved, few academics and public policy advocates seem much concerned.  Death is a distraction because most people enduring unjust sentences are not in fact on death row, and possibility of unjust capital punishment for murderers is not even remotely the best reason for needed federal and state sentencing reforms.

Some posts on the Marsh and the insidious distraction of innocence:

Some posts on the insidious distraction of the death penalty:

October 16, 2006 at 10:32 AM | Permalink


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I agree that judges are distracted by innocence in capital cases. And yes, that is a problem. But I think that in addition to the resulting abandonment of defendants' constitutional rights for those who judges "know" are guilty, another problem is that they're only so concerned with innocence in the death context, never in the context of crimes for which death is not a possible sentence. The part of this story that sickens me is the statement that "the possibility of executing an innocent man is not even remotely the best reason for abolishing the death penalty." I think the people who feel that way mistakenly believe that anti-death penalty advocates don't care, or don't care enough, about the possibility of incarcerating an innocent man. We may not feel quite as strongly about that as we do about the execution of innocent people, but we do care, and we care a lot. Otherwise we wouldn't accept our puny salaries to do what we do. I'm an attorney in a federal public defender office, and you can rest assured that everyone in my office and in every public defender office in this country cares deeply about the reasonableness of sentencing, whether the client is a first-time offender looking at probation or a career offender looking at 20+ years.

Posted by: Moira | Oct 17, 2006 10:28:26 AM

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