Wednesday, September 21, 2011
Two Pieces on the Death Penalty and Actual Innocence Claims
In light of the scheduled execution of Troy Davis this evening, the facts of which case have been receiving considerable attention, I thought to note two very different but both excellent, short, and accessible pieces about the death penalty and claims of actual innocence in law. I highlight them because they are both models of careful and limited argument -- perspectives which have been helpful to me as I try to think about a very difficult, complicated, and emotionally fraught subject -- and because they complement one another suitably.
The first, by Thom Brooks, is Retributivist Arguments Against Capital Punishment (Journal of Social Philosophy 2004). Unfortunately this piece may be behind a paywall, but the gist of it is that even if one agrees that murderers deserve death in principle, one can argue from a retributivist perspective against the death penalty because we are not able to have absolute certainty of a person's guilt (as demonstrated by DNA testing). And Thom says that since a conviction is always capable in theory of being overturned by new evidence, capital punishment cuts short the time within which a convicted person may establish innocence -- in this sense, it is a unique sentence, and uniquely problematic from a retributivist perspective.
The second piece, by Will Baude, is Last Chance on Death Row (Wilson Quarterly 2010). In it, Will canvasses the legal issue of "actual innocence" with some attention to the Davis case. But the real insight of Will's piece is that the extensive suite of appeals may at long last be inadequate to vindicate a person's claim of actual innocence. What then, he asks. Perfect accuracy, he writes, is not the goal of the criminal justice system. There are concerns of authority, legitimacy, and finality which have their own claims to our allegiance. Ultimately, Will concludes that it is legislatures, not courts, which should balance these competing and at times conflicting values.
https://mirrorofjustice.blogs.com/mirrorofjustice/2011/09/two-pieces-on-the-death-penalty-and-actual-innocence-claims.html
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Very thoughtful and interesting essays. To which I would append a further thought.
On proof of guilt. If it is never certain whether the accused are guilty, by what right do we send them to prison? They must be set free; there is no justification for imprisoning innocent parties. Saying something like "Stop your complaining. We could have hanged you," is hard to swallow.
One of the exceptional features of murder is that the victim is not available to testify against the accused. That in fact is one of the greatest attractions of polishing off the victim. With that in mind, de we rally want to send the message "don't leave any living victims around to testify" by making it so very hard to convict without their testimony?
The alternative, which is to just freely convict everyone, on the premise that there is no death penalty, is hardly a defense. In fact it is the logic of de Tocqueville's approval of the death penalty, which at the time had been abolished in France. He noted that American juries applied much stricter standards in death penalty cases than French courts did in comparable cases because they could not casually send the guilty to the penitentiary.
As the second essay noted in this post seems to imply, the standard of absolutely indisputable proof of guilt is not the law and could never be the law. The legislature has to decide what is the standard of proof, and set it a point that could realistically be achieved here on Earth. This point bears on the comments that were elicited in regard to Gov Perry's comfort level with the population of death row in Texas. He is the governor of Texas, sworn to uphold the law of Texas. He cannot dismiss out of hand the results of criminal trials that proceeded under the laws of the state.