Executing the Innocent

The risk of executing innocent persons is a decisive objection to the institution of capital punishment in the United States. Consequentialist arguments for the death penalty are inconclusive at best; the strongest justification is a retributive one. However, this argument is seriously undercut if a significant risk of executing the innocent exists. Any criminal justice system carries the risk of punishing innocent persons, but the punishment of death is unique and requires greater precautions. Retributive justifications for the death penalty are grounded in respect for innocent victims of homicide; but accepting serious risks of mistaken executions demonstrates disrespect for innocent human life. United States Supreme Court decisions of the 1990’s (Coleman v. Thompson and Herrara v. Collins) illustrate the existence of serious risk and suggest some explanations for it.

I live in a city (Philadelphia, PA) whose District Attorney seeks the death penalty more often, and with greater success, than any other D.A. in the United States. In Philadelphia, as elsewhere in the U.S., the majority of defendants in capital trials are poor, and rely on court appointed defense lawyers paid by the local jurisdiction. It is no coincidence that a city which sends large numbers of convicted murderers to death row has "an unusually impoverished system" for representing indigent defendants. According to Tina Rosenberg, where private attorneys "routinely" charge $50,000 to defend a capital case, Philadelphia pays court-appointed lawyers a $1700 flat fee for preparation and $400 for each day in court. The executive administrator of Philadelphia's courts reckons that this averages $3519 a case.(1)

Those numbers help to explain why District Attorney Lynn Abraham's department has such a high percentage of homicide defendants sentenced to death. They also suggest that Philadelphia runs an especially great risk of sending to death row some persons who are innocent of the crime for which they were convicted. But why does Philadelphia ask for the death penalty so often—in Rosenberg's words, "virtually as often as the law will allow"? (320) D.A. Abraham says that she considers herself the representative of the victim and the victim's family, and that the death penalty is the right thing to do for them. (321) This is essentially a retributive rationale for capital punishment.

The risk of executing innocent human beings is the focus of this paper. I believe that this risk is so significant that it constitutes a decisive reason for the abolition of capital punishment in the United States.