What if an innocent is executed?

What if the state executes an innocent person?

That’s a central question in the debate over the death penalty that David B. Rivkin Jr. and Andrew Grossman did not address in their Oct. 26 Op-Ed article defending capital punishment on constitutional grounds, says Thomas Wright of Oak Park, Ill.:

“Rivkin and Grossman have good arguments but miss an elephant: the likelihood of irreversible error. There being no appeal from the grave, we have to accept the certainty of a mistaken execution when we accept the death penalty. Given the heinous nature of a case that calls for death as the punishment, there is a strong pressure to indict, convict and punish someone. And many of those someones will be innocent.

“The best argument against the death penalty is that it is neither necessary nor sufficient in preventing murder — states with it have higher murder rates than states lacking it. Even if this is not causation, capital punishment is not preventing murder in Texas or Georgia.”


David B. Rivkin Jr. and Andrew Grossman reply:

What the Constitution guarantees is “due process,” not perfect justice, which is impossible. But the administration of the death penalty in the United States is as close to perfect as it gets. It is difficult to identify a single innocent person who has been put to death; where doubts have been raised, the evidence has proved inconclusive. For that reason, the Supreme Court has never had occasion to rule on whether there is an “actual innocence” exception to rules barring successive habeas corpus petitions by those nearing execution — the issue just has not been squarely presented.

More broadly, the risks of wrongful conviction apply to all forms of punishment. Thirty years’ imprisonment for a wrongful conviction is no less “irreversible” than death — freedom cannot somehow be refunded. One difference is that other punishments, like imprisonment, can be suspended. But another is that individuals sentenced to punishments other than death receive far less process, and their convictions far less scrutiny. This increases the probability, although still small, that a wrongful conviction will stand.

These are the reasons why the death penalty’s institutional opponents rarely push the actual innocence argument in the United States, opting instead to attack its supposed arbitrariness or its deterrent effect.

So “due process,” it turns out, is an effective standard, as evidenced by the steady trickle of post-conviction exonerations, which show that the system works. But to require perfection would have the perverse effect of denying justice to both victims and the people, who favor an effective and fairly administered ultimate punishment.