THE DEATH PENALTY IN A WORLD WHERE THE
INNOCENT ARE SOMETIMES CONVICTED
Arnold H. Loewy*
189
REASONS FOR CAPITAL PUNISHMENT ...............................................
189
A.
R estraint...................................................................................
190
B.
R etribution .......................................................
191
C.
Deterrence................................................................................
194
REASONS AGAINST CAPITAL PUNISHMENT .......................................
I.
194
A.
A rbitrariness............................................................................
195
Literal Cruelty ..........................................................................
B.
195
Closurefor Victims ...................................................................
C.
196
D. InternationalRelationships......................................................
196
Costs ............................................................
E.
197
...................................................................................
B
ALANCE
Im. THE
198
IV . C ONCLUSION .....................................................................................
I.
Four score and five years ago,' Judge Learned Hand, in a single
paragraph, penned two of the most unlearned-or at least grievously
incorrect-statements of his career:
Under our criminal procedure the accused has every advantage. While the
prosecution is held rigidly to the charge, he need not disclose the barest
outline of his defense. He is immune from question or comment on his
silence; he cannot be convicted when there is the least fair doubt in the minds
of any one of the twelve.... Our dangers do not lie in too little tenderness to
the accused. Our procedure has been always haunted by the ghost of the
innocent man convicted. It is an unreal dream. What we need to fear is the
archaic formalism and the2watery sentiment that obstructs, delays, and defeats
the prosecution of crime.
Any belief that the defendant has the advantage in a criminal trial is belied
by the fact that the State may conduct searches and seizures (albeit reasonable
ones), obtain confessions by incessant questioning (albeit consistent with the
privilege against self-incrimination and Miranda), and make deals with
incarcerated or potentially incarcerated witnesses if, but only if, the witness tells
* George R. Killam Professor of Law, Texas Tech School of Law. I thank the participants of the
Texas Tech Law Review Symposium on "Convicting the Innocent." I especially thank Andrew Porter, a 2008
graduate of the Texas Tech School of Law, for his helpful research assistance.
1. With apologies to Abraham lincoln.
2. United States v. Garsson, 291 F. 646, 648 (S.D.N.Y. 1923).
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the story the State wants to hear. Furthermore, the State, and only the State,
4
can grant immunity in exchange for testimony.
Hand also overstated the defendant's advantages. While it is formally true
that the State must prove its case beyond a reasonable doubt, and that
sometimes juries even take that burden seriously, 5 too many juries faced with an
alleged murderer, rapist, or child molester who is probably guilty, are reluctant
to give the probably guilty defendant the benefit of the reasonable doubt
because it means turning him loose. 6 Although impossible to prove, I firmly
believe that a large number of wrongly convicted alleged murderers are found
guilty for precisely this reason. Of course, most alleged murderers who are
probably
guilty are in fact guilty, but a significant minority of them may not
7
be.
To illustrate, if a jury is 70% convinced of a defendant's guilt and does not
wish to turn him loose, it might well convict him of murder. Assuming the jury
assessed all factors properly, it would be right seven out of ten times. Of
course, it would be wrong the other three out of ten times. Those three,
multiplied many times over, make up the cadre of innocent people who have
been convicted. Of course, the jury believed that each was guilty, and most of
the time it was correct. But, as any sports gambler knows, seven to three (and
even greater) underdogs sometimes prevail.
Hand can perhaps be forgiven for his belief that the innocent never-or
almost never-get convicted. Many of us shared that belief before evidence to
the contrary, much of it provided by Barry Scheck and Peter Neufeld, appeared
on the scene. 8 Now practically everybody realizes that we have frequently
convicted innocent people, sentenced many to death (e.g., my fellow panelist,
Juan Melendez),
and-unless we have been unbelievably lucky-executed
9
some of them.
3. See generally U.S. CONST. amend. IV (reasonable searches and seizures); U.S. CONST. amend. V
(self-incrimination); Miranda v. Arizona, 384 U.S. 436,498-99 (1966) (discussing the necessity of informing
suspects of right against self-incrimination).
4. See United States v. Westerdahl, 945 F.2d 1083, 1086 (9th Cir. 1991).
5. The O.J. Simpson murder trial is arguably an example of how juries can take the concept of
reasonable doubt too seriously. See Thomas V. Mulrine, ReasonableDoubt: How in the WorldIs ItDefined?,
12 AM. U. J. INT'LL. & POL'Y 195, 195-96 (1997); Paul Bergman, Elayne Rapping,Law and Justiceas Seen
on TV, 55 J. LEGAL EDUC. 268, 270 (2005) (book review).
6. See Leonard B. Sand, Proof Beyond All Reasonable Doubt: Is There aNeedfor aHigherBurden of
ProofWhen the Sentence May Be Death?,78 CHI.-KENT L REv. 1359, 1365-66 (2003) (arguing that there is
a high rate of error in capital conviction cases because juries do not apply a strict enough standard).
7. See id.
8. See, e.g., BARRY SCHECK, JIM DWYER & PETER NEUFELD, ACTUAL INNOcENcE: WHEN JuSTIcE
GoEs WRONG AND How TO MAKE IT RIGHT (2003).
9. Of course, within the last couple of years Roger Coleman, long believed to be an executed innocent,
was proven guilty by aDNA test. See Kansas v. Marsh, 548 U.S. 163, 188-90 (2006) (Scalia, J., concurring).
Nevertheless, that hardly establishes that we have never executed an innocent person. See Hugo Adam
Bedau, Michael L. Radelet & Constance E. Putnam, Convicting the Innocent in Capital Cases: Criteria,
Evidence, andInference, 52 DRAKE L REV. 587,590 (2004) ("It is too much to believe that the close calls we
have identified exhaust the category of cases in which an innocent defendant could have been vindicated just
prior to his execution but was not-and there is no good reason to think that all such cases, even in recent
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THE INNOCENT ARE SOMETIMES CONVICTED
In this Article, I consider whether we should eliminate the death penalty
because we almost certainly have executed innocent persons in the past and will
continue to do so in the future.10 Some would say, "Of course we should.""
They would argue that it is highly immoral to maintain a system that cannot
assure us that an innocent person would never be executed.' 2 My own position
is considerably more nuanced. In my view, if executing guilty murderers (or
some subgroup thereof) clearly benefited society in a way that life
imprisonment without parole does not and could not, I would be willing to at
least consider the plausibility of allowing an occasional mistaken execution as
necessary "collateral damage" to protect a valuable and necessary punishment
resource for the State.
I do not, however, reach that conclusion. In my mind, even when we are
dealing with defendants in whom we have 100% confidence of guilt (if such
cases exist), the case for capital punishment is at best a wash, and probably
fails. Consequently, when we superimpose the almost certainty of executing
some innocents, the case for capital punishment with its concomitant collateral
damage is simply not a cost worth paying.
I.
REASONS FOR CAPITAL PUNISHMENT
A. Restraint
It is hard to argue that capital punishment is not a superior restraint to
anything else. If we were good at knowing in advance who needed that kind of
restraint, we could send such individuals to a maximum security prison and
make that prison nearly escape-proof. Of course, I am aware that a completely
escape-proof prison does not exist.' 3 Prisoners could bribe guards to help them
decades, have been identified. Those who argue that innocent people are never executed woefully
underestimate the significance of these close calls."); see also Hugo Adam Bedau & Michael L. Radelet,
Miscarriagesof Justice in Potentially CapitalCases, 40 STAN. L. REv. 21, 91 (1987) (listing many people
who have been wrongly convicted of murder); cf. Marsh, 548 U.S. at 188-89 (Scalia, J., concurring) ("It
should be noted at the outset that the dissent does not discuss a single case-not one-in which it is clear that
a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would
not have to hunt for it; the innocent's name would be shouted from the rooftops by the abolition lobby. The
dissent makes much of the new-found capacity of DNA testing to establish innocence. But in every case of an
executed defendant of which I am aware, that technology has confirmed guilt."). For an autobiographical
account of Melendez's imprisonment and exoneration, see Juan Roberto Melendez, Presumed Guilty: A
Death Row Exoneree Shares His Story of Supreme Injustice and Reflections on the Death Penalty, 41 TEX.
TECH L REV. 1 (2008).
10. See infra Parts I-IV.
11. See Richard A. Rosen, Innocence and Death, 82 N.C.L REV. 61, 65, 109 (2003).
12. See id.
13. Even at Alcatraz, escape was possible. See The Great Escape from Alcatraz, http://www.alcatraz
history.com/alcesc I.htm (last visited Sept. 30, 2008). Frank Morris designed an elaborate, extensive plan over
seven months to escape from the infamous prison. Id. No one knows whether he drowned after his escape.
Id. The FBI concluded that the escape was unsuccessful, but this fact is still disputed. Id.
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escape from the most secure prisons. Nevertheless, I do believe that life
without parole could be nearly as effective a restraint as death.
I recognize there are some horrible examples of failed prison restraint.
Ron Allen presents some of them in his provocative piece, FurtherReflections
on the Guillotine.14 My personal favorite is the case of Ehrlich Coker. 15 Coker
escaped from the prison in which he was serving a life sentence for murder,
rape, kidnapping, and aggravated assault. 16 While on the lam, Coker
burglarized a home, robbed a young couple, and raped, kidnapped, and left the
(16-year-old) wife for dead. 17 Ironically, because she did not die, unlike one of
his past victims, the Supreme Court decided that subjecting Coker to the death
penalty would be cruel and unusual punishment, even though he had
established (contrary to the overwhelming majority of murderers) that life
18
imprisonment was insufficient to restrain him.
Because super-max security prisons could restrain the Ehrlich Cokers of
the world, I do not think restraint is a good reason for capital punishment. Of
course, one might counter that gauging an inmate's dangerousness is
impossible. But if we could not identify Coker's dangerousness prior to his
escape for purposes of more secure restraint, how could we have identified him
as one in need of capital punishment?
B. Retribution
The Supreme Court has clearly indicated that retribution can be a
justification for punishment, and I am inclined to agree. 19 The Court has not,
however, embraced the literal eye-for-an-eye principle, 20 reasoning instead that
not all murders (even first-degree murders) are sufficiently evil as to warrant the
death penalty.2 ' Consequently, if retribution is to serve as a justification for
capital punishment, there needs to be a rationale that distinguishes who is led to
death by the State and who is not.
On an individual basis, identifying death appropriate cases is not hard.
Occasionally, I read a case that causes me to think, "I am absolutely unalterably
opposed to the death penalty, but if I ever change my mind, I want this son-ofa-bitch to get it." The trouble is that this analysis does not work on a global
basis. First of all, the cases I personally identify usually involve torture
14. Ronald J. Allen & Amy Shavell, Further Reflections on the Guillotine, 95 J. CRIM. L &
CRIMINOLOGY 625, 631 (2005). The Bureau of Justice reports that 6.6% of released murderers were
rearrested for murder within three years of release. Id. at 631. Joseph Fisher, a convicted murderer, killed
twenty more people upon his release from prison. Id. David Smithers, another convicted murderer, attempted
to hire another inmate to kill a six-year-old girl and her mother for $10,000. Id.
15. See Coker v. Georgia, 433 U.S. 584 (1977).
16. Id. at 587; id. at 605 (Burger, C.J., dissenting).
17. Id. at 587 (plurality opinion); id. at 605 (Burger, C.J., dissenting).
18. Id. at605.
19. See Gregg v. Georgia, 428 U.S. 153, 183 (1976).
20. See Exodus 21:23-25.
21. See Woodson v. North Carolina, 428 U.S. 280, 298-99 (1976).
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THE INNOCENT ARE SOMETIMES CONVICTED
murders, extraordinary cold-bloodedness, or both. Yet these cases may well
involve some unusual mitigating circumstances in the killer's background.
Furthermore, the evidence appears overwhelming that capital punishment
as administered today is not uniformly imposed on the worst of the worst. 2
Rather, the greatest predictors of capital punishment are the oratorical skills and
personal proclivities of the individual prosecutors.23 In state after state, the
county or counties in which a murderer would most likely get the death penalty
is quite easy to identify24 Nobody seriously believes that a significantly higher
percentage of murderers in Houston deserve death (in a retributive sense) than
do murderers in Dallas.25
Probably the second-best predictor of death is the race of the victim. 26 The
killer of a white person is far more likely to be executed than the killer of a
black person.27 To the extent that geography and the victim's race determine
when death is necessary for retributive purposes, the death penalty is frankly
something that we can do without.
C. Deterrence
By far the most provocative arguments in favor of the death penalty rely
on deterrence. Two of our best and brightest academicians, Cass Sunstein and
22. See Mike Tolson, A Deadly Distinction, Hous. CHRON., Feb. 4, 2001, at Al, available at 2001
WLNR 11737701.
23. See id.
24. For instance, in Texas, 119 prisoners on death row were sentenced to the death penalty in Harris
County. This is the greatest number per county by a long shot; second place is Dallas County with 43 death
row prisoners. TEX. DEP'T OF CRIMINAL JUSTICE, COUNTY OF CONVICTION FOR OFFENDERS ON DEATH
Row, http://www.tdcj.state.tx.us/stat/countyconviction.htm (last visited Sept. 30, 2008). Hamilton County
defendants are 2.7 times more likely to receive the death penalty than defendants in other Ohio counties.
Report: Hamilton Co. More Likely To Give Death Sentence, Sept. 24, 2007, http://www.wlwt.com/news/
14190735/detail.html. In Maryland, "despite the fact that less than 10% of all homicides in Maryland occur in
Baltimore County, this same small area accounts for 70% of all death row sentences in the state." Campaign
to End the Death Penalty, The Death Penalty in Baltimore, Maryland, httpJ/www.nodeathpenalty.org/contentl
factsheets.php?category=cedp&factsheetjid=2 (last visited Sept. 30,2008). Even though upstate counties in
New York experience 19% of the state's homicides, 61% of all capital prosecutions occur there. Death
Penalty Info. Ctr., Arbitrariness,httpJ/www.deathpenaltyinfo.orglarticle.php?did=1328#Evidence (last visited
Sept. 30, 2008).
25. See Tolson, supra note 22.
Within Texas ....[e]ven if you combine Dallas and Tarrant counties to form a population base
comparable to Harris County's, their roster of death row offenders would not come close to Harris
County's total. You could throw in Bexar County [San Antonio] and still be short. Add all the
condemned inmates from the counties containing Austin, El Paso, Corpus Christi, Beaumont,
Tyler and Lubbock, and you would almost reach it. But not quite.
Id.
26. Cf.Death Penalty Info. Ctr., supranote 24 (discussing race as a factor in the imposition of the death
penalty).
27. See, e.g., David Baldus et al., Racial Discriminationand the DeathPenalty in the Post-FurmanEra:
An Empiricaland Legal Overview, with Recent Findingsfrom Philadelphia,83 CORNELLL REV. 1638, 1659
(1998); Phyllis Crocker, Crossingthe Line: Rape-Murderand the DeathPenalty,26 OHIO N.U. L REv. 689,
701 (2000).
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Adrian Vermeule, argue that if recent studies suggesting that every execution
deters eighteen murders are correct, it would be immoral not to impose the
death penalty.28 If one were to accept the accuracy of their premise, their
conclusion could not be dismissed out of hand. Thus, I would like to spend a
few moments on that premise.
Historically, studies have suggested that capital punishment either
decreases deterrence 29 or increases it. 30 Both then and now, there is a veritable
cottage industry of critics of these studies, all of whom seek to demonstrate that
if only the correct methodology were used, a contrary result would have been
reached.3 ' One of the more recent of these critiques, by John Donohue and
Justin Wolfers, suggests that the studies upon which Sunstein and Vermeule
rely are fundamentally flawed.32 Candidly, I do not understand statistics all that
well, although my college statistics professor once told my class, only partly in
jest, that you can use them to prove most anything.
My reasons for doubting the veracity of the super-deterrent death penalty
statistics are twofold. First, they do not appear to comport with reality.
Countries other than the United States that do not have capital punishment,
such as Australia, Canada, England, and Germany, have significantly lower
murder rates than the United States. 33 Furthermore, those states in the United
28. See Cass R. Sunstein & Adrian Vermeule, Is Capital Punishment Morally Required? Acts,
Omissions, and Life-Life Tradeoffs, 58 STAN. L REV. 703,709,735 (2005). Sunstein and Vermeule relied on
the study undertaken by Hashem Dezhbakhsh, among others. See generally id. (citing Hashem Dezhbakhsh
et al., Does CapitalPunishmentHave a DeterrentEffect? New Evidencefrom PostmoratoriumPanelData,5
AM. L. & ECON. REV. 344, 344 (2003); H. Naci Mocan & R. Kaj Gittings, Getting Off Death Row:
Commuted Sentences and the Deterrent Effect of Capital Punishment, 46 J.L. & ECON. 453, 453 (2003);
Joanna M. Shepherd, Deterrence Versus Brutalization:Capital Punishment's Differing Impacts Among
States, 104 MICH. L REV. 203,204 (2005); Joanna M. Shepherd, Murders ofPassion, Execution Delays,and
the Deterrenceof CapitalPunishment,33 J. LEGAL STUD. 283, 308 (2004); Paul R. Zimmerman, Estimatesof
the DeterrentEffect ofAlternative Execution Methods in the United States, 65 AM. J. ECON. & SOc. 909, 934
(2006); Paul R. Zimmerman, State Executions, Deterrence,and the Incidence ofMurder,7 J. APPLIED ECON.
163, 163 (2004)).
29. See, e.g., Thorsten Sellin, Homicides in Retentionist and Abolitionist States, in CAPITAL
PUNISHmENT 135, 138 (Thorsten Sellin ed., 1967); Thorsten Sellin, The Death Penalty and Police Safety, in
CAPITAL PUNISHMENT, supra, at 138, 152; Thorsten Sellin, The Inevitable End of CapitalPunishment, in
CAPITAL PUNISHMENT, supra, at 239, 243-53.
30. See, e.g., Isaac Ehrlich, The DeterrentEffect ofCapital Punishment:A Questionof Life and Death,
65 AM. ECON. REV. 397,398 (1975); see also Isaac Ehrlich, Deterrence:Evidence and Inference, 85 YALE L
J. 209, 209-10 (1975) (responding to criticisms of his conclusion that the death penalty deters murder).
31. See, e.g., David C. Baldus & James W.L. Cole, A Comparisonof the Work of Thorsten Sellin and
IsaacEhrlich on the DeterrentEffect of CapitalPunishment,85 YALE LJ. 170,170-73 (1975); Richard Berk,
New Claims About Executions and GeneralDeterrence:D 'ja Vu All Over Again?, 2 J. EMPIRICAL LEGAL
STUD. 303, 327 (2005); Jeffrey Fagan, Deathand DeterrenceRedux: Science, Law, and CausalReasoningon
CapitalPunishment,4 OHIO ST. J. CRIM. L 255, 260-68 (2006).
32. See generallyJohn Donohue & Justin Wolfers, Uses andAbuses ofErpiricalEvidence in the Death
Penalty Debate, 58 STAN. L REV. 791 (2005) (concluding that studies fail to establish whether the death
penalty deters murder).
33. The murder rates in 2004 for Australia, Canada, England, and Germany per 100,000 people were
1.31, 1.99, 1.63, and 0.98, respectively. UNITED NATIONS OFFICE ON DRUGS AND CRIME, QUESTIONNAIRE
FOR THE UNITED NATIONS SURVEY OF CRIME TRENDS AND OPERATIONS OF CRIMINAL JUSTICE SYSTEMS,
COVERING THE PERIOD 2003-2004, at 2 (2007), http'./www.unodc.org/documents/data-and-analysislCrS9_by
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THE INNOCENT ARE SOMETIMES CONVICTED
States that do not have capital punishment have, on average, lower murder rates
than states that do. 34 Finally, comparing neighboring states with similar
demographics, but for the presence or absence of capital punishment, shows
virtually no differences. 35 For example, comparing Kentucky, New Hampshire,
and South Dakota (states with capital punishment) to West Virginia, Vermont,
and North Dakota (states without capital
punishment), respectively, reveals
36
virtually no distinctions in murder rates.
My second reason for doubting super-deterrent statistics is that they are
counterintuitive. If we were to posit a totally rational potential killer, the killer
would have to decide that, assuming even odds of capture and conviction, the
arch-enemy (or victim for hire) is worth killing for the risk of life imprisonment
37
without parole but is not worth killing for the same risk of the death penalty.
While one could hypothesize a few marginal cases fitting in that category, one
would expect the number to be extremely small.
Of course, most killers do not carefully calculate but tend to act
38
impulsively, thereby diminishing the deterrent power of capital punishment.
Finally, the class of people likely to murder is probably not representative of the
populace as a whole. Its members tend to be more macho.39 Indeed, some even
kill to get the death penalty or to see if they can beat it. The most prominent of
this group is Ted Bundy, who, upon escaping a murder trial in Utah, is said to
have gone to Florida because it was the state most likely to execute him.40 As a
result, several young women in Florida needlessly died to satisfy Bundy's urge
to be sentenced to death.4 ' I wish this case were aberrant, but it is not.42
_indicator._public.pdf. The United States homicide rate in 2004 was 5.5 murders per 100,000 people.
UNIFORM CRIME REPORTING PROGRAM, FED. BUREAU OF INVESTIGATION, TABLE 4: CRIME IN THE UNnrED
STATES 2005 (2006), http:lwww.fbi.gov/ucr/O5cius/dataltable_04.html.
34. In 2006, the average murder rate in states with the death penalty was 5.9 per 100,000 residents,
while states that do not have the death penalty experienced a murder rate of 4.22. Death Penalty Info. Ctr.,
Murder Rates 1996-2006, http://www.deathpenaltyinfo.org/article.php?scid= 12&did= 169 (last visited Sept.
30, 2008).
35. See id.
36. The murder rates in 2006 for Kentucky, New Hampshire, and South Dakota per 100,000 residents
were 4.0, 1.0, and 1.2, respectively, while in West Virginia, Vermont, and North Dakota, the rates were 4.1,
1.9, and 1.3, respectively. UNIFORM CRIME REPORTING PROGRAM, FED. BUREAUOFINVESTIGATION, TABLE
5: CRIME IN THE UNITED STATES 2006 (2007), http://www.fbi.gov/ucr/cius2006/data/table_05.html.
37. Actually, the risk of the death penalty may be even lower because of the extraordinary care taken in
capital cases to try to avoid error (regrettably, not always successfully). See Samuel R. Gross, Lost Lives:
Miscarriagesof Justice in Capital Cases, 61 LAW & CONTEMP. PROBS. 125, 127 (1998).
38. See Allan D. Johnson, The Illusory Death Penalty: Why America's Death Penalty ProcessFailsTo
Support the Economic Theories of CriminalSanctions and Deterrence, 52 HASTINGS LJ. 1101, 1115-16
(2001).
39. See WELSH S. WHrrE, THE DEATH PENALTY IN THE NINETIES: AN EXAMINATION OFTHE MODERN
SYSTEM OF CAPITAL PUNISHMENT 59 (1991).
40. This was probably an incorrect assessment as Texas executes more people proportionately than
Florida. Death Penalty Info. Ctr., State Execution Rates, httpi/www.deathpenaltyinfo.org/article.php?scid=
8&did-477 (last visited Sept. 20, 2008).
41. See John H. Blume, Killing the Willing: "Volunteers, " Suicide and Competency, 103 MICH. L REV.
939, 949 n.51 (2005); Michael Mello, Certain Bloodfor UncertainReasons: A Love Letter to the Vermont
Legislatureon Not Reinstating CapitalPunishment,32 VT. L REv. 765, 795-96 (2008).
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Perhaps the saddest story along these lines is Daniel Colwell. Colwell was
43
a high school football hero and, by all reports, an all around nice guy.
Unfortunately, a combination of schizophrenia, manic depression, joining a
church that preached football was evil, and hearing constant voices made him
suicidal."4 After Colwell purchased a gun and went to his motel room to kill
himself, he could not find the strength to do it.45 He then decided that if he
committed sufficiently heinous murders, the State of Georgia would do it for
him. 46 Colwell realized two things: (1) he had a better chance of success if he
killed at least two people, and (2) it would be better if the victims were white
because Georgia is not as likely to execute a black man for killing other blacks
as it is for killing whites. 47 Colwell coolly executed his plan, immediately
turned himself in, pleaded guilty, and argued that the jury should give him
death because otherwise he might escape and kill one of them.48 His ploy
succeeded and the jury granted Colwell's wish, as the district attorney had
requested. 49 Ironically, while awaiting execution, Colwell hanged himself.5 0
So much for deterrence in Colwell's case.
Weighing all of these factors, I am compelled to conclude that deterrence
is, at best, a wash for proponents of capital punishment.
II. REASONS AGAINST CAPITAL PUNISHMENT
A. Arbitrariness
Two things stand out about the Supreme Court's capital punishment
jurisprudence: (1) the Court's very serious desire to avoid arbitrariness 5' and
(2) its failure to do so.52 Perhaps terms like "freakish" and "wanton ' 53 overstate
the arbitrariness of capital punishment today, but frankly, not by much. I have
42. See, e.g., Lockup: Raw: CriminalMinds (MSNBC television broadcast Oct. 25, 2008) (on file with
author). After receiving a life term for killing his mother and another life term for killing a fellow inmate,
Stephen Hugueley, an inmate at the Brushy Mountain correctional complex in Tennessee, killed a prison
counselor for the express purpose of receiving the death penalty. See id. In his own words, "The plan was to
kill him, get the death penalty, use the State of Tennessee's lethal injection as a means of suicide since I didn't
have the guts to do it myself." Id. Hugueley later spoke of receiving the same rush from his impending death
as he did from the murders he committed. See id.
43. See American Justice:Suicide by Execution (A&E Network television broadcast June 12,2002) (on
file with author).
44. See id.
45. See id.
46. See id.
47. See id.
48. See id.
49. See id.
50. See id.
51. See Lewis v. Jeffers, 497 U.S. 764, 774 (1990); Gregg v. Georgia, 428 U.S. 153, 189 (1976);
Furman v. Georgia, 408 U.S. 238, 249 (1972).
52. See DEATH PENALTY INFO. CTm., ARBrrRARINESS AND THE DEATH PENALTY, http://www.death
penaltyinfo.org/ArbitrarinessandtheDP.pdf (last visited Sept. 30, 2008).
53. Furman, 408 U.S. at 310 (Stewart, J., concurring).
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THE INNOCENT ARE SOMETIMES CONVICTED
already noted that geography and the victim's race seem more predictive of
capital punishment than any other factor.54 Indeed, so long as the jury
determines life and death by inevitably vague standards, some defendants will
be sentenced to death while other similarly situated defendants will not. 55 If
there is a way of fixing this problem while retaining capital punishment, the
solution escapes me.56
B. Literal Cruelty
Although death per se is not cruel (we all die sometime, and many of us
under less than optimal circumstances), a planned execution is something
different. Most people do not die by being led on a slow march to their doom
after years, if not decades, of waiting. Yet there is really no way to make it
better. Surely we do not want to eliminate last minute appeals.
We do not allow stockades, whippings, or other forms of barbarity, but the
planned, cold-blooded execution of human beings is permitted-all, of course,
in the name of demonstrating how wrong cold-blooded killing is.
C. Closurefor Victims
Although some believe capital punishment can bring closure to victims,
the evidence does not appear to support that position.57 More importantly,
states that allow capital punishment can legally impose it only in a fraction of
murder cases. 58 Consequently, in a case in which the prosecutor seeks the death
penalty but the defendant is sentenced to life imprisonment, the victim's family
members may feel that their loved one's life has been undervalued. Comments
such as "Why should that bastard be allowed to live while my sweet Mary is
gone forever?" are not uncommon.
In jurisdictions that do not allow the death penalty, closure is more likely
to result from a sentence of life imprisonment. Unlike in a capital punishment
jurisdiction, life imprisonment does not feel like a slap on the wrist where that
54. See supra text accompanying notes 24-27.
55. See generally Jessie Larson, UnequalJustice: The Supreme Court'sFailureTo Curtail Selective
Prosecutionfor the Death Penalty,93 J. CRIM. L & CRIMINOLoGY 1009 (2003) (discussing the importance
of avoiding arbitrary imposition of the death penalty).
56.
I have considered requiring appellate proportionality review of capital sentences, which the Supreme
Court rejected in Pulley v. Harris. See Pulley v. Harris, 465 U.S. 37,43-44 (1984). But even states that do
require such review still have the problem ofjuries not imposing the death penalty in cases similar to those in
which other juries have. See supra note 52 and accompanying text.
57. See Marilyn Armour & Mark Umbreit, The UltimatePenalSanctionand "Closure"for Survivors of
Homicide Victims, 91 MARQ. L REV. 381 passim (2007); Vik Kanwar, CapitalPunishmentas "Closure":
The Limits of a Victim-CenteredJurisprudence,27 N.Y.U. REV. L. & SOC. CHANGE 215, 242 (2002).
58. See generally Death Penalty Info. Ctr., Crimes Punishable by the Death Penalty, http://www.death
penaltyinfo.orglarticle.php?did=144#BJS (listing the specific crimes punishable by the death penalty in each
state) (last visited Sept. 30, 2008).
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is the maximum penalty. When a defendant is sentenced to life in such a
jurisdiction, the victim's family is much more likely to feel vindicated.
D. InternationalRelationships
As the United States is the only major western power to retain the death
penalty, citizens of other countries question our moral leadership. 59 I have been
asked at several international conferences why the United States continues to
employ the death penalty. I can, of course, recite our restraint, retribution, and
deterrence arguments, but I do not think I persuade anybody (candidly, not even
myself).
Obviously, the stakes are multiplied when, instead of a delegate at an
international conference asking me about our theory of capital punishment, a
United States official asks a Canadian or European government to return a
suspect who is wanted for murder. Typically, these foreign countries will not
unless they can be sure the defendant will not be subject
extradite such a person
6
0
penalty.
death
to the
This creates a dilemma for the jurisdiction that wishes to prosecute. Does
it (1) agree not to seek capital punishment, (2) not extradite, or (3) attempt to
kidnap the suspect by extra-legal means? 61 Presumably, most of the time it will
opt for alternative (1) and take the death penalty off the table.62 Of course, this
only increases the arbitrariness of the death penalty if the extradited defendant,
but for his flight to the extraditing country, is similarly situated to those who
typically would have received capital punishment.63
Obviously, a state could avoid all of these problems by not employing
capital punishment in the first place.
E. Costs
Although intuitively one might think the execution of a convicted killer is
cheaper than continuing to feed, clothe, and house him for the rest of his life,
the numbers tell a different story. Study after study has shown that it is less
59. See Carol Steiker, CapitalPunishmentand American Exceptionalism,81 OR. L REv. 97,97 (2002).
60. Matthew Bloom, A ComparativeAnalysis of the United States's Response to ExtraditionRequests
from China, 33 YALE J. INT'L L. 177, 187-88 (2008); Ethan Nadelmann, The Evolution of United States
Involvement in the InternationalRendition of Fugitive Criminals,25 N.Y.U.J. INT'L L. & POL. 813, 835-37
(1993).
61.
62.
63.
See Bloom, supra note 60, at 190-91.
See Nadelmann, supra note 60, at 836.
For instance, Jens Soering, a Western German national, murdered his girlfriend's parents in Virginia
and subsequently fled to the United Kingdom. See Bloom, supra note 60, at 186. The United States
requested that the United Kingdom extradite Soering, and the United Kingdom initially agreed to do so. Id.
Soering, however, petitioned the European Court of Human Rights. Id. The court held that Soering could not
be extradited to the United States because of the risk that he would face inhuman or degrading treatment or
punishment while on death row in Virginia. See Soering v. United Kingdom 161 Eur. Ct. H.R. (ser. A)I 11
(1989), available at 1989 WL 650110; Bloom, supra note 60, at 186.
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THE INNOCENT ARE SOMETIMES CONVICTED
expensive to incarcerate a person for life than to execute him.64 The core
65
reason for this is that we seek to be extra careful before we execute somebody.
Obviously, it could be no other way. With large numbers of convicted
murderers now exonerated (e.g., Juan Melendez), there is no way to reduce the
safeguards that we now
have, and consequently, there is no way to significantly
66
reduce the expense.
I suppose we could go back to the bad old days, when we tried the
defendant on Monday and hanged him on Tuesday, but I do not know of any
serious thinker who would support that proposition. Short of a return to such
practices, though, I can think of no way to make capital punishment
economical. Hence, if costs matter, proponents of the death penalty need to
justify them.
HIL. THE BALANCE
How does the balance for and against capital punishment come out when
speaking only of the guilty? Obviously, the answer depends on the weight one
accords to each factor. My balance comes out against capital punishment. As I
see it, capital punishment, as opposed to a super-max prison, is rarely necessary
for restraint.6 7 The problem is that we are not good at knowing who needs to be
restrained.68 Similarly, the type of retribution that the law currently allows is so
hit or miss that it is almost counterproductive. 69 Finally, the marginal deterrent
value of the death penalty, at least as I see it, is so slight (if not negative) that
using it to justify the death penalty is difficult.70
Conversely, the death penalty's arbitrariness, cruelty, and potential to
reduce closure for victims counsel against retaining the penalty.7' Additionally,
our international relationships and public fisc would both be improved if we
were to abolish capital punishment entirely.72 Given that balance, I am forced
to conclude that capital punishment is excessive, even as applied to the guilty.
64. For instance, in Texas, the extra costs of the death penalty are estimated at $2.3 million per case.
Costs of the Death Penalty and Related Issues: Hearing on H.R. 1094 Before the House Comm onJudiciary,
2007 Leg., (Colo. 2007) (statement of Richard C. Dieter, Executive Director, Death Penalty Infor. Ctr.),
available at http'/www.deathpenaltyinfo.orgCOcosttestimony.pdf. In North Carolina, the extra cost is $2.16
million per execution. Id. In Florida, an additional $51 million is spent above and beyond what it would cost
the state to punish all first degree murderers with life in prison without parole. Id. Kansas concluded that
death penalty cases were 70% more expensive than non-death penalty cases. Id.
65.
66.
67.
68.
69.
70.
71.
72.
See id.
See id.
See discussion
See discussion
See discussion
See discussion
See discussion
See discussion
supra Part
supra Part
supra Part
supra Part
supra Part
supra Part
I.A.
I.A.
I.B.
I.C.
n.A-C.
II.D-E.
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IV. CONCLUSION
In light of my conclusion that capital punishment is excessive when
speaking of the guilty, the relevance of probably executing some innocent
people in the future takes a sharper focus. While the question may be a close
one if we knew we always convict (and sentence to death) only guilty people,
we in fact know that is not the case. Because we know that the innocent are
sometimes convicted, and because capital punishment, even limited to the
guilty, is probably not justified, the answer is clear. At least until we know we
do not convict innocent people, the death penalty should be abolished.
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