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   From: "@SHAW.CA   
      
   Executing the Innocent   
      
   Elizabeth A. Linehan   
   St. Joseph's University   
   elinehan@sju.edu   
      
        ABSTRACT: 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. My argument essentially is 1)   
   that the only possibly successful justification of capital   
   punishment is retribution; 2) that justice and desert are central   
   to retributive arguments; 3) that mistakes are possible in   
   administering any criminal punishment, but "death is different"   
   in ways that put mistaken executions in a class by themselves; 4)   
   that accepting the significant risk of putting innocent persons   
   to death shows a deep disrespect for human life which contradicts   
   the supposed justification for capital punishment; and 5) the   
   United States accepts such risk and thus undermines whatever   
   positive features the death penalty may have. I believe this case   
   can be made on the basis of factual innocence alone; it becomes   
   very much stronger if we consider, as well, the morally innocent:   
   those who, by reason of insanity or other mental incapacity, are   
   not morally responsible for their offense. This class could also   
   include the partially innocent, those whose moral responsibility   
   is diminished so that while they deserve punishment, they do not   
   deserve the most severe punishment of death. In this short paper,   
   however, I will restrict myself to factual innocence.   
      
   Death as Retribution   
      
   Arguments for punishing criminals have traditionally included the   
   following: deterrence (special and general); incapacitation;   
   rehabilitation; victim compensation; and retribution. In the   
   context of capital punishment, only general deterrence,   
   incapacitation, and retribution have possible relevance.   
   Advocates of the death penalty for the sake of incapacitation and   
   deterrence must show that these legitimate goals cannot be   
   accomplished by less severe measures than execution; life in   
   prison without parole, for example. Otherwise, these goals do not   
   justify capital punishment.   
      
   The United States prison system clearly has the capacity to   
   detain and restrain (incapacitate) its most dangerous inmates   
   without having to kill them. Deterrence presents the more complex   
   issue. The deterrence question is not whether most people would   
   be deterred from committing murder by the threat of possible   
   execution. Rather, it is whether there are people who are not   
   deterred by the threat of a lengthy prison term who would be   
   deterred by the threat of death. A tiny percentage of those who   
   murder are sentenced to death, even fewer are ever executed, and   
   the time that elapses between crime and execution is typically   
   many years, so that it is hard to see how even a rational person   
   would be much deterred by the odds that s/he will be put to death   
   for a crime. It is intuitively implausible that the death penalty   
   as we have it now is effective as a deterrent. Most experts   
   concede that the data on deterrence is at best inconclusive.   
   (There is some evidence that murder rates actually increase   
   immediately after an execution has taken place, suggesting that   
   state-sanctioned killing may encourage killing.)(2)   
      
   In any case District Attorney Abraham does not believe the death   
   penalty is a deterrent. Her rationale is essentially retributive.   
   "I've looked at all those sentenced to be executed. No one will   
   shed a tear. Prison is too good for them. They don't deserve to   
   live." (Rosenberg, 321) The appeal here is to justice; punishment   
   is deserved whenever certain conditions of wrongdoing and   
   responsibility are met. J. L. Mackie claims, for example, that it   
   is a basic intuition that "those who are guilty deserve to suffer   
   in proportion to the pain they have caused."(3) In focusing on   
   what people deserve, retributive arguments assume the validity of   
   the notions of guilt and responsibility. They appeal to the most   
   abstract and formal principle of justice, treat equals equally,   
   in a context of guilt. Thus the retributivist's fundamental   
   principle is: Punish all and only the guilty, in proportion to   
   their desert.   
      
      
   [continued in next message]   
      
   --- SoupGate-Win32 v1.05   
    * Origin: you cannot sedate... all the things you hate (1:229/2)