I agree: The anti-death-penalty movement has been too hung up on the issue of innocence.
Of the 50 or so death row inmates I have represented, I have serious doubts about the guilt of three or four — that is, 6 to 8 percent, about what scholars estimate to be the percentage of innocent people on death row.
In 98 percent of the cases, however, in 49 out of 50, there were appalling violations of legal principles: prosecutors struck jurors based on their race; the police hid or manufactured evidence; prosecutors reached secret deals with jailhouse snitches; lab analysts misrepresented forensic results. Most of the cases do not involve bogus claims of innocence, like the one that swirled for 15 years around Roger Coleman, but the government corruption that the federal courts overlook so that the states can go about their business of executing.
The House case will make it hard for abolitionists to shift their focus from the question of innocence, but that is what they ought to do. They ought to focus on the far more pervasive problem: that the machinery of death in America is lawless, and in carrying out death sentences, we violate our legal principles nearly all of the time.
We need to evaluate the death penalty on its face: Even if we accept that most people on death row are indeed guilty, is the state ever justified in killing people who commit crimes against it? I don’t think so. And I think it speaks to the backwardness of the death penalty when we’re the only developed nation that still employs it, and yet we manage to use it more than nearly every other country. It’s employed racistly and unevenly, and is being utilized as an ultimate punishment in an already-flawed criminal justice system. We have to ask if we want to be the kind of society that allows the state to kill its own members for crimes they commit. I know what my answer is.
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