The insidious distraction of innocence (and death)
In yesterday’s Washington Post, law professor David Dow had this great commentary bemoaning the excessive focus on innocence issues in modern critiques of the death penalty. Here are some snippets:
[T]he focus on innocence has insidiously distracted the courts. When I represent a client in a death penalty case, judges want to know whether there is any chance that client is innocent. If he isn’t, then they are not much concerned about anything else I have to say. Oh, so blacks were excluded from the jury? So what, he’s guilty; any jury would have convicted him. Oh, so police hid evidence? Big deal, there was plenty of other evidence that he did it. Oh, so his lawyer slept through trial? Why does that matter? Clarence Darrow himself couldn’t have kept him from the gallows.
This past week the Supreme Court agreed for the second time to hear the appeal of LaRoyce Smith, a death row inmate in Texas, because the Texas courts, convinced of Smith’s guilt, believed they could therefore ignore the fact that his right to a fair trial was violated. Yet the Supreme Court itself is partly to blame. In the recent case of Kansas v. Marsh, Justices Antonin Scalia and David Souter engaged in an extraordinary debate over … whether any innocent person has been executed in the modern death penalty era.
Of course, only the most naive person — or perhaps the most disingenuous — would think that we miraculously identify everyone who is innocent just in the nick of time. But what was even more astonishing about this debate was that the arcane legal issue in Marsh had absolutely nothing to do with the question of whether Marsh was innocent or even with the issue of innocence in general.
Innocence is a distraction because most people on death row are not in fact innocent, and the possibility of executing an innocent man is not even remotely the best reason for abolishing the death penalty.
Regular readers know that I think Dow is exactly right. But I also think charges of “insidious distraction” could and should also be lodged against the death penalty more generally. When I lament an unjust sentence, if the death penalty is not involved, few academics and public policy advocates seem much concerned. Death is a distraction because most people enduring unjust sentences are not in fact on death row, and possibility of unjust capital punishment for murderers is not even remotely the best reason for needed federal and state sentencing reforms.
Some posts on the Marsh and the insidious distraction of innocence:
Some posts on the insidious distraction of the death penalty: