More On Execution Of The Innocent

Although Justice Scalia recently argued that there were no documented cases of innocents being executed, Theodore Shaw of the Legal Defense Fund offered a pretty convincing counter-argument on the point in Sunday’s Washington Post. Shaw makes the case that there is good reason to believe that at least four innocent people have been executed since 1989 but his evidence does not include any DNA test results. I wonder if Scalia would dismiss these innocence claims as baseless, suggesting that nothing has been produced that would cause him to second-guess the jury’s factfinding. If so, what would it take to convince him?

I suspect that this discussion points to the corrosive effect that DNA exonerations have had on the broader debate about erroneous convictions. None of the cases Shaw cites offered the lock-down certainty of scientific testing. But relatively few investigations or convictions turn on DNA evidence. If we conclude that the only true exonerations are those backed by DNA testing (or similar scientific proof), we will be turning our back on many equally problematic convictions. In effect, we will treating the judgment of the jury – grounded in a factfinding and presentation process potentially tainted by all sorts of problems, starting with bad lawyering – as the moral equivalent of DNA testing: virtually irrefutable. And this may be exactly Scalia’s move in his Kansas v. Marsh dissent. If innocence cannot be proven through DNA, it can’t be proven at all. That is, in the absence of DNA counter-evidence, juries are always correct.

I think Justice Thomas took the more intellectually honest position. People and criminal justice systems are imperfect. Some juries will convict innocent people. Some states will execute innocent people. And the Constitution says there’s nothing the Supreme Court can do about it.

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6 Responses

  1. MJ says:

    I beg to differ that there is “good reason” to believe that any of the four men that Mr. Shaw references in his op-ed are actually innocent. That’s not a slap at Mr. Shaw in particular – nobody could do all of the evidence in those cases justice in a one-page op-ed – but rather at the view, more generally, that a recanting witness, or the development of Brady-type evidence that didn’t get presented at trial conclusively establishes actual innocence. It doesn’t. It may well have affected the trial by mitigating the evidence against the accused, or perhaps resulted in a plea prior to trial, but it does not mean that the men who were convicted and sentenced were actually innocent. Recanting witnesses and Brady-evidence are overcome everyday in courtrooms around this country: their presence in a trial emphatically does not mean that the accused is actually innocent. Mr. Shaw’s argument that “any future debates must proceed with the knowledge that we have put innocent people to death” – confuses knowledge with theory. Just as in the Ron Coleman case, the true believers perform the most incredible mental gymnastics to arrive at their conclusion. If you think its unfair to paint all anti-death penalty advocates with the Ron Coleman brush; you might consider how fair it is to paint the criminal justice system with the four most questionable cases that you can find within the last 17 years.

    One other point. Never, ever, ever are the following facts taken into account when anti-death penalty advocates discuss the trying and imposition of the death penalty: A very large percentage of death-penalty eligible cases are plead out 1) because the defendant admits his or her guilt for the offense in exchange for a life sentence 2) because the prosecutors don’t feel strong enough about the evidence to risk taking the matter to trial. And there are numerous cases in my jurisdiction where the prosecution simply doesn’t pursue the death penalty because of 2) above, or simply because they don’t believe the crime – while death-penalty eligible – warrants it.

    I don’t think you can have a meaningful discussion about the death penalty without taking into account how often the death penalty is not sought, though the defendant has allegedly committed an eligible offense.

  2. RCinProv says:

    The “corrosive efects of DNA exonerations” go both ways! There are certainly juries that now expect DNA-type proof in cases where it does not exist. So they wrongfully acquit. There definitely are child sexual abuse cases where juries have acquitted becasue they wanted medical evidence, even though medical evidence rarely exists in such cases.

    It seems to me that the intellectually honesty would recognize both false-positive and false-negatives errors when talking about human fallibility. Juries make mistakes in both directions, so why aren’t both kinds of errors being recognized and discussed.

  3. Nom says:

    I think you’ve mischaracterized Scalia’s opinion. He, like Justice Thomas (who you cliam takes the more intellectually honest poistion), accepts that innocents may be executed but that the public has deemed that risk outweighed by other factors:

    “Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation. But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum. This explains why those ideologically driven to ferret out and proclaim a mistaken modern execution have not a single verifiable case to point to, whereas it is easy as pie to identify plainly guilty murderers who have been set free. The American people have determined that the good to be derived from capital punishment—in deterrence, and perhaps most of all in the meting out of condign justice for horrible crimes—outweighs the risk of error. It is no proper part of the business of this Court, or of its Justices, to second-guess that judgment, much less to impugn it before the world, and less still to frustrate it by imposing judicially invented obstacles to its execution.”

  4. Dan Filler says:

    MJ, I don’t disagree that the death penalty is imposed only a small percentage of the time that a person commits an act for which a prosecutor could, ethically, seek death. I do think that there are cases of recanted testimony that are genuine errors – that is, I would not dismiss these non-DNA claims because they are conceivably contestable.

    RC, I also don’t disagree that the arrival of DNA evidence has also worked to the advantage of some defense attorneys. I would note though that a good DA can pre-empt trial arguments like “where’s the DNA? – my guy is innocent” by presenting testimony that DNA is never collected (or uncollectable) in those sorts of cases.


  5. Victor Haltom says:

    “Insignificant minimum” ??? This is an awfully troubling term to use in seeking to quantify the number of innocents who have or may have been put to death. The state-sponsored taking of their lives was probably not insignificant to the wrongly condemned innocents or their families and loved ones.

    Scalia, Thomas, and others who refuse to acknowledge that innocents have been executed recently in this country are simply sticking their heads in the sand. Look at the undisputed evidence of now hundreds of inmates exonerated by DNA evidence after decaded of imprisonment. While no such definitively exonerating evidence has been unearthed in the aftermath of a recent execution, it’s just a matter of time — and even a basic grasp of statistics leads one to conclude innocents have been executed, recently.

  6. MJ says:


    Thousands of people have claimed to have been abducted by UFO’s. Is it your position then that “a basic grasp of statistics leads one to conclude” they can’t all be mistaken or lying and that at least one person has in fact been abducted? How about Sasquatch sightings?

    That it is possible that an innocent has been executed is conceded (by Justice Scalia, if you actually read his concurence). That is not the same thing as saying that it has been proven to have occured.