Wrongful Conviction and the Death Penalty
An argument that lets the numbers, not the courts, speak .
By Paul Kieran Jeffrey
Contributing Writer, CMC ’12
The death penalty has been a contentious issue within American constitutional law throughout the 20th century, but it reflects a broader debate within American society regarding the efficacy and morality of the practice. This debate has led to the elimination of the death penalty in 15 states, the earliest being Michigan in 1846
. Ten of these states have abolished the penalty within the past 50 years, three of them since 2007. These changes show the results of an anti-death penalty movement that peaked in the 1920s and 1960s and has since ebbed. While the debate has been fought out by democratic means, the issue has also had its fair share of judicial oversight.
The death penalty is often fought in the courts on the basis of the cruel and unusual punishment clause of the eighth amendment. This approach has been met with a great deal of success, particularly during the Warren Court (1953-1969). On this basis, the Supreme Court has passed judgments outlawing the juvenile death penalty, the prohibition on capital punishment for non-homicide cases, and the general moratorium on the Federal death penalty (on procedural grounds). Nonetheless, the grounds for these decisions, particularly the last of the three, have left the Federal judiciary in somewhat of a stalemate, and the direction of the Court on the matter is by no means clear.
Furthermore, many constitutional scholars maintain that the use of the cruel and unusual punishment clause to strike down the death penalty, ostensibly on the basis of evolving standards, is an inappropriate understanding of both the text of the amendment and the role of the courts. I agree, but that debate would take far longer than this article. Suffice to say, it is rather difficult to argue that a document that explicitly provides for the death penalty would preclude its use on definitional grounds.
I would like to propose an alternative method of challenging the constitutional validity of the death penalty in both state and federal cases, one that I feel can and should be recognized by those of all political, religious, and moral values.
My argument is rather straightforward and lets the numbers speak more or less for themselves. The truth is that America’s legal system suffers from a disturbingly high rate of wrongful convictions. To be clear, this is not because we have a malicious or negligent legal system; in fact, America has one of the strongest legal systems in the world. But as long as our legal system relies on people as jurors, witnesses, and judges, mistakes will be made.
Many people are unaware of how often these catastrophic mistakes are made, of just how often we get it wrong. By the most conservative estimates, 7,500 people each year are wrongfully convicted of index crimes (only eight crime categories), which includes those punishable by death. To repeat, these figures are self-recognized as very conservative, limited only to those wrongful convictions that were caught and reversed. These figures also do not include those whose convictions were overturned for procedural error, leaving only those who were shown to be factually innocent. Therefore, it is likely that the actual figure might be more than double this amount. In 2003, a study done by the Criminal Justice Magazine and published by the American Bar Association found that in the past 25 years, 12.6% of those on death row had their sentences vacated and were released.
A multitude of contributing factors have led to this wrongful conviction rate, perhaps most importantly witness error and falsified evidence and testimony. As new evidence becomes available, and new forensic techniques are developed, we are able to reverse some of these convictions, but the more persistent, and possibly the most significant factor is wrongful testimony. Witnesses often lie on the stand, for a multitude of reasons, a fact that is not likely to change in the near future. What is much more surprising, however, is how truly unreliable our memories are, and how we should be hesitant at best to accept a witnesses ability to identify a suspect, or even give a truthful account of events. Witness misidentification is the leading cause of wrongful conviction. This is especially true when one considers the possibility for suggestion, the pressure of expectation and even coercion of witnesses.
Another problem with the death penalty is the problem of plea bargaining. Many defendants facing the death penalty will plea out rather than face the horrific possibility of execution, regardless of whether or not they are innocent. Innocent defendants might easily make the decision to accept life in prison rather than the possibility of death, with hope that while incarcerated the truth would come out. While one might not think this scenario would be very common, it is actually one that has sparked significant controversy within the legal community and undoubtedly plays out numerous times every year.
Furthermore, cross-racial factors in regards to witness testimony and juror behavior have been shown to be even more significant in death penalty cases than for other crimes. The unfortunate reality is that juries treat Caucasian life as more valuable than other life, particularly African-American life. While this trend is seen throughout the legal system, when the stakes are raised, the trend is amplified, raising serious issues of equal protection.
What should be clear is that wrongful conviction in our judicial system happens and will continue to happen. These are not rare events, but rather they occur at frightening rates. Even as technology progresses, wrongful convictions will persist, largely because most are the result of witness error. The truth is, so long as man is fallible, so will be our judicial system. The truth follows then, that so long as we have a death penalty, we, as a society, will be killing innocent citizens. Do we want that blood on our hands? Are we comfortable with this reality, all for the sake of implementing a policy whose value as a deterrent has been brought into serious question?
Thus, far I have only presented a policy argument. Where, then, is the necessary nexus between the wrongful conviction rate and the Constitutional provisions on which the Court can rule? My answer would be Due Process, applicable to the Federal Government by the constitution and the States through incorporation under the Fourteenth Amendment. With these high wrongful conviction rates, when we allow the jury’s the power to take life, then we are unduly denying both others and ourselves the right to life through a procedure that has proven itself too unreliable to be called “fair” when the stakes are so high.
Clearly, we must have a judicial system and must make do with the best we can provide. If we accept our judicial system as legitimate, then why should we strike down the death penalty on wrongful conviction grounds while upholding other convictions? What is distinctive about the death penalty that precludes its use in light of high wrongful conviction rates?
I think most of us agree that there is a significant difference between the death penalty and imprisonment. This disparity is the result of both moral and practical components, and it is on the latter that the courts should recognize the death penalty as deserving of special consideration. The death penalty, once administered, cannot be taken back: it is irrevocable. Thus, as changing technologies and new evidence are made available, we cannot go back and fix the mistakes of the past as we often can if the victim has been imprisoned. The success of such efforts as Project Innocence in demonstrating and reversing wrongful convictions is testament to this fact.
The Founders may have included provisions specifically allowing the death penalty in the very text of the Constitution. Yet the Courts are obligated to ensure the integrity and justness of their own judicial mechanisms. If the accepted procedure for determining guilt has shown itself too unreliable to be trusted with our very lives, then the courts should recognize it as a procedural problem.
This does not mandate abandoning our legal system; perhaps it is the worst judicial system, except all others that have been tried. But it does require that the courts recognize its own limitations in its ability to deliver justice, and as such not act in such a manner than severely limits its own ability to correct its own mistakes.
The foundation of my argument is not a particularly novel one; however, to my knowledge, it has not been used to any significant extent in arguments during any of the landmark cases. In any case, the current foundation of the Court’s rulings regarding the death penalty clearly rests on shaky ground. I believe that the opponents of the death penalty should strengthen their position by introducing this argument into their repertoire, eventually replacing the Cruel and Unusual Punishment clause as the main pillar upholding the moratorium on the death penalty’s use in the Federal system.
Consider what really is at stake: on one hand, the killing of a guilty person who would spend the rest of their life incarcerated; and on the other, the very real possibility of killing innocents. I have sought to make my case from an objective standpoint, and I believe that even to those of us who find the death penalty an acceptable form of punishment, my argument makes sense. Let’s not let our lust for vengeance cloud our judgment – even in light of the understandable outrage we feel at the heinous crimes for which this penalty is reserved.