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Shocking Innocence Report: Government Killed Thousands

One of the major themes of abolitionism is that because the death penalty unavoidably risks killing the innocent  --  and that sooner or later this is bound to happen  --  it must end.

The premise is right.  The conclusion is wrong.  It rests on the tacit view that the government's killing the innocent is an unacceptable price to pay, no matter how just the cause otherwise might be.

There are two problems.  One is that this view is false.  The other is that, not unrelatedly, almost no one believes it.

This was brought home to me graphically this weekend, when I read this article in the New York Review of Books.  As a nation, we killed thousands of innocents because, though it was a mind-bending moral price, it was worth it, given the stakes.
The article is a review of a new book,  Descent into Hell: Civilian Memories of the Battle of Okinawa.  This is the part that jumped out at me (emphasis added): 

The huge US offensive in Okinawa--the only part of Japan where US forces fought on the ground--lasted eighty-two days in the spring of 1945 and cost about as many lives altogether as the atom bombs themselves. The US invading force of 1,050 ships carrying 548,000 men vastly outnumbered the 110,000 Japanese soldiers defending the island. But the Japanese held out with remarkable tenacity, and 77,000 Japanese soldiers and over 140,000 civilians would be killed before the US could declare victory.

By the spring of 1945, Japan, starving and depleted, had lost its capacity (if it ever had one) to attack the continental United States.  So exacting anything like that number of civilian casualties cannot be thought of as necessary to protect the country, even on the assumption that it could be thought of as necessary to win that particular battle. 

Why, then, did our country kill over 140,000 civilians?  Because we're brutal and savage? Because the United States is bent on world domination?  Because we revel in death?

Some might give those answers, sure.  But the great majority would give the obvious and correct answer:  We killed over 140,000 civilians because, in the circumstances, it was worth the candle.  

It's a staggering moral price; indeed, to my mind, it's incomprehensible.  In less than three months, we killed a hundred times more innocents than all the guilty murderers we've executed in the last 50 years.

Only a dishonest man could say there's no possibility we'll execute an innocent person.  And only an unspeakably morally callous one could say that's anything but a steep, even a grotesque, price.  But only a person disconnected from reality could say that, for that reason, killing by the government is never justified, ever, period.

It depends on what you get.  When you get, for example, the only justice that even remotely fits McVeigh or Bundy or Gacy or the torture/murderers of children, then what you get is worth the price, fearsome though it is.


I think one possible answer to this question depends on how one looks at the death penalty. I am (at least according to the surveys) one of those weird people who supports the death penalty largely on utilitarian grounds i.e. general and specific deterrence. Along those lines, the possibility of executing an innocent person does not really bother me as every human system has error. And, I think it is pretty clear that in the modern death penalty regime given the fact the cases are subjected to extreme scrutiny, the odds of executing an innocent person are remote. Maybe it has happened already, maybe not -

I think if one is pro death penalty solely or largely on a justice grounds, it might be harder for that person to justify the inherent mistakes (however remote) in that executing an innocent is the antithesis of justice.

War on the other hand is "the continuation of politics by other means" - there is really no such thing as a "just war". This isn't to say that all sides are consider equal, but rather wars are not fought for any concept of justice but rather naked self-interest whether it is acquisition of territory, self-defense, or the elimination of enemies.

Using the article example, the US war against Japan was not "justice", but rather a tool for eliminating a rival that was threatening our interests in the Pacific. Same deal with the atomic bomb - the purpose of it wasn't just, but necessary - better to have 200,000 Japanese civilian casualties then 1,000,000 plus American casualties for an actual invasion of Japan (and quicker way to end war and eliminate any possibility of the Soviets invading Japan as well).

You've done a good job of explaining a different angle on the same idea: That the possibility of executing the innocent is not an absolute reason to end the death penalty, and whether that possibility is worth it depends on what society gets in exchange.

Whether it's deterrence, incapacitation, just punishment, the elimination of a menacing rival (one view of the Pacific Theater) or preservation of your own or another's life against an imminent although misperceived threat, adults simply cannot escape balancing risks and benefits.

Absolute anthems sound great in high school debates, but real life is not high school.

The possible execution of an innocent person is the worst argument against the death penalty as it opens up the ultimate law school cliché - "the slippery slope". You can't convince me that giving life without parole to an innocent person is much better than death, so under that logic should we do away with LWOP?

I do not deny that a wrongful conviction is a grave injustice but the solution to that problem is not the elimination of jus punishments for the guilty. I think that any death penalty debate is about how to deal with the guilty and any debate about avoiding wrongful conviction is an entirely different topic

I agree that the DP shouldn't be abolished because of a statistically miniscule risk of executing an innocent person. But I believe that every effort should be made to reduce that risk. Carefully examining the cases where a person on death row (or, for that matter, serving a lengthy sentence) was exonerated would seem to be a good starting point. Let's determine where the system failed and attempt to ensure that those mistakes will not be repeated, or will be minimized to the extent possible.

My question: What can be done to reduce the risk of executing an innocent person beyond the safeguards already in existence?

I want to answer Paul's question, but first, please remember that most instances of convictions being overturned have little or nothing to do with the actual innocence of the defendant. In my state, North Carolina, four death sentences have been overturned by the Racial Justice Act (the opinion and order entered by that one judge was appalling and the State has appealed that decision) and had nothing to do with whether the defendant was guilty. It actually had nothing to do with whether the defendant got a fair trial.

Generally, cases of actual innocence are found where DNA or other forensic evidence has revealed reasonable doubt. I was a prosecutor for five years before going into private practice. I can only speak for North Carolina cases, but what I saw as a prosecutor was that universally the cases that ended in post-conviction exoneration did so because evidence either could not have been forensically examined at the time of the defendant's trail (i.e. the trial occurred before DNA analysis was readily available) or evidence was not turned over to the defense.

Let me be clear, I am not saying prosecutors illegally withheld evidence in those cases. North Carolina did not formally pass open file discovery laws until the 1990's and even those were very weak and ineffectual. It was 2004 before open file discovery became the statewide norm. These discovery reforms have and will continue to substantially reduce the risk of wrongful conviction. I would be shocked to hear about new exonerations from the open file discovery era that do not deal with newly discovered or analyzed forensic evidence. I saw the way in which (most) prosecutors take their oath to see justice done very seriously. (Mike Nifong being the obvious exception)

Given that forensic science is (I hope) going to get better and better over the years, I could see new and more powerful ways of examining evidence leading to future exonerations, but those cases would be the exception, not the rule.

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