One of the most potent arguments against capital punishment in recent years has been the execution of the innocent. Even strong advocates of the death penalty recoil at the idea that this may involve killing the wrong person. Many have joined the abolitionist camp not out of ‘principled’ opposition to capital punishment but because of their concern that the justice system, as it now functions, is not reliable enough. We know, for example, that in the United States (and presumably elsewhere), those who are sentenced to death and executed are generally those who had an inadequate defense.
But to date, the best we have been able to come up with are cases of people who were determined to be innocent during appeals or post-conviction review proceedings. When their circumstances became clear, the death penalty advocates answered: ‘You see, the system works. We identify the innocent before we carry out the executions.’
Now, it seems, there is a clear case that Texas executed an innocent man. It is discussed in a fascinating article in the latest issue of the New Yorker.
Meanwhile, last month the United States Supreme Court issued a decision ordering an evidentiary hearing into claims of innocence by Troy Davis, who is sentenced to death in Georgia. Many witnesses in the Troy David case have recanted, and there is at the very least an arguable case for his innocence. According to the majority ruling, authored by Justice Stevens: ‘The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.’ See: http://www.supremecourtus.gov/opinions/08pdf/08-1443Stevens.pdf. Justice Scalia dissented and would have denied Troy Davis the opportunity to prove he is innocent: ‘This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent.’ See: http://www.supremecourtus.gov/opinions/08pdf/08-1443Scalia.pdf.
Thanks to Jean-Marie Henckaerts, Nadia Bernaz and Megan Fairlie.