Needle in a Haystack

Editor’s Note: Sometimes it’s enjoyable to watch opposing minds burrow deeply into a debate, each forcing the other to refine and defend their positions. That is what we present here.

The combatants are two avid death-penalty abolitionists: David R. Dow, a distinguished professor at the University of Houston Law Center, founder of the Texas Innocence Network, and litigation director for the Texas Defender Service; and Alan Hirsch, a visiting professor of legal studies at Williams College and the founder of www.truthaboutfalseconfessions.com.

Last October Dow published an opinion piece in The Washington Post arguing that abolitionists are profoundly wrong to hang their anti-death penalty arguments on efforts to show that innocent men and women have been—and will be—executed.

Hirsch voiced his disagreement in an e-mail to Dow, and the battle was joined. Below is an edited and condensed version of the ensuing e-mail exchange.

AH: You wrote in The Washington Post: “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.”

We’re both abolitionists, yet we have a deep disagreement about how to make that case. I believe that execution of the innocent is by far the best reason for abolition—both morally and tactically. You refer to the possibility of executing an innocent man. Now that DNA testing has exonerated scores of people who’d been convicted, a number of whom spent time on death row, we should talk in terms of certainty. That should put an end to debate over the death penalty, shouldn’t it?

DRD: The answer, both morally and empirically, is no. Empirically, we can be pretty certain that innocent people have been executed. But has the bottom fallen out of the death penalty market? I represented a man who was the 22nd person executed in Texas in 2006. Nobody pays any attention to these cases. Any coverage is buried deep in the metro section of the paper; the television’s newscasts do not even mention them. The typical execution is a banal, unnoticed event. I doubt this would be the case if the issue of innocence had lit a fire under a significant number of people.

It also is not at all clear that the fact that innocent people will certainly get executed is a persuasive moral reason for opposing the death penalty. Innocent people die all the time in our society. It is the cost of progress. Innocent people get sent to prison, and some remain there for the rest of their lives. We don’t empty the prisons just because some people there are innocent. We do not stop fighting wars just because some innocent people will die. We do not stop building skyscrapers just because some innocent construction workers will fall to their deaths.

AH: The thought of an innocent man executed gives people the creeps (as it should). The only reason it hasn’t led to abolition is that we, as a society, are in denial. We pretend that we adequately safeguard against wrongful executions. When Gov. George Ryan couldn’t pretend anymore, he suspended executions in Illinois. If people realized that what was obvious in Illinois is true everywhere—that capital punishment will inevitably kill innocent people—Ryan’s example would likely be followed.

Yes, as you say, innocent people are punished more than we care to admit. But I believe that executing the innocent is morally distinct. We have to lock up those deemed to be dangerous criminals lest they prey on us. But we don’t have to kill them—we’re protected as long as they’re behind bars. Any time we punish anyone, we run the risk that he’s innocent. Locking away an innocent person is tragic but not immoral, because it’s undertaken for a legitimate reason. There’s also a second distinction between imprisoning and killing an innocent man. In the former case, if innocence is established we can put an end to the injustice. Killing an innocent person is uncorrectable.

In your Washington Post piece, you say the best reason for abolition is that “killing is wrong.” As your own example of war suggests, you’ve not stated a valid moral principle. Allowing that you may have oversimplified for the purposes of an op-ed, can you modify “killing is wrong” in a way that states a sound basis for abolition and is more compelling than my principle, i.e., killing is wrong when it will inevitably kill some innocent people and is unnecessary?

DRD: Your entire argument turns on the idea of necessity. You believe that prisons are necessary, but that executions are not. Your only disagreement with a death penalty supporter is that he or she believes that executions are necessary as well.

Innocence as an abolitionist tactic is failing, and it is making matters worse. Gov. Ryan was a courageous fellow, but a better example is Massachusetts Gov. Mitt Romney, who decided that if we are worried about innocence, the best thing we can do is design a system that won’t convict the innocent. Let’s use our American ingenuity and fix it! Tweak the system, or overhaul it if need be, and eliminate the possibility of error, or at least make the risk so small that no rational person would hesitate in view of it. People think perfection is possible, or nearly so. So if your tactic is to show that mistakes have been made, the likely response by death penalty supporters is to design a better mousetrap. They are not going to abandon the punishment.

The reason that innocence does not cause support for the death penalty to evanesce is a simple cost-benefit analysis. Supporters of capital punishment often believe that executions save lives. They are mistaken, but that is not the point. If capital punishment deters, then it deters regardless of whether the person who is executed happened to be innocent. So if a typical execution saves 3.1 other lives—and I am making that number up, because in reality there is no sound evidence for deterrence whatsoever—then even if we mistakenly kill an innocent man, we are still 2.1 lives ahead.

All the talk of innocence, in other words, remains irrelevant, and so we return to the moral argument, which is that killing is wrong. I am a lawyer, and lawyers draw lines and have rules riddled with exceptions. Yet to have exceptions, we must begin with a rule. The rule—that killing is wrong—is not just any rule. It is perhaps the single moral rule shared by every human society throughout human history.

The rule is omnipresent. The exceptions vary, encompassing ordinary self-defense, where a homeowner kills an intruder, to World War II, and everything in between.

It is possible that, on occasion, a homeowner acting in what he believes is self-defense will murder someone whose car has broken down and just wants to use the phone to call AAA. The possibility of error does not undermine the moral force of the rule. If the death penalty is moral, it does not cease being moral because we occasionally make mistakes.

AH: You can’t get much abolitionist traction from “it’s wrong to kill.” You concede that such a rule is “riddled with exceptions.” Once you acknowledge that, we’re back to square one. It is wrong to kill except when it isn’t. You, I, and the blood-thirstiest supporter of state-sanctioned killing all agree. The question for us is why the death penalty does not qualify as one of those instances of morally acceptable killing.

I claim capital punishment is immoral because it will inevitably produce tragic injustice that is unnecessary and irreversible. We don’t need the death penalty for self-defense or some other compelling reason. We can adequately keep the bad guys at bay without killing anyone and thereby without killing some innocents.

If it’s true that the death penalty is necessary, then (by definition) we need it. But it’s also true that the death penalty is barbaric unless necessary (since it kills the innocent). And no one has come remotely close to establishing its necessity.

But you are wrong to say that my “entire argument turns on the idea of necessity.” There’s also the matter of irreversibility. If we’re inevitably going to punish innocent people, we should take pains not to do it in a way that is irreversible. I think the morality of a policy can indeed turn on such niceties. The inevitable killing of innocents constitutes an unimaginably enormous harm—all the greater because, unlike other punishments, it is irreversible.

Your second-favorite argument for abolition, quoting your Washington Post piece, is that “the death penalty is unfair: the system favors white skin and devalues dark; it favors the wealthy and penalizes the poor.” True enough. But the same could be said for all punishment, not just capital punishment, yet you wouldn’t abolish all punishment. Death is different, but why is it different in terms of equal protection? Frankly, I am less troubled by discriminatory treatment in the punishment of murderers than most forms of unequal treatment. I’m unmoved by the murderer’s brief: “Other murderers are permitted the luxury of life in prison because they’re wealthy or white, while I’m put to death.”

Put aside the failure of your argument to move me. It might fail to move you if you subject it to your own analysis. You complain that focus on innocence-protection will lead not to abolition but to Romney’s approach—a maze of rules safeguarding against wrongful execution. Let me offer this limited defense of my erstwhile governor: The death penalty statute that doesn’t actually kill anyone is the best kind. Whereas look at how some shrewd Texas governor will respond to your equal protection argument: “Okay, wiseguy, we’ll satisfy you: We’ll kill more whites.”

DRD: I used to have a similar response to your “murderer’s brief.” The first time a lawyer told me that I should work on a death penalty case because only poor people are on death row, I said, half-jokingly, “The solution is to kill more rich people.” That was my response because I think there are two fundamental principles in our country and our legal culture, one of which is equality. The equality principle means that the state cannot discriminate on the basis of certain criteria, which include race and wealth.

Let’s imagine two cases. In one, the state kills someone who is innocent. In the second, the state kills someone who is guilty, but the reason he got the death penalty was because of race. In the first case, the state has made a mistake. In the latter, the state has violated a principle. It has betrayed something fundamental.

In my view, the principle that might be violated when the state executes someone who is innocent (assuming that there is any germane principle here at all) is no more important or compelling than the principle that is violated when the state executes someone because of race or wealth.

Killing is wrong, and therefore must be justified. The two most common justifications for capital punishment are retribution and deterrence. Retribution doesn’t have much to do with what we are talking about at the moment, but deterrence does, and I think my principled objection to death will carry more weight with someone who believes in deterrence than your innocence argument. The believer in deterrence kills to save life. Even if he kills the wrong person, i.e., someone who is innocent, he still saves lives (assuming his calculations and regression analysis are sound). Consequently, even if you prove to him that an innocent person has died, he can still answer, “Yeah, but I saved two lives.”

But if I can confront him with a principle that has nothing to do with how many lives he has saved, he can answer me only by saying that saving lives is more important than living in accordance with our principles and values. He can say that, of course, but he won’t persuade me, because he’s wrong. Our principles are more important. That’s why we fight wars.

AH: You subtly distort the equality issue when you say “the reason [someone] got the death penalty was because of race.” (My emphasis.) Race is never the reason someone is executed. Skin color of culprit or victim may be a “but for” cause of an execution, but that’s not saying much. The crime one commits is generally the major reason for his execution.

Remember the subtitle of that abolitionist classic by our old professor, Charles Black: The Inevitability of Mistake and Caprice. Our disagreement has crystallized to this: mistake versus caprice. I’m more bothered by mistake, you by caprice. (I’m using “caprice” broadly to cover extralegal factors, fully aware that racism is often anything but capricious in the dictionary sense.) Caprice inevitably pervades the justice system. Racial and class inequality affect all punishments, not just capital. Yet you wouldn’t abolish all punishment. You didn’t take up my challenge to explain why the death penalty is different (in terms of the equal treatment principle). I renew the challenge, and implore you to rise to it: In the great spirit of Lone Star justice, two strikes and you’re out!

As for me, avoiding unequal treatment of murderers is not a high priority. By contrast, the imperative to avoid irreversibly punishing the innocent is about as clear and compelling as anything can be in the realm of public policy and morality.

Let’s turn to what you’ve called “the third-best reason” for abolition: The death penalty “tempts the government to cheat, and the government does cheat routinely; police lie and prosecutors withhold evidence.” Let me make the obligatory disclaimer, sincerely and in good faith: Most police and prosecutors are honest, devoted public servants. That said, you’re right: Misconduct by law enforcement is depressingly widespread. But this, too, is true in all cases, not just capital cases. I agree there tend to be more shenanigans in important cases, where there’s more pressure to obtain a conviction, but I don’t see why there would be more dishonesty in murder cases in death penalty states than in nondeath states.

DRD: To avoid that dreaded second strike, let me try to answer whether and why the death penalty differs from any other punishment in terms of the equal protection principle. You are saying that the principal objections I raise against the death penalty—that it disadvantages the poor, that it privileges white skin over dark, and the like—are equally applicable to nondeath cases. But I do not favor eliminating prison, so why do these violations of the equality norm support abolition?

That’s a fair and difficult question. The violations of principle I am referring to are, I believe, much more common in death cases. The reason for this has to do with the last point you raise: prosecutorial and police misconduct. I cannot prove that misconduct is more common in capital cases than in noncapital, but my impression is that cheating is more pervasive in capital cases, and the reason is simple: Prosecutors and police, like most people, do not like to lose. They cheat more in capital cases because the stakes are higher. So you are correct: Injustice is everywhere, but there is more of it in the death penalty domain and—and this is the crucial point—the very presence of the death penalty as an option increases the frequency of these violations.

Second, death is differe
t. But I am not sure you and I vest t
is difference with the same significance. I simply mean that killing someone is different from imprisoning him. Imprisoning someone is not inherently wrong; killing someone is. We have no biblical injunction that says, “Thou shalt not incapacitate”; we do have one that beseeches us not to kill.

What this means for me is that the presumption against killing is far stronger than the presumption against imprisoning, and overcoming that presumption is, accordingly, far more difficult. The presence of racism, classism, and the like increase the difficulty of overcoming that presumption.

Now you might ask, “Why?” And here we arrive at your point that racism, economics, etc. are not the reason someone is executed. In a sense, you are obviously right. The reason people are executed (except for the innocent ones) is that they killed someone. And yet, I think my locution—that they are executed because of their race, or because of their lawyers, or because of their wealth—is both accurate and apt. People get executed because of their race. Or because of their lack of wealth. Or because of their incompetent lawyers. You can kill someone and not get sentenced to death if you have certain characteristics; if you lack those characteristics and you kill someone, you will be a client of mine one day.

Why am I reluctant to embrace and exploit the innocence argument? Because, despite our agreement on the basic idea that death is different, we do disagree about two things, one philosophical and one tactical.

Philosophically, I do not think that the value implicated when an innocent person is executed is of singular importance; indeed, I go further. I say that the value that is implicated is less important than some other values, in particular, the value of equal treatment.

Tactically, I think that focusing on the fact of innocence, or the principle that is violated when an innocent person is executed, has the perverse effect of strengthening the death penalty, because it does suggest that this principle is uniquely important.

AH: At least we agree about where we disagree. We agree that death is different and that the difference compels abolition, but seem to disagree about why and how the difference matters. Let me take one more stab, this time with two hypotheticals. I’ll call them Dow Hypo (DH) and Hirsch Hypo (HH).

DH involves two gruesome murderers: one African-American, one Caucasian. The former is executed, the latter rots in jail. HH involves one innocent fellow (of any skin color) who is convicted and executed. DH, while a formal violation of the equal treatment principle, does not keep me awake nights. It would be remedied just as easily by killing the Caucasian as sparing the African-American, and in either case two very bad dudes meet very bad fates. Whereas HH not only keeps me up nights, but shames me. We put to death innocent people. Short of necessity, we cannot possibly embrace a system which inevitably produces that intolerable result.

Not all violations of equal treatment are created equal (so to speak). It is one thing to deny black and white school children an equal education or male and female adults an equal vote, quite another to deny similarly situated murderers identical punishment. The latter represents a relatively insignificant violation of equal treatment. More to the point, it cannot compare to the abomination of gratuitously executing the innocent.

The inevitable execution of the innocent is not only the best argument for abolition, but renders all other arguments unnecessary. No humane society will tolerate a system that predictably executes the innocent, absent some overwhelming need that no one has begun to demonstrate.

DRD: The execution of the person in the Dow hypothetical might not keep me awake as many nights as the person in the Hirsch hypothetical, but it would still keep me awake. It is still wrong. It is still immoral. You say that HH causes you shame. Making a mistake is not an occasion for shame. Acting immorally is.

I have come back to “killing is wrong”—the fundamental moral proposition on which everything else I say rests. I think without that claim, opposition to the death penalty makes no sense. If you think the death penalty saves lives, or is cheaper, or is worth having for any other reason, occasionally executing an innocent man does not nullify those reasons. If they were true before an innocent person was executed, they are still true after that tragedy has occurred.

I believe abolitionists should not focus on innocence because I do not think it is wise to adopt a strategy that permits someone on the other side to ask, “Is he innocent?” and, if he is not, to proceed to execute him without moral reservation.

I want to compel the other side to ask, “Is he human?” For me, as a death penalty lawyer who has had scores of clients ushered into the sterile execution chamber and put to death, it is the humanity of the inmates—of my clients—that is the critical moral fact. I remain convinced that the obsessive attention to innocence distracts from that fact.

AH: I’ve no doubt that the death penalty has some utilitarian benefits. (I doubt that it saves lives and I know it’s not cheaper, but it surely provides a measure of satisfaction to victims’ families if nothing else.) But anything capital punishment achieves is easily trumped (if not “nullified”) by execution of the innocent. You suggest that this argument “makes no sense,” yet to me it seems plain and potent: Any benefits of the death penalty are far too small to justify the immeasurable harm of killing the innocent.

I understand your frustration with my position. I would spare 100 percent of those on death row because of the 0.5 percent who are innocent. You think I fail to take the full measure of the 99.5 percent whom I would spare mostly for prophylactic reasons. You’ve got a point. One sentence of yours packs a wallop: “The humanity of the inmates—of my clients—is the critical moral fact.” One doesn’t need to represent killers to know that even the worst among them sprung from a mother’s womb and bleeds human blood. But I suspect you feel this truth more keenly and more often than most of us. You’ve shaken their very human hands, trembling from fear. You’ve looked into their human eyes, which no doubt saw in yours a rare stare of sympathy. I won’t romanticize murderers, but I yield to your effort to humanize them.