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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 involves two gruesome murderers: one African-American, one Caucasian. The former is executed, the latter rots in jail. HH involves one innocent fellow 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 AfricanAmerican, 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 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 inmatesof my clientsthat 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 punishment achieves is easily trumped 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 inmatesof my clientsis 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. vee sawyer photography www.veesawyer.corn FEBRUARY 23, 2007 THE TEXAS OBSERVER 25