The Corner

Fair Point

Radley Balko criticizes my death penalty post from the other day. He writes, in part:

Jonah Goldberg repeats an old refrain — that for all the wrongful death row convictions of the last several years, wrongful execution is still a poor argument against capital punishment because America has never executed an innocent person.

That’s not entirely correct. A more accurate phrasing would be “we don’t know if we’ve ever executed an innocent person.”

That’s because once someone’s executed for a crime, prosecutors in most jurisdictions close the books on the case. Permanently. Files are generally either sealed or destroyed. The reason? Precisely so arguments like Goldberg’s retain their validity. No one wants to be the first DA who’s proven to have sent an innocent man to his death. Once the convicted is put to death, odds are no one will ever lay eyes on the kind of evidence that might later point to doubt. The files are gone. Or inaccessible….

There’s more, but let me just say that Balko’s right and I’m wrong. I should have said nobody has ever demonstrated that we’ve executed an innocent man. We don’t know. In fact, I’d take it a step further and say I’m willing to say that I’m sure some people were wrongly executed in the United States if we are going to include the 19th century when there were scads of crimes punishable by death and trials were a little less formal.

But in the hypothetical contemporary cases Balko is discussing, he makes it sound as if innocent victims are going unrevealed because nobody is looking. That might be happening. It’s more likely, however, that no one is looking because the guy was guilty and after 12 years of exhaustive appeals no one doubts his guilt.

However, it’s also worth saying that even if we wrongly executed someone, that in and of itself hardly constitutes an argument for abolishing the death penalty. It constitutes an argument for fixing the death penalty. I know that OSHA and the FDA are aware that certain regulations will result in X number of deaths per 100,000. But we don’t say the FDA should stop doing what it’s doing. If the criminal justice system screws up, we should fix the problem, punish those responsible and move on.

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