IN ANNOUNCING earlier this year that he would “no longer tinker with the machinery of death” by voting to sustain capital punishment, Justice Harry Blackmun relied not only upon an understanding of the Constitution informed more by his own curious conscience than by the text or history of that document but also upon his belief that “innocent persons have been executed . . . and will continue to be executed under our death-penalty scheme.”
In making this assertion, Justice Blackmun cited a study published several years ago in the Stanford Law Review by two longtime opponents of capital punishment, Hugo Bedau and Michael Radelet. The authors purported to identify “350 cases in which defendants convicted of capital or potentially capital crimes in this century, and in many cases sentenced to death, have later been found to be innocent.” This finding was widely heralded in national press releases issued by the American Civil Liberties Union.
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