Do Wrongful Convictions Add Weight to the Argument for Abolishing the Death Penalty?

COMMENTARY Crime and Justice

Do Wrongful Convictions Add Weight to the Argument for Abolishing the Death Penalty?

Mar 21, 2022 1 min read
COMMENTARY BY
John Malcolm

Vice President, Institute for Constitutional Government

John is vice president for the Institute for Constitutional Government and director of the Meese Center for Legal and Judicial Studies.
There has been no definitive proof that an innocent person has been executed in the years since the Supreme Court reinstated the death penalty in 1976. Atit Phetmuangtong / EyeEm / Getty Images

Key Takeaways

Defendants who are sentenced to death are afforded multiple opportunities to challenge their conviction and sentence.

It is possible, however remote, that an innocent man might be executed. Yet, one must weigh that risk against the benefits of the death penalty.

While people should always be concerned about the risk of wrongful convictions, that is not reason enough to abolish the death penalty.

While some people on death row have been found to be innocent, there has been no definitive proof that an innocent person has been executed in the years since the Supreme Court reinstated the death penalty in 1976. In virtually every death penalty case litigated today, the defendant is represented by at least one “learned counsel” with extensive experience in capital cases.

Defendants who are sentenced to death are afforded multiple opportunities to challenge their conviction and sentence. Once a death row inmate has exhausted his appeals, if not before, a governor will likely commute the sentence if there is any credible evidence the defendant may be innocent, or pardon him if that evidence is substantial.

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I commend the attorneys who work on behalf of those convicted of capital offenses. Wrongful convictions give people pause about the criminal justice system in general, but especially in capital cases, given the irreversible nature of the penalty.

But even death penalty opponents acknowledge that the overwhelming majority of those convicted of capital offenses are guilty—and the crimes they committed often evince a brutality that is almost indescribable. It's impossible to fathom what the victim must have experienced in his or her final moments.

Passing judgment on someone charged with any crime, including murder, is a human endeavor, and human beings are fallible. It is possible, however remote, that an innocent man might be executed. Yet, one must weigh that risk against the benefits of the death penalty: general deterrence; specific deterrence (the murderer will not be alive to kill again); and retribution (society's signal that certain crimes are so horrific the death penalty is the only appropriate punishment and the finality that a victim's family gets in knowing the offender has gotten the punishment he deserves and cannot hurt anyone else).

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We make decisions like that all the time, even when we know with 100 percent certainty that some innocent people will be victimized. For example, decisions to extend the operating hours for bars, raise the speed limit and legalize marijuana have resulted in the death of innocent people on our roadways, yet the benefits were deemed to outweigh those risks.

While people should always be concerned about the risk of wrongful convictions, that is not reason enough to abolish the death penalty.

This piece originally appeared in CQ Researcher