Firmament or Folly? Protecting the Innocent, Promoting Capital Punishment, and the Paradoxes of Reconciliation

Abstract

Although considerable controversy surrounds capital punishment, there is no disagreement about the injustice of executing innocent persons. While critics of the death penalty have cited the risk of executing the innocent as a reason for its abolition, adherents have dismissed the risk of error as negligible, if not inevitable, and insufficient reason to halt capital punishment. Still others have proposed or enacted reforms designed to minimize the risk of erroneous capital convictions and sentences and, hence, allow executions to go forward in deserving cases in which doubts about guilt have largely been eradicated. In this article, we examine the principled tensions that accompany attempts simultaneously to safeguard the innocent from execution while promoting the objectives of capital punishment. We focus, in particular, on reforms recently incorporated into Maryland’s death penalty law. We suggest that the existing tensions between protecting the innocent from execution and promoting the objectives of capital punishment are so pronounced that attempted reconciliation of the competing interests is difficult to defend, either in principle or in practice.

Keywords:

• death penalty
• capital punishment
• innocence

Acknowledgments

The authors thank the anonymous reviewers for Justice Quarterly for their helpful feedback and suggestions.

Notes

1. An earlier version of this article was presented at the annual meeting of the American Society of Criminology in San Francisco, in November 2010.