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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, February 09, 2013

Actual Innocence

A comment at blog referenced earlier posted a worthwhile (if a bit tedious) article breaking down the number of wrongful sentences, suggesting the true error rate in death penalty cases might be 3 to 5%. One footnote alone is worth the skim:
I am not morally opposed to the death penalty. In fact, after reading the details of the underlying episode in 406 capital cases in a fairly short period, I am even less opposed to it on moral grounds than I was before. On the other hand, I do favor the abolition of capital punishment on a number of grounds: first, because I do not think a 3–5% error rate is an acceptable price to pay, nor do I think we are ever likely to undertake the reforms to reduce that error rate significantly; second, because I do not believe that the death sentence can ever be evenhandedly administered given the current nature of sentencing hearings, third, because the existence of capital charges distorts the incentives in plea bargaining in such a way as to raise the number of factually wrongful convictions by guilty plea; and last, because the existence of capital punishment draws all attention to the death penalty and away from the systemic problems and injustices of wrongful conviction in the non-capital parts of the system.
I am morally against the death penalty, but do not find those who are not reprehensible or anything, especially after reading some accounts of the murders involved. In a vacuum, the death penalty might be acceptable.  The reason to be fairly certain it is not arises when you look at how it is applied in real life. The final thought experiment in the article might look different even if the pool was limited to those who kill in prison or such, the very hard cases. But, of course, this isn't the case. And, actual innocence is but ONE problem of a glaring nature. 

The sentiment is raised in discussions of targeting killings of American citizens and drone strikes as a whole.  I am sympathetic to such concerns though still find claims constitutional rights are being violated repeatedly aspirational and am annoyed that the Obama Administration is being blamed for stating what the (flawed) law is at this time.  If you want to say as a matter of sane policy that targeted killings should be banned, you have a pretty good case.  Try resting on that. 

But, for those who do so while not trusting the judgment of the executive, the limit is limited.  At least, unless you do not expand it beyond citizens and say attacks on the base of operations as a whole is invalid too. Some honestly say this though even then sometimes drones particularly are cited (if we are going to be in the whack-a-mole business, they seem better than some alternatives).  Such is bigger game as is the idea the AUMF 2001 is unconstitutional (or is as applied) since we cannot in effect declare war on groups or even specific persons.  The latter does have a bill of attainder taint but military force against latter day pirates does not seem to me across the board unconstitutional or even wrong. 

A few people, including at Slate (the length of time the fray has been defunct suggests how long I've been talking about this) have voiced concerns that some of the above is overly legalistic.  But, we are a nation of laws.  What is legal should be at least part of the debate here, including when discussing the conduct of a person with the specific constitutional responsibility to faithfully execute not morality, but the law.  Good policy and public morality is part of the equation, obviously. And, I agree that getting overly concerned with legality can miss the forest for the tree.

So, though I think we need to argue this the right way, there is something to be said that bottom line wrongful actions are still wrong if legal. Admittedly, I am conflicted on just how wrong some of these actions are. At the very least, however, someone who is comfortable opposing the death penalty for cop killers needs to respect ire when he partially* defends the killing of a U.S. citizen without usual criminal process. 

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* Prof. Dorf's sadly realistic take on standing rules is but an example where I get off the bus -- chances are that even if the Administration agreed to standing, their argument on the merits would be upheld. But, it could have helped set clearer guidelines, guidelines set forth by an independent third party at that, a major concern of many critics. 

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