The Death Penalty in a World Where the Innocent Are Sometimes Convicted




Loewy, Arnold H.

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Texas Tech Law Review


In this Article, I consider whether we should eliminate the death penalty because we almost certainly have executed innocent persons in the past and will continue to do so in the future. Some would say, “Of course we should.” They would argue that it is highly immoral to maintain a system that cannot assure us that an innocent person would never be executed. My own position is considerably more nuanced. In my view, if executing guilty murderers (or some subgroup thereof) clearly benefited society in a way that life imprisonment without parole does not and could not, I would be willing to at least consider the plausibility of allowing an occasional mistaken execution as “collateral damage” to protect a valuable and necessary punishment resource for the State.

I do not, however, reach that conclusion. In my mind, even when we are dealing with defendants in whom we have 100% confidence of guilt (if such cases exist), the case for capital punishment is at best a wash, and probably fails. Consequently, when we superimpose the almost certainty of executing some innocents, the case for capital punishment with its concomitant collateral damage is simply not a cost worth paying.



Death penalty


41 Tex. Tech L. Rev. 187