Americans Don't Want to Kill Innocent People

I've been meaning to respond to Mr. Gillette's thoughtful post inspired by Judge Kopf's statement that “many federal judges, and I would suppose many state judges as well, understand that the death penalty has and will continue to result in the innocent being put to death in some small percentage of the cases.”

Perhaps this is a simple statement of admirable humility: the death penalty is administered by error-prone humans, and thus innocent people will be ground up in the machinery of death that it creates.

¯\_(ツ)_/¯

Indeed, Judge Kopf relies on a democratic principle: Americans surely know the justice system is imperfect, yet they support the death penalty as part of the justice system. Therefore, the American people are comfortable with the occasional execution of an innocent person. His job as judge is just to implement the justice system established by the democratically enacted laws.

I think there's profound error here. Yes, the American people know the justice system is "imperfect," but not in the way Judge Kopf thinks. I would bet a lot of money that the most well-known aphorism about the American criminal justice system is Blackstone's ratio:

It is better that 10 guilty persons escape than that one innocent suffer. 

Based on this, the popular perception of the American criminal justice system is that it is too lenient. There are too many technicalities, too many loopholes, too many appeals. O.J.!

So I reject Judge Kopf's supposition that people who support the death penalty assume, or are even comfortable with the fact, that innocent people will inevitably be put to death. In all my years of arguing with people about the death penalty (and I've been on both sides) I've never heard the pro-death side acknowledge that innocent people will be killed, thems the breaks. No one has ever argued for what I'll uncharitably christen Kopf's Ratio:

It's okay to kill one innocent man so that 10 guilty men can be put to the death the people think they so richly deserve.

This is not a cherished principle of American law, thank God, and let's hope it never is.

Unfortunately, we are coming to learn that Kopf's Ratio might better reflect the reality of American law, and that raises the question of what to do about post-conviction claims of "actual innocence." More on that next week (if you're lucky).