The Paradox of Innocence: Why Abolishing the Death Penalty May Increase Miscarriages of Justice

Abstract

As long as we have a death penalty we will inevitably execute innocent people. It has been argued by many scholars, such as Michael Radelet, Hugo Bedau and Constance Putnam, that such miscarriages of justice mean we should abolish the death penalty. I argue that, paradoxically, if we do abolish the death penalty more innocent people may be punished for crimes they did not commit. Miscarriages of justice may increase because the “surplus oversight” (extra appeals, more lawyer hours, etc.) that attend capital cases may disappear. I collected and analyzed available data on surplus oversight, which strongly suggests that this is the case. To further test my hypothesis, I constructed and implemented an experiment: would subjects donate as much to an innocence project if the innocent person were serving life in prison as they would if the innocent person were sentenced to die? The results of the experiment suggest that they would not; donations to exonerate innocent people serving life were about 20% lower than those to exonerate innocent people on death row. These findings support my conclusion: if we abolish the death penalty people may pay less attention and allocate fewer resources to wrongful convictions so that inadvertently more people may spend the rest of their lives in prison for crimes they did not commit. Ironically, if we want to avoid miscarriages of justice, we have a reason to keep the death penalty.