Lost Lives: Miscarriages of Justice in Capital Cases

One of the longstanding complaints against the death penalty is that it “distort[s] the course of the criminal law.” Capital prosecutions are expensive and complicated; they draw sensational attention from the press; they are litigated—before, during, and after trial—at greater length and depth than other felonies; they generate more intense emotions, for and against; they last longer and live in memory. There is no dispute about these effects, only about their significance. To opponents of the death penalty, they range from minor to severe faults; to proponents, from tolerable costs to major virtues. Until recently, however, the conviction of innocent defendants was not seen as a special hazard of capital punishment. Everybody agreed, of course, that condemning innocent defendants is a singular wrong, but it was not widely viewed as a major problem, and certainly not as a problem of special significance for capital cases. In the past decade, this complacent view has been shattered. In case after case, erroneous conviction for capital murder has been proven. I contend that these are not disconnected accidents, but systematic consequences of the nature of homicide prosecution in general and capital prosecution in particular—that in this respect, as in others, death distorts and undermines the course of the law. There are three factual premises behind the argument that capital convictions of innocent defendants are vanishingly rare. The first is that erroneous convictions are rare in criminal prosecutions of any sort, and that their danger