The Execution of the Innocent

Abstract

In February 1997, the (usually conservative) House of Delegates of the American Bar Association (ABA) overwhelmingly adopted a report from its section on Individual Rights and Responsibilities and went on record as being formally opposed to America's current system of capital jurisprudence, calling for an immediate moratorium on executions.2 The motion was supported by twenty former presidents of the ABA (some who counted themselves as supporters of the death penalty), and passed in the House of Delegates by a twothirds margin. Among the issues of concern to the ABA were the lack of competent counsel in death penalty cases, restricted access to appellate courts even when new evidence of innocence is present, and racial disparities in the administration of capital punishment.3 In this article, we focus on one of the problems that gave rise to the ABA resolution: the continuing and regular incidence of American trial courts sentencing innocent defendants to death. Elsewhere, we have published accounts of more than four hundred cases where persons were wrongfully convicted in capital (or potentially capital) cases and described several dozen of these cases in detail.4 Our discussion in this article falls into three parts. First, we explore the conceptualization of the term innocence. (Without a precise concept, we have no suitable criterion for deciding who should and should not be considered innocent despite a crimi-