Executing The Innocent

When you execute the innocent, you’re making the same mistake the Romans made with a guy named Jesus. Unfortunately, in the United States the innocent have been executed all too often. That’s why the U.S. Supreme Court declared a moratorium on capital punishment in federal cases.

How is it proven that the executed person was innocent? In some cases, a third party has confessed to a murder after the innocent is executed for the crime. In other cases, DNA evidence has been ignored where that evidence would have proven the innocence of the accused. For example, the coroner’s office might have a dead body that was strangled to death, but DNA offered by the accused is not found on the dead body. That proves that the accused did not commit the murder, but if the prosecutor doesn’t allow the defense access to that information and doesn’t introduce it at trial, the innocent might well be convicted and executed.

Another type of error occurs when the prosecutor’s office has an impossible legal theory that is somehow accepted by judge and jury. For example, it might be that the accused was actually in prison on other charges at the time of a murder. It would have been impossible for him to commit the crime. If he is convicted and executed anyway, the innocent has been executed.

It is the most serious mistake that can occur in a judicial system.

How do you avoid executing the innocent? You avoid it by establishing procedural rules that protect the innocent during the trial process. You pass laws that require the prosecutor to divulge to the defense attorney any evidence or information that would tend to prove the innocence of the accused. You enforce the Constitution so that the defendant has all the rights of the accused contained in that document: the Right against Unreasonable Searches and Seizures; the requirement of a Warrant based on Probable Cause; the Right to a Grand Jury; the Right Against Double Jeopardy; the Right Against Self-Incrimination; the Right to Due Process of Law; the Right to a Speedy and Public Trial before an Impartial Jury; the Right to Confront Witnesses; the Right to Subpoena Witnesses; and the Right to Effective Assistance of Counsel. These are the minimum procedural rights; there may be other doctrines created by the judiciary that are applicable as well.

People don’t get it. I often hear them complaining about procedural rules – “technicalities” is the common term – because someone on TV says that an accused felon was released because of a minor procedural problem. Procedural justice – the requirement that the judiciary adhere strictly to procedural rules – is required in order to avoid the execution of the innocent. That requirement is a part of any fair judiciary.

A nation that executes the innocent is on the same path the Roman Empire followed, and that’s not good.