Flawed Logic for Death Penalty Abolition: An Analysis of Unrequited Innocence in U.S. Capital Cases
The recent article, Unrequited Innocence in U.S. Capital Cases: Unintended Consequences of the Fourth Kind,demonstrates many of the problems with abolitionist advocacy. Namely, the conflation of innocence with wrongful convictions and unaddressed issues with policy proposals.
Innocence / wrongful conviction
The actual position of the authors as to whether an innocent person has been executed in the last forty years is unclear. This is due to the schizophrenic nomenclature used throughout the article. In the introduction alone, the following terms are used in a seemingly interchangeable manner: “innocent,” “false convictions,” “substantial claims of innocence,” “falsely accused,” and “likely mistaken executions.”
This conflation is somewhat understandable when used in the popular media. The headline “[a]n innocent man was executed” is more succinct and sensational — and therefore more likely to attract viewers — than “[t]he state executed a man whose guilt can no longer be said to rise to the level of beyond a reasonable doubt.” Even Supreme Court justices have fallen prey to this error. In the Kansas v. Marsh dissent, Justice David Souter claimed that over 110 death row inmates had been released since 1973 “upon findings that they were innocent of the crimes charged.” Justice Antonin Scalia rebuked Souter and explained that most of these allegedly “innocent” inmates had been released due to technical issues, such as the death of a key witness, double jeopardy, or inadmissible evidence.
There is a certain peculiarity to a ninety-three-page article on “innocence in U.S. capital cases” that does not even attempt to provide a single example of an innocent person executed in the last forty years. The majority of the article focuses on the stories of twenty-four people on death row, twenty-two of which were about crimes committed in the 1900s. Ironically, if the death penalty were abolished, as Warden and Seasly argue for, the odds of someone on this list being exonerated would decrease due to the additional appellate protections received by death row inmates.
Raising the burden of proof in capital cases
The authors’ main argument for why the standard of proof should be raised in capital cases can be reduced to simply, it will make it more difficult to get convictions in capital cases. While this is certainly true, it is only a valid argument for increasing the burden of proof if one first assumes that fewer convictions is a desirable goal. Proposals to raise the standard to “beyond any doubt” and “beyond all doubt” have been rejected for good reason. By definition, any attempt to increase the standard higher than beyond a reasonable doubt would necessarily include even unreasonable doubt. This would, if faithfully applied, render all convictions impossible because there will always exist some unreasonable doubt. Perhaps the defendant had an as-of-yet-unknown evil twin who shares his DNA who committed the murder. Perhaps aliens committed the murder and framed the defendant as part of an elaborate experiment.
The authors’ main argument against death-qualified juries is that the jurors they exclude—those who refuse to apply the death penalty in any instance—are more likely to acquit. The authors claim this is prejudicial. To solve this problem they propose empaneling two juries, a non-death-qualified jury for the guilt-determination phase and a death-qualified jury for the sentencing phase. The extra costs associated with this change is asserted to be “inconsequential.” Setting aside the cost issue, this may seem to be a perfectly reasonable solution at first. However, further consideration reveals an incurable defect. Namely, the guilt-determining jury — which contains people who are adamantly opposed to the death penalty — would be well aware that their conviction could result in the death penalty. Studies show that the possibility of the death penalty significantly affects jurors’ willingness to convict. This would be especially true for jurors who find the death penalty so abhorrent that it should never be applied, no matter the circumstances.
Although never explicitly stated, the authors seem to implement an “ends justify the means” logic for their proposed dual-jury plan. Regardless of the costs and issues of biased jurors, it is a good idea because it would result in fewer convictions. It is certainly true that fewer convictions means fewer false convictions. But the other side of the equation — that fewer convictions also means more guilty defendants back on the street, now emboldened by the law’s inability to punish them for their actions — is never discussed. This is unfortunate, because any intellectually honest discussion of the issue — from either side — requires the discussion of this balance.
Viewing evidence in the light most favorable to the defendant
The authors suggest that juries should be instructed to view all evidence “in the light most favorable to the accused.” But if this standard was taken literally it would be unlikely that anyone could ever be convicted. For example, in a case where the prosecution presents eyewitnesses, DNA evidence, and a confession, it would be most favorable to the defendant to view the eyewitnesses as mistaken, the DNA evidence as the result of a lab error, and the confession as coerced. Each of these occurrences may be unlikely, but they would certainly be the interpretation “most favorable to the accused.”
Call for abolishment
The authors conclude that since juries are “hopelessly incompetent as fact-finders,” we ought not trust them with life-and-death decisions. The authors continue, “[n]or, of course, should we relegate such decisions to judges . . . . That leaves but one option — abolishing capital punishment.” But this begs the question, if judges and juries are so blatantly incompetent at rendering verdicts in capital cases, why should they be trusted to do so in cases involving life sentences? After all, many believe a life sentence is a more severe punishment than the death penalty.The authors would likely respond to this comparison by repeating the mantra that “death is different,” which is used to point out that the death penalty is irreversible. While true, life sentences are likewise irreversible, just in a different way. The punishment someone receives who is sentenced to life, dies in prison, and is later found to be innocent is equally irreversible. Even a twenty-year-old who receives a life sentence and is found to be innocent ten years later and released from prison cannot have his punishment fully reversed, since it is impossible to give him back his twenties and erase the experience of being incarcerated.
This critique of Warden and Seasly’s article should not be interpreted as an argument in favor of the death penalty. Rather, it is an analysis of the strength of the arguments provided by the authors. There are strong arguments against the death penalty that were not covered by the authors. Possibly the strongest is the combination of the cost argument and the lack-of-deterrence argument. Warden and Seasly provide interesting anecdotes of capital cases, but their attempt to turn them into a cogent case against the death penalty is ultimately ineffective.
* Powell Endowed Professor of Business Law, Angelo State University.
 Rob Warden & John Seasly, Unrequited Innocence in U.S. Capital Cases: Unintended Consequences of the Fourth Kind, 14 Nw. J.L. & Soc. Pol’y. 375 (2019).
 The forty-year period is used to roughly equate to the modern period of the death penalty, which started in 1976 when the Supreme Court, in Gregg v. Georgia, 428 U.S. 153 (1976), reinstated the death penalty; Warden & Seasly, supra note 1.
 Warden & Seasly, supra note 1, at 375-76.
 Kansas v. Marsh, 548 U.S. 163, 210 (2006) (Souter, J., dissenting).
 Id. at 196-97 (Scalia, J., concurring).
 Warden & Seasly, supra note 1. This is relevant because a factually innocent person who is sentenced to death but not executed is not an argument supporting abolition. Without the death penalty the person would have still been convicted and sentenced to a life sentence. Relatedly, a factually innocent person exonerated while on death row does not demonstrate the need for a complete overhaul of the system. To the contrary, it demonstrates that the post-conviction protections are working. Of course, it would be preferable for that person to have never been convicted in the first place. Likewise, it would also be preferable for every innocent person who was acquitted at trial to not have to go through a trial. But the reality that factually innocent people are sometimes forced to stand trial where they are ultimately acquitted is not a failure in the overall criminal justice system.
 Id. This is relevant because the authors have hand-selected these examples in an effort to promote abolishment of the death penalty. But presenting an example of someone who received the death penalty in the 1970s is hardly strong evidence for abolishing the death penalty in 2020.
 Warden and Seasly, supra note 1, at 458.
 Id. at 460.
 Elsewhere, the authors explain that “inconsequential” only means that, when compared to the cost of all jury trials nationwide, the increase in costs to capital trials would “not break the criminal-adjudication bank.” Id. Of course, by this logic, any increase in costs associated with capital trials — which make up a small fraction of all jury trials — would be inconsequential.
 Jonathan L. Freedman, The Effect of Capital Punishment on Jurors’ Willingness to Convict, 20 J. Applied Soc. Psychol. 465 (1990).
 Warden and Seasly, supra note 1, at 462.
 Id. at 467 (quoting Jerome Frank, Law and the Modern Mind 179-80 (1930)).
 Jennifer Levitz, Boston Bomb Jury to Decide Which is Worse: Death or Life, Wall Street J. (Apr. 21, 2015); A growing number of people who oppose the death penalty do so based on the belief that a life sentence would make the perpetrator suffer longer. Death Penalty, Gallup, news.gallup.com/poll/1606/death-penalty.aspx (last visited Dec. 6, 2019) (finding that 0% agreed with this in 1991, 5% in 2003, and 9% in 2014).
 See, e.g., Jeffrey Abramson, Death-Is-Different Jurisprudence and the Role of the Capital Jury, 2 Ohio St. J. Crim. L. 117, 117-18 (2004).
 In currently unpublished research, the cost argument was found to be more effective at promoting abolition than the three other arguments tested: racism, international standards, and the irreversible nature/government can’t be trusted. Michael Conklin, Effective Death-Penalty Abolitionist Rhetoric: A Quantitative Analysis of What Works (Dec. 21, 2019) (unpublished manuscript) (on file with author).
 See generally Michael L. Radelet & Marian J. Borg, The Changing Nature of Death Penalty Debates, 26 Ann. Rev. Soc. 43, 44-46 (2000) (discussing the history of deterrence as an argument in favor of the death penalty from the early 1970s through the late 1990s).