41 Tex. Tech L. Rev. 199 (2008-2009)
The Role of the Innocence Argument in Contemporary Death Penalty Debates

handle is hein.journals/text41 and id is 207 raw text is: THE ROLE OF THE INNOCENCE ARGUMENT IN
CONTEMPORARY DEATH PENALTY DEBATES
Michael L. Radelet*
I.    INTRODUCTION      .................................................................................. 199
II.   DOCUMENTING ERRONEOUS CONVICTIONS ...................................... 200
Ill. A MORE ACCURATE CONCEPTION OF INNOCENCE ........................... 204
IV. THE DECLINING SUPPORT FOR THE DEATH PENALTY ....................... 207
V.    EXPLAINING THE DEATH PENALTY'S DECLINING POPULARITY ........ 210
A.     Correlation v. Causality ........................................................... 210
B.     Factors Contributing to the Death Penalty's Declining
P op ularity  ................................................................................. 211
VI. How INNOCENCE IS RESURRECTING THE KEY QUESTION: IS
DEATH Row RESERVED FOR THE WORST OF THE WORST? .............. 216
V II.  C ONCLUSION    ..................................................................................... 219
I. INTRODUCTION
A central component of the death penalty abolitionists' argument from the
last 250 years has been the problem of erroneous convictions.! Nonetheless,
the first systematic data on the prevalence and characteristics of wrongful
convictions in capital or potentially capital cases was not published until 1987.2
Definitive proof of innocence from specimens of DNA left at crime scenes first
led to the exoneration of an innocent prisoner in             1989,3 and then to the
* Professor and Chair, Department of Sociology, University of Colorado. This paper was drafted
while I was on sabbatical leave from the University of Colorado and a Visiting Scholar at the Irish Centre on
Human Rights, National University of Ireland, Galway. I am indebted to William Schabas, Kathleen
Cavanaugh, and the faculty and staff of the Centre for providing such a stimulating environment in which to
work. I would like to thank Hugo Adam Bedau, Samuel R. Gross, and Eugene Wagner for helpful comments
on earlier drafts of this paper.
1. See Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases,
40 STAN. L. REV. 21, 22 (1987). This concern can be dated to the wrongful execution of Jean Calas in
Toulouse, France, in 1762. Id. Calas was burned to death for allegedly murdering his son, supposedly to
prevent the son's conversion to the Catholic faith. Id. He was exonerated (and his family was paid an
indemnity) after a fifty judge panel reviewed the case in 1765. Id.; see, e.g., Jean Calas, ENCYCLOPEDIA
BRITANNICA, http://www.britannica.comleb/article-9018616/Jean-Calas (last visited Sept. 30, 2008).
2. See generally Bedau & Radelet, supra note 1, at 27-29 (introducing a strict methodology for
examining conviction errors in potentially capital cases).
3. See NAT'L INST. OF JUSTICE, U.S. DEP'T OF JUSTICE, CONVICTED BY JURIES, EXONERATED BY
SCIENCE: CASE STUDIES IN THE USE OF DNA EVIDENCE TO ESTABLISH INNOCENCE AFTER TRIAL 73-74
(1996), available at http://www.ncjrs.gov/pdffiles/dnaevid.pdf. The first inmate exonerated by DNA was
David Vasquez in Virginia on January 4, 1989. Id.

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