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4 Criminology & Pub. Pol'y 45 (2005)
Innocence, Error, and the New Abolitionism: A Commentary

handle is hein.journals/crpp4 and id is 47 raw text is: REACTION ESSAY INNOCENCE, ERROR, AND THE NEW ABOLITIONISM: A COMMENTARY AUSTIN SARAT Amherst College if statistics are any indication, the system may well be allowing some innocent defendants to be executed. - Justice Sandra Day O'Connor Something important is happening in the American debate about capital punishment. Things are changing, some dramatically, some slowly, below the surface. Our national conversation about the death penalty is very different than it was 10 or 20 years ago. These changes are captured in two recent developments. First, the Death Penalty Information Center (2004) indicates that Capital sentencing has declined by 50% compared to its rate in the 1990s. Almost every state and every region of the country have shown a marked decline in sentencing. Even though the public continues to support capital punishment in theory, they are pulling back on imposing this extreme sanction. Second, The New York Times reports that, in a rare instance of bipartisan cooperation, Congress passed the so-called Justice for All Act of 2004. This act, establishes a federal prisoner's access to DNA evidence for five years after conviction, and possibly longer if a court finds injustice. It also provides $350 million to improve the abysmal state of defense representation that so often undermines justice in death penalty cases. And the government will spend $755 million to deal with the current backlog of 350,000 untested DNA samples in rape cases (New York Times, 2004). Unnever and Cullen's Executing the Innocent and Support for Capital Punishment: Implications for Public Policy helps us understand these developments and the broader changes they signify. Their analysis portrays the growing salience of the issue of innocence and its impact on American attitudes toward the death penalty. They highlight the widespread belief that an innocent person has actually been executed for a crime they did not commit and show that this belief significantly diminishes support for capital punishment. The issue of innocence, more than any other factor, has changed the climate surrounding state killing and helped to inform what I have elsewhere called the new abolitionism (Sarat, 2001). In the remainder of this commentary, I will locate the origins of the new abolitionism in several distinct decisions and events and assess the place of concerns about executing the innocent in them. NUMBER 1 2005 PP 45-54 VOLUME 4

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