That's a central question in the debate over the death penalty that David B. Rivkin Jr. and Andrew Grossman did not address in their Oct. 26 Op-Ed article defending capital punishment on constitutional grounds, says Thomas Wright of Oak Park, Ill.:
"Rivkin and Grossman have good arguments but miss an elephant: the likelihood of irreversible error. There being no appeal from the grave, we have to accept the certainty of a mistaken execution when we accept the death penalty. Given the heinous nature of a case that calls for death as the punishment, there is a strong pressure to indict, convict and punish someone. And many of those someones will be innocent.
"The best argument against the death penalty is that it is neither necessary nor sufficient in preventing murder — states with it have higher murder rates than states lacking it. Even if this is not causation, capital punishment is not preventing murder in Texas or Georgia."
David B. Rivkin Jr. and Andrew Grossman reply:
What the Constitution guarantees is "due process," not perfect justice, which is impossible. But the administration of the death penalty in the United States is as close to perfect as it gets. It is difficult to identify a single innocent person who has been put to death; where doubts have been raised, the evidence has proved inconclusive. For that reason, the Supreme Court has never had occasion to rule on whether there is an "actual innocence" exception to rules barring successive habeas corpus petitions by those nearing execution — the issue just has not been squarely presented.
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