The Risks of Death: Why Erroneous Convictions are Common in Capital Cases (Symposium: The New York Death Penalty in Context)

As the Supreme Court has said, time and again, death is different: It is different in kind from any other punishment imposed under our system of criminal justice; 1 it differs more from life imprisonment than a 100-year sentence differs from one of only a year or two; \u27 2 and so forth. Traditionally, this observation has justified special procedural protections for capital defendants. Justice Harlan put it nicely nearly forty years ago: I do not concede that whatever process is \u27due\u27 an offender faced with a fine or a prison sentence necessarily satisfies the requirements of the Constitution in a capital case. A central purpose of this special attention to capital cases is to prevent the conviction and execution of innocent defendants. Until recently, most judges, lawyers and scholars were willing to believe that the system worked as intended: that wrongful capital convictions were rare, and wrongful executions virtually non-existent.4 In the last decade, that optimistic view has become increasingly implausible