"Innocence is a distraction."

University of Houston lawprof David R. Dow has a NYT op-ed arguing that death penalty opponents ought to shift away from arguments about innocence, which he calls "a distraction":

Of the 50 or so death row inmates I have represented, I have serious doubts about the guilt of three or four — that is, 6 to 8 percent, about what scholars estimate to be the percentage of innocent people on death row.

In 98 percent of the cases, however, in 49 out of 50, there were appalling violations of legal principles: prosecutors struck jurors based on their race; the police hid or manufactured evidence; prosecutors reached secret deals with jailhouse snitches; lab analysts misrepresented forensic results. Most of the cases do not involve bogus claims of innocence, like the one that swirled for 15 years around Roger Coleman, but the government corruption that the federal courts overlook so that the states can go about their business of executing.

The House case will make it hard for abolitionists to shift their focus from the question of innocence, but that is what they ought to do. They ought to focus on the far more pervasive problem: that the machinery of death in America is lawless, and in carrying out death sentences, we violate our legal principles nearly all of the time.

Is Dow right about how "to erode support for capital punishment in America"? It's hard to get ordinary people excited about procedure. The main way of getting people to care is to create anxiety that an innocent man will be executed. Even if, as a matter of fact, nearly everyone convicted is guilty, people do have a very intense feeling about the risk of executing the innocent. I think if Americans believed that every 20th person executed was innocent, they would reject the death penalty.

And we ought to care about the problems of procedure whether we have the death penalty or not. Paradoxically, the death penalty may cause people to care about procedural problems that they wouldn't pay attention to if those who were unfairly convicted were quietly serving their long sentences in prisons.