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Professor Peter Tillers of Cardozo Law School in New York blogs for JURIST on the latest evidence issues...
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Monday, January 13, 2003

The Death Penalty and the Risk of Judicial Error: An Irreverent Question from an Opponent of Capital Punishment

For the record: subject to an "Adolf Eichmann exception" -- i.e., subject to an exception for mass murderers --, I oppose capital punishment. Nonetheless, I have a question.

Ex-Governor Cuomo was fond of saying -- in his inimitably-condescending way -- that life in prison without the possibility of parole is a punishment that is worse than death.

Suppose that ex-Governor Cuomo was right. If now-ex-Governor Ryan was right in saying that the risk of error in the Illinois criminal justice system is sufficiently great to make the imposition of the death penalty unjust, does it follow that it is also unjust for Illinois to imprison people for life?

Where do we draw the line?

Or perhaps we should not agree with Mr. Cuomo's thesis that imprisonment for life is as bad as death?

I applaud the conviction and imprisonment of murderers, rapists, robbers, and sexual predators. Nonetheless, I wonder: does anyone who is reasonably familiar with the workings of the U.S. criminal justice system seriously believe that a system of criminal justice as starved of money as ours does not produce many more errors (of two kinds: (i) conviction of the innocent and (ii) acquittal of the guilty) than any civilized society should tolerate?

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An Irreverent Question of a Different Kind

Perhaps New York State did the right the right thing in vacating the convictions of the (former) youths for mauling the "Central Park jogger." But is it appropriate to celebrate this result -- given that it seems reasonably clear -- so reputable newspapers say -- that at least some of those "children" were "up to no good" in other parts of Central Park that same night? Not all victims of legal wrongs deserve beatification.

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Yes, I admit it: I am a curmudgeon. But I like to think that I just detest cant.

Posted by Peter Tillers at 1:24 AM
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Professor Peter Tillers

"I have practiced a little bit of law -- I worked as a litigator, once in California and once in Texas -- but for most of my professional life I have studied and taught law.

In the early part of my academic career I dabbled in philosophy, particularly the philosophies of Kant and Hegel. But as I matured, I came to my senses. This explains why during the last 15 years I have devoted much more attention to evidence, inference, and proof in litigation than to German Idealism and similar matters. However, I did not succeed in completely obliterating the influence of philosophy and epistemology on my thinking. Thus, in my effort to understand and explain the process of proof in litigation, I have devoted a great deal of attention to matters such as probability theory and theories of evidence, inference, induction, and proof.

Peter Tillers is Professor of Law at Cardozo Law School, Yeshiva University. He revised volumes 1 &1A of Wigmore on Evidence (1983) and is the author of Probability and Inference in the Law of Evidence (1988; with E. Green).