The death penalty and the matter of factual innocence

“The truth is that many federal judges, and I would suppose many state judges as well, understand that the death penalty has and will continue to result in the innocent being put to death in some small percentage of the cases.” I wrote those words in a post yesterday and a thoughtful commentator responded that such a statement “merit[s] further exploration and discussion.” I agree, and endeavor to do so in this response.

Here goes:

  • Although I have written an opinion for the Eighth Circuit affirming the death penalty in a case involving an especially horrible murder of a child, see here, this post flows exclusively from my perspective as a federal trial judge.
  • I now have several death penalty cases pending before me. Nothing I write here comments upon the merits of those cases or death penalty cases that I may take on in the future. For example, I express no opinion on whether “actual innocence” is or should be something more than a bridge to overcome procedural default. To be clear, I have not made up my mind about anything having to do with a real case whether it is pending now or comes down the pike later.
  • As a purely personal matter, I am agnostic about the death penalty. I can see it both ways.
  • As a judge, I strongly believe the death penalty is a matter of policy to be determined by the people through their elected representatives and as such deserves special respect from federal trial judges like me. I agree with the statement, if not the tone, of Mr. Justice Holmes when he said that “If my fellow citizens want to go to Hell I will help them. It’s my job.” That is terribly flip, but the statement is not as cavalier as it sounds. As Thomas Hobbes asserted in the Leviathan (1651), life in the state of nature is “nasty, brutish and short.” Thus, to escape from this chaotic and predatory jungle, we ban together and form a social contract between ourselves–all 300 plus million of us. Our social contract has produced a good and decent society premised primarily upon representative democracy. It is therefore almost always the job of the judge to honor and enforce that contract even when it rubs us wrong. We must understand that our federal judiciary is an anti-democratic institution in a fiercely and fundamentally democratic society. From the limited powers granted to the judiciary in the Constitution, to the Jeffersonian concern about the institution itself, to the precedents of the Supreme Court dating back hundreds of years, it is apparent that our federal judiciary is intended as a weak, small and seldom used brake on the passions of the electorate. It is the great challenge of the federal judiciary to decide when, and how often, to apply that brake. Our people are not stupid and they are basically good-hearted–both on the right and the left. Moreover, the huge majority of them believe deeply in electoral democracy. They also know that no legal system can be perfect but in many places they have consistently voted to enact the death penalty, while accepting the many limitations placed on that device by the federal courts. If our citizens, knowing the system is not perfect and thus may likely result in the unintentional killing of the innocent, elect to employ the death penalty, then the “least dangerous branch” (adopting the formulation of Alexander Bickel, one of my favorite modern legal thinkers) has no just reason to do away with the death penalty simply because it does not function perfectly. As Voltaire said, the “perfect is the enemy of good.” If the People want “good” rather than “perfect” most of the time it is the job of the federal trial judge to provide it.
Image credit: Isaac Fuller, oil on canvas

Image credit: Portrait of Thomas Hobbes by Isaac Fuller, oil on canvas

  • It is important to distinguish between what may be a immoral and what may be unjust. They are not the same. Depending upon your religious beliefs, it may be immoral for a judge to accept that an innocent man may die in order to maintain a system that protects society at large by executing a great number of malevolent and guilty killers. But, is the judge’s acceptance of that flawed system just? The positive law theorists (like Hobbes and Holmes*) would say “yes, it is just”–so long the judge acts pursuant to the law. To them (and probably me) there is no justice without law. Legal positivists believe (a) Justice and injustice are dependent on positive law; (b) Law itself is independent of justice; (c) Justice consists in conformity to positive law; (d) Justice, apart from legality, is merely a subjective [individual] norm; (e) Justice is obligatory ultimately only because of legal and political sanctions; and (f) The virtue of justice is identical with obedience. Otto A. Bird, The Idea of Justice, at p. 43, Concepts of Western Thought Series, Institute for Philosophical Research (1967, Federick A. Plaeger Publisher). As Professor Bird explains:

The “basic norm” of a society determines what is just and unjust: “A man is just if his behavior conforms to the norms of a social order supposed to be just.” But every society believes that its order is just. Justice then is relative to a given society and to the kind of constitution it has. A democratic society has “democratic justice”; an oligarchic society, “oligarchic justice”; a communist society, “communist justice.”

Id. at p. 49 (Emphasis added by Kopf)

  • To sum up the two long paragraphs that precede this one, since ours is an aggressively democratic society, Holmes and Hobbes (and probably me) would argue that judges ought generally to fulfill the will of the electorate when it comes to the death penalty even if the unintentional sacrifice of a small number of innocents is the cost of maintaining a system that the people have intentionally selected despite their knowledge of the risk.
  • When I was a lawyer, I represented a murder serving a long prison term for repeatedly sticking a knife into the heart of another young man in a bar fight. Because of a sentencing error, I got his time cut in half which resulted in his immediate release. See here. I came to like, and, in many ways, respect this killer. Oddly, I also came to think of him as a basically good person. Later, he gave me a briefcase made in prison bearing the words “R.G. Kopf” and the scales of justice carved into the leather. It hangs on the coat rack in my office in prominent view. Each day as I enter the courtroom that lurid case reminds me that I am dealing with a human being seated in the defense chair. That realization is there also when I deal with death penalty cases. How could it be otherwise?
  • I adhere to no religion privately or otherwise. I accept no other person’s definition of morality. Since I have become a judge, I have never voted. I have given up my Nebraska law license. I cherish the independence given to me by Article III of the Constitution, and I avoid influences that might interfere psychologically or otherwise with that independence.
  • I have never had a death penalty case where I believed the defendant was factually innocent. Not one. The following summary I provided in one of those death penalty cases best characterizes my experience:

The Nebraska courts, and five (or more) zealous defense lawyers, have expended much sweat and treasure insuring that Lotter received a fair trial, a just sentence, a searching appeal and repeated postconviction examinations. A jury of twelve people found beyond a reasonable doubt that Lotter was guilty. A panel of three judges thoughtfully considered whether Lotter should receive the ultimate penalty, and they decided that he should. Seven thoroughly conscientious Justices of the Nebraska Supreme Court scrutinized the conviction and sentence in a direct appeal and they found nothing that justified relief. After that, trial judges and appellate judges patiently examined and denied Lotter’s numerous claims asserted in several postconviction actions brought during the ensuing decade.

Following careful consideration of the record developed in the Nebraska courts and despite the superb work of federal postconviction counsel, I find and conclude that Lotter is not entitled to relief. Legally speaking, if Nebraska carries out the sentence, there need be no “second thoughts.”

Lotter v. Houston, 771 F.Supp.2d 1074 (D. Neb. 2011) (this case involved the killing of Teena Brandon (Brandon Teena) and two others and these killings became the basis for the critically acclaimed movie “Boys Don’t Cry.”).

  • I have had one death penalty case when I was a magistrate judge where I recommended that the writ be granted for among other reasons because it was clear that the defendant unlawfully shot and killed a person but in a manner far more benign than characterized by the Nebraska Supreme Court. That decision was affirmed on appeal. Rust v. Hopkins, 984 F.2d 1486 (8th Cir. 1993). There was no question, however, that the petitioner was guilty of murder.
  • When I took my oath of office as a federal district judge in 1992, I knew that someday I might condemn an innocent man to die. I willing accepted that risk when I took that oath, and I willingly accept that risk now. I will have to live with my knowing choice if such a horror comes to pass. I will have no one to blame but myself. However, I am not unique. You would have to be a “suit on stilts” to become a federal trial judge in a district where the death penalty is practiced to believe that your experience or your state will be free from what happens every other place where citizens are put to death by the state. No, you know that you are signing onto the “machinery of death” and you further know that the machinery in some few cases unintentionally kills innocent people. What you hope is that you aren’t the one to preside over the “accident.”
  • Except as noted in the following three paragraphs, I do not know what I would do if I were confronted with a case where the petitioner was factually innocent of murder and I knew that the petitioner was factually innocent of murder but there was no federal legal remedy available to stop the execution. However, I do know this: I would move heaven and earth to stop the execution, but I would not play games with the law to do so.
  • Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that there was precedent that compelled such a result. For example, should the Supreme Court hold that factual innocence is not cognizable as a “stand alone” federal claim, I would follow that precedent.
  • Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that the petitioner could also resort to a fair and speedy pardon process prior to the execution.
  • Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that the petitioner had “sat on his rights” thus contributing to the absence of a legal remedy to address his factual innocence.

I invite readers to comment on the foregoing. I do not expect nor necessarily desire gentle treatment.


*Holmes might more accurately be called a legal realist. There is a difference between legal positivists and legal realists, but I have always thought of them as “kissing cousins.” To avoid being even more pedantic than I have already been, I blend the two conceptually in this blog post. I no longer care about the academic rigor that used to be so important to me back when I hoped to wear tweed jackets the rest of my life. In any event, it is not necessary to explore those differences in this setting.

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