Copyright (c) 2009 Tennessee Law Review Association, Inc.
Tennessee Law Review
SYMPOSIUM: RACISM, WRONGFUL CONVICTIONS, AND THE DEATH PENALTY
TENNESSEE LAW REVIEW
76 Tenn. L. Rev. 615
Hugo Adam Bedau*
Opponents of the death penalty, by virtue of their arguments, tend to divide into two groups. The first and larger group consists of those who oppose this penalty because of the risk of convicting and executing an innocent defendant-or because of the manifest and chronic unfairness that governs the management of our death penalty system, especially when race is at issue. The members of this group oppose the death penalty on what we might call administrative, or practical, grounds. The five Justices constituting the majority in Furman v. Georgia 1 advanced arguments of this administrative sort.
The members of this group face a common and familiar objection that is manifest in the following hypothetical question addressed to abolitionists: Suppose our death penalty system were reformed so that there would be no risk of executing the innocent, and so that the racist aspects of the system were completely prevented or remedied. Would you still oppose the death penalty?
There are several possible responses to this challenge. Some abolitionists, no doubt reluctantly, would drop their objections to the death penalty and embrace this risk-free and fairly administered death penalty system. After all, their objections were based entirely on failures in the administration of this punishment, and those objections by hypothesis no longer apply. Other opponents of the death penalty would take the radical line of rejecting the hypothetical question on the ground that it is beyond answering. Why? Because its premise is impossible. This is the ...
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