Lots of bloggers have linked to a New Yorker piece which suggests that Texas may become the first state to admit that it has executed an innocent man.


I emphasize admit because my priors make me highly skeptical that anyone has designed and is operating a system with a zero fail rate, particularly at the relatively low cost that our legal systems operates at.

Prosecuting a capital case costs an estimated $2.3 million. This may seem like a lot but is actually pretty trivial sum when you are trying to design a system that never – ever executes innocent people, but does manage to execute some reasonable fraction of guilty people. I am willing to be convinced but I don’t see that funding the heavy detail work of examining each piece of evidence, not only to verify its authenticity but that no false assumptions or mistakes of reason were made in any previous analysis.

My understanding is the primary error checking means in capital cases is to make sure their were no procedural errors. However, in a situation where the outcome is binary – guilty or not – aggressive error correction would make sure that you could get the same result using multiple distinct methods. To my knowledge this is not done at all.

In addition, it seems that the heinous of the crime is a factor determining whether or not the death penalty is applied. This seems exactly wrong from an error correction perspective. Humans are less likely to be completely objective in situations where they are deciding about a highly emotional issue.

Perhaps most disconcertingly, there seems to be very little accountability. If a jury member votes to execute someone and it is later discovered that they are innocent there seems to be no external price that the jury member pays.

I am sure that the jury member would feel bad about this. However, we don’t typically rely on people’s guilt to ensure that large errors aren’t made. If I run over you in my car then I expose myself to a charge of manslaughter and possibly a wrongful death suit.

Now, if I have done everything “right” I might not loose either case. Nonetheless, I still run the risk. Even if its only subconscious this accountability system makes me more cautious when I drive.

Now all of this focus error correction assumes that the most important thing is to avoid executing innocent people. This may or may not make sense when we balance against the possibility of deterring crime. However, I am shocked that people who seem to believe this is important nonetheless support the system.