The problem is that the inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution . . . It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.73 Blackmun’s position is contrasted with that of Justices Brennan and Marshall, who “reject capital punishment in theory as well as in practice.”74 On the surface, the Brennan-Marshall approach seems more attractive to abolitionists. It is more “principled”; it refutes death penalty advocates more thoroughly. By disposing of the underlying theory, it assures the end of capital punishment, not merely its reform. The Blackmun approach is seen as conceding too much, as insu<ciently grounded in principle; it is somewhat grudgingly endorsed as a second-best approach.75 Beschle proposes that abolitionists reverse their comparative assessment of these two lines of argument. Calls for a moratorium would certainly be part of such a strategy, though Beschle does not raise this issue directly. And if Beschle is correct, the innocence argument we have developed here would fall on the right side, the Blackmun side, of the in-principle/in-practice distinction, rejecting it only in practice. There are, however, two observations that should be made regarding Beschle’s discussion. The first is that it is mistaken to suggest that arguments like Blackmun’s, emphasizing the execution of the innocent, are “insu<ciently grounded in principle,” or are somehow less “principled” than those advanced by Brennan and Marshall.76 The innocence argument, as we have seen, appeals to moral principle, specifically to the principle that only the guilty should be punished. Utilitarianism’s inability to completely rule out scenarios involving the execution of the innocent is regarded by many, and certainly by many retributivists, as a major weakness. Prima facie, one comparative advantage of retributivism is that guilt is a necessary condition for justified punishment. On the innocence argument, it is this (together with the irrevocability of death as a penalty) that causes retentionist arguments that rely on retributivism to ultimately fail.77 Capital punishment plainly is not being visited only upon the guilty; significant numbers of innocent people are being executed. There is no way to ensure that the innocent will not be executed. And, if the assessment of Blackmun and others is correct, there is no way even to substantially reduce their numbers.78 So the innocence argument uses moral principle to reject capital punishment the imperfectability of the system
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