POLITICS DECEMBER 16, 2010
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A moment of high drama interrupted the Supreme Court’s summer recess last year. Troy Davis, a Georgia death-row inmate, had filed an emergency appeal in May arguing that he was innocent of the 1989 murder for which the state condemned him—and that new evidence proved it. His lawyers asked the justices to override the usual limits on death-penalty appeals and give Davis an opportunity to make his case. On August 17, to the astonishment of Court watchers, the justices granted Davis a stay of execution and a new hearing before a federal district judge. The ruling capped a global campaign on Davis’s behalf and implied that the Court shared activists’ broader concerns about deadly errors.
The anticlimax came a year later, when Davis’s lawyers presented his case to Judge William Moore Jr. Much of the “new” evidence turned out to be recycled from previous litigation. Davis’s lawyers failed to call some promised exculpatory witnesses; those who did appear fared badly on cross-examination. On August 24, 2010, Judge Moore released a 174-page opinion in which he called Davis’s argument “largely smoke and mirrors.” “Davis is not innocent,” the judge declared, echoing the conclusions of the trial jury and every other court that had reviewed the case.
Instead of a crushing blow to the death penalty, the Davis case looks a bit like an embarrassment to the death penalty’s foes. It eerily resembles the case of Ohioan John Byrd, who got a federal appeals court to give him an emergency stay of execution and a fresh hearing in 2001—only to have his claim of innocence crumble amid revelations that his lawyers had misled the courts and his sister had coached and performed sexual favors for an alibi witness. Byrd was later executed.
Davis’s lawyers are fighting Judge Moore’s ruling, which is their duty. But the anti-death-penalty movement should learn from it. The clear lesson is that opponents of capital punishment should stop staking their credibility on the overblown notion that death row is thickly populated with innocent men and women.
The movement’s emphasis on the risk of a wrongful execution was, at one time, an understandable strategic choice. Public opinion has stubbornly resisted moral arguments against capital punishment, so elected officials have resisted them as well. The Supreme Court foreclosed abolition based on unconstitutional racial discrimination more than two decades ago. In this climate, doubts about the accuracy of verdicts, rooted not only in the undeniable fallibility of criminal justice but also in what were said to be actual cases, seemed like the only way to sway voters or, eventually, the Court.
The fact is, however, that there have been just over 1,200 executions in the United States since 1977, when the “modern” capital-punishment era began, and, though doubts have been raised in many cases, none has yet been proven wrongful. There have been close calls, as a scandal over 13 flawed capital convictions in Illinois showed a decade ago. The Death Penalty Information Center (DPIC) lists 138 prisoners exonerated and released from death row since 1973. But the near-misses can be seen as evidence that the system’s fail-safes work. What’s more, even that tabulation of near-misses—which would represent less than 2 percent of the over 7,300 death sentences since 1977—is probably an exaggeration.
At least 20 people on the DPIC list were tried and sentenced before the Supreme Court rewrote the rules for capital cases in the mid-’70s, and thus have no bearing on the current system’s propensity for error. The remaining 118 include some, like Kirk Bloodsworth, who were no longer facing execution when exonerated. By the time DNA set him free in 1993, Bloodsworth had won a new trial in which, though he was again wrongly convicted of murder, his sentence was set at life in prison.
The DPIC list includes anyone whose conviction and sentence were overturned on appeal, followed by acquittal at retrial, dismissal of the charges, or a pardon based on new evidence. But acquittal is not always equivalent to wrongful accusation. Take Jeremy Sheets, one of the “innocents” on the DPIC list. A Nebraska jury convicted him in 1997 based on a tape-recorded description of the murder by his accomplice, who had committed suicide after confessing. On appeal, Nebraska’s supreme court ruled the tape inadmissible since Sheets couldn’t cross-examine a deceased witness. The state had no choice but to drop the charges.
Not only has the problem of “actual innocence” in death-penalty cases been overstated, it is probably shrinking—for at least two reasons. The first is the impact of DNA. To date, there have been just 17 DNA-related death-row exonerations. Most involved cases left over from the years before DNA testing was widely available. Now, that backlog has been cleared, and DNA analysis is well established, which increases the reliability of capital trials. The second reason is that the number of death sentences is down. There were only 111 in 2008, down about 66 percent from the 1994 peak of 328. This decline reflects the plummeting murder rate, which has fallen by roughly 50 percent over the last two decades. You can’t have capital punishment without capital crimes.
Focusing on wrongfulexecutions puts capital-punishment opponents in an awkward position: It’s in their political interest for the system to produce miscarriages of justice. After a 2006 DNA test proved definitively that Roger Coleman was, in fact, guilty of the crime for which he was executed in 1992, The Washington Post reported that “[t]he results stunned and disappointed those who have fought a 25-year crusade to prove that Roger K. Coleman was innocent. They also dashed hopes among death penalty foes that the case would catalyze opposition to capital punishment across the country.”
Repeatedly mislabeling killers as martyrs can make capital punishment’s foes seem more interested in politics than truth. It can make them seem more sympathetic toward convicted murderers than their victims. And, at times, death-row inmates have tried to exonerate themselves by falsely accusing others. Troy Davis pointed the finger at a man named Sylvester “Red” Coles. Roger Coleman’s attorneys eventually had to pay to settle a libel lawsuit by an innocent man they had implicated in Coleman’s crime.
One of the anti-death-penalty movement’s goals is to create a new basis for habeas corpus litigation, so that lawyers can plead that new evidence proves the innocence of their clients, without also having to prove an alleged constitutional violation, such as ineffective assistance of counsel. A victory for Troy Davis before Judge Moore would have advanced that cause; his defeat probably set it back. The Supreme Court is bound to look more skeptically at the next urgent claim of innocence to come their way.
Opponents of the death penalty would be better off devoting more time and energy to more significant—but less media-friendly—problems with capital punishment. They should lobby to increase paltry state budgets for capital defense. They should urge state legislatures to narrow the criteria for capital punishment, so that it is restricted only to mass murder and other crimes that clearly qualify as “the worst of the worst,” rather than run-of-the-mill liquor store holdups. These are good fights principled death-penalty opponents can and should fight, without staking their credibility on tales told by the likes of Troy Davis, Roger Coleman, and John Byrd.
Charles Lane writes for The Washington Post and is the author of Stay of Execution: Saving the Death Penalty from Itself. This article ran in the November 11, 2010, issue of the magazine.
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14 comments
We can do without the death penalty, and should do so. But that means that "life" really does have to mean life in prison with no possibility of parole.
- Robert Powell
December 16, 2010 at 6:48am
While I largely agree with the author, I would also point out that the whole approach of trying to overthrow capital punishment judicially, either piecemeal, one convict at a time, or wholesale by finding it unconstitutional is a lousy political strategy. If we want to abolish execution, we need to convince the electorate that it is wrong. There are no quick routes to that. One execution of an innocent person won't do it any more than Stonewall made gay marriage acceptable to the population. That 45 years have passed and we are only now reaching the point that we can imagine majority support for gay marriage is hardly unexpected, and illustrates what must happen: a sea change in mindset about the problem, starting with young people, and working its way through the demography. I also think some perspective is important. I am completely opposed to state executions, in all cases, but I don't think the fact that we still have them is an earth shaking tragedy. If I could waive a magic wand tomorrow and change the American electorate's mind about one issue, it wouldn't be capital punishment - there many other issues that are more important by a long shot. Why? Because by any measure, the vast majority of people executed in this country are guilty of heinous crimes, and no big loss to society. We'd be locking them up for life if we weren't executing them. Yes, it's wrong that we kill black men more freely than white men, and it's dead wrong that we will execute people who are barely mentally competent, but in the big picture these issues with our criminal justice system are not existential risks to our moral, physical, or economic well being as a people - as is, say, the reality that we are willing turn our back on the entire future by refusing to be responsible for the issue of global climate change, or our increasing countenance of massive disparities in living standards and education. Capital punishment as we practice is indeed a blot on out nation, but it's just a blot - there are other failings of our collective imagination and morality that could be deadly to us.
- IowaBeauty
December 16, 2010 at 7:29am
This entire article is bizarre. There have been no confirmed wrongful executions in the United States? None? What about Cameron Willingham in Texas, executed for watching his children burn to death in a house fire because an arson investigator was both swaggeringly arrogant and stunningly incompetent? What about Claude Jones, executed because a murder victim's own hair on his own body was misidentified as belonging to Jones? Because the argument is difficult does not mean that death penalty opponents should try to rouse public interest in esoterica like how tiny the budgets of public defenders' offices are for fighting capital cases. That isn't the sort of thing that rouses crowds and gets laws passed or people voted out of office. You know what does? Educating people that the judicial system does, in fact, screw up. George W. Bush got to argue to the public that there were no doubts in his mind that every single person on Texas' death row was guilty, reinforcing the public view that the system works perfectly with minimal public rebuttal. How many people do you think know that the Supreme Court has found that actual innocence is not necessarily grounds for stopping an execution? Scalia wrote some of the most horrifying judifical statements about the death penality in Herrera v. Collins, and he's only grown more outspoken on the absolute power of the state to execute innocent people since that case in 1993. How many people do you think know that Virginia's Attorney General, Mary Sue Terry, once simply stated that "Evidence of innocence is irrelevant" in death penalty cases? How many people know that Virginia's 21-Day Rule absolutely guaranteed the execution of innocent people by placing an arbitrary time limit of three weeks following death penalty convictions after which no further evidence could be considered on appeal? How many know that that 21-Day Rule was changed in 2004, ostensibly to correct this injustice, but instead imposed a new system of rules demanding that any new evidence must affirmatively prove innocence (turning the justice system on its head) and must not have been accessible to the defense at the time of the original trial? How many know that a Virginia court ruling on the new law found that prosecutors illegally withholding evidence from defense lawyers doesn't mean the evidence wasn't available to the defense? (The court's rationale was that since the evidence literally existed, it was literally accessible, despite being held under lock and key while the defense was prevented from even knowing about it by prosecutorial misconduct. This ruling means that defendants must find evidence that proves their innocence that wasn't just inaccessible, but didn't EXIST at the time of the crime.) Education like that will take a long time, but the moral argument is the right one. People want to be good. Show them that the system acts against justice and has killed innocent people in their name, and they'll be outraged. People also want to be safe. Show them that the system built to protect them can fail in ways that can chew them up like a meat grinder, and they'll start channeling their moral outrage to actually fix it.
- janus
December 16, 2010 at 9:48am
This was published in my local paper this week: http://www.newsobserver.com/2010/12/14/861159/death-penalty-activists-cut-cost.html The moral argument may not work but the Walmart/skinflint "don't spend a penny" argument seems to have some traction.
- tnmats
December 16, 2010 at 11:27am
Perhaps capital cases should be limited to those in which there is incontrovertible physical evidence like hair/fibers/DNA. That would probably pass muster with a number of people, in a way that total abolition wouldn't, and would at least sharply limit the chance of wrongful execution. As for the Cameron Willingham case, all we know now is that the science used to convict him was flawed. That may argue for his innocence (I am inclined to believe in it too) but is not actual proof; flawed evidence can convict a guilty man as well, just as police sometimes frame guilty men. So we do not, and cannot, know if he was innocent, all we can surely say is that his conviction/execution was wrong.
- kimberly
December 16, 2010 at 12:04pm
What's needed is not a retraction from the argument about execution of the innocent, but some judiciousness in selecting claims of innocence from death row. Did the Davis' legal team subject his claim of new evidence to any serious scrutiny? Such would not have been the case if the evidence in Willingham's case, consisting of opinions from fire experts who had actually tested their views of evidence left behind by fires, had been used instead. kimberly: As for the Cameron Willingham case, all we know now is that the science used to convict him was flawed. That may argue for his innocence ... So we do not, and cannot, know if he was innocent What we can know and do know is that while there is no proof of his innocence, there is no evidence at all of his guilt. If there was evidence of guilt that holds up but is inconclusive, then the lack of countervailing evidence would indicate that the execution was minimally justifiable even if one can doubt whether the sentence should have been issued. However, with the lack of any bona fide evidence, we can say that the execution was clearly wrong and was simply an act of murder.
- sighthnd
December 16, 2010 at 12:33pm
I couldn't disagree with this article more. I think Lane really misreads the moment. Support for the death penalty has declined quite a lot from its peak in in the mid-'90s, support for alternatives has increased, and its political significance has declined. http://www.deathpenaltyinfo.org/national-polls-and-studies#rasjune My guess is that this is all mainly due to the realization that the justice system makes mistakes and can't be trusted with this responsibility. The possibility of executing an innocent person no longer seems implausible, despite Lane's suggestions to the contrary. His failure to even mention Cameron Todd Willingham is ridiculous. The possibility of error is the main reason I oppose the death penalty. There are some cases where I think we can be both positive that the defendant did it, and also find the death penalty justified, but I don't trust the system to sort the one from the other. The Illinois situation -- the spate of death row exonerations that led to the current moratorium -- hardly shows the system working, but rather shows a system that, for once, got caught being as slipshod and unreliable as it probably always is. Just recently, for example, an Illinois jury convicted a man for rape and murder on the basis of a false confession, even after DNA tests excluded the defendant, even though he was under house arrest with an ankle bracelet that showed him at home at the time of the murder, and even though he had mental problems and only signed the confession after having been interrogated for days and having a serious mental breakdown. It wasn't a death case, but it shows you how prone our system is not only to convicting when there is less than reasonable doubt, but convicting when there is almost no reasonable doubt that the defendant is *innocent*! There are so many stories like this that it strains credulity to suggest that we've never executed an innocent person. Not to mention the Cameron Todd Willingham case -- which seems like a clear case of an innocent man having been executed -- or the Claude Jones case. Of course lawyers will make the best arguments they can for their clients, and they're not all winners. Nobody is saying that *most* people on death row are innocent, or that it's even a large fraction. But how many would it take? I reach my limit pretty quickly, especially in the absence of evidence that the system offers any benefits to society. I note that Lane, when talking about past cases, invokes the standard that prosecutors would like to use -- that is, *prove* that so-and-so didn't do it. Well, it's hard to do after the fact, isn't it? But sometimes we can, and Willingham is a pretty good example. Anyway, defendants aren't charged at the outset with proving their innocence. If we could look at the cases of all the defendants on death row, I'm sure we'll see many cases that rely on evidence that should have been seen as a lot more dubious -- especially confessions and certain forms of unreliable forensic evidence. I'm sure we'll see cases where defendants couldn't benefit from fancy legal counsel who could dedicate resources to poking holes in the state's case. Nobody -- not even groups dedicated to fighting for the wrongfully convicted -- have the time or ability to deal with every such case. The numbers would be overwhelming.
- JakeH
December 16, 2010 at 12:42pm
What we need, too, is juries with independent-minded people who look at the evidence and don't just slink toward a decision on the basis of "no smoke without fire" or "if he wasn't guilty he wouldn't be here" or "if we acquit, the DA is going to be pissed" or "it's just easier if we find him guilty" or "we need to get tough on crime" or any of the other examples of authority-crawling, deferential, forelock-tugging folk wisdom that would be more at home in nineteenth-century Prussia than the United States.
- ironyroad
December 16, 2010 at 12:54pm
Kimberly and sighthnd, no no no no. He didn't do it. It wasn't just that forensic evidence was flawed but there was still a possibility that he did it. There are thousands of cases like that! The whole point was whether the fire was arson or not. A proper arson analysis by experts not using the discredited methods and tactics of those used by the investigators in the case concludes that the fire wasn't arson. No arson, no murder. I don't know about you, but I count that as strong evidence that he didn't do it. Read the New Yorker article again. I defy you to come away with anything other than a strong conviction that he was wrongfully executed. I think it meets the same reasonable doubt standard necessary to convict. http://www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann I've looked for but haven't seen any convincing rebuttal. All I hear or read about is shameful efforts on the part of politicians to prevent this inescapable conclusion from being officially recognized in Texas.
- JakeH
December 16, 2010 at 12:56pm
JakeH re: Willingham: Exactly. The *only* reason that Willingham was charged with murder at all, rather than being treated sympathetically as a man who had just lost his children in a tragic housefire, was the decision of the investigators that the cause of the fire was arson, a decision based on evidence that subsequent investigation has demolished point-by-point. (I can't immediately find it in the New Yorker article, but wasn't the original arson investigator once quoted as saying he had never NOT found arson once he started looking for it?) Rick Perry's handling of this whole case is the biggest argument for encouraging him to carry out his threat to secede from the union. (Not Texas, just Rick Perry.) I can certainly accept at the most general level the premise that liberal activists can be their own worst enemies, but the conspicuous absence of the Willingham case in this article seriously undermines the whole thing.
- frippo
December 16, 2010 at 5:18pm
tnmats: Thanks for the link to the "skinflint" argument. One thing stands out: one conservative death-penalty supporter is quoted as saying, "This idea that you save money [by abolishing the death penalty] is completely flawed because it does not consider the costs to society." Never mind that the same complaint can be leveled at nearly any proposal to hack away at the social safety net.
- frippo
December 16, 2010 at 5:22pm
Not only does it cost a lot more to execute someone in our system than give them life w/o parole, we lose social payback in terms of things like phone centers, data processing, and other useful work they could do. "Social costs" should be reimbursed, which is tough with a corpse. Maybe we could make a deal by linking the death penalty to abortion. Instead of calling it The Death Penalty, we just name it Retroactive Abortion, and we might get a trade-off between late-term and partial-birth abortions and executions. Irony's reference to 19th Century Prussia is useful, because that's where we got our public education system from. Jury behavior like voting behavior is an education issue.
- Robert Powell
December 17, 2010 at 2:12pm
Powell, good point. I've always had a very liberal view on abortion -- should be legal through about the second year.
- JakeH
December 17, 2010 at 11:52pm
Iowa Beauty's comment is spot on. Of all all the miseries and injustices that bedevil our society, capital punishment is lower than many others. I think the biggest argument is that executing people in cold blood degrades our society and serves little useful purpose. There is very little evidence that capital punishment deters capital crimes. If it doesn't, then we are most indulging ourselves in revenge. If a loved one of mine were murdered, I would want to see the perpetrator killed. As a society, we properly distance ourselves as individuals from situations where our individual emotions overrun our ability to think and act dispassionately. It's one of the things civilized beings do. Human beings are the most vicious animals there are. We aren't that far from the jungle; we need all the help we can get to stay out of it.
- skahn
December 18, 2010 at 4:20pm