TheAgitator.com
So Did Texas Execute an Innocent Man?
Tuesday, September 8th, 2009Last month, I wrote about new questions in the case of Cameron Todd Willingham, who was executed in Texas for setting a fire that killed his two children. Nine forensic fire experts have since come forward to say that the fire marshall who testified in Willingham’s case had no idea what he was talking about. The most recent expert to review the case, for example, said the marshall’s findings were “nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation.”
I wrote at the time that it was tough to say Willingham was innocent, only that he should never have been convicted. But in an in-depth investigation published in last week’s New Yorker, David Grann makes a compelling case that Willingham didn’t set the fire. Grann also participated in a follow-up chat, and answered criticism of his article—convincingly, I think—on the New Yorker’s blog.
So what now? I’m opposed to the death penalty, but mostly because I have little faith in the government to administer it competently. So I’ve never much doubted that one ore more states have executed innocent people. There has long been a sentiment among death penalty opponents that proof of an executed innocent would turn public opinion on the death penalty. I’m pessimistic that’s going to happen. But it does raise the question for supporters of capital punishment: Does Willingham’s case make you rethink your position? If not, how many more cases of an executed innocent person would it take to make you change your mind?
Well put, Radley, but I’d suspect the pro-death penalty people don’t really give a damn how many innocent people are executed. Just like pro-(foreign) war people don’t care how many innocent civilians must be liberated from their earthly trappings to achieve whatever nebulous aims were intended. Same goes for the pro-torture types as well as apparently Antonin Scalia.
It’s all about getting their jollies off of someone else’s suffering.
And this is a great example of what it would take – an innocent WHITE person. That will really tug at the heartstrings.
When I was a high school freshman, a classmate was stabbed to death and raped (unsure which order) in her own upstairs bedroom by a man who also stabbed her mother and left her for dead downstairs. She was able to testify, and the evidence was compelling and plentiful (murder weapon, semen, etc). He always admitted to being there, and came up with a phantom second man theory who did the raping after the mother died (due to hepatitis contracted from her multiple blood transfusions). The man received the death penalty, and the state executed him some years later.
At no time have I ever doubted the death penalty until recently. I agree with Radley that the main problem is that the government and “justice” are completely biased and myopic. However, I do believe the man in my story received the correct punishment (of course, he converted to Christianity and married while in prison…too bad my friend didn’t have the same opportunity afforded to her).
These are cases of “do the ends justify the means” questions. If one of every hundred executed are innocent of the crimes convicted, then is the punishment of the majority more important than the rights of the innocent? I cannot say that, in my story, life imprisonment would have been better or worse for me, the convicted, or the family involved. I honestly could have thought of up a thousand worse punishments, all “inhumane”, but I am unsure my bloodlust and revenge I needed would have been satisfied.
Then again, is life imprisonment for the innocent just as bad? The only thing it doesn’t rule out is hope; hope that eventually the truth would become known. How many lives were ruined due to imprisonment alone? If the death penalty process requires appeals, then there is that hope. Those appeals are not automatic, nor are they guaranteed to be filed and heard, for those charged with lesser crimes or facing lesser punishments.
I just don’t know.
In the abstract, I have no problem with a death penalty when guilt is certain and the crime is heinous. In the real world, I have zero confidence in the government’s competence and motivation to use the death penalty justly.
I have no problem with the death penalty if it can be ascertained 100% that the person is guilty of a capital crime. This is difficult. Eyewitness accounts can be inaccurate, DNA evidence can be spurious, confessions can be forced (or obtained under false pretenses). The evidence against Willingham seems pretty flimsy (the testimony of ONE fire investigation “expert”), but if willful, it’s a pretty heinous crime. What are the thoughts here? Do we support the death penalty in theory but reject it in practice?
Already said this at H&R, but it’s kind of hard to get a word in edgewise over there…If one’s answer to the “how many innocents being executed is tolerable?” question is anything > 0, then no case in particular is going to change their mind.
Unless, perhaps, the case in question is a young, attractive white girl.
Appealing to the better nature of the masses is a waste of time. This is *precisely* why the state should not have power over life and death.
I’m with those straight above me: I have no problem with the concept of the death penalty. Unfortunately, I also have no confidence in the ability of the government and our criminal justice system to use it appropriately. I also have a problem with innocent people being sent to prison for life, but at least there’s still some chance of them getting out. Small, yes, but far higher than that of a dead man.
IMHO, no discussion of this is complete without determining what should happen to corrupt police, prosecutors, faux expert witnesses, and judges who cause this to happen.
I will admit that all along I was okay with the death penalty existing. I always thought that there are crimes you can commit, like the one Mike describes above, after which we just don’t have any need for you anymore.
I still feel that way. However, over the last couple of years I have adopted Radley’s view…and I admit, mostly because of this site and learning about many cases I would not have otherwise. Cases like Corey Maye’s.
I still feel that if someone is truly guilty of any of the more brutal crimes, like rape and murder, I would rather see them executed then live out long lives in prison. What is now forever in doubt is whether I can ever know that someone is truly guilty. Law enforcement and the prosecution will lie to get what they want. They will lie to cover up mistakes. They will lie just to be lazy and not bother finding the right guy. The forensics people will lie. The witnesses will lie. Evidence will be fabricated and expert testimony bought.
The cops do not care about doing the right thing and neither do the prosecutors. If they find out they got the wrong guy they will just cover it up anyway, or investigate themselves and say they did a great job.
So based on that, I am now opposed to the death penalty. Our ‘everyday heroes’ in blue, and the rest of the system, cannot be trusted. When they are not just woefully incompetent, they are maliciously deceitful. They should not have the power to kill anybody.
“…how many more cases of an executed innocent person would it take to make you change your mind?”
Until it’s me or somebody I love that’s executed.
What? Too honest?
Awaiting moderation? Is this about that Google crap, Radley? The only remotely offensive word in my post is “douche”…
I know I’m in the minority here but I’ve always been of the firm belief that we don’t execute enough people.
The problem I have, like most of the people above this post, is I don’t have much faith in our judicial system. On the one hand I think we need a lot more dirtbags getting the needle in their arm, on the other hand we have a lot of dirtbags playing state prosecutor.
Long story short, I just don’t know that I trust agents of the state to decide. If the people in my state want to get together and vote in a moratorium on executions, then more power to ‘em. If 5 judges in DC insist on it, then they should be told to get screwed.
The thing is, the error rate of the justice system doesn’t really become that much less of an issue, when we get rid of the death penalty. It’s awful to think about killing an innocent person, but locking an innocent person up from age 20 until he dies of old age at 85 is not a whole lot better.
When I hear about a guy who was probably innocent getting executed, it makes me want to work on improving the accuracy of the criminal justice system, much more than on getting rid of the death penalty. My impression is that we don’t even have any good way of knowing what fraction of people convicted of a crime really did it. And that outside of death penalty cases, there’s just not that much interest in trying to measure the error rate of the system or in trying to drop it.
But that seems like the really critical issue. If humans build and operate a criminal justice system, we’ll sometimes screw up and punish the wrong person, whether that means hanging the wrong guy, or locking the wrong guy up, or burning the wrong guy at the stake. That’s just inevitable, and the moral arguments about what punishments are appropriate have only a very loose relationship with how often we screw up. But we need to get some kind of handle on how we’re doing in terms of getting the right guy, and we need to spend serious resources improving that performance if we can.
There is zero possibility of a 100% certain guilty person. Even confessions can be coerced and the confessor believes his own confession.
Another disturbing problem with the death penalty is that it creates a perverse incentive for the accused to plea bargain to life imprisonment rather than risk his life at trial. How many innocent people are doing life in prison because they got railroaded?
Personally I think life in prison is almost as bad for an innocent man as the death penalty. Expanding on what Mike Leatherwood said, I’d be very curious about the automatic appeal process for death penalty cases vs lessor charges. Does the truly innocent really get a better chance at freedom if they only have a sentance of life in prison? Or does the added automatic appeal process overturn more convictions than the normal process?
I certainly don’t think the government should be executing people unless they somehow were 100% sure, but the life in prison doesn’t sound too much better.
I am completely in favor of the idea that if a person choses to take the life of another person in cases outside of self-defense, etc., then that person’s life must be ended as a consequence.
I am also aware that the so-called justice system in the USA is horribly broken and stacked heavily against the accused.
Thus, I do not support the death penalty under the current government/”justice” system.
Proponents of the death penalty who accept that innocent people have been executed will try and argue that it’s deterrent effect is worth a few innocent lives. I suspect that murder rates in countries that don’t execute people are no worse than in countries that do.
I suspect that the “eye for an eye” crowd will not be convinced by any number of executed innocents. I suspect half are OK with unjust executions as long as they are of poor minorities. The other half are more concerned with eternal life and all that religous mumbo jumbo, and who cares if you cut a few years off of someone’s terrestrial life anyway? They have plenty of time in prison to repent and gain eternal life.
#4,
“In the abstract, I have no problem with a death penalty when guilt is certain and the crime is heinous. In the real world, I have zero confidence in the government’s competence and motivation to use the death penalty justly.”
That said it as well as I ever could. The only thing I would add is that a lot of attention is put on capital cases that would not be put on life-imprisonment cases, so I would wager that the error rate is in fact higher the less severe the sentence. If (to quantify) executing an innocent is 100 bad and imprisoning them for life is 80, it may be the case that eliminating the death penalty increases aggregate injustice.
Of course IF one used biblical rules, one would need two or more EYE witnesses to the same crime to convict. The treason section of the Constitution came from this specific requirement.
But we are such a “technological society” and technolocy is infallible…
And of course all cops are honest…
And the DA system isn’t biased…
And the DAs don’t take all this crime presonally…
There was once a saying in our courts. Better ten guilty men go free than one innocent man be condemned.
Then we got expansive, intrusive government. And the government will get ANYONE they so desire.
Check out: Go Directly to Jail, Gene Healy, ed.
Tiocfaidh ar la!
Does Willingham’s case make you rethink your position?
It should. I used to be pro-death penalty. I, along with many other of you commenters, still see no moral argument against it. But your top-notch reporting has disabused me of the notion that its implementation is anything other than a farce. Had I not been aware of your work ahead of time, this probably would have been my wake-up call (had it not been Governor Ryan a few years back.) But most people honestly don’t know how bad the justice system is, which makes it easy (in their minds) to go from “I don’t see anything morally wrong with it” to “it should be used”. This is a great case to use to scream from the rooftops with, not against its theory, but against its practice.
Of all the good arguments against the death penalty, the most compelling for me is that in our adversarial justice system, prosecutors — political animals in almost every case — are not motivated to see the truth told or justice win out, but to gain a conviction at all costs. So they hide exculpatory evidence, coerce witnesses into offering false testimony and use the awesome power — and deep pockets — of the state to do whatever it takes to convict and execute.
Good point, Legate.
I believe you should completely explain your position on this one. I do not trust the state to get much of anything right, so I oppose the state having the death penalty as an option.
However; I do not oppose the concept of a death penalty.
Since we must live in the here/now and reality, I don’t believe you can support the death penalty without also FULLY supporting that the state WILL execute innocent people (and probably not just 1 or 2).
The problem with “an eye for an eye” is that eventually, the whole world goes blind.
To me, the death penalty is about revenge. Not justice. I can’t square support for the death penalty — or, to reword it, supporting the government’s killing of its own citizens — because they’re “bad people”. Go ahead and warehouse them in prison. Stick them in solitary, throw away the key. But I just don’t see how justice is served by killing them.
Ask the Bush administration (same as Obama and those that came before him) of reliable methods — torture always produces accurate info.
I’ve been opposed to the death penalty forever, so I’m probably not the person to ask about the impact of this article, and Willingham’s factual innocence. A few random thoughts, though:
1. The key issue in the article is the lack of empirical forensic science in Willingham’s case. The same lack of empiricism can be found in the arguments advanced here and elsewhere in support of the death penalty (esp. the deterrence argument).
2. I can’t really believe that anyone with even five minutes’ of experience with the criminal justice system has a genuine doubt that innocent persons have been executed. If someone did believe that, it would have to be on the basis of pure faith that there is something special about the death penalty that turns all of the actors (judges, jurors, lawyers, witnesses) who are demonstrated time and time again to be fallible, to be absolutely, 100% correct in those capital cases where the punishment is carried out.
The notion that no executed person has been proven to be innocent is really just a way for death proponents to salve the conscience of those death supporters whose sensibilities might be more delicate. So, it’s the height of hypocrisy to say, as Justice Scalia did, in his concurrence in Kansas v. Marsh that the dissent there did not identify:
As Scalia well knows, the reason dead defendants are not exonerated more often is that once they’re dead, people stop trying to exonerate them. It’s this way in which Willingham’s case is exceptional, and not because he was executed even though he was innocent.
3. The op-ed written by the Willingham case prosecutor (who is now a judge) is one of the more intemperate pieces I’ve seen, and reflects either a genuine lack of self-reflection or an utter lack of candor. This is par for the course for prosecutors, but it shouldn’t be so. Jackson’s comments that Willingham refused a polygraph “in the most vulgar and insulting manner,” and that Willingham rejected a guilty plea in exchange for life without parole “in an obscene and potentially violent confrontation with his defense counsel,” suggest that he’s desperately grasping for something to convince himself of Willingham’s guilt.
I might support the death penalty if the law were changed so that everyone involved in the execution of a wrongly convicted person — prosecutor, judge, expert witnesses, executioner, jury members — were subsequently prosecuted for first-degree murder. I imagine it might kick up the standard of proof a few notches.
There are 82 people on Louisiana’s death row. It would be 90, but fortunately, 8 were exonerated before the state got around to killing them.
That’s darn near 10% folks.
This is the view of some people regarding anything jail:
http://thxforthe.info/2009/01/12/black-monopoly/
I have been drifting from pro-death penalty to anti over the last ~ 5 years.
My reason for doubting it is exactly as you say: “I don’t trust the US government to deliver the mail, how can I trust it to decide which citizens to kill?”
I am not pretty firmly in the anti camp. Starting to cry while reading the New Yorker article was the final step.
“I used to be pro-death penalty. I, along with many other of you commenters, still see no moral argument against it.”
There is only one moral argument against the death penalty.
There are infinite immoral arguments in favor of the death penalty.
Hope that clears things up.
/truth
ooops, WRONG!
“There is zero possibility of a 100% certain guilty person.”
There have been instances (at least one school shooting comes to mind) where the killer is apprehended at the scene, with the gun, and plenty of witnesses (other than jailhouse snitches or questionable “experts”) to qualify as 100% certain.
That said, the death penalty should be reserved for those situations.
I do however, think that we should also be able to aggregate lessor felonies committed in tandem into a capital crime. For example, the current case of the 14 y/o abducted, raped (multiple times – at least twice) and held prisoner for 15 years in my mind qualifies the defendent for the death penalty. And there seems little doubt that he is quilty of all those crimes.
At the risk of looking like a sycophant, it was you Radley that changed my mind:
Once it was put in this form it was a forehead slapping moment. In other words, I don’t doubt there are truly despicable people out there that do horrifying things and that put them down is probably the best course. I just don’t think we’ve come up with an institutional framework that can do it without executing the innocent at times as well.
I would caution against this view and its opposing view that yes there is such a thing as 100% certainty in determining guilt. In Bayesian analysis of probabilities it is very rarely a good idea to set prior probabilities so that they are “dogmatic”. If the prior probability is 1 (100%) then no amount of empirical evidence will move you from that position. You will always be convinced it is true. Similarly for the prior proability of zero (0%). Nothing could ever convince you it is true.
Man, that article was depressing. And having to read unfunny New Yorker cartoons on each page only rubbed salt into the wounds.
Two points. First, our entire criminal justice system metes out revenge. How is throwing people in prison or even giving them fines (taking their stuff) not revenge? It’s deliberately harming the offender to no benefit of the victim.
Second, for all the obvious and severe faults of “an eye for an eye” justice system, I say it would be light-years ahead of our current system. There would be no victimless crimes (In Soviet America, the joint smokes you?). There would be no horribly out of proportion sentences. There would be no qualified immunity. Maybe certain people would start behaving themselves if what goes around could come around to them.
Of course, that’s still revenge-based justice, which to me seems clearly inferior as a concept and an ideal to restitution based justice. Rob a convenience store, the punishment ought to be to get a damn job, then pay back the owner for his stuff, the damage, and his time, rather than sitting in a cage for however long. That doesn’t help anybody. It obviously becomes harder to work for more severe criminals.
I think the problem with the death penalty debate is that too many people want to discuss it in terms of morality. The pro-death penalty side says that doing justice to the victims of heinous crimes demands it while the anti-death penalty side argues that it is wrong for the state to engage in the same barbarity it condemns. I think the real question needs to be whether or not it is possible to have the death penalty in a way that is consistent with our constitutional protections. More and more I think the answer is becoming a resounding “no”. Throw the costs-benefit analysis of enforcing it into the mix and it becomes very difficult to justify from a logic based approach.
This isn’t to say that it isn’t immoral if/when an innocent person gets executed nor is it to say that those who truly commit violent crimes don’t deserve just punishment. It is simply an approach that comes to a conclusion without getting into unresolvable subjective questions that we all have to reach our own conclusions about.
My Maryland jurisdiction won’t execute people even when the law allows it. The powers that be would rather let the both the police and other criminals execute people without trial (seven or eight killings by police last year, and one murder committed by a repeat offender who received a 30 year sentence after a 1986 murder, but was let out to kill again.
My solution would be to keep the death penalty for those who are certainly guilty, but with this caveat: If it is later proved that an innocent person was executed, the judge and prosecutor should also be executed in order to be absolutely certain that they do not repeat their mistakes. Tht may make some of them think twice.
“how many more cases of an executed innocent person would it take to make you change your mind?”
Most Pro Capital Punishment people just refuse to believe that innocent people get convicted of crimes they didn’t commit. Most are part of the “tough on crime crowd” that think the death penalty is what keeps us from descending into chaos and astronomical crime. This is faith, the religion of capital punishment. It’s not much different from the religion of fighting global terrorism or the religion of the nanny state. Capital punishment is a product of irrational faith and not of reason and science. You can’t debate and reason someone’s faith away, that’s why we call it faith.
People come to their senses via their personal experiences in life. Until the majority experience the bad side capital punishment, like some have with a priest or a cop, they probably won’t change their minds.
Yep. I could only be for the death penalty if the following were true:
1. There was no possibility of using it to execute an innocent person.
2. It must be applied consistently. For example, if they apply it to someone who rapes and kills a child, then they should also apply it to someone who sends thousands of U.S. troops off to die inflicting a similar horror on a scale many orders of magnitude larger on a population that hadn’t attacked us (Iraq and Vietnam). In fact, the only way I could support the death penalty is if they found a way to bring LBJ back from the grave so they could use it on him for the tens of thousands of soldiers’ lives he pissed away. The same would be true for Bush, a real asshole’s asshole.
OJ killed two people and he’s universally reviled. LBJ killed thousands and he gets a monument.
Over at my site, the members are overwhelmingly pro-death penalty, due largely to the nature of the site (true crime). These are (primarily) young mothers who are attracted to the site by our coverage of child abuse cases, and they are generally unwilling to allow anything but emotion and vengence guide their opinion on sentencing considerations. Because I have no moral qualms with capital punishment in theory, I have always framed the argument in what I consider to be logical, tangible terms, citing points like cost/benefit analysis, exonerations, dubious forensic science, etc. It doesn’t even phase them.
One member – ONE – was moved by the Willingham story and the questions it raises enough to be completely swayed, reversing what had previously been a rabid advocacy of capital punishment. For the rest, however, it simply forced them to state for the record that, yes, some collateral damage is acceptable in their opinions. How do you counter that??? How do you address an individual who will readily admit that they are okay with the execution of innocent civilians for what amounts to principle?
I was blindsided. I knew this case would force some into this position. Never in a million years, however, did I anticipate it being so many.
D.C. Russell
The reason that no one is being executed in Maryland right now is because there was an administrative freeze. The Department of Corrections released an instruction manual on how to perform the lethal injection but they didn’t go through the proper administrative procedures. I’m not going to get into the details of that because it’s an administrative law issue which is pretty dry but suffice to say when administrative agencies don’t do things properly the regulations they pass aren’t valid. Thus when the manual was found to be a regulation that didn’t go through the proper procedures we officially had no death penalty procedure and there has been a de facto moratorium since. That moratorium continued because Martin O’Malley attempted to get the death penalty abolished. Now that the legislature decided against it the new lethal injection rules are in the pipeline so in theory there will be executions again. The state of Maryland currently has 5 people on death row.
Also keep in mind generally speaking in Maryland the decision whether or not to sentence a defendant to death is made by a jury (a judge can if the defendant selects that but in practice most want a jury). So don’t blame the politicians for it. Your fellow citizens are making a lawful decision as jurors pursuant to their constitutional role in this state.
Additionally, despite my distaste for some prosecutors keep in mind they are under pressure too and doing a difficult job. Thinking that somehow punishing them with death for a wrongful death sentence is using the same foolish logic of deterrence that leads to the often counterproductive “tough on crime” policies bemoaned by this website.
Just to add to my last post the “doing a difficult job” comment isn’t an excuse for unethical prosecutors. However my view is that the problems with the criminal justice system in this country are a result system wide perverse incentives as well as cultural problems that have been created primarily by poor policy decisions (like the war on drugs). I’m simply saying the whole “kill somebody and that’ll stop this” is not a viable solution.
My response would be, “You first, asshole.”
Dave,
You said it best! How many of these people would be happy if one of their loved ones were innocent AND executed! I suspect they might change their views on the death penalty!
I am with many of you, including Radley, in that I have no confidence in prosecutors and the police to get the right people. All too often, they just want to convict SOMEONE to quiet the public outcry.
By the way, for those who quote the Bible as the authority for capital punishment, don’t forget that the Bible also calls for false witnesses and those who falsely accused the person (and this would include prosecutors and judges) to receive the penalty to be given to the falsely accused person.
Thus, if the prosecutor and judge in the Willingham case were strapped to gurneys and given lethal injections, along with the “expert witness” who gave fraudulent testimony, I might have confidence in government to carry out capital punishment. Instead, we have the real murderers getting off scot free.
“It is simply an approach that comes to a conclusion without getting into unresolvable subjective questions that we all have to reach our own conclusions about.”
So, subjectively speaking, here is the morality of the pro-death penalty crowd:
Two wrongs make a right.
What is wrong for the individual is right for the collective.
Might makes right.
A stitch in time may save nine, but who gives a fuck.
Vengeance is a dish best served any old way — hot, cold, whatever, but only as long as the State is serving it.
There’s no objective way to prove innocence or guilt 100% — so, sorry if the Sword of Damocles falls on your head, our bad.
And on and on … like I wrote, infinite immoral reasons to support the death penalty. One moral reason to oppose it — murder is wrong, no exceptions.
Bueller? Bueller? Bueller?
Radley, I’ve read this blog for quite some time, and I will admit that while I haven’t changed many of my views because of your work, I view police action with much more skepticism than in the past.
My view on the death penalty is similar to previous commentors. I believe that the worst of our criminals should receive the death penalty. I can say for certain that if someone committed horrific crimes against my family or my wife, someone would have to forcibly restrain me from committing horrific crimes on the perpetrator. But when facts are no longer viewed with the lens of justice, when facts can be twisted by people with a stake in another’s life, I think we must err on the side of caution.
I can provide all sorts of situations where I believe the death penalty should be applied, but those don’t matter in the real world. Our current government has proven itself to be incompetent or corrupt too many times to continue to allow it to have the power of execution.
I do believe in the concept of “an eye for an eye,” although as I understand the religious angle it was meant as an example of compensation to the aggrieved instead of punishment. I’m a bigger fan of “loser pays,” so that if you murder someone, you and your estate will be charged with paying them back an appropriate sum of money to compensate for the loss.
Yes, my opinion on the death penalty has changed. I can’t say that this particular case did it, as I’ve had a slow conversion regarding the power of the police in our society.
The question is phrased well: “how many more cases?” To me, it comes down to two issues:
1. Putting a number on “reasonable doubt.” (Better for N guilty to go free than for 1 innocent to go to prison. What should N be?) [see fwb #19]
2. Determining the relative severity of the death penalty vs. life in prison. (Better for M mass murderers to spend life in prison than for 1 wrongly convicted to be executed. What should M be?) [see jb #18]
In any real-world system, there’s going to be uncertainty and variation. You’ll never prove anything 100%, and the qualifications and biases of judges, jurors, lawyers, witnesses, etc. are going to vary a lot. So we ought to just set a target and know that the distribution of justice around our goal is going to have some outrageous outliers in each direction (innocents punished and guilty going free).
I think that most folks would choose a value of N somewhere around 10, probably in a range of 5 to 20. That is, they want some certainty of guilt, but aren’t looking for absolute certainty. When I was on a jury, we asked the judge for guidance on what “reasonable doubt” should be, and he wouldn’t help us at all. I volunteered that 90% to 95% certainty (N = 10 or 20) overcame “reasonable doubt” for me, and the rest of the jury sort of agreed.
But the value of M is likely to vary widely from person to person. It depends on religious beliefs about the value of life and about life after death. It depends on one’s perception of how horrible prison is (TVs and weight rooms vs. gang-rape). It depends on the perception of who the “innocents” are: scumbags who don’t belong in society, regardless of guilt/innocence on this charge vs. your neighbor.
I don’t think M is 0 for any reasonable person, but it need not be infinite. (That is, you can reasonably say that execution is not infinitely worse than life in prison. I’m not sure if it’s reasonable to say M is infinite, though many comments above suggest it.) The “kill em all and let God sort em out” folks might put M at 2 or 3, but as long as their M is less than their N, they can morally support the death penalty, even in the far-from-perfect justice system we’ve got.
Reasoning: If you convict N+1 defendants, you’ve convicted, on average, N guilty and 1 innocent, which is your morally neutral point on conviction. If N == M, there’s no moral difference between executing them all (1 innocent dies) or imprisoning them all for life (M guilty escape execution).
So, Radley’s question (”how many more cases”) is a way to ask about the moral weight that a person places on “reasonable doubt” and wrongful execution.
For me: N=20, M>20, so I’m opposed to the death penalty.
I neglected to read all the comments above, so sorry if I repeat what anyone has said. I’m an opponent of the Death Penalty because I don’t believe the state should take a life for any reason (absent legitimate wars, etc.). If killing is wrong, it is wrong in any situation. It is enough to keep even the worst of us behind bars, where we cannot hurt others (except that too many endorse a prison system with extra-judicial justice).
Even if the above were not my opinion, I would agree with Radley that I do not trust the government to police itself well enough to do even a passable job at administering the death penalty.
Most people interpret the “eye for an eye” passage in the bible the wrong way. It is not saying that punishment should be draconian but that it should be limited to balance for the crime, an eye for an eye not the heads of the perpetrator and all his relatives on a plates. Justice is revenge based and it is human nature that the powerful offended by the less powerful are wont to take excessive retribution and the legal system is the tool of the powerful.
All human systems are error prone but with the justice system there is a necessary pretense that this particular system is infallible or nearly so. It is questionable whether citizens could acknowledge the actual error rate were there some way of determining it. My guess is that at least 10% of convictions whether jury verdict or plea bargain but this is just a guess.
There is a need for a quality control system outside the justice system to estimate the error rate. This system should examine a truly randomly chosen sample of criminal cases in intense detail, putting resources into each examination much greater than either prosecution or defense put into the original contest. There would need to be mechanisms to counter the inevitable race and class prejudices of its operatives so that it does not merely follow in the footsteps of the prosecutors, judge and jury in a trial were prejudice determined the outcome. The operatives should be kept at more than arms length from the police, the prosecutors and the judiciary, with any job movement between these arms of government and the quality control system in either direction being strictly forbidden. The quality control system should make a determination on whether the conviction is sound or not but this should have no effect on the convicted person. If the quality control system decides that a prisoner on death row was wrongly convicted this should not stop the execution, the execution should be carried out but with everyone possessing the knowledge that the convicted was actually innocent.
Almost all of the exonerations of death penalty sentenced convicted have been because of DNA tests on biological evidence taken after DNA technology had advanced. Therefore one wants an estimate of the error rate in death penalty convictions one should divide DNA exonerations by the total of death penalty cases where testable DNA evidence exists. It is reasonable to assume that the rate of wrongful convictions in cases where DNA evidence is not available will be similar.
In my mind there is a question as to whether the agents of the law, police, prosecutors and judges and to a lesser extent the law and order aroused community really care that much if a person convicted of a particular crime is innocent in the narrow and technical sense that he did not do the actions of the crime.
For many of the purposes of the law all that matters is that the person convicted is an appropriate person to convict. If one Negro rapes a white woman, does it really matter if another Negro does the time. After all decent white Americans think all niggers are drug trafficking and drug consuming thugs. Likewise the US needs revenge on Arabs and Muslims for 9/11 therefore does it really matter if some Muslims are sent to prison after fabricated evidence and entrapment since they give Americans traumatized by 9/11 just as much satisfaction whether they actually did that of which they are convicted or not.
In principle I’m not opposed to the death penalty. In fact, I think it should be performed openly on the courthouse lawn preferably by hanging or perhaps firing squad. It shouldn’t be performed hidden away and by antiseptic means. It is something the public should be confronted with.
I am opposed to the death penalty right now. Our justice system is so broken, so corrupt, so hopelessly biased that the state shouldn’t be killing anyone. The risk of killing an innocent person is just great at this time.
“…I’d suspect the pro-death penalty people don’t really give a damn how many innocent people are executed.”
– And I’d suspect the anti-death penalty people believe that most crime is manufactured by neocons and the few real crimes are a result of oppressive eurocentric capitalism. No, wait, that’s dumb.
“And this is a great example of what it would take – an innocent WHITE person.”
– Very, very few black people are murders. And I once thought we’d have moved beyond racism a decade into the 21st century.
“There is zero possibility of a 100% certain guilty person. Even confessions can be coerced and the confessor believes his own confession.”
– I hope you don’t own a gun. If you ever decided that you could legitimately use it to save a life, it would be a result of totally mindfucking a confession from yourself.
“To me, the death penalty is about revenge.”
“This is the view of some people regarding anything jail.”
Well that’s just WorldNut level stupid and crazy.
“Most Pro Capital Punishment people just refuse to believe that innocent people get convicted of crimes they didn’t commit. Most are part of the “tough on crime crowd” that think the death penalty is what keeps us from descending into chaos and astronomical crime.”
– I read an article very recently about what can happen when conclusions are reached with weak evidence, a problem you’ve avoided in a quite unconventional way.
“In the abstract, I have no problem with a death penalty when guilt is certain and the crime is heinous. In the real world, I have zero confidence in the government’s competence and motivation to use the death penalty justly.”
– Well done.
Like many people here, I think there are some crimes so awful as to deserve the death penalty, but I don’t have a lot of confidence in the ability of the justice system sort out those who really deserve the death penalty from those who don’t. I don’t think there’s any simple way to reconcile these two conflicting positions.
It’s not that the justice system is pervasively corrupt (though of course sometimes you’ll run into individuals within it who are corrupt). In any large, complicated system run by fallible human beings there are going to be mistakes.
#26 I’d agree with everyone but the jury. The jury is a prisoner of the system as much as the defendant is. With voir dire, the jury is little more than a rubber stamp for the judge and persecutor.
Allow the government to have a power, any power, and it will abuse it. We know this. We see it every day. Allowing the government to kill is insane.
Zargon — You have said what I have believed for years. The death penalty is not justice. It is revenge. I’d have more respect for prosecutors and judges and death penalty advocates if they would admit to that instead of all these slimy arguments about “justice.”
I oppose the death penalty for pretty much the same reasons as many stated here. The system sucks. It is biased, lopsided and there is no interest in truth, only convictions. Get a conviction, who cares if they’re actually guilty.
And you guys in MD, there is certainly a death penalty in PG County. Unfortunately it is carried out by the PG County Police Dept. Judge, Jury and Executioners.
@Frank (56):
Given the system we have now, I’d say especially the jury. They should be skeptical of the prosecution and treat every judge as if they are withholding crucial evidence.
It depends on how avoidable the collateral damage is. If we had a system like the Old Testament law, collateral damage would be acceptable for a few reasons:
1) There would be only eye witnesses and video evidence.
2) Perjury would be immediately punished by a summary sentencing to the punishment for the crime for which the defendant is being tried.
3) Any private citizen may, at any time, up until the moment of the sentence be carried out, interrupt the proceeding to introduce new evidence or challenge the witnesses (this was a cultural thing not codified into the Mosaic Law).
Within the confines of a biblical system, I am an eye-for-an-eye, pro-capital punishment individual. In our secular system, it’s implementation is an abomination.
It is more costly financially and morally for those with the death penalty. Life in prison is not a life I would like to contemplate.
Life in prison is a just sentence. An eye for an eye gets what exactly?
It’s not really a question of if Texas has executed an innocent man, it’s how many. I have no problems with the death penalty in theory, I don’t give a damn about real criminals. The problem I have is the system we have set up. We cannot be trusted with the power to kill our peers. It’s that simple. I got beat to the punch on the biblical stuff, great stuff # 60. I also got beat to the punch on the judges and prosecutors being given the same punishment if they fuck it up.
“I think this country would be much better off if we did not have capital punishment…. We cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated.” -John Paul Stevens, Supreme Court Justice
“If you think that any human system of justice is infallible, then you are ignorant. If you think that no person has been falsely condemned to death, then you are naive. If you think that even one innocent person, ripped from heir life and their passion and to put to death at the hands of the state is in any way justifiable, then you are evil.” -Joshua W. H. Steiner
“Capital punishment is the most premeditated of murders, to which no criminal’s deed, however calculated can be compared. For there to be an equivalency, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.” – Albert Camus
I am opposed to the DP for the reason Radley gave and also I believe in God’s word.
“THOU SHALT NOT KILL”
“VENGEANCE IS MINE”, sayeth the Lord.
Several people have asked me which GUILTY person should go free versus having an innocent person imprisoned or sentenced to death. My answer is simple and in the form of a question, “Which of the over 135 people who have been EXONERATED from death row should have been executed?
http://www.deathpenaltyinfo.org/innocence-and-death-penalty
Then of course we have CLOWNS like Huckleberry (Steven) Hayne and Wild and Wooley (Michael) West in Mississippi who aren’t happy enough with finding TRUE evidence but CREATING FALSE evidence to secure wrongful convictions.
State sanctioned murder only creates more victims like the condemned’s loved ones. People conveniently forget that even if the condemned person is guilty, the loved ones are not. Yet they are forced to suffer just as the victim’s family.
The victim’s family always cries out for ‘closure’ but who and what gives the executed’s family so-called ‘closure’?
The DP does not resurrect the victim or changed what occurred.
After the condemned is executed, the ‘punishment’ ENDS.
PLEASE help me fight for justice in Mississippi by signing my petition: http://www.gopetition.com/online/25939.html
“Evil flourishes when good men do nothing.” – Edmund Burke
@ Mike T
I really hope your not serious. First, the idea that “collateral damage” is ever acceptable is just disgusting. Seriously, calling it “collateral damage” does not negate the fact that you are advocating a system where innocent people are killed. You are advocating the death of innocent people. Are you really comfortable being that close to committing murder yourself? I mean really, your basically in the same situation as someone who hires a hitman. You are advocating and paying for a 3rd party to kill a person.
Second, are you really advocating an OT style justice system? So we should stone homosexuals, blasphemers, and people who eat pork? I -really- hope your joking about this part. The bible is the -last- place you would want to get your legal system from.
Oh, and I like how you added #3 in there, even though you clearly say that it has no “codification.” Lying for jesus are we?
By the way, the DP is used arbitrarily. We cannot pick and choose who gets the DP as though we are choosing a new car off the lot.
For instance Dr. Joe Blow may shoot his wife between the eyes and because of his ‘long-standing good name’ the DA will not seek the DP.
Then if millworker Harry Hoghead shoots his wife between the eyes, the same DA will most likely seek the DP.
I’ve seen this happen more times than I’d like to remember.
So tell me HOW we can call ourselves and ‘fair and just’ society?
I recently sat on the steps of the Supreme Court in Washington, DC. Above the might columns was engraved the words, “EQUAL JUSTICE UNDER THE LAW”
I beg to differ.
Can someone tell me at what point did we begin to IGNORE those words?
@ Alex
Troll much?
@ Carlyle Moulton
I see we are still not able to speak without using racist terminology. I really was moved by your alien genocide speech…If only you would take the first step and jump into a volcano I’m sure everyone here would be thankf…I mean follow you. Yes. Follow you.
when rich white folks start being executed, than maybe I can start being be for it. But since that will never happen, I’m still against it across the board.
I have always been against the “death penalty”, intellectually. I think if it is “wrong”/”sinful” to kill another human being (except in self defense), then the state shouldn’t be able to do it, either; therefore, the “death penalty” should be abolished.
Emotionally, there have been times in which I have had the desire to have someone die for their heinous crime(s). But the law(s) and justice should not be subject to emotion, only reason, logic, and absolute proof of guilt.
One innocent executed by the state is one too many, the “death penalty” must be abolished. One innocent in prison is one too many, the standard of “proof” must be raised.
BTW, great thread. Well-reasoned opinions….
No one, I don’t think, brought up the central practical problem with the death penalty within our justice system. It’s irreversible if evidence comes to light after the execution. With life in prison, unless Antonin Scalia’s your judge, convictions can be overturned and the wrongly accused set free.
Having been brought up a pacifist, my initial distaste for the death penalty came on moral grounds. But the logical/practical argument is far more convincing to people who actually give a shit whether innocent people live or die. Most people haven’t thought about it past, oh well they were convicted, they should be put to death within an hour of conviction. We simply cannot allow ourselves to descend to the level of the criminal for any reason.
Grann’s article definitely convinced me that this man was almost certainly innocent and should not have been put to death. I think the death penalty is wrong for cases like this, but at the same time, it doesn’t bother me that, say, Ted Bundy was executed. Since there is probably no good way to draw a line that will guarantee no innocent people will ever be put to death, I agree the death penalty should be opposed.
People who oppose the death penalty because they don’t trust the state to administer it fairly almost always give the state unreasonable trust, anyway – “life in prison” seldom means “the rest of your life in prison”. The state administers that poorly, too. At some point, some of those people that we are pretty darn sure are terrible murderers will get out of prison again.
So, it doesn’t come down to “do you trust the state?”, it comes down to “which thing do you expect the state to screw up less?”
Considering the massive support those with the death penalty seem to get for appeal after appeal, especially compared to those who get life in prison, it seems to me that the innocent man is more likely to exonerated with a death penalty conviction than a life in prison conviction.
So that leaves me supporting the death penalty as the thing most likely to screw over the fewest innocent people while achieving some significant portion of the desired goal of removing the human waste from society. I make no claim that there is no cost in innocent people, I only believe it to be a lower cost than the alternative. What party takes that innocence (the state or human waste that the state should have removed from society) does not matter to me, only finding the balance where the least is taken in total, as either is equally bad.
David in Balt, while I could be wrong, I thought that Carlyle’s “racist” comments were intended as sarcasm — he was expressing views he believes other people hold in very crude terms so as to make those views seem indefensible.
In any case, I suppose somebody ought to stick up for the “collateral damage” theory of executing the innocent, so I guess I will.
We have all sorts of social institutions that predictably result in the death of many innocents. Perhaps the best example is the automobile and associated infrastructure — people die in car crashes every year, tens of thousands of them, and we accept that as a price of personal freedom and mobility.
People die in swimming pools, and in boating accidents, and skiing.
Most of those people are innocent. I think that we should take reasonable steps to reduce accidental deaths of these sorts, but I also think that those deaths are a reasonable price to pay for stuff we want. Perhaps I would change my mind if I were killed in a car crash, but ex ante I accept the small risk in exchange for personal mobility.
By the same token, there are some folks out there who choose to hurt others. As I am not one who would fare particularly well in the state of nature, I am glad that we have social institutions designed to control persons prone to interpersonal violence. We try to identify miscreants and then either confine them or in very rare cases kill them.
Sure, it would totally suck to be imprisoned for life or executed for a crime you didn’t commit, just as it sucks to be killed or paralyzed in a car crash. But we might very well decide that the social benefits of the death penalty outweigh the costs, including executing the innocent from time to time.
Of course we might also decide that the permanence issue is such that any marginal benefits of execution over life imprisonment aren’t worth it. I’d probably lean that way myself, but I don’t think it’s impossible to construct an argument for the death penalty even if one agrees that the innocent get executed sometimes.
I will add two things. First, of course we ought to do everything possible to increase the accuracy of trial procedures. This definitely includes bringing the rigors of real science to forensic science.
Second, if I were wrongfully convicted of a horrible crime, I personally would want to be given the death penalty. Both because life in prison strikes me as being a “fate worse than death” and because getting folks riled up about my innocence would probably be easier if I were on death row.
This capital punishment issue in a no brainer, even a third grader can see through the fog. We the sovereign people of these Constitutional Republics (the 50 Union States) wherein their Constitutions declare and recognize that We the People (citizens of the respective Union States) possess the ultimate political power. We then delegated some of that political power to our respective Union State as an agent to protect our own rights and power. However, it is basic fundamental logic that we are not able in the first place to delegate a power we don’t in any form possess ourselves. Only in self defense do we have the power to take another person’s life. Consequently, we do not have the power to kill another human and therefore are not able to delegate it to a constitutionally created legal fiction. However, I admit the quandary this puts us in when someone commits a heinous crime against one of our family or close friends.
So here’s my solution. Instead of the government euthanizing humans, I propose that a common law jury provide a victim of a heinous crime with the power to execute the criminal or in the case of the death of the victim said jury provide such permission to a surrogate stand in for the victim to execute the criminal by firing squad or similar means as a belated defense of property where the intent of the criminal to take the victims property, namely his life, was legally proven in a court of law thus establishing the basis for the victim to belatedly protect his or her property in person or in absentia through an appointed or designated surrogate. A criminal must give back what has unlawfully been taken. If the victim or the surrogate cannot bring himself or herself to make the criminal repay with his life, it becomes the same as an acquittal. Otherwise, equality has been reached by a life for a life.
[...] As I have said before, like this person I have no objections to the death penalty in the abstract. I do agree that for some people and for [...]
How can someone agree to give the death penalty to people that might have murdered someone by temporarily loosing there mind, when at the same time Americans are supporting the worst mass-murderers with there taxes instead of throwing them into the prison? I am talking about the cold blooded government mass-murderers, politicians and there corporate advisers that give out the order to torture and kill millions of innocent people all around the world with there insane “war on terror”. This “war on terror” is the terror! And these monsters that organize this “war on terror” and taking worldwide all our rights away are the real terrorists.
If you demand the death penalty then you should give it first to all the smokers, tobacco farmers, tobacco-sellers and tobacco-industry owners and workers. Beside of the government criminals these are the worst mass-murderers ever lived on the planet earth. Each year they are killing thousands of children and adults by poisoning the air we are breathing with their deadly tobacco-pollutions. Forced second hand smoking should be considered a crime – everywhere.
The death penalty should be reserved for those with a prior record of violence. Serial killers for example with separate convictions for murder would qualify. Those with a restraining order who kill the one they are required to stay away from should be executed.
Those who murder once with no prior history of violence should not qualify for the death penalty. (a restraining order is prior history)
Perhaps a point system for violence would be helpful. I would like a judge to be able to tell someone convicted of assault and battery, “Mr. criminal, your past history and current conviction have now earned you ten points. If you are convicted of murder in the future, you will be executed.” And then it should be mandatory.
How about one point for drunk driving? If you have earned ten such points and are convicted of vehicular manslaughter, you also get the death penalty.
In the worst case, if someone is innocent of the final crime, at least we would still be executing a very bad person.