Salon’s Justin Elliott riffs on that appalling “It takes balls to execute an innocent man” comment from a Texas GOP focus group participant, and wonders if the Cameron Todd Willingham case may actually help Rick Perry in the GOP primary. As Elliott points out, it almost certainly isn’t going to hurt him. And that’s bad enough.
I’d like to hear some of the more thoughtful conservatives lining up behind Perry weigh in on this. Here’s how I see it: A state government has no more awesome, complete, or solemn power than the power to execute its own citizens. If you’re going to claim to loathe big government, this is one area where you ought to be more skeptical of government than any other. Hell, if for no other reason than that it can’t be undone.
The problem here isn’t necessarily that Perry presided over the execution of a man who was likely innocent. If Perry had shown some concern about what happened in the Willingham case, maybe set up an investigation into what went wrong, perhaps even attempted to suspend executions in Texas until he could be sure checks were in place to prevent the execution of an innocent, the way George Ryan did in Illinois—if he’d done any of that, he’d at least have shown some appropriate skepticism. He’d have shown that he’s at least cognizant of the fact that government employees in law enforcement and criminal justice are just as fallible and subject to the trappings of power, bureaucracy, and public choice theory as government employees in, say, tax collection or the regulation of business.
Instead, Perry couldn’t even acknowledge the possibility of doubt about Willingham’s guilt. He justified his stubbornness by pointing out that Willingham also allegedly beat and was verbally abuse toward his wife, as if that were at all relevant to Willingham murder trial. (Unfortunately, lots of men beat their wives. Most of them don’t also burn their children alive.) More importantly, Perry’s pivot to a “Willingham was a bad man” defense glosses over the most alarming aspect of Willingham’s case, which is much bigger than Willingham: The state of Texas used completely bogus forensic evidence to convict a man in a capital case. (The state also used testimony from a fraud psychologist in the death penalty portion of Willingham’s trial, as it had in dozens of other trials.) If that was allowed to happen here, it has happened in other cases, and in other contexts. Worse, when the state’s forensics committee attempted to investigate Willingham’s execution, Perry replaced the committee members pushing for an investigation with new members more sympathetic to prosecutors.
Perry was confronted with the possibility that the government over which he presided may have abused it’s most awesome and sacred power. And instead of skepticism of government, he showed deference. Instead of demanding transparency, he actively obfuscated. Instead of exposing and demanding accountability for a possibly historical government error, Perry used his own power to keep himself and his constituents ignorant, lest they begin to question whether government should have such power. And it’s not as if there aren’t ample other examples of the flaws with Texas’ death penalty and its criminal justice system. Hell, Texas has one county that that has seen more exonerations than all but a few states.
If it helps, think of the the death penalty as a “government program.” It’s one thing to support this government program. It’s something else to refuse to believe your favorite government program could ever do wrong. And it’s downright pathological to be so confident in your favorite government program’s infallibility that you actively undermine an investigation into said government program’s possible flaws.
And he’s doing it again. In the Hank Skinner case, Perry has actively fought DNA testing that could confirm the innocence (or guilt) of another Texas man on death row. Skinner was at one point hours from execution before the Supreme Court intervened (the intervening justice was Antonin Scalia, believe it or not). In Skinner’s case, the prosecution actually began to conduct DNA testing on crime scene evidence, then stopped when the first tests confirmed Skinner’s version of events. Perry again justified willful ignorance in this case by simply noting that he’s personally convinced of Skinner’s guilt. As if there aren’t dozens of examples of what appeared to be clearly guilty people who were later exonerated by DNA. With Skinner, Perry is not only choosing willful ignorance over transparency, he’d rather risk executing another innocent person than possibly undermine support for the government’s power to execute its citizens.
I understand the law and order instinct on the right. I also understand why people support the death penalty. But you can hold both of those positions and still be disgusted by Rick Perry’s actions in the Willingham and Skinner cases. In fact, I’d say that if you’re going to claim the banner of limited government with any integrity, you damned well ought to be.