Posthumous justice

Since the Supreme Court reinstated the "modern" death penalty in 1976, 1,060 inmates have been executed in the U.S. Proponents of the death penalty have long denied that any—not even one—of those executed was innocent of the crime that placed them on Death Row. They've argued that the many legal safeguards in place serve as a rigorous filter to ensure that only the truly guilty suffer the ultimate legal sanction. These safeguards include fine-grained state and federal appeal processes that can consume decades and the availability of post-conviction relief though the increased use of DNA and other scientific evidence.

But as refined scientific investigative techniques (like DNA analysis) become more widely available, there's more reason to believe that the executions of innocent persons may have been more common than we have been led to believe.

Consider, for example, the case of Cameron T. Willingham (1). In 2004, He was executed by lethal injection after being convicted of setting a fire that killed his three daughters at his home in Corsicana, Texas, in 1992. The courts, the State Board of Pardons and Governor Rick Perry refused to stop the execution despite new forensic evidence.

In another Texas case that involved almost identical evidence of arson, Ernest R. Willis was also sentenced to death for killing two women in a house fire in 1986. Willis spent 17 years in prison before his exoneration and release in 2004, just ten months after Willingham's execution. The State of Texas paid Willis about $430,000 for wrongful imprisonment.

While investigating the Willington case, attorney Barry C. Scheck of the Innocence Project assembled an expert panel of forensic scientists, all volunteers, who reviewed the evidence in both cases. The panel's report found that

"...prosecution witnesses in both cases interpreted fire indicators like cracked glass and burn marks as evidence that the fires had been set, when more up-to-date technology shows that the indicators could just as well have signified an accidental fire. In one case, the signs were accepted as proof of guilt, the report said; in the other, they were discarded as misleading.

"'These two outcomes are mutually exclusive,' Mr. Scheck said. ''Willis cannot be found 'actually innocent' and Willingham executed based on the same scientific evidence...'''

"In the Willingham trial, the committee found, a deputy state fire marshal, Manuel Vasquez, erred in tracing the blaze to an accelerant. The committee discredited his finding of arson. 'Each and every one of the 'indicators' listed by Mr. Vasquez means absolutely nothing,' the report said...

"Many arson investigators were self-taught and 'inept,' the report said, adding: 'There is no crime other than homicide by arson for which a person can be sent to death row based on the unsupported opinion of someone who received all his training 'on the job.'

"Texas leads the nation in inmates serving time for arson, the report said: 666 as of 2002, the latest year for which statistics are available."

The report was submitted to the Texas Forensic Science Commission, which so far has taken no official action.

The net result: the evidence used to convict and execute Willington was hopelessly flawed, and some unknown percentage of those serving time for arson in Texas may have been convicted using similar evidence.

In an editorial dated January 29th, the New York Times noted with approval that a half-dozen states have established "innocence commissions" (2), then stated:

"Modern DNA testing is steadily uncovering a dark history of justice denied. More than 190 DNA exonerations in 18 years show ever more alarming patterns of citizens, wrongly convicted, suffering in prison."

But proponents of the death penalty will still argue more or less as follows: "It's regrettable that some innocent people may be executed, and we should strive to reduce their numbers, but society as a whole benefits from the death penalty because its most dangerous criminals are prevented from causing further harm to society." Or, in the words of one academic supporter:

"Despite precautions, nearly all human activities, such as trucking, lighting, or construction, cost the lives of some innocent bystanders. We do not give up these activities, because the advantages, moral or material, outweigh the unintended losses. Analogously, for those who think the death penalty just, miscarriages of justice are offset by the moral benefits and the usefulness of doing justice." (3)

This is a morally indefensible position, and it would be interesting to hear the writer try to articulate it to Cameron Willingham's family. The "miscarriages of justice" that result in convictions could easily be mitigated or remedied by simply not imposing the death penalty. Surely it's preferable to wrongfully imprison someone, even for decades, than to wrongfully execute them. Life imprisonment, without possibility of parole, adequately protects society (4) while also allowing for mistaken convictions to be set aside based on new evidence.

The support for capital punishment, fortunately, has faded in recent years; the number of executions has also declined from a peak of 98 in 1999 to 53 in 2006. New Jersey may soon join the dozen other states (plus the District of Columbia) that have no death penalty.

While immediate repeal of the death penalty would be the best way to prevent the execution of innocent persons, it's unlikely that state legislators--in the absence of a real consensus on the subject--will take action that might be interpreted by some as "coddling" criminals.

Meanwhile, capital punishment may be quietly falling into disuse as fewer juries are willing to impose the death penalty, especially when they're given the alternative of life imprisonment without parole. In 2006, juries sentenced 128 defendants to death—a substantial reduction since 1999, when 298 received the death penalty.

Of the 38 states that nominally retain capital punishment, 13 (plus the federal government) have conducted five or less executions in the last thirty years. Some, like New Jersey, have conducted none, while there have been just two here in Oregon. Over 65% of all executions since 1976 occurred in just five states. The death penalty is used far more often in the South than in any other region of the country.

Despite publicity about cases like Cameron Willingham's, Texas may prove to be the last bastion of the death penalty in the U.S. During 2006, Texas executed 24 inmates, or nearly half the total for the entire country; Ohio was a distant second, with five. There are 392 Texas inmates on Death Row, roughly the same as the number in Florida but less than California's 657 (with twice the population of Texas).

So how many of the 1,060 prisoners who have been executed since 1976 were innocent of their crimes? No doubt we'll never know. In many cases evidence has been destroyed or DNA evidence is simply not available. An unknown number of convictions were the result of factors like perjured testimony, inadequate representation by counsel (5), jury selection processes that racially disciminate and prosecutorial or police misconduct. But such things are often difficult or impossible to prove, especially many years after an execution.

But there's larger point behind all this. It makes no difference even if every single executed person was guilty: the death penalty is an aberration in a society that claims to be civilized, and it should be abolished immediately wherever it exists.

NOTES

(1) My primary source on the Willington and Willis cases is a New York Times article ("Faulty Testimony Sent 2 to Death Row") dated May 3, 2006. Most of the data on capital punishment is from the excellent online materials compiled by the Death Penalty Information Center.

(2) These commissions serve as "independent investigative bodies of judges, prosecutors, defense lawyers, police officers and forensic scientists who re-examine case facts after prisoners are exonerated using DNA evidence."

(3) "The Ultimate Punishment: A Defense" by Ernest van den Haag, Harvard Law Review Association (1986). No doubt many guilty persons have been acquitted by juries or released by judges for various reasons, perhaps including such notables as O.J. Simpson. But those cases don't reinforce the dubious arguments against the death penalty.

(4) Prison guards and other inmates may be at risk of attack by people with life sentences who have nothing to lose. But that danger poses operational issues for prison administrators, who need to do everything possible to eliminate the risk from inmates who are truly a threat to others.

(5) In the infamous Texas case of Calvin Burdine, the Texas Court of Criminal Appeals (TCCA) acknowledged that "the defence attorney had fallen asleep repeatedly during a capital murder trial. Nonetheless, the TCCA upheld the conviction, finding that this gross misconduct had not affected the outcome of the trial." [There's that British "defence" again.] Amnesty International observes that the TCCA's rulings in this area "are a maze of contradictory and sometimes bizarre decisions." In a plea bargain in 2003, Burdine (a gay man) agreed to accept three life sentences to avoid execution. In arguing for the death penalty at Burdine's trial, the prosecutor had stated that "the jury should not send Calvin to prison because prison is not a punishment for a gay man." His lawyer failed to object to this offensive and inappropriate argument, possibly because he was asleep.

PHOTO: Cameron Willingham