For at least the past five years and maybe a little longer, the death penalty debate, in part, has been dominated by news of the number of wrongfully convicted people who have been sentenced to death. That number stands at at least 122. You can see one list of people who were wrongfully convicted here.
Now the debate appears to be shifting in a fundamental way. People are no longer content to just discuss wrongful convictions. The debate has moved to the question of whether we have executed people who were innocent.
It's timely to bring this up in light of Gov. Warner's decision to order DNA testing in the case of Roger Keith Coleman. We honestly don't know what the tests will show.
But Coleman is the tip of the iceberg. Don't forget these cases -- click on the links if you want more info:
In Missouri, a local prosecutor is looking into whether Larry Griffin was wrongfully executed in 1995.
In Texas, back in December 2004, the Chicago Tribune published an investigative piece about the case of Cameron Todd Willingham, executed earlier that year.
Also in Texas, the case of Ruben Cantu remains in the news. He was executed in 1993 under the watch of Democratic Gov. Ann Richards. The Houston Chronicle strongly suggested he was innocent of the crime for which he was put to death.
Of course, some in the abolition movement have long had their own lists of people they think were executed despite innocence. Of the four cases I've mentioned today, two were very much on people's radar screens -- Coleman and Griffin. But Willingham and Cantu weren't, which makes one wonder how many other wrongful convictions are out there.
Equal Justice USA, a project of the Quixote Center, documented 16 cases where people were executed despite of possible or probable innocence. You can see there report here. (When you go to the link, look to the left for a list of cases, organized state by state.) Full disclosure: The Quixote Center is an affiliate of NCADP and the report was authored by Claudia Whitman, an NCADP board member.
4 comments:
The discussion around innocence is a very pragmatic one, imo. It's the gateway into convincing dp fence sitters to go for abolition.
Over the last few months, I've heard several people make statements saying that the innocence argument takes away from the broader injustice of the death penalty. Among those making that statement is David R. Dow, U-Houston professor and author of "Executed on a Technicality", who says this early in his book.
IMO, innocence and the other issues do not present an either-or dichotomy. It's more of a both-and situation. Innocence gets our foot in the door with many people and opens up the possibility for conversation. From that point, we can talk about the other injustices like race, poverty, a restrictive legal system, etc., which, in fact, are often the reasons why innocent people are sentenced to death.
Oh, and one other thought. If these potential examples of wrongful executions continue to be in Texas, will that potentially lessen the impact in other states? In other states, it could be dismissed as, "Well, that's crazy Texas for you. Here in (your state) we've only executed (x) people and we know they were guilty."
Sen. Leahy asked Judge Alito this morning if the Constitution allowed the execution of an innocent person. This was the exchange:
LEAHY: Thank you.
In his confirmation hearing last September we, as you know, went through hours and hours, days and days with Judge Roberts, now chief justice.
I asked him if the Constitution permits the execution of an innocent person. He said, "If they've been falsely convicted and they're innocent, they shouldn't be in prison, let alone executed." I think we all agree with that.
But I pushed further, because my question was whether the Constitution permits the execution of an innocent person -- you know that they're innocent. He said, "I would think not."
Judge, do you agree with Chief Justice Roberts?
ALITO: I agree that it is one of the most fundamental rights protected by our Constitution that no one may be convicted of an offense unless they're proven to be guilty beyond a reasonable doubt.
And further than that, the Supreme Court's decisions since 1976 dealing with the Eighth Amendment have attempted to create a whole set of procedural safeguards to make sure that the death penalty is not imposed arbitrarily or capriciously.
And this whole framework is designed to prevent exactly that: to prevent the conviction of an innocent person and to prevent the imposition of capital punishment on someone who is innocent or on someone who is guilty of the offense but is not deserving to be -- to have that penalty imposed on the person.
LEAHY: But, Judge, we have, as we know -- we saw the cases in Illinois, people a few days away from execution. They'd been sentenced to death. They'd been convicted. They had their trial, gone to trial. Jury came back. Apparently procedures followed on sentencing. They are now sentenced to death.
A few days before death, somebody comes forward at the very last minute because of DNA evidence, and says "Whoops, we got the wrong person," and then they are let loose.
We're finding in Virginia now, in other cases, it appears that there's a possibility a number of innocent people were executed.
What if you had a case -- they've gone through the whole thing. They've been convicted. The judge has followed all of the appropriate sentencing, the jury came back for sentencing, did everything following the law. And now they're up for execution. Evidence comes up, say, DNA evidence, or DNA evidence, a confession of somebody else. Would it be unconstitutional then to execute that person?
ALITO: Well, Senator, it is unconstitutional to execute someone who has not been proven guilty beyond a reasonable doubt. Now, depending...
LEAHY: They may have been found guilty beyond a reasonable doubt, is what I'm saying. And then as a lot of these people were on death row and had to be commuted at the last moment when they -- a few days before the execution they found, whoops, they have the wrong guy.
ALITO: That's the ultimate tragedy that could possibly occur in our criminal justice system. We should do everything we can to prevent that from ever occurring.
I have not had a case -- during my time on the court of appeals, I've had only a handful of capital punishment cases where there was a suggestion that that was a possibility.
If the evidence develops at the last minute, then I think -- and if this is -- it would depend to some degree on -- the procedures would be different, depending on whether the person had been convicted in state court or in federal court.
The first procedural step in either instance would be to file a petition with the trial court. If it were in state court, it would be a state collateral relief petition. And those are handled differently depending on the state. And then file a -- I'm sorry. You could go to the state court or you could attempt to file a second habeas petition in federal court and follow the procedures that are set out in the habeas corpus statute.
LEAHY: But you agree with -- I understand all the steps. Like you, I was a prosecutor. Even though we don't have death sentence in Vermont, we have real life imprisonment. And I remember those.
But you agree, though, with Chief Justice Roberts that the Constitution does not countenance the execution of an innocent person?
ALITO: The Constitution is designed to prevent that.
LEAHY: And the reason I ask this, this is something that originally raised, as I recall, in the Judiciary Committee by Chairman Specter, the Rule of Four. Are you familiar with that, where the Supreme Court?
In other words it takes five justices to stay an execution or to hear one of these cases. Usually, if there's been four that have agreed it should be, somebody will make the fifth just as a matter of courtesy.
It hasn't been followed that much recently. Chairman Specter has called it is bizarre, an unacceptable outcome, to not provide the fifth vote. He wanted to introduce legislation to codify the Rule of Four.
If you were one of the justices and you're there -- and these things always seem to happen. Everybody is scattered all over the place. Four of your fellow justices have said that they would hold, what would you do? They voted to stay an execution. They're asking you to be the fifth vote. Four have...
ALITO: I had not heard of this rule until the hearings for Chief Justice Roberts. But it seems to me to be a very sensible procedure because I think we all want to avoid the tragedy of having an innocent person executed or having anyone executed whose constitutional rights have been violated.
LEAHY: Well, I raise it, as I did with then Judge Roberts, here because some things you remember from this hearing; some things you will probably try to forget -- both you and your family.
But I hope at least this idea stays in your mind.
What makes anyone think all exonorees are innocent? The only thing DNA testing has proven is that the exonoree didn't leave his DNA behind. It doesn't mean he didn't commit the crime with a sloppy partner. It doesn't mean the DNA found wasn't left either before or after the crime was committed and therefore bears no relationship to the crime, and it doesn't mean that death penalty abolitionist kooks working in labs aren't manipulating the results. I find it completely hypocritical how a little DNA is good enough for an exoneration but a ton of DNA wasn't enough to convict O.J.
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