The execution of an innocent man

Substituting life in prison for execution is not an adequate response to the problem of false convictions.

If Cameron Todd Willingham had followed his lawyer’s advice and pleaded guilty to burning his three daughters to death, accepting a life sentence instead of risking the death penalty, we would probably never have known that he was innocent. Because he was on Death Row, his conviction – based on junk-science psychiatric and forensic evidence and (as usual) the testimony of a jailhouse snitch – has now been shown to be wrongful.

Too bad Willingham has already been executed.

Both David Grann, author of a chillingly matter-of-fact account in the New Yorker, and Patrick Appel* at the Atlantic treat the Willingham case as an argument against the death penalty. But is putting an innocent man in a maximum-security prison for the rest of his life really more tolerable than executing him?

The issue here isn’t capital punishment; it’s a trial process too open to bullsh*t, and the fetishization of “finality of verdict.” If only 1% of our prison inmates are factually innocent – which seems to me like a ludicrously optimistic estimate, given how many convicts have been exonerated by DNA testing – we have 17,000 people behind bars at any one time for crimes they didn’t commit.

I am aware of only one jurisdiction in the United States that maintains a team of investigators dedicated to developing new evidence to overturn guilty verdicts (and pleas). That’s a crime. And it’s also a crime that Gov. Rick Perry’s role in allowing the execution of an innocent man seems very unlikely to damage his political future in Texas.

* Appel gives a nice shout-out to my book. Greatly appreciated.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

4 thoughts on “The execution of an innocent man”

  1. How do you live with yourself if—as a prosecutor, as a governor, as whoever feels he bears responsibility for the outcomes of criminal trials—if you DON'T have an ongoing effort like this?

    Answer: only if you're able to operate under the belief, even if only subconscious, that these people matter less than the rest of us.

  2. It's called the Public Defender. I disagree that "no jurisdiction" spends money on this sort of thing. I have been a public defender for 11 years and one of my specialties is post-conviction litigation. When I worked at Ohio Public Defender, I was part of a unit of 9 or 10 lawyers. Post-conviction work is all we did (appeals, habeas corpus, DNA litigation, etc). Aside from basic appeals, inmates wrote us letters. If we thought there might be something to the claim, we would investigate it and litigate it. We got innocent people out of prison. I'm at the Federal Public Defender now and we also handle habeas corpus cases to look into wrongful convictions.

    The laws at both the state and local level are designed to keep people out of court if they miss certain litigation deadlines and procedural hurdles. Its something the courts call the "finality of judgment." Trying to litigate a cold case can be futile because of the court rules, which is what Justice Scalia is talking about when he says an innocent person does not have a constitutional right to a hearing just because he claims he is innocent. The system is not set up to allow the wrongfully convicted to litigate their cases indefinitely or for counsel to be appointed to represent them.

    Re-opening old cases is not easy but there are plenty of dedicated criminal defense lawyers at public defender's offices who know how to do this work. The states and the feds should make post-conviction investigations a priority by funding public defender offices with post-conviction litigators and investigators. The courts should be encouraged to appoint counsel in more post-conviction situations.

  3. "finality of verdict" is an sick evil concept. Don't try to tell me that after a certain point it no longer matters whether someone is guilty or innocent, you know damn well that's not how you'd feel if it were you who was falsely convicted.

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