Burying Our Mistakes

“The death penalty is not about whether people deserve to die for the crimes they commit. The real question of capital punishment in this country is, Do we deserve to kill?” Bryan Stevenson.

I

In August, Pope Francis changed the Catechism of the Catholic Church’s teaching regarding the death penalty. Section 2267 previously read “Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.”

It then qualified the “only possible way of effectively defending human lives” by adding “Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm – without definitely taking away from him the possibility of redeeming himself – the cases in which the execution of the offender is an absolute necessity ‘are very rare, if not practically nonexistent.’” (Emphasis mine.)

The last part in italics is a quote from John Paul II’s encyclical Evangelium Vitae.

The new language declares that the “death penalty is inadmissible because it is an attack on the inviolability and dignity of the person,” and adds that the Church “works with determination for its abolition worldwide.”

Like nearly everything Pope Francis does, the change set the cat among the pigeons, especially among a certain class of Catholics for whom the current pontiff can do no right. Even people more favorably disposed towards the Pope wondered why he couldn’t leave well enough alone. After all, I can’t recall the last time a Pope regarded any execution as an “absolute necessity.”

In the American context, however, there’s no need to debate the morality of the death penalty because the previous language about “the guilty party’s identity and responsibility” being “fully determined” is nowhere near being the case in the United States.

For us, the more pertinent question is the one Stevenson poses: Do we deserve to kill? The answer, to quote my son’s favorite character from “The Music Man,” is “Not on your fireless cooker, mister!”

II

Since 1973, at least 164 death row inmates have been exonerated, most recently on November 5, 2018. “Exonerated” doesn’t mean that their convictions were overturned because of some procedural defect, what people call “getting off on a technicality.” (Yes, those are scare quotes.) “Exoneration” means that the death row inmate was either, one, “acquitted at retrial,” two, “had all charges dropped,” or, three, was “given an absolute pardon by the governor based on new evidence of innocence.”

And this, pardon the cliche, is the tip of a substantial iceberg. A 2014 study published in the Proceedings of the National Academy of Sciences estimated that the rate of “erroneous convictions” in death penalty cases was, conservatively speaking, 4.1 percent.  That’s around 105 of the approximately 2,600 people currently on death row.

But let’s assume that the real figure was half of that, two percent. In how many areas of life would you be okay with a two-percent rate of catastrophic and irreversible failure? Driving? Flying? Eating out?

III

It isn’t only capital cases. On the whole, wrongful convictions are a lot more common than people know and governments are willing to admit. The National Registry of Exonerations at the University of Michigan Law School currently lists 2,295 exonerations since 1989. The people exonerated served nearly 21 thousand total years in prisons for crimes they were not guilty of.

This number is certainly a fraction of the actual number of wrongful convictions. One study from the National Criminal Justice Service found that in cases involving sexual assault where available DNA evidence was examined after conviction, the wrongful conviction rate was 11.6 percent.

If that sounds unbelievable, allow me to introduce you to Steven Haynes and Michael West. They are the protagonists of “The Cadaver King and the Country Dentist” by Radley Balko and Tucker Carrington, with a foreword by John Grisham.

By “protagonists” I don’t mean “heroes.” Quite the opposite: Balko and Carrington chronicle a decades long reign of error (not a typo) and quackery that put God only knows — the state of Mississippi definitely doesn’t want to know — how many innocent people in prison and on death row.

The latter included Kennedy Brewer who was convicted and sentenced to death for the murder of his girlfriend’s daughter largely on the basis of Hayne’s and West’s “expertise.” Haynes, who functioned as Mississippi’s de facto medical examiner despite not being trained, much less board-certified, in pathology or forensic medicine, called on West to testify that the bite marks Haynes had supposedly found on the victim’s body matched Brewer’s teeth.

Even by the standards of the pseudoscience that is bite-mark analysis, West was a hack of the first order. And Haynes was scarcely better. In 2007, he claimed to have performed 1,800 autopsies. “The National Association of Medical Examiners recommends that medical examiners perform no more than 250” per year. In one autopsy report, he said that he removed the victim’s uterus and ovaries. The victim was a man.

None of this mattered to Mississippi prosecutors ,who loved the Haynes and West because they told jurors what the prosecutors wanted them to hear.

Brewer was eventually exonerated after spending thirteen years in prison, five of them after DNA tests proved that he didn’t commit the crime, and Haynes and West were eventually discredited. Happy ending? Not even close. The state continues to fight petitions for post-conviction relief that argue what it has already acknowledged: The forensic evidence upon which these convictions were based was, at best, questionable, and often fraudulent pseudoscience.

It does so for the same reasons that courts side with the state in this matter: “On some level, the [petitioners are]  . . .  asking a court, whether the Mississippi Supreme Court or a federal court, to repudiate years—an entire era, really—of what had passed for the fair and just application of criminal law in the state of Mississippi.”

And to be fair, it isn’t only Mississippi. In Oklahoma, “crime lab analyst Joyce Gilchrist had earned the name ‘Black Magic’ for her uncanny ability to find damning forensic evidence to link a suspect to a crime scene. She sent twenty-one people to death row, eleven of whom were executed before she was exposed in 2001. One of the men she had helped convict was later exonerated by DNA evidence.”

In West Virginia, a crime lab analyst was found “to have faked evidence in countless cases,” which led to as many as 134 wrongful convictions. Fortunately, West Virginia abolished the death penalty in 1965.

In Massachusetts, which also has no death penalty, district attorneys agreed to throw out more than 21,000 drug convictions after a crime lab chemist was charged with tampering with evidence and falsifying drug tests.

IV

In his concurring opinion in Kansas v. Marsh, the late justice Antonin Scalia wrote that “Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation.”

He then added “But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum. This explains why those ideologically driven to ferret out and proclaim a mistaken modern execution have not a single verifiable case to point to, whereas it is easy as pie to identify plainly guilty murderers who have been set free.”

It should be noted that he wrote this years after the aforementioned Oklahoma crime lab scandal in which an executed man was exonerated by DNA evidence after his death. As for his “easy as pie” remarks, that’s rich. No justice was more impatient with the drawn-out appeals process in capital punishment cases than he was.

Since at least 30 of the 164 exonerated death row inmates spent at least twenty years on death row before their exoneration,  it’s not a sin against charity to say that if Scalia had had his way, none of them would have survived long enough to be exonerated.

But Scalia was right about the system’s flaws and the inevitability of wrongful convictions, albeit as wrong as one can be about their frequency.

V

A system where wrongful convictions are a “truism,” instead of the occasion for soul-searching and a commitment to reform doesn’t deserve to kill.

Is there a society that “deserves to kill?” Perhaps. The Scandinavian countries come to mind, but the last person executed in any of these countries was a Danish Nazi collaborator in 1950. What’s certain is that we don’t, because not only does our system make a lot of mistakes, it also resists correcting them.

Prudence, not to mention decency, counsels that we shouldn’t literally bury our mistakes, but that’s what we’ve done. It’s important to note that death-row exoneration data only goes back to 1973. Only God knows how many people were wrongly convicted and executed in the years prior to 1973.

Prior to DNA testing, we could plausibly claim ignorance about this matter. Today, we can’t. That we insist on acting as if nothing has changed only goes to prove how undeserving we really are.


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