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November 23, 2005

Ooops

For all of you who think the right-wing alternative media is an echo chamber; welcome to school.

Conservatives part ways on many, many issues. There are many "9/11 conservatives" who are dovish-to-apathetic on spending and social issues; libertarian conservatives (as I am, in a small-l, big-C kind of way) may duke it out with single-to-dual-issue social conservatives on things like spending and civil liberties.

Another great example is the death penalty.

The WaPo brings us the case of Ruben Cantu, executed in 1985 for a crime we now know beyond a reasonable doubt he could not have committed:

A decade after Ruben Cantu was executed for capital murder, the only witness to the crime is recanting and his co-defendant says Cantu, then 17, was not even with him that night.

The victim was shot nine times with a rifle during an attempted robbery before the gunman shot the only witness.

That witness, Juan Moreno, told the Houston Chronicle for its Sunday editions that Cantu was not the killer. Moreno said he identified him at the 1985 trial because he felt pressured and feared authorities.

Cantu, who had maintained his innocence, was executed on Aug. 24, 1993, at age 26. "Texas murdered an innocent person," co-defendant David Garza said.

Don't get me wrong; I'm all in favor of killing the guilty; I'm a documentably firm believer in resisting lethal attacks with legal, lethal force.

And if humans - especially judges, juries, prosecutors and the legislators who write the laws they follow - were perfect, I'd be all in favor of capital punishment; the world is full of sex offenders, serial killers and criminals against humanity that we'd be better off without. For some, I'd happily pull the switch.

But to me, the possibility of executing the wrong person is a moral showstopper, a double crime against morality; it murders an innocent person and lets the guilty go free (because there's no way a DA is going to aggressively prosecute a crime for which someone's already been executed; it'd be political suicide).

Other conservatives (and some liberals) disagree; some think that in the age of DNA testing erroneous executions are impossible. Others think that a little frictional attrition among the innocent is both inescapable and acceptable. Dennis Prager says:

First of all, there is almost no major social good that does not lead to the death of innocent individuals. Over a million innocent people have been killed and maimed in car accidents. Would this argue for the banning of automobiles?
This, of course, is a logical fallacy on several levels; there is a voluntary, assumed risk in driving a car which, most reasonable people figure, is vastly countervailed by the alternative, being able to get somewhere fast when done with reasonable caution.

On the other hand, an innocent person does not concede, by membership in a society, that his or her life is forfeit to the state; life, liberty and the protection of private property are our natural rights, to be deprived us only after considerable burden of proof. Being a member of a free society should not included an "assumed risk" of being murdered in error or by legal technicality. To wrongly deprive the innocent, law-abiding citizen of any of the three - especially life - is an evil of the lowest, basest sort. And, finally, the alternative to capital punishment, given any doubt about the innocence of the convicted, is both reasonable and foolproof; life in prison without parole. Prager's example - where murderers escaped from prison in a non-death-penalty state - is illogical; death row inmates can escape and have escaped as well.

Because remember; each and every conviction depends on the foibles, frailties and inner integrity of every prosecutor, judge and juror involved. Mistakes happen; few of the mistaken have the integrity of the DA in the Cantu case:

Sam D. Millsap Jr., the district attorney who handled the case, said he never should have sought the death penalty in a case based on testimony from a witness who identified a suspect only after police showed him a photo three times.
Oops.

Other stories abound; prosecutors mishandling DNA evidence, hiding evidence to delay or derail appeals...

...which is human nature, of course, but all of which affect the risk one should reasonably be expected to assume to live in a free society as a law-abiding citizen.

Until all such "imperfections" are removed from the system, and as long as an equally-foolproof alternative exists, there really is no moral case for capital punishment that doesnt' occur at the scene of the crime at the hands of the intended victim.

Posted by Mitch at November 23, 2005 12:23 PM | TrackBack
Comments

I seem to recall a rather interesting point Jason Lewis made about the death penalty.

If I remember right, he was essentially for it... only up to the part where he reminded his listeners that he doesn't trust the federal and state government to handle his taxes and social security much less the duty of carrying out an execution.

He suggested that a private company might be the way to go... however, the amount of risk would make such companies so rare to be non-existant.

Posted by: Badda-Blogger at November 23, 2005 11:13 AM

Companies willing to take on that level of liability: 0. Especially in this litigious frenzied society.

I don't know if you guys have seen Minority Report, but the idea of what they do with the "Pre-Crime" division, and the way they portray 2054 era technology as being used to monitor people is pretty damn scary.

And I'm sure the stereotypical "useful idiots" would be all for it.

Posted by: Bill C at November 23, 2005 12:02 PM

Mitch: Should we have executed Timothy McVeigh?

Posted by: Kermit at November 23, 2005 12:08 PM

Kermit, I think you missed Mitch's point and took on another issue - that being, should we execute the guilty? I would rather society err'd on the side of mercy for the sake of the innocent. WE KNOW this is happening. If guilty people are allowed to live due to a moratorium or abolishion of the DP to ensure that innocents are not put to death, so what. Life in lockdown is wretched. Most of these people are forgotten and for many, thats a nightmare in itself.
They aren't special anymore.
Tim McVeigh thought of himself as a patriot - better than others because he pumped himself on the belief that he had the guts to make a statement, and he had the guts to pay with his life. I firmly believe we gave him exactly what he wanted. He is on the books. He will go down in history, his name is a household word. He had the eyes of the world on him at his execution, and if you recall, he stared us all down. Never took his eyes off the camera.
Makes me sick. We gave him what he wanted.

Posted by: carmelitta at November 23, 2005 12:27 PM

Exactly. If we can know with unerring precision that we really ARE executing the guilty, I'd say let's mow through death row with wild abandon and call it a day. It's why I favor a broad right to self-defense; such shootings are almost never in error; when someone shoots a would-be kidnapper/rapist/murderer at point-blank range, the chance of error is less than minuscule.

As the execution in the article shows, we can't depend on perfection (among the accused! Go figure!) - and I fail to see any distinction between executing the innocent and murder.

Posted by: mitch at November 23, 2005 01:13 PM

Mitch,
How do you square these two sentences?

"...life, liberty and the protection of private property are our natural rights,..."

"And, finally, the alternative to capital punishment, given any doubt about the innocence of the convicted, is both reasonable and foolproof; life in prison without parole."

Given that life in prison without parole by definition will deprive the convicted of liberty, and (by practice) the protection of private property, I don't see how you can say that it is a reasonable alternative to capital punishment, which deprives the convicted of all three "natural rights". Either life is the only "natural right" worth protecting, and therefore liberty and personal property protection mean nothing, or life in prison without parole is as bad as capital punishment.

Posted by: Tom at November 23, 2005 01:20 PM

If Wisconsin had the death penalty we might have executed Mr. Avery for a crime he did not commit and Ms. Halbach would be alive.

Posted by: Fred at November 23, 2005 01:28 PM

"Given that life in prison without parole by definition will deprive the convicted of liberty, and (by practice) the protection of private property, I don't see how you can say that it is a reasonable alternative to capital punishment, which deprives the convicted of all three "natural rights".

I thought it was pretty self-explanatory; life in prison can be reversed. Death can not, once the execution is carried out.

See Mr. Cantu. Had he been in jail without parole, and become completely exonerated, he'd have been robbed of 12 years, rather than...y'know...dead. `12 can be atoned on this earth. Death can not.

Posted by: mitch at November 23, 2005 01:32 PM

Mitch,
I understand your stance, but it does not make a lot of sense. In essence, you are saying that the state can deprive anybody of liberty of personal property protection, as long as it says, "Oops. Sorry." and then reinstates those rights. I disagree. If somebody stole my TV, and then 3 days (or years) later gave it back, could I still not press charges? In the same manner, the state should not deprive me of my natural rights for any length of time, be it one day or all eternity.

I think that this is really two arguments. One, what should the state have the right to do? Second, what happens if the state screws up and does something it is not supposed to do? The first is a legal argument; the second, moral.

Posted by: Tom at November 23, 2005 01:39 PM

So do we have two standards,
A) We're really, really, really sure he did it = death penalty
and
B) we're almost really, really, really sure he did it
Life without parole

?

Posted by: Kermit at November 23, 2005 01:47 PM

I agree that he shouldn’t have been executed, and shouldn’t have even faced the death penalty based on available evidence. Eye witness testimony is notoriously unreliable unless the witness actually knows the suspect. However, the analogy of being killed in traffic isn’t that far off in this case. You could say he put himself in the metaphorical car when he shot the cop, and having put himself in the car he helped get the ball rolling.
This would be the point when someone starts screaming "so he should DIE just because he wasn’t a law abiding citizen?" Obviously not, but would he have been in the position to be charged with anything had he not put himself on the radar screen? I think this is a good case against the death penalty since we can obviously not trust the prosecutor to request it ONLY when appropriate, but until Joe Six-pack, who never broke a law until unjustly accused, convicted and executed comes along, not much will change.

Posted by: buzz at November 23, 2005 02:31 PM

"I understand your stance, but it does not make a lot of sense. In essence, you are saying that the state can deprive anybody of liberty of personal property protection, as long as it says, "Oops. Sorry."

Well, that's pretty much the way it is - right? I mean, if the state accuses, tries and convicts you of a robbery you never committed, and you serve a year in the joint before the truth comes out, what happens? The state compensates you (miserably) and sends you on your way under the cover of a release you signed to get your money. Or they settle with your lawyer for lost income, pain and suffering and damages.

If one is dead, one can not sue for damages. Although I hope Mr. Cantu's estate can.

"I disagree. If somebody stole my TV, and then 3 days (or years) later gave it back, could I still not press charges?"

Sure. I'm not sure, though, how that bears on the discussion. Neither you nor "somebody" are the state.

" In the same manner, the state should not deprive me of my natural rights for any length of time, be it one day or all eternity."

Unless you committed a crime and were found guilty by a jury of your peers!

Kermit,

"So do we have two standards,
A) We're really, really, really sure he did it = death penalty
and
B) we're almost really, really, really sure he did it
Life without parole"

Sort of. The point being, it is in most cases impossible to get to "A" right now. And if we objectively can't, we should stick with B.

Posted by: mitch at November 23, 2005 03:11 PM

Mitch, this is a great springboard for a discussion of federalism.

If you are willing to take the chance that your state government may accidentally execute an innocent person, move to Texas.

Personally, I'm thinking about moving to Texas. I'm not worried that I'll be wrongfully executed because my lifestyle tend to consist of low-risk behaviors like working at a legal job, paying my taxes, drinking in moderation at home, etc. And if one or two high-risk lifestyle people are accidentally executed every century, well, it's a risk I'm willing to take, pour encourager les autres.

If you're not willing to take that chance, move to Minnesota.

Luckily, you're already here!
.

Posted by: nathan bissonette at November 23, 2005 03:16 PM

There are three things that I find particularly scarey about situations like Cantu and some others who we have found to be wrongfully convicted ( I say some because some of these people injected themselves into the picture or had some serious level of involvement in the crime).

1. Every one of these cases were presented by professional people who could only be in their positions because they excelled somewhere in their careers and became trial attorneys. In short, they were not fresh out of law school. They knew the law and the ethics of their practice. Not blind people, not stupid or ignorant people. These were people who had "paid their dues", done the grunt work, and were elected based on merit by the public. In Cantu's case, the DA made the decision to ask for the death penalty based on flimsey evidience. How did this happen?
2. Every juror was convinced beyond a reasonable doubt that this person was guilty. Sure of it, and could assume that the public would approve because of the popular public stances on some issues. I don't blame any of them. They did what they were supposed to do. There is some comfort of believing that if authority figures (such as a DA) vehemently push their point, that there is a better likelihood of credibility in it. Lets face it, they represent the state and the state has habeas corpus-period. That person is not free to go until this has all played out. They have control of the body and are in the power position. I have often thought that we like to say that a person is innocent until proven guilty, but until the defense has the same resources and credentials given those who represent the state in a matter of this gravity, regardless of whats supposed to be, there is an underlying belief in the authority of the state's perspective. For example, the beliefs we have been taught from childhood - "all cops are good". We know it is not true as adults, but when its something like this, its something people may pull on. And, bells and whistles also impress. Take a job applicant - two may apply for the same job but the one who looks better will be taken more seriously. Same principle. The defense is supposed to balance the scales and in many cases, there just isn't enough money alloted to the indigent to actually do that. Public defenders do not have the same budget that prosecutors have.
The Judge and the jury are the only persons in that courtroom representing the people. The judge doesn't try the case, and the jury who isn't schooled in the law has to sort it all out. I think we put too much on them with respect to the fact that much of the time, they don't get a seriously equal look at both sides and then have to live with what happens. For the Cantu jurors, ...they have to live with this.
3. With regard to moratorium....the exoneratios of innocent people to date only represent the ones who have successfully gotten someone to not only look at their cases, but have reached a firm or agency with the money to pursue an appeal firmly and to spend on testing, and experts.

I'm glad that the public is being made aware of cases like Cantu's. Ultimately, its not just coffee talk. Like anything else in life, when we see a problem, we need to address it. With all of the evidence of wrongful convictions, and the belief of the constitutional correctness of protecting the rights of the individual, clinging to the idea of "the big picture" outweighing those individual rights is a hypocracy.

Posted by: carmelitta at November 23, 2005 03:28 PM

Before anyone goes off on me, let me clarify something. I believe in the system, the wisdom of jurors etc....what I'm trying to say is given the circumstances that too often have resulted in wrongrul convictions, there were some things to consider. Things aren't always as they should be ideally. I think thats the point of moratorium. We are human. There are going to be flaws and there is going to be fluxuation in the individual workings of these cases. I'd like to see them even out as much as possible on all levels. Particularly with regard to funding.
If Cantu was innocent, shouldn't he have the equal money to present his case? He is supposed to be considered innocent until he's proven guilty. That makes him a member of the group that the state is trying to represent. Get what I'm saying?

Posted by: carmelitta at November 23, 2005 03:35 PM

I went to school in Houston and Harris County. I'm a staunch conservative in the Goldwater and Buckley tradition, and I'll be the first to tell you that the way Harris County metes out the death penalty is an embarassment to civilization. Life without parole makes far more sense from a criminal justice and fiscal perspective, although I am in favor of the needle for those especially heinous crimes that deserve it; my issue with Harris County is that the prosecution pursues the death penalty in virtually every capital case without consideration that such an irreversible penalty should be applied in only the gravest cases.

But here's the flip side to life without parole that I think provides a lot of support for the death penalty -- what's to prevent a new millennium Warren court from going activist and declaring THAT unconstitutional? In a twisted way, I think the activist Courts of the 60s and 70s have made the death penalty much more palatable because it is easier to allow the occasional innocent to be executed while clearing out the killers among us than it is to risk that killers society had put away intentionally get turned out after years in prison because of leftist activist judges.

Posted by: far from home at November 23, 2005 04:18 PM

Eyewitness evaluation is notoriously terrible. I'm sure you all remember the cases where they'd have a crazy guy enter a psych class, rant and rave at the professor and then leave. The students were nearly all unable to give a good description of the guy.

Strangely enough, before the secular humanists got involved you used to be better protected against things like this Cantu case happening. Way back when the US was a more Christian country most of the states had laws that required *two* eyewitnesses for the death penalty. Why? Go read Numbers 30 and you'll find out.

If you can believe that life without parole is a real sentence, I would have a very hard time advocating for the death penalty except in special circumstances. But I'd challenge Mitch: would you let Osama do life if we caught him? It's cases like that that make me leery of removing the death penalty altogether, but you won't find me too disappointed if we make a life sentence a true life sentense and make the death penalty harder to administer.

Posted by: nerdbert at November 23, 2005 09:14 PM

Mitch said: Sort of. The point being, it is in most cases impossible to get to "A" right now. And if we objectively can't, we should stick with B

I don't want to stick to B, I want real justice. If I could I would extend the death penalty to child molesters and level3 sex offenders.
That being said, perhaps it's the mechanism that needs to be overhauled. If we already have, as Carmelitta points out, the requirement of "beyond reasonable doubt", perhaps that should be strengthened to "Beyond all doubt". Perhaps taking the jury out of the equation is the answer. I don't know, and I'm not a lawyer. There are better minds than mine who should be able to solve this.
In the words of that famous death penalty proponent John Lennon "I tell them there's no problems, only solutions".

Posted by: Kermit at November 24, 2005 08:31 AM

Looking through my capital punishment library, I find the British case of G J Smith, the "Brides in the Bath" murderer. Here are two dates: Sentenced to death, July 1, 1915; Executed August 13, 1915. The Brits seem to have been as prompt with all their executions. Mr Cantu, doubtless poor and friendless and without capable legal counsel (Smith's lead counsel was Edward Marshall Hall, probably THE defender of his day), seems to have been on death row for 8 years.

Perhaps the reason for the difference is the level of public confidence in the criminal justice system. The Brits cancelled capital punishment partly because of one hanging due to a police mistake. The US has hundreds of examples of police frameups, faked evidence and perjury, all used by prosecutors who must be well aware of the shabby nature of the material. But our appeals drag on, I think because in the minds of everyone involved there is the nagging suspicion that this man had nothing to do with the crime.

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