While I’m a firebreathing libertarian-conservative with a few touches of paleocon mixed in for good measure, I break with conservatives on a couple of issues.

The big one is capital punishment.

Don’t get me wrong – I support capital punishment for every reason there is…

…except one; the simple fact that people, science, procedure and law are all imperfect, and that until they are it is inevitable that we will execute an innocent person.  And executing the innocent is a double crime; it kills an innocent person for a crime he didn’t commit, and it virtually ensures the guilty will go forever free.

Now, Laura Ingraham is almost right; modern science has, theoretically, made it much more difficult to execute an innocent person.  But in some cases, modern, exculpatory science has gotten hindered by police and prosecutorial misconduct. 

And in others – including, it seems, at least one execution that looks increasingly likely to have killed an innocent man – science looks to have evolved enough to have made a verdict look very sketchy:

[Cameron Todd] Willingham was executed for the 1991 arson murders of his three children. The Chicago Tribune investigated the case in December 2004 and found that the fire investigation was flawed, with the local investigators relying on indicators of arson that had been disproved by advances in fire science.That does not mean Willingham was innocent. But in the absence of other evidence, it shows that he was executed for a fire that might well have been accidental.

A very, very long article in New Yorker, however, makes a pretty compelling case that Willingham was innocent, and that the Texas state government, including governor Rick Perry, would rather not examine the possibility.

There are people out there who deserve to die for their crimes.  But that must never trump the right of the innocent to live.


Even if the absolutely guilty pay for their crimes with the dubiously-better option of life in a Supermax with no possibility of parole – barring, of course, reversal of their convictions.

The Willingham case adds to a growing body of evidence that the only morally acceptable means of capital punishment is legally-justified self-defense.

65 thoughts on “Wrong

  1. In addition to the slight possibility that innocent people will be wrongfully punished. A bigger one as a fiscal conservative is cost. I have seen studies comparing the cost of death penalty sentences v. life without parole, runs around 5 times more expensive for death penalty mostly due to the enhanced appeals process. Add in the extremely long time between sentence and execution (if it ever happens) and what is the point. Life without parole the case is done and does not drag out for another decade or two.

  2. DH,

    Yep. That is an issue – albeit a pragmatic rather than a moral one.

    One other moral issue – the death penalty is applied vastly more often to black male defendants, even after allowing for the greater crime rates among black males.

    Racism can, to some degree, be corrected.  Human imperfection can not.

  3. The strength and majesty of Man dictates that he must be able to commit a crime so terrible that the only proper response to it is to be put to death.
    If we cannot do either of these things, murder or execute — and here I speak of Man as a being, not any particular person or persons — we are not morally free. The Fall was not so far and Salvation not so difficult to win. We are lessened.

  4. I generally don’t support the death penalty as implemented now for the simple reason that there’s too much room for error.

    But on a moral level, there are some crimes for which the penalty is justified. Osama, for example, qualifies.

    So morally I believe we have a duty as a society to keep the ultimate punishment available, but it should be the conservatives’ version of the liberals’ (highly idealized) view of abortion: safe, legal, and RARE.

  5. I would have absolutely no problem with the death penalty if it were not that the state could/has executed the innocent. You can’t correct that mistake.

    “Better that ten guilty persons escape than that one innocent suffer,” English jurist William Blackstone.

    “Keep thee far from a false matter; and the innocent and righteous slay thou not: for I will not justify the wicked.” Exodus 23:7.

  6. Eggs don’t have rights.

    Eggs are not imbued by the Almighty with souls, significance and humanity.

    Why make an utterly immoral omelet when putting the eggs in a supermax fridge for life without parole serves the same purpose and insulates you against the vagaries of human error.

    Put another way, Krod; what if you were the egg that someone was going to make the omelet out of, even though you were innocent? Would you be quite as cavalier about it then?

  7. I have moral objections, but just as importantly, I object to state sponsored murder because it relies on human beings.

    Even the most conscientious human beings make mistakes.

    Human beings often lie.

    Further, court cases are built on evidence collected by law enforcement agencies.

    Not every cop commits crimes, but every cop knows one that does. And all cops lie as a routine part of their daily activities.

    If you are not convinced by now that in addition to employing some of the dumbest “college grads” you’ll ever meet, the police routinely run roughshod over Constitutional and human rights because of bigotry of one sort or another, to advance their careers or, all to often, to cover their own crimes, I’ve got a big bag of Hopey/Changey you’d be interested in.

  8. I respectfully dissent. Incarcerating murderers for life terms (seldom do they serve until death)does nothing to bring the guilty to justice if the incarcerated person is innocent. Freeing them does not require producing the real perpetrator. A cold case is a cold case for good reason. The expense of capital punishment comes from the legal circus that is stage managed by capital punishment opponents who delay, delay, delay with every legal strategem at their disposal. Capital punishment should be as swift as it is rare. The execution of a monster like Ted Bundy causes no more distress for me than shooting a rabid dog. There is no cure for his kind of psychopathy either. Remember that he was once in custody, escaped and killed again.

  9. The state should never become comfortable with executing it’s own citizens, under any circumstances.

    I agree “that the only morally acceptable means of capital punishment is legally-justified self-defense”.

  10. I agree with Nerdbert. Capital punishment should be legal, but the burden of proof needs to be exponentially higher than for imprisonment. Murders that are caught on tape, or have more than two witnesses should qualify for the death penalty.

    As for the cost of capital punishment, that is self imposed. If we restricted it to those who are guilty beyond question, we wouldn’t need to run through 5 different appeals of the same case.

    Humans are imperfect, and thus human judgment will always be imperfect. But we have to make judgments to the best of our ability and then stop losing sleep over it.

  11. If they catch the guy that kidnapped and murdered the little girl in Florida I hope they bring Old Sparky out of retirement and fry his ass. Since I don’t consider child rapist/murderers human I have zero problem with putting them down.

  12. Dave, would you be willing to bet your life on a tape? You’re aware that tapes can be faked beyond detection, aren’t you?

    I understand the outrage a father would feel towards someone that killed his child, I get it.

    But unless you walked in as they guy committed the crime, produced a weapon and shot him dead on the spot, the chance for a morally justified, or 100% accurate application of death dealing has passed.

    Most people have no idea how mangled, Machiavellian and yes, corrupt our legal system can be. I am absolutely 100% sure that there are guys on death row right now that didn’t do the deed for which they will die, conversely we *all* know of at least one instance where a guy cut two people to ribbons walked out of court to a tee time because he had enough money to buy his way out of it.

    Tough talk about “frying” someone’s ass is just silly, and if you think you could push the button with a clear conscience you’re either lying to yourself or a pretty twisted fellow.

    With the exception of Dave, I doubt anyone here has ever faced the business end of a gun or used one the other way around….let me tell you people; it’s a life changing education on the subject of “death” packed into a couple of seconds.

  13. BTW, Mitch, I’m not sure this qualifies as a “conservative” issue since the majority (54%) of liberals support capital punishment, too. Yes, in general conservatives are more supportive (by 20%), but capital punishment is supported by the majority of both major wings of political thought.

  14. Foot’s point is a huge one. In the past 33 years, we ahve released 244 people from death row. Not “commuted” them, not “reduced their sentences” – released them.

    Because they were innocent of the charges for which they were sentenced to death “beyond a reasonable doubt” by a jury. And they were released, in many cases, because of the very long, thorough appeals process to which some of you object. To pick one random example, one guy was released (after the Innocence Project found that the DA had gundecked exculpatory evidence in a conviction based on a jailhouse snitch’s testimony) after, ahem, twenty-two years on death row.

    So who wants to say that all those appeals are a misguided waste of time?

    Some had incompetent attorneys. Some had flawed trials. In several cases, police and prosecutors hid exculpatory evidence.

    But they had two things in commong: every last one of them was on Death Row wrongly. And none of them were eggs.

  15. How many didn’t?

    A project at Stanford in the nineties was looking at 14 executions since the 1920’s. I don’t remember all the details.

    And that didn’t count the Willingham case.

  16. With the exception of Dave, I doubt anyone here has ever faced the business end of a gun or used one the other way around…

    You’ve never lived in some of the areas of Cleveland I did. There’s a reason I believe in concealed carry.

    We agree on the fallibility of evidence and people in the vast number of cases. But what about the exceptional ones?

    Maybe you’ll answer the question I’ve put to Mitch many times and which he’s always dodged (he could give lessons to Clinton): assume we’ve captured bin Laden and have him in custody, do we execute him? Let’s make it even more extreme in hypothetical #2: Hitler escaped and we’ve caught him in Paraguay and now have him in custody, too, do we we execute him?

    Can you give a convincing argument that in extraordinary cases such as those where proof is far beyond a reasonable doubt and the crimes are so heinous that the ultimate punishment is unwarranted?

    In general you’ll note that I oppose how the system in general works now. I wouldn’t object to us going years between executions, but I do oppose the total rejection of capital punishment in really exceptional cases.

  17. Without a doubt there are those that deserve nothing less than to suffer the death penalty for their heinous crimes (I might like to be the executioner). The quagmire is how do you deal with the inevitable situation where the “WRONG” person is convicted of a capital crime, and as punishment is put to death? Apologize; possibly give the surviving family cash? What would be a suitable amount of cash reparation for murder in the name of the state?

  18. If they catch the guy in Florida and find his DNA inside the little dead girl can we call that “beyond a reasonable doubt”?

  19. the question I’ve put to Mitch many times and which he’s always dodged

    I didn’t “dodge” anything. There’s just no simple answer.

    Bin Laden? Hitler? McVeigh? Bundy? Seriously? Those are the simple cases. Of course death was justified. And if all cases were that simple and clear cut, there’d be no debate.

    But most of them are not. Some say “only execute in cases were there is no doubt”. Fine – but there is “no” doubt in a tiny minority of cases. And remember – every single person on Death Row, and the 244 who were released from death row, were all convicted beyond a reasonable doubt in the first place! How do you write a legal standard for “absolutely no doubt whatsoever at all”?

    Some – Laura Ingraham among ’em – say that science now makes it impossible to convict the innocent. But not only does that refer to DNA, which isn’t in evidence in all cases (the Willingham case involved no DNA at all), science changes. Thirty years ago, “hair strand analysis” was the gold standard of forensic science; many convictions, and not a few executions, hinged on hair strand analysis. But today, hair strand analysis isn’t regarded as being a whole lot more accurate and reliable than the science in the “Burn The Witch” skit from Monty Python and the Holy Grail. Willingham was convicted and executed based on science that has since been found sorely wanting. DNA may never go the same route, but simply hiding behind science isn’t the answer – especially given that science can be manipulated, too (as in the case I linked in the article).

    So since you’re throwing the “dodge” word around 🙂 Nerd, answer this one for me: how do you write a standard that distinguishes between “guilty beyond a reasonable doubt” and “double-dog guilty beyond even the faintest shred of implausible doubt?” And do it without citing anecdotal examples, mind you…

  20. If they catch the guy in Florida and find his DNA inside the little dead girl can we call that “beyond a reasonable doubt”?

    Yep, Kerm, I agree. But again, that’s an easy one.

    How about the case of the guy convicted “beyond a reasonable doubt” by a jailhouse snitch’s testimony?

  21. Well Mr. Thul put it quite well when he said there needs to be an even higher standard of proof. The jailhouse snitch’s testimony doesn’t seem to me to rise to that level. Mitch Berg’s deathbed statement that RickDFL killed him with random stupidity would be another matter.

  22. Of course, there’s always the “Escape From New York” solution.

    Just remember: The Duke of New York is A-Number One !!

  23. I’m a good egg. 8)

    Sure berg, I’ll take my chances. Heck, I’ve even bought powerball lotto tickets.

    Like I said, I’m not afraid to make an omelet.

  24. Well, kudos to you for not being “afraid to make an omelet”.

    So have you looked into what the 244 people released from death row because they were innocent thought about it?

  25. I’ve got an even stronger suspicion of DNA than you, Mitch. Just consider the (lack of) qualifications for lab techs that the major labs employ, the proven lack of care of samples, and the ability to manipulate the chain of evidence. I’m far less willing to convict on DNA evidence than most of the folks here.

    But just because you feel like whining that “it’s a hard problem” doesn’t mean you can not answer it.

    I would severely limit the number of possible executions per year to less than a half dozen. I would require anonymous review of any cases eligible for execution after conviction (to prevent public hysteria that often colors a juror/jurist’s behavior). Then I would decouple the sentencing phase now used into two full trials with different juries and judges. The second full trial would be another full trial (guilt or innocence), be the only one that would be allowed to consider the death penalty, and require really lavish funding for the defense of any case viewed as eligible for the death penalty to avoid the problems of questionable defense and to further limit the number of cases that would even possibly be considered. Making the second trial a full trial, complete with another jury and the ability to overturn the conviction should make the prosecutor think twice about asking for the death penalty. I would even consider serious sanctions against a losing prosecutor who sought the death penalty appropriate to cut down on the number of attempted convictions. Basically, I’d want a prosecutor to only bring slam-dunk cases to the second level.

    If you look at most of the problems that have been uncovered in death penalty convictions many of the problems have centered around inadequate defense at the initial trial, often coupled with prosecutorial misconduct. We don’t do enough to punish that misconduct now, and especially not in prosecutors in capital cases. And the structure of our appeals process make man defects particularly difficult to overcome after trial. How bad? Consider this quote from the Supreme Court in ’93: “Claim of actual innocence based on newly discovered evidence is not ground for federal habeas relief.” – US Supreme Court 1/93 (prisoner executed 5/93). For a capital case, that’s a lousy standard and system of justice.

    I would argue that as structured now the court system does an inadequate job of securing life. That it does so doesn’t mean that all the tools we have should be thrown out, just that we need to reign in prosecutors, better review what convictions there are, and restructure capital cases’ appeals process to reduce the number of errors.

  26. “assume we’ve captured bin Laden and have him in custody, do we execute him? Let’s make it even more extreme in hypothetical #2: Hitler escaped and we’ve caught him in Paraguay and now have him in custody, too, do we we execute him?”

    No, and no.

    You’ve forgotten that my main objection is moral. Once you have taken someone’s freedom you have assumed the responsibility for maintaining a life. Listen, I don’t think there’s anything wrong with tossing in a healthy level of misery and deprivation into a life sentence, but somehow God forgot to issue me my license to decide life and death….ripped off again.

    “If they catch the guy in Florida and find his DNA inside the little dead girl can we call that “beyond a reasonable doubt”?”

    Beyond reasonable? Maybe. Beyond all, not even close. If it’s my life we were talking about, I’d demand the latter…how ’bout you?

    By “DNA” I assume you’re talking about semen. Is it possible to collect semen from one place and move it to another? To me, the only acceptable evidence to warrant death is to catch the guy in the act…then deliver justice with extreme prejudice, by all means. Anything else is unacceptable.

    Nerd, I grew up on the South side of Chicago and as an adolescent was reprieved with the luxurious environs of the East side of Oakland, CA. Not trying to out “shitty neighborhood” you…just sayin’.

  27. “Better that ten guilty persons escape than that one innocent suffer,” English jurist William Blackstone.

    You need to put that in perspective. When Blackstone was practicing nearly everything was punishable by death: robbery, burglary, arson, malicious maiming, bestiality, sodomy, etc. In his case, I agree fully that convictions need to be meted out carefully. And if you’ll note, the innocence rate among capital punishment cases actually falls well below his threshold (which I think is far too liberal).

    The American Revolution was really when things started to loosen up from the British standard. Before the Revolution even Pennsylvania (a liberal, Quaker bastion that frowned on capital punishment) had 12 first offense capital punishment eligible offenses, and every felony was capital on a second occurrence. It wasn’t until 1794 that they made only murder a capital crime.

  28. If we catch Bin Laden (or Hitler in Paraguay) I would have no problem pulling the switch, the lever, or the trigger, depending on the method of execution.

    And for the Foot’s point about 244 innocent men over 33 years, that certainly sounds like a damning statistic until you put it into perspective. In Desert Storm, we lost 51 American soldiers to blue on blue, fratricide. At least a dozen have died by fratricide in the Iraq War, and several more in Afghanistan. Those are just the American casualties, not including British and Canadian. But we didn’t outlaw war because innocent lives were lost. We changed the standards and practices to avoid it, but the cold reality is that even soldiers are only human, and we have to do the best we can and live with the results.

    I’m sure that I see this issue in more black and white terms than most, but remember the rules of engagement in an insurgency; a man with a gun is a threat, while a man with a gun pointed in your direction is a target, engage now. Several times I made a snap decision to shoot at someone who very well could have been innocent, and I didn’t lose any sleep over it.

    If certainty of guilt is Mitch’s standard for supporting capital punishment, then wouldn’t it be fair to say that Mitch supports capital punishment with conditions?

  29. If having the death penalty in place deters the act of murder, then you have to weigh the number of innocent people saved because of this deterrent against the number of people put to death innocently.

    Both groups of people are innocent, but only one group of people can be identified by name and counted. It’s hard to morally compare a group of actual people to a group of statistical people.

  30. And for the Foot’s point about 244 innocent men over 33 years, that certainly sounds like a damning statistic until you put it into perspective.

    Try this for persepctive; the SCOTUS re-allowed capital punishment a little over 30 years ago. That means eigtht “guilty beyond a reasonable doubt” people have been released (!) from death row every single year. That means one every six weeks. From a population of around 4,000 nationwide in that time.

    That means 6% of all death penalty convictions “beyond a reasonable doubt” were *wrong*.

    So let’s try your example, Dave; if 6% of our troops in Desert Storm were lost to fratricide. 6% of 500,000 troops is 30,000 dead.

    As I said, I support the death penalty for every reason but this one. But does 5% sound acceptable to you?

    If your surgeon lost 5% of appendectomy patients, would you send your kids there? If someone gave you a revolver with twenty chambers, loaded one, and spun the cylinder, would you put the gun to your head and pull the trigger?

  31. “Well, kudos to you”


    Berg, I have not asked what the 244 people, out of between a quarter to a half a billion Americans, thought about it and I have not looked into the backgrounds of those 244 people out of hundreds of millions of people.

    If you ever lose the fear, I suggest you try an omelet. 😉

  32. The biggest problem I have with this is that we end up treating the murderers better than their victims. If someone is convicted and sentenced to death by a jury of their peers they should get 2 years of appeals tops and then have a bullet put inbetween their eyes. DNA evidence has got to the point where if there is 100% chance that they did it or even 99% take them out and shoot them, a great way to empty death row and reduce the prison population. After you kill someone in cold blood I can’t give a sh*t about your constitutional rights.

  33. If someone is convicted and sentenced to death by a jury of their peers they should get 2 years of appeals tops and then have a bullet put inbetween their eyes.

    So all those people who are found utterly innocent after 21 years are SOL?

    After you kill someone in cold blood I can’t give a sh*t about your constitutional rights.

    Right, but we are not talking about people who kill, here. We are talking about people who do not kill anyone – who, in fact, do nothing wrong – and are sentenced to death anyway.

  34. What percentage of innocent Americans have been wrongly sentenced to death?

    What percentage do you find acceptable?

    How many perfectly innocent peoples’ lives do you find expendable?

  35. I’d say an expendable 0.000001% justifies the benefits for 99.999999% but I think the current actual rate and improving defending the accused and the system probably has a few more decimal places.
    We probably have the ability to limit it to one wrongly sentenced per 0.5 billion citizens.

  36. So Berg would rather sentence them to life without the possibiliy of parole (which could be deemed cruel and unusual punishment) on the very small chance that they are innocent.
    This is compassion?

  37. “What percentage of Americans have been wrongly sentenced to death?” Not sure. How many Americans have been “wrongly killed” by killers being let out on technicalities? Not sure of this, either , but i`d suspect more of the latter. For myself, being worried about innocent deaths, i concentrate on the “let out on a tecnicality” issue first. To me the much more relevent statistic is how many innocent people have actually been put to death? The last i heard, one or two in the last 50 yrs- that we know about. The 244 people being talked about- What if they had been sentenced to 30 yrs instead of death? Still just as unjust to them. Still the same amount of time locked away. So do we then say that jail time is wrong?

  38. There have been 7469 death sentences since the ban was lifted, which is closer to 3%, but your point is well taken.
    The only thing I would throw out there is this-will there ever be a point at which the criminal justice system is ‘good’ enough to allow capitol punishment in your mind? If the rate of error has been dropping steadily with new technology, is there a point at which you might say ‘OK, 1 in 10,000 is a fair risk’, or do you think that 1 innocent man put to death, no matter the number of guilty put to death, is too much?

  39. ok everyone lets throw another wrench into this equation. What about level 3 sex offenders (the most likely to re-offended and they are incurable) they may not haver killed anyone but that doesn’t mean they haven’t destroyed lives. I say kill them, discuss!

  40. Kerm, it could also be deemed torture! or Crimes Against Humanity!

    I could live with the odds of 1 in a billion.
    (unless I was the unfortunate 0.0000001% Bwwwwaaaaaaahahahahahahahaha)

  41. K-Rod
    “I’m not afraid to make an omelet”

    The same attitude was often attributed to Lenin.

  42. I’m with you Mitch. There have been too many instances where for example the results of our crime labs have come into question for bad lab work. I am against anyone being put to death on the basis of circumstantial evidence. Even eyhe witness identification is notoriously unreliable. We know of those who have been released under project innocence investigations turning up evidence; we don’t know how many more might similarly qualify. Some estimates of those who are innocent, wrongly convicted and given the death penalty are as high as 25%; 1 in 4 is a good bit more than the occasional miscarriage of justice.

    There is no proof that the death penalty decreases the number of other people who commit crimes. It does have a salutory deterrence to recidivism. You can’t commit a repeat of a crime if you’re dead, but again, that is only useful if the right person was convicted in the first place. I would suppose the wrong person being convicted in the first place might actually encourage a criminal to believe he (or she) had gotten away with their crime, and be an encouragement to commit other criminal acts.

    What bothers me most is the willingness of states like Texas to execute people who are mentally retarded, as those individuals can hardly fairly and equally participate in their own defense. When that occurs, and is part of trials where the retarded person’s own lawyer has fallen asleep, and the state supreme court subsequently determines that the lawyer didn’t sleep through any of the more important parts of a trial (????) then it really does seem like a bit of a rush to justice…or more precisely injustice. Executing children is another problem area.

  43. do you think that 1 innocent man put to death, no matter the number of guilty put to death, is too much?

    Yes. Absolutely.

    Oh, if there were NO other option, perhaps not.

    But there is another option; life in the Supermax without parole. It is as absolute as death, it is cheaper, and it guards against human error absolutely.

    When there is an option that allows you to protect the innocent, you always take it.

  44. Mitch declared “it guards against human error absolutely”. No, it doesn’t. You still put an innocent person in a hole for life. Dead, walking dead. No one was protected.

  45. “There is no proof that the death penalty decreases the number of other people who commit crimes.” Doesn`t matter if it deters or not. It`s a “penalty”, hence its name. Maybe there`s no proof that prison decreases the amount of, say, armed robbery. Should we then do away with prison time?

  46. You still put an innocent person in a hole for life.

    You’re kidding, right?

    Is there some kind of Supermax out there that doesn’t have doors? That open? To let someone out? If, hypothetically, it’s found he was wrongly convicted?

    To date, only one person has ever bet let out of death, and he had big connections.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.