Category Archives: Death Penalty

The Land Of Lincoln Says No

Nitasha Tiku at New York Magazine:

Illinois governor Pat Quinn abolished the death penalty today. “It’s not possible to create a perfect, mistake-free death penalty system,” Quinn declared. More than a decade ago the state issued a moratorium on executions after wrongly condemning thirteen men. Quinn, who spent two months speaking with prosecutors, victims’ families, death penalty opponents, and religious leaders, also commuted the sentences of all fifteen state inmates on death row. They will now serve life in prison. Quinn called it the “most difficult decision” he has made as governor, saying, “I think if you abolish the death penalty in Illinois, we should abolish it for everyone.” Illinois is the fifteenth state to have abolished capital punishment. With Quinn’s decision, anti-death penalty advocates hope to create “a national wave” of opposition. But in New Mexico, which became the most recent state to abolish the death penalty, in 2009, Republican governor Governor Susana Martinez is trying to reinstate it.

Martha Neil at ABA Journal:

Three other states, New Jersey, New Mexico and New York, have already banned capital punishment, and it is rarely enforced in Western democracies.

“In Illinois, there is no question in my mind that abolishing the death penalty is the right thing,” defense attorney Ron Safer tells Reuters. “It is naive to think that we haven’t executed an innocent person. We stop looking after they’re executed.”

John McCormack at The Weekly Standard

Lynn Sweet at Chicago Sun-Times:

Quinn noted that he was lobbied to sign the ban during calls from death penalty foes Desmond Tutu, Martin Sheen, Sister Helen Prejean and pleas from those who wanted Illinois to keep the death penalty on the books, including the families of victims and state’s attorneys from around the state.

Quinn said whether to sign the bill was harder to decide than other legislative matters because “It is an emotional issue when you talk to family members. I’ve talked to families on both sides of the death penalty issue, some are for abolition, some are not. So you have to really have to have an opportuniuty of review and reflection.”

I asked Quinn if he was convinced Illinois–with its record of putting wrongly convicted people on Death Row, which led to the current moratorium—won’t make mistakes again.

“That is the ultimate decision I have to make within a short period of time, whether or not problems that have existed in Illinois death penalty statute, its implementation, are corrected.”

Julia Zebley at Jurist:

Illinois legislators have attempted to ban the death penalty since then-governor George Ryan put a moratorium on it 11 years ago. Although the new law will officially take effect [Chicago Tribune report] on July 1, Quinn commuted the current 15 death row inmates’ sentences to life without parole.The death penalty remains a controversial issue worldwide. According to an Amnesty International (AI) [advocacy website] report [text, PDF; JURIST report], the number of countries using the death penalty dropped in 2009, but more than 700 people were executed in 18 countries, with the most executions carried out in Iran, Iraq, Saudi Arabia and the US. Last August, US District Court for the Southern District of Georgia [official website] heard a habeas petition from Troy Davis, who was convicted and sentenced to death for murdering an off-duty Savannah, Georgia police officer. In a rare move, the federal court heard the habeas petition after Davis had exhausted his state remedies under the Antiterrorism and Effective Death Penalty Act [text], but the court sided against Davis saying that he failed to prove his innocence. Law Offices of the Southern Center for Human Rights [official website] Executive Director Sarah Totonchi argues [JURIST commentary] said that “Troy Davis’ case illustrates that US courts simply cannot provide the certainty necessary to impose an irreversible punishment; therefore the death penalty must be abolished.”

Scott Turow in the Chicago Tribune:

Gov. Pat Quinn’s decision to abolish the death penalty in Illinois is commonly viewed as a triumph for progressives. But some of the most persuasive arguments for doing away with capital punishment basically reflect conservative views. The last decade has seen many noted conservatives, including George Will, Richard Viguerie and L. Brent Bozell III, emerge as death penalty opponents. One reason that abolition became a political possibility here was not simply because it attracted Republican votes in the Illinois House and the Senate, but because many conservatives have grown more ambivalent about the issue and less fierce in their opposition.

Here are some of the leading conservative arguments for ending executions.

The death penalty is one more government program that’s failed.

This oft-quoted observation is an elaboration on comments and more than a clever turn of phrase by former Illinoisan George Will, perhaps the nation’s leading conservative columnist.

Illinois reinstituted capital punishment in 1977, after the U.S. Supreme Court struck down all prior statutory schemes as unconstitutionally arbitrary and capricious. We have now conducted a 33-year experiment in seeing whether death sentences can be meted out in a rational, proportionate fashion. That experiment has clearly failed.

I was a member of the 14-person Commission on Capital Punishment appointed by then-Gov. George Ryan in 2000 to study the death penalty. I started out ambivalent, because I knew there will always be certain murders and killers that cry out for this ultimate form of retribution. But after two years I came to realize that we will never construct a capital system that functions with anything resembling fairness.

Despite decades of legislation and litigation aimed at establishing procedural bulwarks, the imposition of the death penalty in Illinois remained haphazard. Studies authorized by the commission found that, in Illinois, defendants were five times more likely to be sentenced to death if they committed their crimes in rural areas, as opposed to cities; twice as likely to be sentenced to death if they killed a woman; and 21/2 times more likely to be capitally sentenced for the murder of a white person, as compared with an African-American.

Doug Mataconis:

False conviction issues aren’t just limited to Illinois. The Innocence Project has been involved in nearly 300 post-conviction exonerations based on DNA evidence, including nearly two dozen cases where a convict was sitting on death row at the time of his conviction.  Moreover, there’s at least one case on record where it now seems fairly apparent that the State of Texas executed a man for a crime that he didn’t commit.

There was a time when I was a supporter, albeit a reluctant one, of capital punishment, but that time has come to an end. For one thing,  I’ve come to the general conclusion that the state should not have the power to take anyone’s life, even when they’ve committed a violent and horrible crime. Additionally, ever since the advent of DNA evidence, we’ve seen far too many instances of innocent men imprisoned for crimes that they clearly did not commit to think that it hasn’t happened in a capital punishment case.  Finally, my own professional interaction with the criminal justice system on a regular basis made it clear to me fairly early on that the system was far too imperfect to trust it with the power of life and death, and this is especially true when a defendant facing a death sentence is forced to accept court-appointed counsel that lacks both the experience and the resources that a private-hired attorney would. The question of whether you live or die shouldn’t depend on whether or not you’re rich enough to hire a good lawyer, but, far too often, it does.

Illinois has taken the right step here. Let’s hope that more states follow their lead.

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Old School Technology Meets New School Technology

Pia Ringheim Jensen at The Daily Beast:

On June 17, at 5 p.m., the parking lot outside the Draper, Utah, prison building where Ronnie Lee Gardner is scheduled to be executed by firing squad was already full of media trucks. The only people who could get close to the building were approved members of the media, including a reporter from The Daily Beast. No protesters were in evidence.

Inside a large media room, TV cameras were set up and journalists took their seats, positioning laptops on the desks in front of them and watching TV news for updates on the execution that’s still planned for shortly after midnight. It will be the first execution performed by firing squad in this new permanent chamber, 20 feet by 24 feet and fitted with curtains to cover the bulletproof windows between the chamber and the adjacent witness rooms.

Gardner has the right to invite up to five witnesses, but it wasn’t known if he had asked for any.

We were told that the prisoner seemed calm and relaxed. He had been sleeping, reading Divine Justice and watching a movie, the Lord of the Rings trilogy. He had been fasting since his last meal yesterday. He has the right to visit with clergy, but had not requested any.

Joe Gandelman at Moderate Voice:

As ABC News reports, witnesses gave accounts of their reaction to it that were not always quite the same. Here are a few press reports.

The Salt Lake Tribune:

Five shots.

Four bullets.

With two loud bangs in quick succession, Ronnie Lee Gardner’s quarter century on Utah’s death row ended.

At 17 minutes past midnight Friday, Utah Department of Corrections officials confirmed the death of a man whose life was defined by sex abuse, drug addiction, poverty, criminality and murder.

But in the final hours of his life, friends and family members said, Gardner was at peace.

And in his final minutes, witnesses said, the calm, condemned man exchanged private words with Utah’s prison chief before being strapped to the execution chair and asked if he had any final words.

“I do not. No,” he said.

Ahood was pulled over his head. An executioner counted back from five. The shots rang out.

If the man known as one of Utah’s most notorious criminals was a monster, family members said, it was only as a result of his abusive upbringing. And Gardner’s appellate attorneys long had argued that if his jurors had known more about his childhood, they would have sentenced him to life in prison, instead of death.

The paper also had this eyewitness account from Nate Carlisle:

Ronnie Lee Gardner’s head, covered by a black hood, remained upright.

His body sat straight in the chair to which it was strapped.

As my eyes traveled down Gardner’s left arm, past his dark blue jumpsuit, I saw his pale white skin appear below his elbow. Half a faded blue tattoo, some kind of diamond shape, stuck out from the restraint around his wrist.

At the bottom of his restraint, I focused on his fist. Gardner died much the way he lived — with a clenched fist.

Yes, this was my first time witnessing an execution. I have been amazed at how many people asked me that.

Firing four bullets into a man’s chest is, by definition, violent. If it can also be clinical and sterile, then that also happened in this execution.

AND further down, after the hood is placed over Gardner’s head:

I watched Gardner. As the seconds passed, I grew anxious. I pivoted my eyes away from Gardner toward the slits.

… I heard “boom boom.” The sounds were as close together as you could spew them from your mouth.

My eyes darted back to Gardner and to his chest. The target, perfect just a second earlier, had three holes. The largest hole was in the top half of the circle and toward Gardner’s left side. It may have been where two bullets entered Gardner.

Below that hole, still inside the circle, was a smaller hole. Outside the circle, in the bottom right of the target, was a third hole. Each hole had a black outline. Utah Department of Corrections Director Tom Patterson would say later the target was fastened to the jump suit by Velcro and that may account for the black outline.

….I saw Gardner move his left arm. He pushed it forward about 2 inches against the restraints. In that same motion, he closed his hand and made a fist.

Then it happened in reverse. Gardner’s hand loosened, his arm bent at the elbow, straightened again and the fist returned. At the time, I interpreted this as Gardner suffering — clenching his fist in an effort to fight the pain.

….The next movement I saw from Gardner came from beneath his hood. I could see the bottom of his throat and it rippled as though Gardner moved his jaw.

..I squinted my eyes, looking for blood. I saw none through the holes in Gardner’s chest. None spilled on the floor. The jump suit slightly darkened around his waist and it appeared that’s where blood was pooling. But I never saw a drop

When an official checked to see if Garnder was alive, Carlisle could get a glimpse of the prisoner’s face:”His mouth was agape. His face was even whiter than it was before the hood covered him.”

Brad Hirschfield at The Huffington Post:

Ronnie Lee Gardner was executed at approximately 12:05 AM at the Utah State Correctional Facility in Draper, Utah. And even more than other death penalty cases, this one stirred strong emotion because it was carried out by firing squad. At Mr. Gardner’s request, he was strapped to a chair and shot by a team of five executioners, four of whose rifles contained live ammunition.

While I’m opposed to the death penalty, once the citizens of a state have agreed to permit it, I am entirely supportive of implementing it by firing squad. In fact, as long as it is limited to cases in which the convicted felon elects that method, I think it’s actually a good way to go.

How can someone opposed to the death penalty make such a claim? While done with a heavy heart, it’s a matter of honesty and clarity about the brutality of taking another human being’s life, even if that person “deserves” it.

If citizens really long for the death of another human being, then let it be as messy and horrible as taking a life really is. And if doing so bothers us, perhaps we shouldn’t be executing the person at all!

Robin Wauters at Tech Crunch:

A sign of the times, although many may find it distasteful, or much worse: Utah Attorney General Mark Shurtleff used a mobile Twitter client to send out a tweet announcing the impending execution by firing squad of convicted murderer Ronnie Lee Gardner.

As the BBC notes, quite a modern way to announce a very old-fashioned death.

In total, the AG sent out 3 tweets about the event from his iPhone only a couple of hours ago, the most recent one an all-too-familiar (on Twitter) self-promoting one.

1) A solemn day. Barring a stay by Sup Ct, & with my final nod, Utah will use most extreme power & execute a killer. Mourn his victims. Justice

2) I just gave the go ahead to Corrections Director to proceed with Gardner’s execution. May God grant him the mercy he denied his victims.

3) We will be streaming live my press conference as soon as I’m told Gardner is dead. Watch it at

James Joyner:

Rather in poor taste, no?

Ramesh Ponnuru at National Review:

Any time you are tempted to think, “Surely nobody would have the bad taste and lack of sense to do that?” remember that the answer is always no.

Radley Balko at Reason:

Old school justice meets social networking.


What, no Twitpics of the body?

Elizabeth Allen at Mashable:

Were these tweets really necessary? For the most part, the 140-character messages about death, devoid of any emotion, did not sit well with many Twitter users.

A Twitter user named diptychal tweeted: “@MarkShurtleff’s tweet will probably go down in history as the dumbest most disgusting use of Twitter ever.” Another user, named drhonk, simply tweeted: “What a way to announce someone’s execution … twitter .. geez.”

The incident raises an interesting question. Is Twitter really appropriate in every occasion, even one as serious as an execution? What do you think, should Mark Shurtleff have tweeted about it? Voice your opinion in the comments.

Shani O. Hilton at Ta-Nehisi Coates’ place:

I admit that part of my issue with this is that I think that capital punishment is generally indefensible. But more than that, tweeting about someone’s death—even the death of a convicted murderer—strikes me as callous and not fitting for the gravity of the situation. It would be different if, say, he had tweeted a link to a press release. But to send out a message about the end of someone’s life so cavalierly. It boggles.

UPDATE: Andrew Sullivan

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Moral Intuition, Revenge And Justice

Sonny Bunch at Doublethink:

This is a pretty clear-cut case: There are eyewitnesses, police were on the scene before they could flee, and the evidence is both plentiful and obviously interpreted. As far as I am concerned, those two have made their lives forfeit. I want the state to take vengeance upon them for the evil that they have done. If they were to be drawn and quartered and their remains were scattered to the four corners of the continental United States, you wouldn’t hear peep out of me.

Every time I start to waver on my support for the death penalty — as I did in the wake of another New Yorker piece, about a possibly-innocent man who was executed — I see a story like this and it snaps me right back into line. I’m all for containing prosecutorial abuses. I’m all for reforms to the way prosecutors seek the death penalty: Only in cases where there’s an eye witness or a confession or videotape evidence, perhaps. Maybe raise the bar for “scientific” evidence* to include only DNA evidence that conclusively proves the perpetrator was there.

But those monsters — the animals who would do that to a family of human beings — don’t deserve to live, and I don’t buy the argument that it’s a harsher penalty for them to live out their lives in prison. I want the state to wreak vengeance upon them. And, god help me, I want them to suffer when it happens. If this makes me a bad person, then so be it.

*I put scientific in quotes because it was “scientific” arson evidence that sent Cameron Todd Willingham to his death.

Will at The League:

I’m basically agnostic on the moral issues surrounding state execution: if a criminal is obviously guilty of a heinous crime, I don’t have any qualms about putting him to death. I am suspicious, however, of our practical ability to distinguish between airtight death penalty convictions and cases that deserve a second look. I also think that the alternative to execution – lifetime imprisonment without parole – satisfies the demands of retributive justice without risking the lives of innocent defendants.

On another level, there’s some real tension between calling for greater prosecutorial oversight and the underlying rationale for executing prisoners. At its core, the death penalty is supposed to deter crime. If the process is hamstrung by judicial oversight, the risk of execution is unlikely to actually convince potential offenders not to do bad things. So we’re left with a system that occasionally delivers some morally satisfying verdicts but still risks killing innocent defendants. To me, this is just about the least satisfactory outcome imaginable.

Andrew Sullivan:

I do not believe the point of the law in the West is revenge. It’s justice. In fact, avoiding revenge and filtering the emotions of crime through the restraint of the criminal justice system, with due respect for the accused, is what separates us from other less evolved places. And if the death penalty is used, it should not be to impose suffering. It should be to demonstrate deterrence and justice. I should add, of course, that I oppose the death penalty in all cases – because I do not trust government with the capacity to end a captive human being’s life, because I do not believe any justice system is perfect enough to do that without error, and because I believe that murder is absolutely wrong.

Christopher Orr at TNR:

Left unexamined is the irony that Bunch borrowed his description of the murders in question from a New Yorker article with a clear anti-death-penalty slant–indeed, one that suggests that America’s high murder rate and high execution rate are opposite sides of the same coin. (“If the history of murder contains a lesson, [Cesare] Beccaria believed, it was this: ‘The countries and times most notorious for severity of punishment have always been those in which the bloodiest and most inhumane of deeds were committed.'”)

Bunch does suggest several reasonable caveats about limiting the death penalty to crimes that are the most egregious and where guilt is the most certain, though I fear they are politically impractical: This is one case where the slope appears to be slippery.

But what struck me most is the way Bunch uses his moral intuition that Hayes and Komisarjevsky deserve death as a basis for policymaking (i.e., the death penalty), and then immediately cuts the legs out from under his own argument by suggesting that same moral intuition would be unperturbed if the (alleged) murderers were drawn and quartered–a law enforcement policy I think it’s safe to assume he does not support.

Bunch adds, “I want the state to wreak vengeance upon [Hayes and Komisarjevsky]. And, god help me, I want them to suffer when it happens.” Here, again, he is offering an emotional remedy that I don’t think he would actually want to become law. The purpose of the death penalty is not, after all, to cause suffering–quite the contrary, as our gradual shift from hanging to the electric chair to lethal injection attests. Does Bunch think that the state should be empowered to inflict deliberate pain–by torture or beating or less humane forms of execution–in the name of vengeance? Again, I sincerely doubt it.

For what it’s worth, I–and, I suspect, many–share Bunch’s gut-level response to a considerable degree. Hayes and Komisarjevsky are such monsters that they seem to merit not merely death but something more: a punishment of brutality commensurate to their crimes rather than a quiet, pain-free lethal injection. But believing that these two men deserve a terrible fate and empowering the state to inflict it upon them are two very different things.

Whatever punishment is meted out to Hayes and Komisarjevsky will speak not merely to their characters, but to our own–as the New Yorker article that initially got Bunch’s attention suggested. Which is why, however surely the two men deserve death, I don’t believe it is our place to grant it to them.

Bunch responds to Will, Sully and Orr:

Over at The Plank, Chris Orr writes:

Bunch adds, “I want the state to wreak vengeance upon [Hayes and Komisarjevsky]. And, god help me, I want them to suffer when it happens.” Here, again, he is offering an emotional remedy that I don’t think he would actually want to become law. The purpose of the death penalty is not, after all, to cause suffering–quite the contrary, as our gradual shift from hanging to the electric chair to lethal injection attests.

He also notes that I probably don’t actually support drawing and quartering.** That being said, I don’t have a real problem with the electric chair or hanging (the latter of which actually causes minimal pain if done right). Again: I see the death penalty as a punishment, and punishment shouldn’t necessarily be painless. Drawing and quartering probably runs afoul of constitutional prohibitions against cruel and unusual punishments, but I see no reason why a hanging does, certainly when looking at the document in an originalist light.

Over at the League, Will touches on something I’ve long found confusing:

I also think that the alternative to execution – lifetime imprisonment without parole – satisfies the demands of retributive justice without risking the lives of innocent defendants.

Will doesn’t say it this way, but you often hear the argument that life imprisonment is worse than execution because the criminal has to suffer in prison*** and then he dies anyway. But if life imprisonment is just as awful — nay, worse — than execution, why should we be happy that supposedly innocent people have been stuck in prison with no hope of parole for the rest of their lives? And how many of these innocents will manage to prove their innocence without the neverending legal process that has freed the innocent from death row?

Andrew Sullivan, meanwhile, writes

I do not believe the point of the law in the West is revenge. It’s justice.

This is a fair enough point, I guess, except for the fact that I’m not entirely sure I understand the difference between revenge and justice, especially in a case as personal as this one. What does justice mean for the husband and father whose wife was raped, one of his two daughters was raped, and all three were burned alive by a sadistic pair of monsters? The first definition of justice in Merriman-Websters is thus:

The maintenance or administration of what is just especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments.

I guess that definition hinges on what we decide is a “merited” punishment. But you will never convince me that those two’s actions do not merit death.

*It was lovely; I recommend visiting in the offseason when it’s cool, as I did.

**For the record, I do not.

***Often, people taking this line of argument say that they suffer in prison with the general population instead of the segregated death row inmates; the implicit point being that the beatings and rapes suffered by people in jail are awful. This is an argument for another day, but I tend to agree with Eli Lehrer that the conditions in our prison system are shameful.

Will responds:

I’m not sure if life imprisonment is worse than execution. The death penalty, however, is irrevocable. Setting an innocent man free isn’t a perfect solution, but it is better than offering our belated condolences to his family after he is wrongfully executed.

Imprisonment also allows us to address many procedural questions after defendants have been tried and found guilty. The finality of execution, on the other hand, means that every procedural concern must be addressed before punishment is carried out. As I’ve argued elsewhere, I think this detracts from any deterrent effect derived from capital punishment. And because of the system’s inherent fallibility, we still risk executing innocent defendants.

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Death Don’t Have No Mercy In This Land


David Grann in the New Yorker:

Buffie Barbee, who was eleven years old and lived two houses down, was playing in her back yard when she smelled the smoke. She ran inside and told her mother, Diane, and they hurried up the street; that’s when they saw the smoldering house and Cameron Todd Willingham standing on the front porch, wearing only a pair of jeans, his chest blackened with soot, his hair and eyelids singed. He was screaming, “My babies are burning up!” His children—Karmon and Kameron, who were one-year-old twin girls, and two-year-old Amber—were trapped inside.

Willingham told the Barbees to call the Fire Department, and while Diane raced down the street to get help he found a stick and broke the children’s bedroom window. Fire lashed through the hole. He broke another window; flames burst through it, too, and he retreated into the yard, kneeling in front of the house. A neighbor later told police that Willingham intermittently cried, “My babies!” then fell silent, as if he had “blocked the fire out of his mind.”


By now, both investigators had a clear vision of what had happened. Someone had poured liquid accelerant throughout the children’s room, even under their beds, then poured some more along the adjoining hallway and out the front door, creating a “fire barrier” that prevented anyone from escaping; similarly, a prosecutor later suggested, the refrigerator in the kitchen had been moved to block the back-door exit. The house, in short, had been deliberately transformed into a death trap.

The investigators collected samples of burned materials from the house and sent them to a laboratory that could detect the presence of a liquid accelerant. The lab’s chemist reported that one of the samples contained evidence of “mineral spirits,” a substance that is often found in charcoal-lighter fluid. The sample had been taken by the threshold of the front door.

The fire was now considered a triple homicide, and Todd Willingham—the only person, besides the victims, known to have been in the house at the time of the blaze—became the prime suspect.


During the interrogation, Vasquez let Fogg take the lead. Finally, Vasquez turned to Willingham and asked a seemingly random question: had he put on shoes before he fled the house?

“No, sir,” Willingham replied.

A map of the house was on a table between the men, and Vasquez pointed to it. “You walked out this way?” he said.

Willingham said yes.

Vasquez was now convinced that Willingham had killed his children. If the floor had been soaked with a liquid accelerant and the fire had burned low, as the evidence suggested, Willingham could not have run out of the house the way he had described without badly burning his feet. A medical report indicated that his feet had been unscathed.


He appealed to the U.S. Supreme Court, but in December, 2003, he was notified that it had declined to hear his case. He soon received a court order announcing that “the Director of the Department of Criminal Justice at Huntsville, Texas, acting by and through the executioner designated by said Director . . . is hereby DIRECTED and COMMANDED, at some hour after 6:00 p.m. on the 17th day of February, 2004, at the Department of Criminal Justice in Huntsville, Texas, to carry out this sentence of death by intravenous injection of a substance or substances in a lethal quantity sufficient to cause the death of said Cameron Todd Willingham.”

Willingham wrote a letter to his parents. “Are you sitting down?” he asked, before breaking the news. “I love you both so much,” he said.

His only remaining recourse was to appeal to the governor of Texas, Rick Perry, a Republican, for clemency. The process, considered the last gatekeeper to the executioner, has been called by the U.S. Supreme Court “the ‘fail safe’ in our criminal justice system.”


Willingham had asked that his parents and family not be present in the gallery during this process, but as he looked out he could see Stacy watching. The warden pushed a remote control, and sodium thiopental, a barbiturate, was pumped into Willingham’s body. Then came a second drug, pancuronium bromide, which paralyzes the diaphragm, making it impossible to breathe. Finally, a third drug, potassium chloride, filled his veins, until his heart stopped, at 6:20 P.M. On his death certificate, the cause was listed as “Homicide.”

After his death, his parents were allowed to touch his face for the first time in more than a decade. Later, at Willingham’s request, they cremated his body and secretly spread some of his ashes over his children’s graves. He had told his parents, “Please don’t ever stop fighting to vindicate me.”

In December, 2004, questions about the scientific evidence in the Willingham case began to surface. Maurice Possley and Steve Mills, of the Chicago Tribune, had published an investigative series on flaws in forensic science; upon learning of Hurst’s report, Possley and Mills asked three fire experts, including John Lentini, to examine the original investigation. The experts concurred with Hurst’s report. Nearly two years later, the Innocence Project commissioned Lentini and three other top fire investigators to conduct an independent review of the arson evidence in the Willingham case. The panel concluded that “each and every one” of the indicators of arson had been “scientifically proven to be invalid.”

In 2005, Texas established a government commission to investigate allegations of error and misconduct by forensic scientists. The first cases that are being reviewed by the commission are those of Willingham and Willis. In mid-August, the noted fire scientist Craig Beyler, who was hired by the commission, completed his investigation. In a scathing report, he concluded that investigators in the Willingham case had no scientific basis for claiming that the fire was arson, ignored evidence that contradicted their theory, had no comprehension of flashover and fire dynamics, relied on discredited folklore, and failed to eliminate potential accidental or alternative causes of the fire. He said that Vasquez’s approach seemed to deny “rational reasoning” and was more “characteristic of mystics or psychics.” What’s more, Beyler determined that the investigation violated, as he put it to me, “not only the standards of today but even of the time period.” The commission is reviewing his findings, and plans to release its own report next year. Some legal scholars believe that the commission may narrowly assess the reliability of the scientific evidence. There is a chance, however, that Texas could become the first state to acknowledge officially that, since the advent of the modern judicial system, it had carried out the “execution of a legally and factually innocent person.”

Jonah Lehrer at Sully’s place

Patrick Appel at Sully’s place

More Lehrer:

These stories of a failed justice are important, and not just because they expose specific errors. (Such as: arson investigators who got every important fact wrong, psychiatric diagnoses based on music posters and juries that should have been more skeptical.) Instead, I think these harrowing tales need to be told because they contradict a powerful moral intuition we all share, which can unfortunately lead us to turn a blind eye: Because we believe in justice, we ignore stories of injustice.

I’m talking about the Just World Hypothesis, a scientific theory first developed by the social psychologist Melvin Lerner. Consider this clever experiment, conducted in 1965: Several volunteers are told that they are about to watch, on closed circuit television, another volunteer engage in a simple test of learning. They see the unlucky subject – she is actually a graduate student, working for Lerner – being led into the room. Electrodes are attached to her body and head. She looks a little frightened.

Now the test begins. Whenever the subject gives an incorrect answer, she is given a powerful jolt of electricity. The witnesses watching on television see her writhe in pain and hear her scream. They think she is being tortured.

One group of volunteers is now given a choice: they can transfer the shocked subject to a different learning paradigm, where she is given positive reinforcements instead of painful punishments. Not surprisingly, the vast majority of people choose to end the torture. They quickly act to rectify the injustice. When asked what they thought of the “learner,” they described her as an innocent victim who didn’t deserve to be shocked. That’s why they saved her.

The other group of subjects, however, isn’t allowed to rescue the volunteer undergoing the test. Instead, they are told a variety of different stories about the victim. Some were told that she would receive nothing in return for being tortured; others were told that she would be paid for her participation. And a final group was given the martyr scenario, in which the victim submits to a second round of torture so that the other volunteers might benefit from her pain. She is literally sacrificing herself for the group.

How did these different narratives affect their view of the victim? All of the volunteers watched the exact same video of torture. They saw the same poor woman get subjected to painful shocks. And yet the stories powerfully influenced their conclusions about her character.

Here the most disturbing data point: the less money the volunteer received in compensation for her suffering the more the subjects disliked her. The people explained the woeful injustice by assuming that it was her own fault: she was shocked because she wasn’t paying attention, or was incapable of learning, or that the pain would help her perform better. The martyrs fared even worse. Even though this victim was supposedly performing an act of altruism – she was suffering for the sake of others – the witnesses thought she was the most culpable of all. Her pain was proof of her guilt. Lerner’s conclusion was unsettling: “The sight of an innocent person suffering without possibility of reward or compensation motivated people to devalue the attractiveness of the victim in order to bring about a more appropriate fit between her fate and her character.”

Kathryn Jean Lopez at The Corner, here and here. K-Lo:

I should note that the debate over facts is not my moral argument against the whole execution business. I think the man shouldn’t have been killed, period, with or without the New Yorker. Capital punishment isn’t intrinsically evil, there are times when it may be necessary. But those strike me as rare — if not inconceivable — instances in the U.S. in 2009.

Hon. John Jackson, the prosecutor in the case, now a judge:

Always omitted from any examination of the actual trial are the following facts:

1. The event which caused the three childrens’ deaths was the third attempt by Todd Willingham to kill his children established by the evidence. He had attempted to abort both pregnancies by vicious attacks on his wife in which he beat and kicked his wife with the specific intent to trigger miscarriages;

2. The “well-established burns” suffered by Willingham were so superficial as to suggest that the same were self-inflicted in an attempt to divert suspicion from himself;

3. Blood-gas analysis at Navarro Regional Hospital shortly after the homicide revealed that Willingham had not inhaled any smoke, contrary to his statement which detailed “rescue attempts;”

4. Consistent with typical Navarro County death penalty practice, Willingham was offered the opportunity to eliminate himself as a suspect by polygraph examination. Such opportunity was rejected in the most vulgar and insulting manner;

5. Willingham was a serial wife abuser, both physically and emotionally. His violent nature was further established by evidence of his vicious attacks on animals which is common to violent sociopaths;

6. Witness statements established that Willingham was overheard whispering to his deceased older daughter at the funeral home, “You’re not the one who was supposed to die.” (The origin of the fire occured in the infant twins bedroom) and;

7. Any escape or rescue route from the burning house was blocked by a refrigerator which had been pushed against the back door, requring any person attempting escape to run through the conflagration at the front of the house.

Michael Landauer at Dallas Morning News attempts to rebut Jackson point by point:

1. It’s an enormous stretch to say that Willingham’s beating of his wife when she was pregnant constituted previous attempts at murder.

2. The new evidence debunks the thought that his burns were minor.

3. New evidence backs up Willingham’s version of events. A test hours later that says he did not suffer from smoke inhalation doesn’t prove anything.

4. So Willingham cursed when offered a polygraph test. So what?

5. So Willingham was a violent man. So what?

6. Who knows what this statement means. Maybe he meant he should have died.

7. There’s no evidence that the refrigeraor had been moved there by Willingham for this purpose. Besides, the official report on the scene says escape was possible from that door.

Cy Vance at HuffPo:

Anyone who has spent real time defending the accused in criminal court knows without a shadow of a doubt that flaws in our justice system — from human error during investigations to legal misconduct to jury prejudices — create an imperfect system that leaves open the possibility of sending innocent men and women to prison. It can be difficult in high-profile cases like Willingham’s, when the accusations shock and horrify us, to remember that in the United States defendants are innocent until they are proven guilty. And that as the state is making its case the defendant has the inalienable right to the strongest defense.

Although some would argue that a man who would kill his children does not deserve anything more than a cold cell or an electric chair, we do not have a double standard for justice in our country that dissolves the rights of defendants when the details of a case are sensational enough to grab our attention — and headlines. In fact when guilt has been presupposed by the public, when the accused are looked upon as guilty until proven innocent, is when our justice system is most likely to fail us.

Bob Herbert in the NYT

Grits For Breakfast

UPDATE: Two Ta-Nehisi Coates posts, here and here.

Mark Kleiman

UPDATE #2: Dahlia Lithwick in Slate

UPDATE #3: Alex Massie

UPDATE #4: Scott Lemieux

UPDATE #5: Rod Dreher

UPDATE #6: Christopher Orr at TNR

UPDATE #7: Scott Lemieux

UPDATE #8: Zachary Roth at TPM

UPDATE #9: Publius

By now, you’re probably familiar with the New Yorker article showing that Cameron Todd Willingham was almost certainly wrongly executed for arson and murder.   In 2005, after the execution, Texas established a commission to investigate forensic errors, and the commission started reviewing the Willingham case.  In the course of its review, the commission hired a nationally recognized fire expert who ultimately wrote a “scathing report” concluding that the arson investigation was a joke.

The expert was originally set to testify about his report on Friday, October 2.  On Sept. 30, however, Perry suddenly replaced three members of the panel, including the chair, against their wishes.  The new chair promptly canceled the hearing.  More recently, Perry replaced a fourth member (he can only appoint four — other state officials appoint the remaining five members).

What’s amazing is not so much that Perry replaced the panel members, but that he felt secure enough to be so brazenly corrupt about it.  It’s a sad reflection on the state of politics in Texas that a governor could commit such blatant whitewashing two days before the hearing.

Of course, his motive is fairly clear.  Perry contributed to the execution of an innocent person.  And the formal recognition that Texas executed an innocent man would trigger a massive political earthquake — one that would clarify to an inattentive public the utter barbarity and immorality of Texas’s criminal justice system.

So yes, I can understand Perry’s motives.  But it doesn’t change the fact that he is acting in a profoundly immoral way.  The whole thing reminds me of a banana republic dictator clumsily covering up his crimes.

Megan McArdle:

Yes, I’m opposed to the death penalty.  But even if you’re not, you can’t possibly think that it’s okay to avoid investigating whether your state’s forensic methods risk putting innocent people in jail, or sending them to their death.  No matter how strongly you favor the death penalty, I’m sure that you agree that its purpose is not to execute people; it’s to execute justice.  A value which Rick Perry seems determined to butcher.

John Cole:

As it is, this story already reads like a Grisham novel- allegations of murder and arson, the execution of an innocent man, corrupt politicos What exactly does the media need before they cover this?

Seriously, there is a Pulitzer in this story.

UPDATE #10: More McArdle

UPDATE #11: DiA at The Economist

UPDATE #12: Mark Kleiman and Steven Teles at Bloggingheads

UPDATE #13: Rod Dreher


Filed under Crime, Death Penalty

The Quality Of Mercy, Strained Or Not Strained, Is Debated

Lockerbie bomber was sent home and received a hero’s welcome.

Clive Crook:

Reaction in the US to this–both to the fact of the early release, and now to the scenes in Tripoli–is a mixture of astonishment, incomprehension, and disgust. Nobody seems able to accept what has happened at face value. It must be some sordid deal about oil between the US, Scottish and UK governments, surely. Or do they know he’s really innocent, as some of the victims’ relatives believe? Is that what’s going on? Nobody can accept or even understand the “compassionate release” rationale as laid out by Kenny MacAskill. A convicted mass murderer, found guilty of this most appalling atrocity, is set free as an act of mercy? Have these people gone quite mad? It seems to me a very fair question.

MacAskill, interviewed on US television, radiated the most repellent sanctimony I have ever seen in a politician–and that is saying something. His manner suggested that the whole thing is more about his own implacable self-righteousness than the demands of justice. He was followed on air by victims of the relatives. They were restrained and dignified, but plainly dismayed and distraught, and feeling horribly betrayed. Does the exercise of compassion not also take into account compassion for the victims and their families, one wondered? No, he seemed to argue, for that would be to choose vengeance not justice. False. There is such a thing as just punishment. How could it be unjust for a man guilty of a crime like this to die in prison? I would advise MacAskill not to visit the US for the foreseeable future. Indeed, calculations of justice aside, I wonder if the Scottish government has the smallest inkling of the harm it has done to its standing in the US–not to mention the prospects of future co-operation on security–with this bizarre act.

Megan McArdle:

I found myself on the phone last night trying to explain the decision to release Lockerbie terrorist Abdel Baset al-Megrahi so he could go home to Libya to die of cancer.  The rationales didn’t sound convincing even to me, and I’m pretty liberal on imprisonment.  I was forced to say, lamely, “Well, the British and the Scottish don’t think about crime the way we do.”

Ann Althouse:

Just how “terminally ill” is that guy? He should be on a stretcher and have tubes attached if there was any reason for Scotland to show mercy on on the man who blew up 270 human beings. He doesn’t look anywhere near close enough to dying. What kind of death panel decided he was dying?

Alex Massie:

Nonetheless, on balance, I thought MacAskill’s justification of his decision to release Megrahi so that he may die at home and in the company of his family, was about as good as could have been expected given both the circumstances and the man making the decision. The easy decision – certainly the one that Jack Straw would have made had it been his responsibility – would have been to insist that Megrahi die in prison. Deciding otherwise automatically opens MacAskill to accusations of grandstanding and political posturing.

Unsurprisingly, then, reaction to MacAskill’s decision has split along partisan grounds: SNP supporters think he did well; those most hostil to the nationalists -such as Brother Nelson – are appalled.

My own preference would have been for Megrahi’s appeal to continue, no matter how embarrassing that might have proved. Contra Fraser, there is some reason to suppose that Megrahi’s conviction is unsafe. Not all the questions raised by the Scottish Criminal Cases Review Commission have been answered.

That leaves us in an unsatisfactory position. Megrahi and, more widely, Libya may well be guilty. Whether the evidence is sufficient to support a Guilty rather than a Not Proven verdict in court is a different matter. To further complicate matters, few people believe that Megrahi, even if he did put the bomb on the plane, was the man behind the plot to destroy Pan-Am 103. Consequently and in one sense, Megrahi is a symbolic prisoner. That this is so, I think, undermines the case for insisting that he die in Greenock Prison.

Freddie at The League:

It seems to me that one of the chief reasons that a life sentence is such a terrible punishment is not only that you must spend your life in prison, but that you must spend your death there, as well. In the moment that we would all like to take place with a modicum of dignity, and in what must be the most profoundly personal and rightfully lonely of one’s existence, to endure it with all the indignity, lack of control and worst of all, lack of privacy that prison ensures, is a punishment in and of itself, a sentence not of death but in death. It’s something I would never want to contemplate; it seems to me a truly terrible thing. But civil society must have terrible punishments for terrible crimes, and the horrific and intentional murder of dozens of innocents in the commission of terrorism most certainly fits the bill.

James Joyner in The New Atlanticist:

The decision, of course, is rightly with the UK.  They, not the United States, have the jurisdiction here and, while our government has every right to express its wishes, they have the right to carry out the policy they think best.  Certainly, al-Megrahi would have been allowed to rot in prison were he in American custody; indeed, he may well have been executed for his crimes.  Despite our common law origins, there is quite a bit of divergence in the criminal justice cultures of the two countries and, indeed, within the Western democracies generally.

This is not the finest day in the history of US-UK relations. But the strain will smooth over quickly enough given the number of pressing issues confronting us in the world.

Michael Landauer:

I believe that there is an element of mercy lacking in the justice system in the U.S., especially in Texas where revenge is the only emotion allowed to be part of the process. But actions like the one today in Scotland — realeasing a murderer of 270 people — do nothing to help Americans embrace the concept of “compassionate release” over here.

We were recently visted by a British barrister working on a death row case here involving a British citizen. He admitted that the U.S. is seen by many in the world as behind the times on modern ideals of justice, mostly because of the death penalty, but not entirely. Whereas the EU can pressure developing countries to embrace higher standards — like not executing the mentally ill and not electing judges — they really can’t do that to the U.S. All they can do is appeal to our better judgment.

But today’s decision is apalling, even to me, someone who opposes the death penalty. A man responsible for the deaths of 270 people should serve his entire sentence. Ghadaffi has been fighting for his release for years, long before he was diagnosed with cancer.

If Scottish officials have no stomach for harsh sentences, then they have no credibility in their criticism of American justice. We don’t let monsters out of their cage when they begin their natural decline toward death. We treat them humanely and with dignity — and if it’s their time to go, we let them die where their own actions put them: in prison.

Not one of those 270 people who died in Lockerbie was given even a second to prepare for death on their own terms.

UPDATE: Kevin Drum

UPDATE #2: Two more posts from Massie, here and here.

Will at The League:

I confess I’m rather baffled by Alex Massie’s sympathetic take on the Lockerbie Bomber’s release. As I understand it, this is a man duly convicted of murdering hundreds of innocent airline passengers. Through his involvement, al-Megrahi forfeited any claims on our compassion above certain minimal standards of humane treatment.

Massie suggests that these proceedings are complicated by several other factors: Scotland’s desire to appear assertive and independent on an international stage; al-Megrahi’s deteriorating health, and the questionable circumstances surrounding his conviction and and government’s investigation of the Lockerbie bombing. But these are hardly reasons to release a convicted killer, particularly when there are other, well-established mechanisms for addressing his concerns.

Sonny Bunch at Doublethink:

Freddie writes “You can count me among those who, in regards to the Abdelbaset Ali al-Megrahi situation, think a life sentence means just that– you spend the rest of your life in prison, and it doesn’t matter if you’re going to die of old age or of bowel cancer or whatever else. You’ve been condemned to live and die in prison.” Now, this is all well and good, but we have to consider the following: There is no such thing as “life without parole.” As long as you’re still alive there’s always the chance that some idiot will pardon or parole you because you’re “rehabilitated” or “old and dying” or some other bull**** excuse.

You know what solves that problem? Removing the “as long as you’re still alive” part of the equation. I don’t really think that the death penalty serves as a deterrent (and I certainly don’t in cases of international terrorism). But I do think it keeps travesties like this from happening.

Will responds to Bunch:

That said, I think Sonny Bunch’s defense of the death penalty is pretty unpersuasive in this context. The answer to al-Megrahi’s release is not to execute more prisoners, but to ensure that people convicted of life imprisonment actually stay in prison for life (absent some exculpatory evidence, obviously). al-Megrahi’s release is pretty extraordinary; wrongful convictions are unfortunately less so.

David Frum at New Majority

UPDATE #3: Marty Peretz at TNR

More Frum

Yglesias on Frum

UPDATE #4: Michelle Malkin

Ed Morrissey

UPDATE #5: Alastair Jamieson at The Telegraph

UPDATE #6: More on the BP connection. John Burns in NYT

Doug Mataconis

UPDATE #7: Now on US connection. Don Suber

DRJ at Patterico


Filed under Africa, Death Penalty, Foreign Affairs, GWOT, History

The Troy Davis Case


The decision at SCOTUSBlog:

The Supreme Court, over two Justices’ dissents, on Monday ordered a federal judge in Georgia to consider and rule on the claim of innocence in the murder case against Troy Anthony Davis (In re Davis, 08-1443)  The Court told the District Court to “receive testimony and make findings of fact as to whether evidence that could have been obtained at the time of trial clearly establishes [Davis’] innocence.”

Justices Antonin Scalia and Clarence Thomas dissented. Some of their arguments were answered in a separate opinion by Justice John Paul Stevens, joined by Justices Stephen G. Breyer and Ruth Bader Ginsburg.   The new member of the Court, Justice Sonia Sotomayor, took no part in the Court’s action.

The action was highly unusual, because Davis had filed what is called an original writ of habeas corpus — that is, a plea for his release, filed directly in the Supreme Court rather than in lower courts.  Such claims rarely succeed.  Justice Scalia noted in his dissent that the Court had not taken a similar step “in nearly 50 years.”  (The documents that were before the Justices — the original writ, petition for certiorari, brief in opposition, and amici filings — can be downloaded here.)


On the power of a federal judge to rule in Davis’ favor at this stage, Scalia argued that the 1996 federal law limiting federal habeas review of state criminal convictions — the Anti-Terrorism and Effective Death Penalty Act (AEDPA) — barred any federal court from hearing Davis’ claim because there was no error at his trial that violated any prior Supreme Court decision.

Scalia wrote: “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”  He conceded, though, that the Court has left the issue open.

SCOTUSBlog corrects the above post

Background on the case via Paul Campos at Daily Beast:

Twenty years ago Wednesday night, Mark MacPhail, an off-duty Savannah, Georgia, police officer moonlighting as a security guard, was shot to death in a dark parking lot. MacPhail had tried to come to the aid of a homeless man who was being pistol-whipped by a local thug named Sylvester Coles.

Two years later, after what Justice Antonin Scalia described this week as a “full and fair trial,” Troy Davis was convicted of murdering MacPhail and sentenced to death. The evidence at that trial consisted of nine eyewitnesses who claimed Davis shot MacPhail (Davis had been inside a nearby pool hall and was part of a crowd that came out of the hall in response to the commotion in the parking lot where Coles was beating the homeless man).

The prosecution’s star witness was none other than Coles himself. No physical evidence tied Davis to the crime—the gun was never recovered—and in the years since Davis’ conviction, seven of the eight other eyewitnesses who claimed to have seen Davis shoot MacPhail have signed sworn affidavits recanting their claims. Several now claim Coles was the killer and that they were coerced by police threats into testifying against Davis.

In retrospect, the case against Davis, which wasn’t strong to begin with, has almost completely fallen apart. But Davis has a big problem: As an exasperated Scalia explained in his dissent from Monday’s extraordinarily unusual Supreme Court order directing a federal court to hold an evidentiary hearing on Davis’ claims, there’s nothing illegal about what has happened, and continues to happen, to Troy Davis. (The order is unusual because the court almost never entertains direct appeals by defendants in Davis’ situation.)

Alan Dershowitz in the Daily Beast:

It would be shocking enough for any justice of the Supreme Court to issue such a truly outrageous opinion, but it is particularly indefensible for Justices Scalia and Thomas, both of whom claim to be practicing Catholics, bound by the teaching of their church, to do moral justice. Justice Scalia has famously written, in the May 2002 issue of the conservative journal First Things, that if the Constitution compelled him to do something that was absolutely prohibited by mandatory Catholic rules, he would have no choice but to resign from the Supreme Court.

Unlike President Kennedy, who pledged to place his obligation to the Constitution above his commitment to his church, Scalia has insisted that in his view, “The choice for the judge who believes the death penalty to be immoral [according to the teachings of the Catholic Church] is resignation.” He put his point in “blunt terms”: “I could not take part in that process [of authorizing an execution] if I believed what was being done to be immoral.” He continued: “It is a matter of great consequence to me, therefore, whether the death penalty is morally acceptable. As a Roman Catholic—and being unable to jump out of my skin—I cannot discuss that issue without reference to Christian tradition and the church’s Magisterium.”


I am not a Catholic, yet I teach principles of Catholic morality in my Harvard Law School freshman seminar, “Where Does Your Morality Come From?” I hereby challenge Justice Scalia to a debate on whether Catholic doctrine permits the execution of a factually innocent person who has been tried, without constitutional flaw, but whose innocence is clearly established by new and indisputable evidence. Justice Scalia is always willing to debate issues involving religious teachings. He has done so, for example, with the great Rabbi Adin Steinsaltz, and with others as well. He also has debated me at the Harvard Law School. Although I am neither a rabbi nor a priest, I am confident that I am right and he is wrong under Catholic Doctrine. Perhaps it takes chutzpah to challenge a practicing Catholic on the teachings of his own faith, but that is a quality we share.

Conor Clarke at Sully’s place:

I’m not a lawyer and can’t speak to whether the court has “never held” what Scalia says, or whether Davis actually had a “full and fair trial.” I hope neither of these things is true. But if they are true, why would it be so surprising? Procedural rights (like the right to a lawyer or the right to avoid self incrimination) do not guarantee a specific outcome (like the correct decision in a case). It is possible to imagine a fair trial that respects everyone’s rights but nonetheless reaches the wrong conclusion.

I think procedural rights are useful in large part because they prop up substantive considerations that our society values — like guilt or innocence when guilt or innocence is deserved. But an alternate view of procedural rights — or a view that says, simply, that it’s not the role of the Supreme Court to decide these things — doesn’t seem like it’s molded out of unalloyed craziness.

More Clarke:

I got a lot of emails about that: “No no,” you all said, “the composition of Scalia’s madness is really quite pure.” And, you know what, that’s probably right. But before I backpedal completely let me offer up the main responses I received, which fall into these two categories. First:

The Eighth Amendment prohibits the infliction of cruel and unusual punishment. The “liberal” argument goes as follows: it is both cruel and unusual to execute someone for a crime he did not actually commit.  Period.

Check. Second:

The problem with Scalia’s quote, and by extension your post regarding it, is that Troy Davis did not receive a full and fair trial if, in fact, several of the witnesses did not tell the truth during that trial.

And mate.

I should add that I stand by the general point of my post, which was that procedural rights normally aren’t things that stand or fall depending solely on the outcomes they generate. But I read the quotes above as making two good points about this. First, it’s not clear Troy Davis’s procedural rights were satisfied. Second, even if those procedural rights were satisfied, the outcome in this case is so deeply terrible that it calls into question the value of the original procedures.

Patrick Appel has more links. Scott Horton at Harper’s:

In other words, Scalia’s Constitution does not guarantee a man who has been convicted and sentenced to death–but who is actually innocent–a review of his case. It is certainly true that the Constitution provides no absolute guarantee of justice. But Scalia’s view effectively puts an expense meter on the justice process. Once the process has run through certain steps, that’s it. In his view, it really shouldn’t matter that subsequent evidence establishes that the conviction is mistaken. It’s more efficient simply to implement the decision and execute the innocent man.

That puts Scalia on the other side of the issue from his own church—since Pope Benedict XVI is among those who have registered appeals on Davis’s behalf—as well as an impressive list of former prosecutors and judges, like former FBI director William Sessions, who may reserve judgment on Davis’s guilt or innocence but are quite convinced that his conviction was secured on the basis of false evidence.

Lee Kovarsky:

Scalia has embraced this paradigm openly for years, and his arguments embody the belief that, assuming full and fair state process, guilt determinations remain the unique province of state judiciaries. To Bator, Scalia, and others, allowing freestanding innocence relief represents an intolerable encroachment on the co-equal sovereignty of state courts. In the end, the position is really about promoting federalism and preserving a historic function of state courts, especially where incremental federal process adds little to the project of truth-seeking.

The reason Scalia is not entirely off base is that the Court has really hedged on which framing of the question it prefers. It was squarely presented with the freestanding innocence question, which it promptly ducked, in Herrera v. Collins (1993). The Court conspicuously avoided the freestanding innocence question again in House v. Bell (2005) and in District Attorney’s Office For the Third Judicial District v. Osborne (2009).

So Justice Scalia is absolutely correct when he says that “[t]his Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” As a descriptive matter, the Court has never issued such a holding. The problem with Justice Scalia’s remark is with its implication – that the Court has sent the Federal District Court for Southern District of Georgia on a “fool’s errand.” Just because the Court hasn’t recognized freestanding innocence does not mean that it shouldn’t.

Adam Sewer at Tapped:

I’m not sure how a trial in which most of the witness testimony was the only evidence against the defendant, and most of those witnesses said they lied on the stand, some say due to police coercion, could be considered “fair”. The Times explains that as a legal matter this question actually may be unresolved, and elaborates further on the legal questions relating to habeas cases and “showings” vs “demonstrations” of innocence. But here’s your conservative jurisprudence, your defenders of individual rights and champions of the culture of life, arguing that a potentially innocent man should be executed because well, because.

Josh Patashnik at TNR:

All told, I don’t find Justice Scalia’s reasoning especially persuasive. But he does make one noteworthy point: if the evidence of Davis’s innocence is so strong that it merits this unheard-of step, how is it that the Georgia Board of Pardons and Paroles, the Georgia Supreme Court, and the U.S. Court of Appeals for the Eleventh Circuit all ruled against Davis?

There are two possible answers that spring immediately to mind. One is that the Georgia judicial system and the Eleventh Circuit are some combination of nefarious, incompetent, and lazy. That’s possible, but it isn’t very likely, especially in a case that’s gotten as much attention as Davis’s has. A second answer, which seems much more realistic, focuses on the standard of review those bodies were using–that is, how much deference they granted to the jury’s determination of factual guilt. And under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the answer is that federal courts, at least, must grant substantial deference to the jury’s findings.

Here’s what the Eleventh Circuit said: “When we view all of this evidence as a whole, we cannot honestly say that Davis can establish by clear and convincing evidence that a jury would not have found him guilty of Officer MacPhail’s murder.” Now, that may well be true–not all of the prosecution witnesses have recanted, after all. “Clear and convincing evidence” is a fairly high bar to meet. Davis must prove not merely that the new evidence, on balance, seems to raise reasonable doubts about his guilt that weren’t present the first time around. He must show, rather, that it is substantially more likely than not that the jury would have reached a different conclusion had it been presented with the new evidence.  It’s entirely possible that Davis can’t quite meet that standard. As Davis’s sister told the Atlanta Journal Constitution, “I know that a lot of people still think Troy is guilty.”  If that’s correct, then the Eleventh Circuit was probably right to deny Davis’s petition even if he cleared the procedural hurdle that’s at issue here.

UPDATE: James Joyner

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Filed under Crime, Death Penalty, Supreme Court, The Constitution