It has long been the conventional wisdom on both sides of the death penalty debate that if a state or the federal government were ever shown to have executed an innocent person, we'd see a dramatic drop in support for state executions. In the 2006 case Kansas v. Marsh, Supreme Court Justice Antonin Scalia, a death penalty supporter, called the search for a wrongly executed person the "Holy Grail" of death penalty opponents.
But a little less than two years after David Grann made a convincing argument in The New Yorker that the state of Texas had done just that, public support for capital punishment hasn't wavered. In October 2009, Grann wrote about Cameron Todd Willingham, executed in 2004 for setting the fire that killed his three young children. Willingham was convicted because of forensic testimony from fire officials that arson experts call junk science.
Grann's story was widely discussed and distributed, but the predicted sea change in public perceptions of the death penalty didn't happen. According to Gallup polling, support for the death penalty dropped just a point between 2009 and 2010, from 65 percent to 64 percent, well within the margin for error. And about half the country still believes the death penalty isn't used often enough.
As we saw last week with the execution of Troy Davis in Georgia, the Willingham case doesn't even seem to have made state governments less willing to execute even when there are strong doubts about the defendant's guilt. In fact, the only fallout from Willingham may in fact have been to strengthen the resolve of death penalty supporters. When the crowd at a GOP primary debate cheered the number of executions carried out in Texas earlier this month, the Willingham case and Gov. Rick Perry's handling of it was the clear subtext of the question.
There's still no political price to pay for defending executions, for carrying out questionable ones or, in the case of Perry, for stifling attempts to investigate whether an innocent person has been put to death. The states of California, Arkansas, Tennessee and Kentucky recently even resorted to purchasing sodium thiopental on the black market to ensure they could continue carrying out lethal injections.
Consider also the case of Hank Skinner, currently on death row in Texas for the murder of his ex-girlfriend and her two sons. Skinner merely wants to conduct DNA testing on several major pieces of biological evidence collected at the crime scene that were never examined. The evidence includes blood from the murder weapon; blood on a jacket found near the victims; the rape kit performed on Skinner's former girlfriend; the skin cells found under her fingernails; and the hair she was clutching at the time of her death.
On a 2000 episode of Nancy Grace's Court TV show "Closing Arguments," one of Skinner's attorneys actually challenged his prosecutor to conduct the testing, even offering to pay for the tests himself. The prosecutor agreed. But when preliminary mitochondrial testing on the hair did not match Skinner or the victim, the prosecutor put a halt to any further testing. Texas officials, including Perry, have since fought any additional tests.
Even after the Willingham debacle, Texas officials are arguing in court and in public statements that knowable facts that could prove a defendant's innocence -- or confirm his guilt -- should remain unknown. That isn't a quest for truth. It's a reckless effort to protect a conviction.
And yet there's little evidence that voters will punish them for it. Nor, likely, will anyone in Georgia pay a political price for the execution of Troy Davis. Just why is that? More than 270 people have been cleared by DNA testing in the last 30 years, a strong indication that our criminal justice system is more error-prone than much of the public likely believes. Most of the rest of the developed world has done away with capital punishment. And there's now strong evidence that at least one state executed an innocent man.
Why, after all of this, do more than six in 10 Americans still support the death penalty?
Jerry Hobbs was one of those slam-dunk death penalty cases, a guy with a criminal record guilty of a brutal crime that even hardcore opponents of capital punishment would have a difficult time sparing.
Shortly after he was released from prison on assault charges, Hobbs was arrested in 2005 in Zion, Ill., accused of brutally murdering his own daughter and her best friend. According to prosecutors, Hobbes went out looking for the 8-year-old girl in a fit of anger because she had left the house after he had grounded her. When he found the girls, prosecutors say, Hobbs stabbed them more than 30 times with a kitchen knife. Hobbs' daughter had been stabbed once in each eye, and autopsy results later revealed the presence of semen in her mouth, vagina and rectum.
A couple days later, Hobbs confessed to the murders. He even offered details of the murders that police say were only known to them and the killer. If ever there were a clear-cut candidate for the death penalty, Hobbs seemed to be it.
But when DNA test results came back on the semen found in Hobbs' daughter, it didn't belong to Hobbs. He later recanted his confession, claiming his admission was the result of hours of coercive and abusive police interrogation.
Prosecutors didn't buy it. Lake County, Ill., Assistant State's Attorney Michael Mermel put forth an unlikely explanation for the DNA results: The semen may have somehow entered the girl's body while she was playing in a wooded area where teenagers were known to have sex, Mermel said.
In 2010, five years after Hobbs' arrest, DNA from the crime scene hit a match in a national database. The semen came from 21-year-old Jorge Torrez, who at the time was in custody for a series of attacks on women in Arlington, Va. Torrez is now serving five life sentences for those crimes and stands accused of the Zion murders, as well.
Hobbs was cleared of the murder charges and freed last year. He is now a walking argument against the death penalty, proof that in the face of scientific evidence, even the slam-dunk cases can come apart.
Most Americans support the death penalty out of a desire for vengeance or retribution. Some crimes, the thinking goes, are so heinous that death is the only appropriate punishment. According to Gallup, about 60 percent of death penalty supporters back capital punishment under some form of this reasoning. It's probably also the strongest argument in favor of the death penalty.
But the hunger for vengeance or retribution can also cloud judgment. Something certainly clouded that of ASA Mermel in the Hobbs case.
Particularly heinous crimes often bring more pressure on police to arrest a suspect, and on prosecutors to secure a conviction. ProPublica recently published a lengthy investigation showing that the deaths of children in particular can cause law enforcement officials to fixate on a suspect, overlook evidence that contradicts their theories, and even find crimes where none may have been committed (charging accidental deaths as homicides, for example).
A 2008 Columbia Law Review examination of the first 200 DNA exonerations found that just 18 of the convictions were at one time reversed by appellate courts. Another 67 convicts had their appeals denied with no written ruling at all. In 63 of the cases, appellate court rulings described the defendant as "guilty," and in 12 cases it referred to "overwhelming" evidence of guilt. In the other cases, appeals courts either found the defendant's appeal without merit or found that the errors in the case were "harmless"--there were problems with the case, but those problems were insignificant due to the other evidence indicating guilt. In each of these cases, the defendant was later proven innocent.
Yet protestations of innocence often inflame the state's desire for retribution. In 2008, for example, the same Georgia Board of Pardons and Paroles that refused clemency to Troy Davis granted clemency to Samuel David Crowe, who was convicted of killing a lumber store manager during a robbery. Since Crowe is white, Davis supporters have suggested that race was the determining factor in both cases, but it could just as easily have been contrition. Crowe admitted guilt and expressed remorse. Davis maintained his innocence. Governors are far more likely to use their pardon or clemency powers for someone who shows remorse than to free a convict because of doubts about his guilt.
A New York Times article on plea bargaining this week supports this theory, explaining how criminal defendants are often punished with added charges and increased jail time for maintaining their innocence and insisting on a trial. (See also the case of Richard Paey.)
There are of course plenty of cases where there's both a heinous crime and irrefutable evidence of guilt. But there have been a plenty of others where a defendant's guilt at one point seemed certain and the state's case later unraveled. There is honest disagreement over what role retribution should play in the criminal justice system. But it's important to bear in mind that the desire for retributive justice can easily (and often does) bleed into vengeance. We want the criminal justice system to seek truth by way of reason, evidence, fairness, and good judgment. Vengeance doesn't sit well with any of those values.
The 273 DNA exonerations since the early 1990s have uncovered some significant problems with the criminal justice system. Forensic specialties once thought foolproof, like fingerprint analysis, hair fiber analysis, and ballistics identification, have been proven to be flawed, or at least overstated in court.
These exonerations have also confirmed decades of warnings by academics regarding eyewitness testimony and the reliability of jailhouse informants, as well as proving that prosecutorial and police misconduct aren't isolated problems.
We now know that people will even confess to crimes they didn't commit. Public support for the death penalty actually did take a hit when DNA testing first began to free people in the early 1990s. It peaked at 80 percent in 1994; it's at 64 percent today.
Yet the scientific certainty DNA testing offers, in contrast to most other forensic specialties, also seems to have reassured the public that we're now more likely making the right calls. According to Gallup, in 2003, 73 percent of Americans said an innocent person had probably been executed in the previous five years. That number dropped to 59 percent in 2009. In his concurring opinion in Marsh, Justice Scalia also wrote that an exoneration "demonstrates not the failure of the system but its success."
The problem with that logic is that while DNA testing has exposed problems with the criminal justice system, the set of cases for which DNA testing is dispositive of guilt is actually quite small. It mostly compromises rapes and some murders (usually murders that also involve a rape). But it's safe to assume that the flaws DNA technology has exposed persist outside this small percentage of cases and likely at about the same rates. For the people wrongly convicted in that larger pool of cases, there will never be any test to definitively establish their innocence. But it would be naive to think those people don't exist.
Once someone has been convicted, the criminal justice system puts a premium on closure and finality. The burden shifts from the state to the convicted, who essentially must now prove innocence. There's good reason for this. If we allowed convicts to challenge their convictions on every bit of flimsy evidence they can conjure, the system would crumble under the weight of frivolous petitions.
But this allegiance to finality was established before DNA showed us just how error-prone the current system really is. The Troy Davis case is an excellent example of how the disconnect can play out.
Davis was convicted mostly because of eyewitness testimony. DNA testing has shown that the alarms psychologists and cognitive scientists have been raising about eyewitnesses for years were well-founded -- eyewitness misidentification was a factor in about 75 percent of DNA exoneration cases.
The U.S. Supreme Court will hear a case this fall that could change how this evidence is presented in courtrooms. Just last month, the New Jersey Supreme Court issued a sweeping opinion setting new standards for the use of eyewitness testimony in that state. That's great going forward, but does little to help those already convicted by faulty eyewitness testimony, especially in cases like Davis', where the testimony was obtained with methods now known to substantially increase the odds of misidentification.
It's encouraging that we now recognize the system is flawed. But the courts haven't yet adjusted the standards for reviewing cases in a way that accounts for those flaws. Only the near-certainty a DNA test provides can overcome the courts' preference for finality. So while DNA technology has given us good reason to believe we're starting to get it right in cases involving DNA evidence, it has given us more reason to be skeptical of the outcomes in cases that don't involve DNA. And the certainty of DNA testing may also be giving the public an increased -- and false -- sense of confidence about the error rate for that latter, much larger population of cases.
In his 1999 HBO special "You Are All Diseased," the late George Carlin asked why prison doctors swab a condemned convict's arm with alcohol before administering the lethal cocktail of drugs that will kill him. "They don't want you to get an infection!" Carlin exclaimed.
America has come a long way since public hangings. Executions today are carried out in front of just a few witnesses. Nearly all are now done by lethal injection, often carried out by doctors. They more resemble a medical procedure, which conjures thoughts of healing, not of ending the life of an otherwise healthy person. Part of the continuing public support for the death penalty may lie in this way the government has sanitized executions to insulate the public from contemplating what's actually taking place.
There's a common perception that most states have settled on the lethal injection because it's the least painful form of execution, or at least the most humane. But the procedure's popularity may lie more in how it protects witnesses and the public from discomfort (and thus, preserve general support for the death penalty) than protecting the condemned from excessive suffering.
In 2008, the Supreme Court heard arguments against the three-drug cocktail used in nearly every state that performs lethal injections. At issue was the drug pancuronium bromide, which paralyzes the condemned, giving them a placid, peaceful appearance even if they might be suffering immense pain from an improper dose of anesthesia.
And there's reason to suspect they might: A 2005 study in the Lancet found that as many as four in 10 of those executed may have been given inadequate anesthesia.
A large dose of a single barbiturate would kill just as effectively and painlessly. Opponents say pancuronium bromide isn't necessary, and it masks any indications a prisoner may be experiencing pain. But as The New York Times' Adam Liptak reported in 2008, defenders of the three-drug procedure offer an interesting argument in response. "[L]awyers for John D. Rees, the Kentucky corrections commissioner, said the three-chemical combination was safe and painless and produced a dignified death," Liptak wrote. "Using only a single barbiturate, they said, was untested, could result in distressing and disruptive muscle contractions, and might take a long time."
Liptak went on to write about how the state of Texas came to adopt the three-drug protocol. "[T]he medical director of Texas' corrections department, Dr. Ralph Gray, consulted a veterinarian in Huntsville, Tex., Dr. Gerry Etheredge," Liptak wrote. Etheredge says he told Gray that in veterinary medicine, they used a single barbiturate, and that, "we overdosed it and everything went smoothly. It was very safe, very effective and very cheap." The problem, Etheredge said, is that Gray feared "people would think we are treating people the same way that we're treating animals. He was afraid of a hue and cry."
These anecdotes are telling. Rather than subject witnesses to unnerving post-mortem twitching by prisoners who are experiencing no pain, prison officials instead use a procedure that leaves open the possibility of immense, unimaginable pain, but also ensures that witnesses will see no signs of it. We've shunned the effective, painless procedure regularly used in veterinary medicine because we don't want to give the appearance that they're treating prisoners like animals. But in the process, we may be treating them worse.
Jonathan Groner, the trauma medical director of Children's Hospital in Columbus, Ohio and a death penalty opponent, told ABC News in 2008, "One of the great ironies about capital punishment when you look at it historically is that when executions appear to be more humane, the application of the death penalty becomes less humane."
When Utah death row inmate Ronnie Lee Gardner asked to die by firing squad last year for the 1985 murder of a defense attorney, there was some consternation that such a frontier method of execution could still even be an option in America. (It's only still used in Utah, and only at the request of the condemned.) But a number of experts say death by firing squad is swift, relatively painless and less likely to go wrong than other means of execution. Groner told ABC News the least painful method of execution may be the guillotine.
But the idea of bringing back firing squads or the guillotine would make most Americans cringe -- even ardent death penalty supporters. That we'd recoil from the idea suggests that we're gauging the humaneness of state executions not by the swiftness and painlessness they provide for the condemned, but by the amount of discomfort they arouse in the rest of us. We prefer the method of execution least likely to remind us that it's actually an execution. And that suggests that we may not be as comfortable with executions as we think.
Executions themselves are also highly ritualized. State execution protocols tend to be specific, regimenting blocks of time for visitation with family, contemplation and spiritual guidance. In most states, the condemned is offered a last meal. In some states, the prisoner is showered and shaved. In California, he's given a new uniform just for his execution. Ohio's execution protocols run hundreds of pages long, and call for meticulous logs of the prisoner's final hours, sometimes down to the second.
These rituals benefit the people carrying out the execution, giving them some detachment from what has to be a daunting and emotionally wrenching task. A checklist of procedures could provide some insulation from the moral weight of taking a life.
But these rituals also give the impression that such fidelity to procedure was present throughout the process, and too often that isn't the case. Adhering to protocols like ensuring the specified number of guards walk the condemned man from his cell to the death chamber, that his last meal is delivered promptly at 6 p.m., or that he's clean-shaven for his execution seem farcical when states have tried to execute a man whose court-appointed attorney slept through the trial, or whose prosecutor and judge didn't disclose that they'd had an affair, or whose DNA was not compared to that found at the crime scene. In countless cases, prosecutors have withheld exculpatory evidence.
It shouldn't be surprising to learn that public support for capital punishment may be based in large part on myths, misconceptions and conscious efforts by public officials to hide the 'death' part of the death penalty. Misinformation abounds in other contentious criminal justice issues, too. Polls show most Americans still think violent crime is on the rise, despite the fact that it's steeply declined in the past 20 years.
Of course, there are plenty of well-meaning people who are well aware of the problems outlined above and still genuinely and honestly support capital punishment. But strong public support for the death penalty in itself isn't a convincing reason to keep it around.