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Capital Politics and Herzog's <i>Into the Abyss</i>

We, as a civilized society, are either going to kill people in the state's name, or we're not. It's literally life or death. It's one or the other. You're either in or you're out.
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It would be tough to pick the most chilling moment from the 20 Republican primary debates, in which television viewers watched debate audiences boo an active duty American soldier, cheer waterboarding, and try to egg Ron Paul into letting our country's uninsured die in the streets. But for sheer bloodthirsty, fire-and-pitchfork mob barbarism, the clear winner came in the September 7 debate at the Reagan Presidential Library, in which the crowd whooped it up for execution.

"Governor Perry," began moderator Brian Williams, "your state has executed 234 death row inmates, more than any other governor in modern times. Have you -- " And at this point, Williams had to pause, because wild applause and whistling had filled the hall. Yay, death!

"Have you struggled to sleep at night," Williams finally continued, "with the idea that one of those might have been innocent?"

"No sir, I've never struggled with that at all," came Perry's immediate reply.

This was not an abstract question, a what-if inquiry about some hypothetical inmate. On the morning of December 23, 1991, the three children of Cameron Todd Willingham were killed in a blaze in their Texas home. Mr. Willingham escaped from the fire, and was later convicted of their murder by arson. He was sentenced to death, and in 2004, days before his execution, a report made its way to Governor Perry that persuasively questioned the scientific veracity of the arson charge. Governor Perry saw nothing of interest in the report, so the state went ahead and killed Willingham. A few years later, in the wake of a scandal in the Houston Police's crime lab, the new Texas Forensic Science Commission decided to take another look at the scientific evaluation of the Willingham case. Two days before a review meeting for their report, Perry replaced three members of that commission, including its chairman, who in turn postponed the meetings until after Perry's re-election and closed them off to the general public (and media).

Willingham's story, told in the recent (and excellent) documentary Incendiary, is the latest example of the troubling nonchalance with which the state of Texas executes its inmates. Under Perry, the state has carried out death penalty sentences against the mentally ill, juveniles, and even one defendant who was not the shooter in the murder he was convicted of. (In a mind-bending, down-is-up turn of events, the man who pulled the trigger received a life sentence). There are also issues of questionable counsel in death penalty cases; one appellate lawyer for a man executed in 2002, for example, was mentally ill himself and on probation with the state bar at the time of the appeal, missing vital filing deadlines. Perry refused a subsequent lawyer's request for a reprieve.

Perry's predecessor in the Texas governor's office, George W. Bush, had his own problems with the death penalty. Of the 131 prisoners killed during his five years in office, one-third were represented by lawyers who were later disbarred, suspended, or otherwise sanctioned. Attorneys were disciplined for sleeping through trials and working under the influence of alcohol or cocaine. They mounted defenses in which they would call no witnesses. Witnesses for the prosecution included jailhouse informants of sketchy credibility, a pathologist who admitted to faking autopsies, a judge reprimanded for lying, a forensic scientist temporarily released from a psychiatric ward to testify, and James Grigson (seen in both Incendiary and Errol Morris' The Thin Blue Line), the notorious Texas psychiatrist known as "Dr. Death" for his unfailing ability to testify that defendants would undoubtedly kill again, a conclusion often arrived at without so much as meeting the man in question. (Grigson was later expelled from the American Psychiatric Association.)

"If you're asking me whether or not as to the innocence or guilt or if people have had adequate access to the courts in Texas, I believe they have," Bush said in 2000, during his presidential run. "They've had full access to the courts. They've had full access to a fair trial." Like many elements of his political personality and personal demeanor, Perry's comments at the September debate mirrored Bush's:

"The state of Texas has a very thoughtful, a very clear process in place of which -- when someone commits the most heinous of crimes against our citizens, they get a fair hearing, they go through an appellate process, they go up to the Supreme Court of the United States, if that's required."

The trouble with the governors' comments is that they both presume that the system works, that the wheels of justice spin constantly and efficiently, each and every time. Plainly put, that's pure fantasy -- which is why human beings cannot be given the responsibility of determining whether other human beings should be killed. The decisions of innocence and guilt rely on testimony, skills, and assumptions of fallible people, and they can -- and will -- make mistakes.

The Willingham case is not the only one in Perry's Texas in which those mistakes were apparently made; DNA evidence has exonerated at least 41 people convicted in the state, including five rescued from death row during Perry's time in office. One of those men is Anthony Graves, whose 1992 conviction for murder was overturned in 2010 after an extensive investigation by Texas Monthly. At the time of Graves's release, Perry said, "I think we have a justice system that is working, and he's a good example of-you continue to find errors that were made and clear them up." Of course, those errors were cleared up not by "a justice system that is working," but by the hard work of a journalist--much as Randall Dale Adams was saved from the Texas electric chair not by judicial review but by the efforts of Thin Blue Line director Morris, or "West Memphis Three" defendant Damien Echols is free via the spotlight shed on his case by Paradise Lost filmmakers Joe Berlinger and Bruce Sinofsky. Not all defendants have been so lucky.

But the Willingham case continues to haunt Governor Perry, a specter that reappeared as his presidential campaign picked up speed. Since an in-depth New Yorker piece on the case appeared in 2009, Perry has defended his decision, calling Willingham -- whom he never met -- a "monster."

"Here's a guy who murdered his three children, who tried to beat his wife into an abortion so he wouldn't have those kids," Perry told reporters in 2009. "This is a bad man. This is a guy who in the death chamber in his last breath spews an obscenity-laced triad (sic) against his wife."

To be fair, Willingham may well have been a bad man. Even his defenders agree that he abused his wife. But since when is that offense punishable by death?

The subtext of Perry's remarks, however, speaks to a broader issue, and one that complicates the entire question of the death penalty. In essence, Perry is arguing that there is a place for the death penalty--so long as it's only carried out against bad people. Perry's definition of bad people may cast a wider net than most (after all, his includes possibly innocent people), but a version of that thinking is heard even in the arguments of anti-capital punishment activists.

Example: Last September, the execution of Troy Davis in Georgia prompted demonstrations throughout the nation and outrage across the Internet. But Davis wasn't the only death sentence carried out that day. Over in Texas, Lawrence Brewer, one of the perpetrators of the grisly dragging murder of James Byrd, Jr., was executed as well -- to considerably less protest. Well, we don't like him. And he did it! But by making those judgment calls, we're subjecting the implementation of the death penalty to the same human prejudices that lead to its troublesome misapplications in courtrooms across the country.

Documentarian Werner Herzog puts this conundrum to the test in his harrowing and fascinating new documentary Into the Abyss (out this week on DVD and Blu-ray), which examines the case of Michael James Perry, a young man convicted to death for his participation in a shocking and petty triple homicide in Conrad, Texas. Perry claims innocence, and Herzog gives him the opportunity to make that claim, but the young man isn't terribly persuasive. He probably committed the crime.

So what then? "I do not think human beings should be executed," Herzog says, early in the film. "Simple as that." This is a filmmaker who has spent his career examining the grey areas, the complexities and nuances of human nature -- yet, intriguingly, he sees this issue as black or white. We're either doing this, or not. When we start sifting them up into which ones we think are actually innocent, we're no better than Governor Perry, dismissing the man innocent of murder because he's guilty of spousal abuse. We don't get to make that call. We, as a civilized society, are either going to kill people in the state's name, or we're not. It's literally life or death. It's one or the other. You're either in or you're out.