By Robert Pambianco, Chief Policy Counsel for the Washington Legal
The media’s newfound intense obsession with the death penalty reached
fever pitch this week with the scheduled execution of Gary Graham in Texas.
The case has become a cause celebre for death-penalty opponents. They have
made Graham the poster child for their efforts to undermine public support for
capital punishment by raising the specter of innocent people being put to
Death-penalty opponents have conceded that they cannot win the argument
about whether the death penalty is appropriate in certain circumstances.
Despite their best efforts, the public remains convinced that some crimes are
so heinous that no other punishment will suffice.
Hence, rather than arguing that capital punishment is immoral,
death-penalty opponents have shifted to a utilitarian argument about
fairness. Specifically, they have sought to convince people that capital
punishment will lead to the execution of many innocents. From a
public-relations standpoint, the new tactic makes sense.
Arguing that society must protect the innocent from execution sounds more
reasonable than insisting that it is an inappropriate punishment for the most
brutal crimes. Only diehard opponents of capital punishment and soft-on-crime
types can sympathize with the guilty, whereas nobody wants to see an innocent
man put to death.
Opponents of capital punishment certainly have had no trouble feeding the
new spin to the media, but they may be wise to hold off popping the champagne
corks. For starters, while there is some evidence that public support for
capital punishment has slipped somewhat, it should not be given too much
weight. Most likely, any change in public sentiment is a matter of decreased
intensity, which — given the state of the economy, the perception that crime
rates are down, and the public's general sense of satisfaction — is hardly
surprising. After all, a content public is not a bloodthirsty public, and the
American public is nothing if not content.
For all the media attention the issue has received, opposition to capital
punishment remains the province of elite opinion. There is also a danger
for death-penalty opponents in placing so much attention on the question of
innocence. By focusing on innocence, opponents implicitly concede that it is
acceptable to execute the guilty. That’s where they run into big trouble,
because notwithstanding all the hysteria, in the overwhelming majority of
death-penalty cases there is no credible issue of innocence. Most death-row
appeals are not even based on claims of factual innocence (i.e., I didn't do
Moreover, the whole argument about innocence rests on the false premise
that there is actually some evidence that innocent people are being executed.
Yet there is no such evidence: none. There is no proof of an innocent
person's being executed since 1900. One will search in vain through news
stories and editorials for mention of a single case of an innocent execution.
Unable to demonstrate that innocent people are being executed, the
activists have zeroed in on cases where death sentences have been reversed. Of
course, these people are alive. However, those opposed to capital punishment
have adopted the truly bizarre position that proof that the judicial system
bends over backward to ensure there are no wrongful executions is actually
evidence that the system cannot work. The most recent manifestation of this
logic was the production of a study purporting to show a 68 percent error rate
in capital cases. This was presented as a shattering revelation. But such
statistics reflect some well-established facts: first, that the courts are
extremely cautious about executions, and those sentenced to death get more
due-process protection than anyone else in the criminal-justice system.
Second, for years activist appellate judges blocked executions because of
their personal opposition to the death penalty. Some may recall that a chief
justice of the California Supreme Court was removed from office for reversing
nearly every death sentence that came before her court.
The 68 percent statistic says nothing about the final determination of
those cases, the actual guilt of the defendants, or even the ultimate outcome
of the death sentences (which, in many cases, were upheld).
Indeed, the most notable thing about the study is that it fails to point to
a single case of an innocent person who was executed. Similarly, the focus on
DNA evidence presents a double-edged sword for death-penalty opponents.
If DNA evidence can be used to prove that the wrong man was convicted, then
it can be used to remove any remaining doubt about a prisoner's guilt. Far
from undermining confidence in capital punishment, DNA evidence will only help
increase the certainty about the guilt of those sentenced to die. As most law
students learn in evidence class, it is normally the job of the defense at a
criminal trial to keep evidence away from the jury, since it usually bolsters
the prosecution's case.
The innocence question that has been the subject of so much media attention
is, then, a disingenuous publicity prop. For opponents of capital punishment,
there is no such thing as a fair execution. They are opposed to capital
punishment in all cases, regardless of the nature of the crime or the
certainty of the evidence. Rather than indicating a more
"sophisticated" discussion of capital punishment — as one civil
libertarian recently suggested — the focus on innocence is a testament to
the failure of the anti-death penalty movement and the moral bankruptcy of its
All the discussion about the case in Texas — like the larger debate over
executing innocents — is a sideshow designed to divert public attention away
from the real issue, which must always be: Are there some murders so heinous
that imposing a penalty less than death would trivialize the crime and cheapen
human life? On this, the answer remains: Yes.