The Guilty Are Being Executed
Red herrings from the anti-death-penalty squad

By Robert Pambianco, Chief Policy Counsel for the Washington Legal Foundation

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.

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 it).

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 arguments.

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.

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