The most indelible moment of the recent Republican debates -- even more unnerving than the crowd booing a gay soldier or the eruption of scattered applause in appreciation of the free market ushering a hypothetical patient to his death for lack of insurance -- was Texas Governor Rick Perry’s execution answer.
In a debate in September at the Ronald Reagan Presidential Library, moderator Brian Williams tried to pose a question to Perry, beginning: “Your state has executed 234 death row inmates, more than any other governor in modern times. Have you -- ”
Before he could finish, Williams was drowned out by lusty cheers and piercing whistles from the audience.
It’s one thing to support the death penalty. It’s quite another to relish it like fans cheering a winning touchdown. The Supreme Court reinstated the death penalty in 1976 -- although retired Justice John Paul Stevens now says his vote in favor is the one regret of his 35 years on the bench. Public support for the death penalty remains broad, but it has waned in recent years. The imposition of life sentences without parole, the failure of the death penalty to deter violent crime (Texas has both the highest number of executions and an above-average murder rate) and publicity about wrongful convictions have all taken a toll.
According to a CBS-New York Times poll last month, support for the death penalty for convicted murderers has fallen to 60 percent, down 18 percentage points from when the question was first asked by CBS in October 1988. That was the autumn when Democratic presidential candidate Michael Dukakis was being pummeled for being soft on crime. Unwilling to replicate Dukakis’s experience, every Democratic presidential nominee -- and even many Democratic officials in liberal enclaves like New York City -- have supported capital punishment ever since.
Out of Sight
Our executions take place conveniently out of sight. Firing squads and hangings have given way to what looks like a patient being given anesthesia in an operating room, only the prisoner convulses and never wakes up. Curiously, the gung-ho types who cheer loudest for Perry’s body count -- it’s since grown to 235 -- are often the most likely to contend that government can do nothing right. When it comes to choosing who should be put to death, however, government remarkably can do nothing wrong.
Facts have never had much sway in this debate. Since 1993, according to the Death Penalty Information Center, there have been 138 death-row inmates who’ve been exonerated and released, some as a result of DNA evidence. There is no way to rationally evaluate such information without concluding there is a high likelihood that innocent people have been convicted of murder and executed in the U.S.
Inmates have been sent to death row due to faulty eyewitness testimony (which is frighteningly common), poor forensics (most crime labs do not resemble “CSI”), overworked police and prosecutors (under pressure to solve crimes quickly), or shoddy defense lawyers. The Senate Judiciary Committee found that “egregiously incompetent defense lawyering” accounted for about two-fifths of the errors in capital cases. In an infamous case in Texas, a defense attorney who slept in court was not sufficient grounds to reverse his client’s conviction. Poverty and race play their part as well: About 70 percent of those exonerated by DNA testing are black or Hispanic.
None of this matters. In denying an appeal by Georgia death-row inmate Troy Davis, who was subsequently executed, Supreme Court Justice Antonin Scalia wrote that the 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.” By Scalia’s reckoning, justice is a process, not a result: A wrongful conviction is small potatoes, an unfortunate detail, when weighed against a technically fair trial process.
In Davis’s case, seven witnesses recanted their testimony, and the evidence linking him to the shooting of an off-duty policeman was largely circumstantial. Former FBI Director William Sessions, former Republican Representative Bob Barr, former wardens -- even Pope Benedict XVI -- asked Georgia to delay Davis’s execution. He died by lethal injection on Sept. 21.
In 2004, Perry similarly refused to delay the execution of Cameron Todd Willingham despite mounting evidence -- made possible by advances in forensic science -- that the fire that killed Willingham’s three children had not been deliberately set. Perry didn’t wait for additional findings in the case from a special commission; he was in a hurry. Willingham was executed.
At the Reagan library debate, Perry confidently told Williams that he had never lost sleep over any of the 234 people executed during his tenure as governor. It’s an alarming statement if false, a contemptible one if true. Perry will soon face another test -- the convoluted case of Henry Watkins Skinner, who is scheduled to be executed by Texas on Nov. 9. As Perry travels the country seeking to convince Americans that he’s worthy of the presidency, he would do well to struggle a bit over Skinner’s fate, even if it slows the death machine that Texas has embraced. It’s worth losing sleep over life-and-death decisions. It’s what presidents, and other moral beings, do.
(Margaret Carlson is a Bloomberg View columnist. The opinions expressed are her own.)
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