Dispatches from the Culture Wars

This sort of thing is the main reason why I'm against the death penalty. Since the introduction of DNA evidence so many people have been exonerated that you have to wonder how many innocent people have been executed.

The men who orchestrated Mr. Kitchen's conviction belong behind bars. This is like attempted murder.

Posted by: Randallphobia | July 10, 2009 10:24 AM

@Randalphobia: I share your concern about execution of the innocent; but I strongly suspect that, in absence of the death penalty, we'd simply shift to wrongful imprisonment for life of the innocent, which isn't an obvious improvement.

If anything, I'd suspect that those who receive death sentences get, on average, a better shot at something approaching justice; because death sentences are substantially more dramatic and controversial than long prison sentences and thus more likely to attract aid and attention.

Execution does preclude any chance of later exoneration and release; but that only matters if serious reexamination of dubious convictions is common, rather than exceptional. The problem of low-quality justice isn't really escapable just by putting one punishment or another out of bounds.

Posted by: phisrow | July 10, 2009 10:46 AM

"Execution does preclude any chance of later exoneration and release;"

I think phisrow makes rather too little of this enormous distinction. Thank God for the length appeals process, without which "shoot, shovel, and shut up" would always prevail.

Posted by: Scott Hanley | July 10, 2009 11:20 AM

I'm not sure what an acceptable rate of error in death penalty cases would be

As far as I'm concerned, 0%. And since that's impossible, it should not exist.

Although...ideally, I would think it should, just in a wacky way that would make people think I'm crazy. Putting myself in the position of being faced with life in prison, I would choose the death penalty instead in a heartbeat-- whether I was actually guilty or not. Life imprisonment-- heck, a 20 year imprisonment-- sounds like sheer torture, the kind I would escape via death if possible. So in my crazy ideal world, prisoners should have the option.

Posted by: Gretchen | July 10, 2009 11:50 AM

My position also changed to being against the death penalty several years ago directly due to stories like this.

To Gretchen's point about preferring death to life imprisonment. While I don't know where I would stand, I do think she brings up an interesting point about the efficy of sentences acting as deterrents.

Within a culture where most citizens are superstitious and believe in eternal punishment, the death penalty could act as a more powerful deterrent given it expedites one's horrible destiny if that person were also convinced they were beyond redemption. However, to a person who doesn't believe in eternal punishment, the death penalty could be viewed as a neutral outcome compared to life imprisonment, which would lead to the position that life imprisonment is a far greater punishment than the death penalty.

On the other hand and contrary to either assertion, a person could also view the death penalty as an easy method to Heaven by knowing when their death is and insuring they're "saved" at the time of the execution; so what I do know.

Posted by: Michael Heath | July 10, 2009 12:36 PM

I remember hearing (from a commenter on a blog, so take this for what it's worth), that when people are asked if they'd kill an innocent person to save X other innocent people, the breaking point is at around saving 5 others. Even if that's an accurate recollection, it's not perfectly analogous to the case of an acceptable error in justice, unless we went on to assume that every murderer released goes on to kill again. But that's probably not the best way to look at it.

Let's go from a perspective of purity vs. completeness. Purity means: of the people you convict, how many are actually guilty? Completeness means: of the guilty people, how many do you actually convict? The mantra of "innocent until proven guilty" and requiring convictions to be "beyond a reasonable doubt" show that the justice system was intended to strive for high purity, even at the cost of completeness.

Somewhere along the line, that got changed around, and now people are more interested in seeing someone pay for a crime than seeing the right person pay. Instead of releasing all but the obviously guilty, we're convicting all but the obviously innocent. What's worse is that this tendency is more pronounced when it's a minority on trial, though that probably stems more from latent racism and fear of "the other" than a problem with the justice system. There are also certain crimes, such as sexual abuse of children, where the assumption of guilt is much higher than even our normal, too-high levels.

Where does the problem lie? I'm going to say education, to back up what a lot of commenters have said in various threads here. History teachers need to focus more on the justice system of their country and what it's meant to be, so that students can learn just what's wrong. Unfortunately, actually implementing such reform from the top down is nigh-impossible these days.

Posted by: Infophile | July 10, 2009 1:21 PM

History teachers need to focus more on the justice system of their country and what it's meant to be, so that students can learn just what's wrong.

So it's our fault?

Has it occurred to you that we have standards we have to cover, a limited amount of time to cover them in, and both of them are, actually due to the topic, increasing and shrinking respectively?

For example, the vast majority of school districts still have the same single year to cover US history that was established back in the 50s. Now think about that for a second. We have 50-60 years more material to cover, material that deals with little, inconsequential issues like the cold war, globalism, civil rights, etc., and zero additional time to cover those events with. So, what do we drop?

The revolution and development of the constitution?
The rise of sectionalism, slavery, and the causes of the civil war?
The civil war itself? Reconstruction?
Industrialization and urbanization?
Imperialism, nationalism and WWI?
The 20s and great depression?
WWII?
Cold War, etc.?

Now in my American Government classes we talk about the law, inequities, questions/concerns about fairness, etc., but a lot of states and school districts teach these classes in a single semester, at that point? You run into the same problem as US History in a single year, what would you like me to drop in favor of this?

The obvious solution would be to make social studies, like math in many areas, a 4 year requirement, but where do you get the money for that?

Posted by: dogmeatIB | July 10, 2009 2:20 PM

I dislike making a case against the death penalty on the subject of actual innocence or not as I think it implies that if someone is guilty, then execution is just fine.

A good book on the subject is David R. Dow's "Executed on a Technicality."

I don't want to seem like I'm just typing to recommend a book, but I'm forcing myself to keep this brief or else I won't stop.

Posted by: Bachalon | July 10, 2009 3:54 PM

Killing a person is murder, executing a person is Judicial Murder.

Ah, but does that make imprisonment Judicial Kidnapping?

Posted by: Gretchen | July 10, 2009 5:22 PM

PRISON food and medical care of course!

Ah, long week... is it Miller time yet?

Posted by: Stu | July 10, 2009 5:34 PM

Did you know that in the US, after a person is executed, the state is allowed to destroy the evidence that led to a conviction. That is why we really don't know who is really innocent or guilty after they have been executed. Just thought I would point that out to you.

Posted by: debbie Ness | July 10, 2009 5:42 PM

It's simple: One wrongful execution is too many. Eliminate the death penalty altogether.

Posted by: Paul Lundgren | July 10, 2009 8:58 PM

I was a friend one of the state's top prosecutors, now deceased, who worked on a number of these high profile cases. He was one of the prosecutors in the Roscetti case and if he had known that Pamela Fish was giving them bad info, he would have told me about it--the guy told me everything. I'm convinced that he was honest in his conversations with me and genuinely concerned with justice, although I think he was wrong for not going public with concerns that he discussed with me. I told him so and since his death I've spoken with an attorney at NU about one of the cases I know about.

Although he was one of the state's top prosecutors, my friend was very critical of police and prosecutors in Illinois. He was thoroughly disgusted by, and would not participate in, a pool in the 1980s prosecutor's office--winner determined by who convicts "the highest tonnage of n.....s." He also told me about a case where prosecutors tampered with evidence to convict a man of arson and the two prosecutors involved went on to become judges who, as it happens, were highly resistant to defenses based on convictions obtained by torture. I would add that even as prosecutors, these men were well aware that confessions obtained by John Burge were suspect.

He told me about complaining to the AG (later a Lt Governor) that one particular man convicted of murder did not receive a fair trial--the response from the A.G.-- "Fair? A fair is medieval carnival."

A few years back, former IL Gov. George Ryan commuted Kitchen's death sentence and the death sentences of everyone on Illinois' death row. He also declared a moratorium on executions in Illinois. He probably did this for political reasons; he was himself about to be charged with corruption. But, the level of corruption that was being exposed--the number of wrongful murder convictions coming to light in Illinois-- was so great that the public turned against the death penalty here. You just don't hear Illinois citizens clamoring for executions anymore.

Posted by: Dr X | July 11, 2009 12:02 AM

Dudley Sharp, What steps are you taking to make sure Kitchen is truly punished, since according to you his release is a scam?

Posted by: TikiHead | July 11, 2009 4:18 PM

My opinion is that it is too dangerous to allow the state the authority to kill its citizens. Once we've agreed that the state holds this power in some circumstances, we're merely arguing when and how it can kill citizens. Far safer to establish that the state never has this authority. That way there's no chance the power can be abused.

Locking someone found guilty up in prison serves the purpose of preventing them from committing another crime against society. Judicial murder is nothing more than revenge.

Posted by: Ken in Tucson | July 11, 2009 7:10 PM

Dudley:

First, the "17%" is made up by applying a prosecutor's standard from cases in Florida and applying it to Illinois because ... um ... they just assert it would work.

This makes no sense.

Second, the 25 number:

"To be sure, 30 or 40 categorically innocent people have been released from death row . . . ".

That is out of the DPIC claimed 119 "exonerated", at that time, for a 75% error rate.

NOTE: It's hard to understand how an absolute can have a differential of 33%. I suggest the "to be sure" is, now, closer to 25.

In other words, the NY times quote is so vague as to be clearly useless, so I'll just make up another number out of nowhere and pretend that's a real value.

"25" is total bullshit.

As for legal vs factual innocence:

You're acting like
a) "Factual innocence" is easy and precise to prove.
b) "Factual innocence" is a good standard; there's a reason we don't pretend people are guilty until we prove beyond a reasonable doubt.
c) "Legal innocence" is meangingless.

(a) is silly. And it's applied in a poor manner. From the anti-DPIC study under #4 in your link, which gives 34 as actually innocent (more than the made up 25):

"“Actual innocence” does not include claims based on ... self defense."

During this time, another convicted murderer named Brian Dugan announced he was willing to confess to being the lone perpetrator of the Nicarico murder in return for immunity from the death penalty. Dugan himself had been sentenced to two life sentences for other sex related murders. A 1995 DNA test implicated Dugan in Nicarico’s murder, but excluded Cruz and Hernandez as actual perpetrators.

Hey, he was excluded from committing the murder by DNA evidence but may have been around, so he can't be innocent!

His retrial defense again impeached the eyewitness who identified Nieves with prior conflicting statements she had made, including that she had initially identified two thin black men and then a husky Hispanic. The witness denied identifying the assailant(s) as black men. Nieves is Hispanic, but not “husky.” Another witness testified that he saw a black man shoot McAiley, but this witness’ testimony was also rife with inconsistencies.

The only actual evidence they cite is completely useless - two eyewitnesses that are either wildly inconsitent or lying - leaving them with no demonstrated case at all, but they won't admit innocence.

Melendez’s conviction was based on the testimony of a friend John Berrien and of a David Falcon, who claimed Melendez confessed to him in jail...defense also impeached Falcon as a paid informant....Berrien partially recanted ... a long-forgotten transcript of a jailhouse confession by James. ... Apparently, according to this transcript, James had also confessed to a state investigator.

So, there was transcript evidence of someone else admitting to the murder and the only evidence the prosecution had was questionable and partially recanted testimony. James' accounts also conflicted, as it notes, but there is no actual evidence here.

(b):

appellate court reversed Giddens’ conviction for insufficient evidence, not actual innocence, because the testimony of his alleged accomplice was "replete with conflicts".

There are tons like this. In other words, we don't actually have evidence to prove he did it, so he's not actually innocent!

While true on one level, there's a reason we use reasonable doubt; many of the people listed under reasons like this are inevitably "actually innocent". To pretend none of them are is disingenuous in the extreme.

For (c), it's not like we're going, "Yay! Let's release random people by declaring them innocent!". Rights Matter.

And rights matter in terms of finding whether someone is actually guilty or not:

The court rejected the State’s arguments reconciling some of the conflicting accounts of the shooting, although only because the State had not raised these arguments until it was too late for the defense to challenge the State’s theory.

Johnston’s first conviction was ultimately reversed because of some problems with the hypnotized witness and the state’s failure to disclose evidence which may have helped Johnston with his defense. Prior to retrial, the court excluded incriminating statements Johnston made during his initial interrogation as well as incriminating evidence seized due to the interrogation.

2. Prosecutors shouldn't be able to hide evidence, or innocent people *will* go to jail.

Apart from possibly Jay C. Smith, whose case should have landed the prosecutor in jail (hiding evidence and taking money from journalists?), none of them struck me as clearly guilty and free on procedural reasons.

Moreover, look at the Ronald Kitchen case -

The evidence against him included a coerced confession and a jailhouse informant who was bribed by the police.

Informance with such conflicts of interest and confessions with quesitonable pedigree are fairly common themes in the anti-DPIC article. Furthermore, from an article about Kitchen:

But those tests revealed nothing incriminating against either defendant, and the office decided the evidence against Reeves and Kitchen was too weak to continue.

Nothing else is cited; the evidence seems to consist of nothing but a coerced confession and a bribed confession inconsistent with other evidence, and the prosecutors say ...

could not sustain our burden of proof

So the prosecutors will always fall back on the old "Not innocent but not enough evidence" even when "not enough" seems to indicate "none at all".

Posted by: strech | July 12, 2009 12:47 PM