A Killer Issue
Republicans like Rick Perry are skeptical of everything the government does—except when it executes people.
So grievous are the doubts about Davis' guilt in this murder that William Sessions, the FBI director under Reagan, George H.W. Bush and Clinton, wrote an editorial today arguing that Davis should not be executed next week because "serious questions about Davis' guilt, highlighted by witness recantations, allegations of police coercion, and a lack of relevant physical evidence, continue to plague his conviction." Former U.S. Rep. Bob Barr has similarly written that "even for death penalty supporters such as myself, the level of doubt inherent in this case is troubling."
It's unlikely any of this will matter. Allowing a possibly innocent man to die will be cast to the cheering crowds as the system "working." If people are dying, it seems, the system is always working.
Of course the problem is that when it comes to the American criminal justice system, the word "broken" is an understatement. Brandon Garrett's extraordinary book, Convicting the Innocent, (it was excerpted in Slate) makes abundantly clear that a system frequently predicated on bad evidence—including faulty eyewitness identifications, dubious forensic science, and coerced confessions—produces error at staggering rates. This isn't a system that suffers from the occasional "Oops!" Garrett and others have shown that there are pervasive and systemic elements of the criminal justice system that lead to innocent convictions. Of the 250 exonerations studied by Garrett, some 17 were capital cases.
Twelve death-row inmates have been exonerated in Texas alone since 1973. These are mainly innocent people who would have been executed but for the intervention of the Innocence Project, obsessive-compulsive reporters and paid private investigators, all of whom worked outside "the system" to bring injustice to light. These outsiders prove, with every passing year, that the system is riddled with flaws.
Anthony Graves was exonerated in Texas in 2010 for murders he did not commit, after spending 14 years on death row and as a result of what was described as the "worst" prosecutorial misconduct the special prosecutor assigned to his case had ever seen. The misconduct that led to Graves' conviction was unearthed though years of work by the state Innocence Project and a journalism class. Yet when Graves was finally freed, Perry claimed that "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."
His phrasing is more revealing than he knows. "We" have a system. "You" find the errors. Now get out there and start looking, people!
The exonerations are not just in Texas but nationwide, and they reflect the pathology of a broken system, not the wonders of a system with the capacity to self-correct. When Rick Perry is claiming that the system "works," he is either suggesting that it is without flaw or that when it comes to African-Americans or criminals, a few mistakenly executed innocents are an acceptable price to pay.
If you believe, as do the GOP presidential frontrunners, that government bureaucracies lead inexorably to error, cover-up, and waste, then there is no better place to start looking than the capital punishment system, which sentences and executes defendants in ways that are sloppy, racist, and corrupt. At any rate, a government bureaucracy that oversees education or health care deserves a far higher degree of regard—and far less sneering scrutiny—than a government bureaucracy that administers careless death.
Dahlia Lithwick writes about the courts and the law for Slate.