Death penalty: How can Republicans like Rick Perry be so skeptical of government yet so committed to capital punishment?

The law, lawyers, and the court.
Sept. 15 2011 7:10 PM

A Killer Issue

Republicans like Rick Perry are skeptical of everything the government does—except when it executes people.

Duane Edward Buck is set to be executed in Texas, Sept. 15, 2011.

Either you believe in government or you don't.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

The current field of Republican contenders for president are hard at work to prove they don't. The best government, they insist, will leave you alone to repair your own ruptured kidney while your neighbors bring you casseroles and cigarettes. In recent weeks, leading Republicans have made plain they don't believe in government-run health care (lo, even unto death). They don't believe in inoculating children again HPV (lo, even unto death). They don't believe in government-run disaster relief (ditto, re death), the minimum wage, Social Security, or the Federal Reserve. There is nothing, it seems—from protecting civil rights to safeguarding the environment—that big government bureaucracies can't foul up.

But there is one exception: killing people. These same Republicans who are dubious of government's ability to do anything right have an apparently bottomless faith in the capital-justice system. Everything is broken in America, they claim—except the machinery of death.

At last week's Republican debate, when asked whether he had ever lost sleep about the record number of executions that have occurred on his watch, Texas Gov. Rick Perry answered no. (The crowd whooped and cheered. Better in error than in doubt and all that.) "I've never struggled with that at all. The state of Texas has a very thoughtful, a very clear process in place," Perry said. "When someone commits the most heinous of crimes against our citizens, they get a fair hearing, they go through an appellate process, they go up to the Supreme Court of the United States if that's required."

Perry's confidence in the infallibility of Texas' capital punishment system would be inspiring were it not for the empirical evidence. Of the 234 people executed in his 11-year tenure, Texas' "thoughtful, clear process" resulted in what was almost certainly the execution of at least one innocent man—Cameron Todd Willingham—based on "expert" arson evidence that was complete junk, an informant who recanted his testimony, and a forensic psychiatrist who diagnosed Willingham based chiefly on his possession of an Iron Maiden poster.

Oh, and when Texas' "thoughtful, clear process" for capital punishment created a commission to investigate flawed arson science used in criminal trials, Perry scuppered its work by removing and replacing three members, just as the commission was preparing to announce that the Willingham case had been tainted by error.

Another sign of the Texas system "working" was the execution last July of Humberto Leal Garcia, a Mexican national. Garcia was denied access to the Mexican consulate when he was arrested, as guaranteed by the Vienna Conventions. But Perry declined to spare him, even over the objections of the Mexican government, the Obama administration, and the International Court of Justice. It seems the system works wonderfully if you just ignore the law.

And, presumably, the system will be "working" again Thursday night, when Perry allows Duane Edward Buck to die, despite an unconstitutional racial taint at his sentencing hearing. (Update, Sept. 15, 10:48 p.m.: On Thursday night the United States Supreme Court stayed the execution of Buck so it could review an appeal in his case.) Buck, 48, shot his former girlfriend and her male friend in 1995. That is not in dispute. But at the sentencing phase of his trial, when the jury was to determine whether he should spend his life in prison or die by lethal injection, another so-called "expert witness," Dr. Walter Quijano, testified that Buck's "future dangerousness" was heightened because he was black.

Sen. John Cornyn of Texas, state attorney general at the time, was well aware that using race as a basis of predicting future criminality was erroneous, and tracked down all of the cases in which death sentences were based on the racially tainted testimony. He argued to the U.S. Supreme Court that the use of race as a factor in determining life or death is improper. As Cornyn said at the time, "The people of Texas want and deserve a system that affords the same fairness to everyone. I will continue to do everything I can to assure Texans of our commitment to an equitable criminal justice system." Yet of the six cases in which Quijano had submitted racially biased testimony, only five were retried. Buck's was not.

And when you hear Republicans moan about the bureaucratic burdens and failures of government-run education, health care, and disaster-relief systems, doesn't any part of you wonder why they have such boundless confidence in the capital justice system that stands poised to execute Troy Davis next week in Georgia? Unlike Buck, Troy Davis has a claim of actual innocence in the death of off-duty policeman Mark MacPhail. Since his conviction, more than 20 years ago, seven of the nine nonpolice witnesses against Davis have recanted their testimony, claiming they were coerced or intimidated by the police. There is no physical evidence tying Davis to the crime.

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.

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