Conservatives should ditch the death penalty

Over at National Review today, John Lott Jr., Mr. More Guns Less Crime himself, has breezily refuted the brewing backlash against the death penalty which was provoked by the botched Oklahoma execution of Clayton Lockett on April 29.

Yesterday, Jonah Goldberg defended the practice as well. Yet it’s not just National Review suddenly in the mood to fight for the good name of capital punishment. Conservatives — with a few commendable exceptions — seem keen to do so now more than ever, perhaps because both President Obama and Attorney General Eric Holder chimed in on the Lockett execution; perhaps, because the backlash seems to be strong.

Lott identified some common disagreements with the death penalty before barreling right through them. He noted that the decline in the support for the death penalty — though 81 percent of Republicans are still fans — means nothing, because its peak in 1994 was also the peak crime rate in the US.

But that goes both ways. As much as Lott might prefer to think that the death penalty must have played a hand in declining crime rates, people are malleable and the higher the national crime rate, the more likely they would support “tough on crime” measures like the death penalty. They also supported drug war hysteria during that time, and are only now starting to cool off. Let us not let the Gallup mob decide issues of morality just yet.

Next, Lott dismisses allegations of racial disparity in death sentences. Let’s just agree with him that who is put to death for capital murder and who isn’t has always been complicated and based on at least more than race. But it’s also damned certain that depending on state, the same capital murder could get lead to life or death of the convicted. That alone should give us pause.

Now here’s the big question: what about innocent people being executed? Nah, says Lott, there’s only a 0.3 error rate in capital punishment, according to the Innocence Project. This figure bizarrely only references the 18 prisoners who escaped death row thanks to DNA evidence. Why doesn’t he mention the 126 other individuals freed from death row? Is it because Lott holds some doubt as to their true innocence?

To imply that without DNA an exoneration doesn’t count is bizarre. There have been 17,000 executions in the geographical United States since the days of the Pilgrims. It’s safe to say that more than 18 of those people were innocent — hell, more than 18 of them were innocent of witchcraft.

And Lott ignores a recent student from the National Academy of Sciences that suggested that a 4.1 percent rate of innocence in death penalty convictions was “conservative.” Is that sufficient enough to give Lott pause?

This brings us to one of the more unnerving flaws of modern conservatives — their abiding faith in the justice system. (Their other, related one is faith in war.) Back in National Review, Jonah Goldberg writes, “As far as I’m concerned, Lockett deserved to die for what he did. Everything else amounts to changing the subject, and it won’t convince me otherwise.”

It sure sounds like Lockett deserved it, in a moral, even vaguely cosmic sense. The man was a rapist, kidnapper, murderer who helped bury a woman alive. When you read details of his crime, it feels like Lockett got off easy with only a lethal injection-caused heart attack. But Lockett and his unfortunate demise and more unfortunate life is merely the vehicle for discussing the practice of legally putting someone to death in America.

No doubt, Boston bomber Dzhokhar Tsarnaev, whose guilt is not in doubt by anyone except his lawyers will be another excuse. And since Tsarnaev is a terrorist, conservatives will be satisfied if his death is as slow as possible.

Is this what we’re going to do, crow about the McVeighs and the Tsarnaeves and forget about, the 144 individuals exonerated from death row since 1977? It’s certainly much more comfortable for supporters of the death penalty to refrain from mentioning folks like Cameron Todd Willingham.

But most people besides Texas Gov. Rick Perry, who declined to grant Willingham a reprieve in 2004 now believe the man was innocent. In 2009, The New Yorker reported in grim detail the mounting evidence that Willingham had not intentionally set a fire that killed his three children in 1991. Perhaps more important is the compelling case made about the completely unscientific beliefs of many arson investigators, particularly back when Willingham was first convicted.

Only a small number of murders leave DNA evidence. Few leave any forensic evidence at all. And much of that science, arson analysis, bitemark analysis, or using fingerprints or hair follicles, is rife with error. Even DNA itself doesn’t solve everything in a court of law.

Eyewitness accounts, too, are notoriously flexible — they have played a factor in half of all exonerations. (This also helped kill Willingham — witnesses began to shift their impression of his demeanor on the day of the fire once they realized police had begun investigating him on criminal charges). If we learned anything from the Satanic sexual abuse hysteria of the 1980s and 1990s it’s that enthusiastic police and prosecutors can make up crimes up out of thin air if they press the right buttons.

We think we’re that far advanced from “spectral evidence” convicting people of witchcraft, but we accepted it in sexual abuse cases that sent people to prison for decades. And Willingham’s “arson experts” were basically telling folk tales about how fires began. We think our science is good now, but is it life and death good? And will we still think so in 10 or 50 years? It’s doubtful.

Do conservatives know this? Is there any reason to think that conservatives aren’t just as susceptible to the Law and Order effect of making crime-fighting look all too easy as are liberals?

In his column, Goldberg makes a commendable stab at saying even one innocent person executed is “outrageous.” But then he concludes, well, that just means we must do better next time. Besides, anything other than Lockett deserved it is “changing the subject.”

Sure, he was a bad man, providing he did all that was said. But in the policy picture, does that matter? The badness of individual men does not answer any other questions about a policy of people being put to death.

Considering how poorly the state does at every other endeavor it undertakes, it’s continually baffling how many supposedly skeptical conservatives support its ability and right to kill. It’s not about Lockett. It’s about making a mistake that can’t be undone. That mistake was made at least once already. That’s enough.


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