Sunday, July 28, 2013

(No.242) Executing the innocent as well as the guilty


" Executing the innocent as well as the guilty:
the death penalty as a punishment when errors cannot be remedied"

by Alastair Rickard


When I was a high school student I took part in a formal debate about capital punishment. I was on a team which opposed the imposition of the death penalty. My personal view was also against it.

I still am opposed to the death penalty but mainly today for a different reason than in that long ago debate. The use of the death penalty cannot be defended rationally; the error rate for conviction of capital crimes -- specifically in the U.S. but also Canada -- is too high.

Perhaps I would not today object to the death penalty per se as punishment for premeditated murder if society could be sure of the guilt of the convicted person to be executed -- but it cannot. Too few murderers are as certain candidates for execution as, say, Clifford Olson or Paul Bernardo. Therefore I am today still opposed to the death penalty

The reasons society cannot and should not impose the death penalty on convicted defendants include corrupt and faulty police practises in some cases, defective and/or  invalid forensic evidence, prosecutors more interested in a 'win' than in ensuring that justice is done, inadequate defence counsel for the accused, (in the U.S.) judges up for re-election, 'expert witness' testimony for the prosecution based on junk science (e.g., bite marks), false eyewitness testimony (a notoriously unreliable source), etc etc.

In the United States the Innocence Project recently celebrated the exoneration of the 200th inmate, 143 of whom were on death row awaiting execution. The availability in recent years of DNA evidence has been a major factor.

The magnitude of the challenge for the 35 organizations who are part of the "Innocence Network" is indicated by the fact that at the end of 2011 there were 3,082 persons on death row in the U.S. In both 2011 and 2012 43 executions took place, down from the peak of 98 in 1999.

Perhaps 60% of the U.S. public continue to favour the death penalty and, since its restoration to a part in the legal system by the U.S. Supreme Court after a four year hiatus, executions have resumed led by four states: Texas, Florida, California and Arizona. This quartet accounts for half of all inmates sentenced to death.

Many Americans oppose the death penalty, some of them for the same reason that I do -- the risk and the reality of the execution of people innocent of the crimes for which they have been convicted and sentenced to die. There are those -- including U.S. Supreme Court Justice Antonin Scalia -- who deny, in the face of evidence to the contrary, that innocent people are executed after being processed by the U.S. justice system.

This pro-death penalty support in the face of the evidence from the work of the Innocence Project and other such efforts is irrational to say the least. It is all the more so when one reads the views of various people close to the process. For example, Rev. Carroll Pickett the death house chaplain for 16 years in Texas who accompanied 95 people to the execution chamber.

We in Canada have nothing to feel smug about in comparison with our American neighbours. While Canada has not executed anyone since Arthur Lucas and Ronald Turpin were hanged back to back at the Don Jail in Toronto in 1962, we limped along with no end in law to the death penalty until 1976 for civilians and 1998 for the military.

Indeed so strong was and continues to be Canadian public opinion in support of restoring the death penalty (at least 61% in 1987 and 62% in 2009) that while a 1987 free vote in the House of Commons to restore the death penalty failed, it was not defeated by a huge vote (148 to 127).

Had Canada retained the active use of the death penalty after 1962 one thinks of the many wrongfully convicted Canadians who would almost certainly have been executed but who were instead still alive in prison when their innocence was established. Just a few examples: David Milgaard, Donald Marshall, Thomas Sophonow, Guy Paul Morin and William Mullins-Johnson among many others.

Anyone who supports the death penalty because of a belief in the infallibility in death penalty cases of either the American or Canadian justice systems is naive or uninformed or both.

Before their hanging in 1962 Turpin and Lucas were told they would likely be the last people hanged in Canada, to which Turpin responded "Some consolation".

Just so.

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