A Conservative Looks Again
at the Death Penalty
"claim that DNA evidence has proved hordes of prisoners 'innocent'
is just the latest gambit from a ferocious anti-death penalty lobby trying
to bamboozle the American people into thinking administration of capital
sentences is a crap shoot." So begins an article in the very conservative
journal Human Events.
I am not a member of the liberal lobby they're talking about. I can say
without fear of contradiction that I am one of the most hard-nosed-- some
might say stubborn-- conservatives around. My literate friends, of whom
there are one or two, say that I am "recalcitrant," and liberals
see me as the worst of pariahs. My conservative credentials are unassailable.
If there were a card to carry I would have it in my billfold.
But as ideological as I may be I still suffer the awful affliction of
being addicted to the facts, and facts that have showered down on me recently
have compelled me to look afresh at one of the tenets in my conservative
credo: capitol punishment.
Here is the situation. Science, in its inexorable push forward, has produced
this thing called DNA analysis. This, you will recall, is the technique
that proved O. J. Simpson a murderer and Bill Clinton a liar. But science
has no respect for ideology, and this same technique which has unequivocally
condemned two bad guys has also saved the lives of a number of apparently
A few numbers taken from an article by Carl Cannon in Bill Buckley's conservative
magazine National Review will put my concern in stark relief. Since The
Supreme Court reinstated capital punishment two decades ago we have executed
635 people and 3,652 are presently on Death Row. But since the recent
advent of DNA testing eight persons have had their capital-murder convictions
set aside through the use of that technology. That represents a prosecutorial
error rate of more than one percent of those executed and more than two-out-of-a-thousand
of those awaiting execution. Nor is that the whole of it. I don't know
what percentage of capital cases have DNA evidence available, but certainly
they are in the minority, with perhaps 25 percent being a high figure.
If, then, we make the reasonable assumption that the prosecutorial error
rate in non-DNA cases is the same as that for those with DNA, the error
rates just given would rise to six percent of those executed and almost
nine-out-of-a-thousand of those on Death Row.
These figures only suggest an idea of proportion, and I stop far short
of saying that they "prove" anything. I do say they beg the
question, Are we executing innocent people?
Since the death penalty has been reinstated, Illinois has executed 12
criminals. But during this same period it has cleared 13 people whom the
courts had condemned to death. The Governor of Illinois is George Ryan,
and in the face of these statistics he has suspended the death sentence
in his state. "Until I can be sure that everyone sentenced to death
in Illinois is truly guilty; until I can be sure, with moral certainty,
that no innocent man or woman is facing a lethal injection, no one will
meet that fate," he said. "I cannot support a system which,
in its administration, has proven so fraught with error and has come so
close to the ultimate nightmare, the state's taking of innocent life."
Governor Ryan is a Republican and is said to be conservative.
Cannon writes in particular about one of the Illinois cases. Four black
men had been convicted of abducting a white couple, then raping her and
killing them both. Two of the men were sentenced to death. However a group
of students at Northwestern University turned up evidence showing weakness
in the prosecution's star witness and public pressure forced the district
attorney's office to allow DNA testing. The tests eliminated all four
of the accused men as suspects.
I speak here only for myself. I say let's step back and re-evaluate the
death penalty. I emphatically do not believe that it is racist, or that
it is immoral in the case of heinous criminals, and I would hate to see
it abolished, but, as I have said, I am consistently drawn to facts, and
the facts here are compelling. The statistics before us suggest to me
a strong probability that government is executing, here and there, some
innocent people. If this happened only once in a century we might, or
might not, be willing to conclude that a single unintended execution of
an innocent was the regrettable price that had to be paid to deter crime.
But the price could be higher than that, as the facts given here suggest.
And, by the way, why should this surprise us conservatives. We frequently,
with justification, see government as a stumbling, bumbling, error-prone
enterprise, not infrequently riddled with corruption. If we're right in
that assessment, by what logic do we assume that that segment of government
responsible for administering justice stands alone as an exceptional example
I say, then, that a re-evaluation is needed. We conservatives, I need
remind nobody, are the champions of life. We abhor abortion, and we are
sickened by the government taking of innocent life, as at Waco and Ruby
Ridge. To be true to our principles we should be in the vanguard of those
calling for another look at capital punishment.
In doing so we immediately confront a test of our moral resolve, because
such a move will throw us, on this issue, into the camp of the demagogic
"civil rights" leaders Jesse Jackson and Al Sharpton, as well
as the infamous supreme Court Judge Harry Blackmun, author of Roe v. Wade.
But, after all, Hitler was an ardent anti-Communist, and this has never
caused any of us to become pro-Communist. We must not allow the silly
arguments of the bleeding-heart liberals or our legitimate anger at criminals
to blind us to facts that we wish were not there. As always we must do
what is right regardless of who agrees or disagrees with us.
At this point I do not say do away with capital punishment, I just say
let's take a fresh look at the issue. And I say further that we conservatives
ought to lead the way.
Hugh McInnish is a former candidate
for the U. S. Congress, and, with his wife as his alternate, will be a
delegate to the Republican National Convention in Philadelphia this summer.