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A Conservative Looks Again
at the Death Penalty

Hugh McInnish

HughThe "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 innocent people.

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 of perfection?

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.


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