O. Ricardo Pimentel
The question for the state House candidates during a recent Editorial Board meeting involved Texas’ death penalty — whether they support it.
I paraphrase. Ina Minjarez, a former prosecutor, said that the justice system has its flaws, but, yes, she supports the death penalty.
I don’t mean to pick on her. Texas candidates for the death penalty are as ubiquitous as cheese on Tex-Mex. And whoever is elected will make a perfectly fine representative, whether it is Minjarez or her opponent, Delicia Herrera. But Minjarez’s wording was distressingly familiar.
Flawed? How much less than perfect is tolerable in a system that imposes a sanction that, once executed, cannot be walked back from? “Executed” being the exact right word there.
About 1,400 people have been executed since 1976 in the United States. There were, as of recently, 3,035 people on death row. And there have been, since 1973, at least 150 exonerations from death rows. Texas comes in third among the states, with 12.
So, given the number of exonerations, what do we suppose are the chances that nary another innocent person is left on a death row somewhere to wait for the needle and slow death? And once you answer that question — truthfully — how do you answer the next one?
Just how much collateral damage is acceptable?
You see, these days, if you haven’t reached the conclusion that unjustly convicted people have been executed and that no amount of improvement will remove human flaw from the system, you haven’t been paying attention to the system, humans or current events.
The flaws are common knowledge. So it’s difficult to avoid the conclusion that a lot of folks are pretty much OK with the execution of innocent people — as long as the overwhelming majority killed by the states really are monsters.
Two Texas cases in particular trouble me. One is the now infamous case of Cameron Todd Willingham, executed in 2004. He was convicted in the arson deaths of his three daughters on evidence that, it is now abundantly clear, was fictional or flawed. The forensic evidence pretty much points to no arson at all. A jailhouse witness to Willingham’s alleged confession recanted, but this was kept from the defense. And that witness, it appears, was given a deal for his testimony and, he says, was coerced — this, too, kept from the defense.
Others have a longer list of men wrongfully executed, Texas figuring prominently. Besides Willingham, I call your attention to Carlos DeLuna, executed by Texas in 1989 for the stabbing death of a convenience store clerk in Houston. It seems clear that another Carlos committed the crime.
Right; due process has been followed. OK, but the evidence should have at least prompted new trials as a matter of justice. The system, of course, tends to cling to legality — due process. That is not the same thing as justice.
But why tippy-toe? Of course innocent people have been executed. This doesn’t require much of a leap, particularly with Willingham. There is, by the way, a proposal, by Democratic Sen. Eddie Lucio Jr. of Brownsville, for a constitutional amendment to ban the death penalty in Texas.
I recently asked a couple of statistician friends whether there is a rule in their field that says if something happens often enough, it’s certain to happen again. No, there are just too many variables. And I’m still certain that innocent people will be executed as long as there is a death penalty because of a few of those variables — human error and prosecutors’ desire to win.
A couple of societal currents also intrude. Capital punishment exists because of an illusory belief that it guarantees safety — and, if we’re honest, because we crave eye-for-an-eye retribution. So we continue to tweak in pursuit of something else illusory — a system with no errors.
Later, one of my friends shared a joke, inadvertently on point: Three statisticians go hunting. One shoots and misses the deer by 3 feet to the left. The other shoots and misses 3 feet to the right. The third guy exclaims, “We got it!” Substitute any profession that operates with plus or minus margins of error.
Dear candidates and sundry elected officials: As you cannot logically guarantee perfection in our police and courts, I hope margin of error and due process are enough of a security blanket for you when it comes to the death penalty.
Personally, I find it flimsy covering.