Punishment Crisis

America's Capital Punishment Crisis

As governor, I oversaw the execution of 19 murderers. But now the death penalty is making me queasy.

By MARK WHITE

In 1990, when I was campaigning to take back the Texas governor’s mansion four years after I was unseated, I ran an ad I now regret. In it, I walked in front of blown-up photographs of 19 men who had been executed on my watch. “Only a governor can make executions happen,” I told the camera. “I did. And I will.”

I still believe that every one of those 19 men was guilty of a heinous crime and deserved to die. One had killed his son on Halloween in 1974 with cyanide-laced candy in order to claim $20,000 in life insurance. Another had repeatedly raped a minister’s wife before strangling her to death with a microphone cord.

I also commuted other death sentences, usually on the recommendation of the local district attorney. I relied on my experience both as attorney general and as a lawyer in private practice to inform my judgments, and I spent hours poring over every case. The details of each were different, as were the reasons I let the execution orders stand, but none of the 19 who were executed ever proclaimed their innocence.

At that time, executions were conducted shortly after midnight, and on the night of each execution, I made sure I had a direct phone line to the death chamber in Huntsville so that if any last-minute issues arose, we could act. Oftentimes, I would walk outside the Capitol to speak to the protesters who assembled before each execution. Some called me a murderer, no better than the criminal who had just died. Others wanted to know why it took so long for justice to be served. Not only was I convinced of the guilt of each man, I would tell them, but I believed our criminal justice system delivered fair sentences and could humanely carry out the ultimate punishment.

Today, I’m not so sure. As I’ve watched how the death penalty has been administered over the years, both in Texas and around the country, it has become increasingly clear to me that we just don’t do a good job at any phase of the process, from ensuring that capital trials are fair to the actual handling of executions themselves. Anyone who watched with horror last week as Oklahoma botched the execution of Clayton Lockett—so badly that corrections officers drew the curtain so that the public didn’t have to watch the gruesome spectacle—would have to agree.

While I still believe that some crimes are so heinous that society is morally justified in demanding the perpetrator’s life be forfeited, we now have incontrovertible evidence that America’s criminal justice system does a poor job of determining who deserves the death penalty. Scores of people have been released from death row after evidence of their innocence emerged, including 12 from my home state of Texas. Particularly with the introduction of DNA testing, it has become increasingly clear that human error, even when prosecutors, judges and jurors all operate in good faith, is all too pervasive.

And we now know with near certainty that innocent people have been put to death. For example, Texas in 2004 executed Cameron Todd Willingham, who was convicted of the murder of his three children by arson. Experts have now concluded that the original investigation in his case was seriously flawed and did not prove that that arson even took place. And just this year, it was discovered that Willingham’s prosecutor made a deal with a jailhouse informant in exchange for his testimony that Willingham had confessed the murder to him—a deal the prosecutor never disclosed to the defense at trial.

Similarly, DNA tests conducted in 2010, in conjunction with a key witness recanting his testimony, raised serious doubts that Texas death row inmate Claude Jones committed the murder for which he was convicted. Jones was executed in 2000.

While it’s impossible to know precisely how many innocent people face capital punishment today, a recent study by the National Academy of Sciences estimated that 4.1 percent of inmates sentenced to die are innocent. With more than 3,000 people on death row nationwide, even that conservative estimate means dozens are facing execution for crimes they didn’t commit.

Why does America’s criminal justice system continue to convict and execute innocent people? Eyewitness accounts, long considered the gold standard in criminal jurisprudence, have proven to be unreliable. Many defendants are represented by lawyers who are completely unprepared to handle death-penalty cases, and too often, courts have been either unable or unwilling to re-examine cases in which defendants were not provided with adequate representation.

Even forensic science is riddled with error, despite what many Americans believe from watching CSI. In fact, 50 of the first 225 wrongful convictions overturned by DNA testing involved unproven or improper forensic science, according to research compiled by the Innocence Project, and the Department of Justice and the National Institute of Standards have now formed a new commission to develop standards for improving forensic science.

Finally, even when we are convinced of the guilt of an individual, our system often fails to carry out the sentence humanely. Lockett’s execution in Oklahoma last week was just the latest chapter in the human experimentation many states are now practicing as they race to execute inmates with secret, untested drugs. A minute-by-minute account of the bungled procedure released by the state’s Department of Corrections suggests Lockett was conscious and writhing in pain for more than 30 minutes before state officials called off the execution because “his vein exploded.” He died of an apparent heart attack 10 minutes later.

Unfortunately, Lockett’s case was not unique. In January, a similar scene was reported in Ohio during the execution of Dennis McGuire. As a growing number of manufacturers refuse to permit the use of their products to kill people, many states are obtaining drugs that were never intended to be used for executions. State officials then hide their sources from the public and hope through trial and error to hit on a deadly concoction that might work. The horrific outcomes in Ohio and Oklahoma were the inevitable result of such a flawed process, and unless major reforms are instituted, one we will see repeated in state after state.

I began speaking out about the death penalty several years ago. The Constitution Project, a bipartisan legal watchdog group based in Washington, D.C., asked me to join its death penalty committee as a sort of devil’s advocate, a death penalty supporter who had presided over 19 executions and still believed in the basic sound functioning of the process. However, as I began digging into the issue and working with advocates on both sides of the debate, I found that the problems were far greater than I had ever realized. I still support the death penalty in some cases, but regardless of guilt or innocence, we have an obligation to ensure that our system is fair—a mark from which we fall woefully short when it comes to capital punishment.

On Wednesday, I will join Mark Earley, the former Republican attorney general of Virginia, in releasing a comprehensive, bipartisan report that examines every facet of the administration of the death penalty in the United States—from investigation to trial to execution—and makes a set of sweeping recommendations for reform. It is my hope that these recommendations will prevent the taking of further innocent life.

I know I’m not alone in how my views have evolved. Over the past few years, we’ve seen a marked change in public opinion about the death penalty in the United States.

According to the nonpartisan Pew Research Center, support for capital punishment has fallen from a high of 78 percent in 1996 to just 55 percent last year. Apparently, the more Americans see of the way the death penalty is carried out, the less they like it. In many cases, however, our leaders remain dug into their positions, unwilling to look at even commonsense reforms that would improve the reliability of our criminal justice system.

As someone who has personally faced the momentous decision of whether to allow a person to be executed, I hope that is about to change. Human life is too precious, and human error too prevalent, to continue to gamble with a system that we know is so flawed.