No Bad Executions?

Tuesday, July 4, 2006

IN HIS INTEMPERATE concurrence to a decision on capital punishment last week, Justice Antonin Scalia made a remarkable claim: "One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. . . . But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum." Justice Scalia sneered that those "ideologically driven to ferret out and proclaim a mistaken modern execution" have been unable to find "a single verifiable case to point to."

The justice's remark could not have been more ill-timed. It came in the midst of a remarkable series by the Chicago Tribune casting grave doubt on the guilt of a man executed in Texas in 1989, Carlos De Luna. The state executed Mr. De Luna for the stabbing death of a gas station clerk in 1983, and the condemned went to his death proclaiming his innocence. From the beginning, he named an acquaintance, Carlos Hernandez, as the killer. According to the Tribune, friends and family of Mr. Hernandez, a violent felon who died in prison in 1999, have now come forward to say he boasted of the crime and of letting Mr. De Luna take the fall for it. The Tribune's investigation calls into question the eyewitness evidence presented at trial. It shows how leads concerning Mr. Hernandez were not followed up.

Mr. De Luna's case is far from the only one of its kind. Only last year the Houston Chronicle detailed the case of Ruben Cantu, executed over a decade earlier for a murder and robbery back in 1984. The lone eyewitness, who was shot repeatedly during the crime but lived to identify Mr. Cantu, says he was pressured to do so. Mr. Cantu's co-defendant claims he committed the robbery with someone else. The Tribune had earlier revisited the case of Cameron Todd Willingham, executed in Texas more recently for setting fire to his home and thereby murdering his children. The science in the case was obsolete; it isn't even clear the fire was caused by arson. Then there's the case of Larry Griffin, executed in Missouri in 1995; prosecutors there are no longer convinced they got the right man and have reopened the matter.

Justice Scalia is correct that innocence has not been -- and probably can never be -- proven in these cases. There is no DNA to test, after all. What's more, as Justice Scalia notes, the Virginia case of Roger Keith Coleman -- whose posthumous DNA testing finally confirmed his long-disputed guilt -- shows that caution is appropriate in proclaiming any convict's innocence. Still, it seems highly unlikely that all of these convictions are solid. We hope never to see convincing evidence that an innocent person has been put to death. Avoiding that unthinkable likelihood is one reason capital punishment should end.

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