The city of New London, Conn., narrowly (5 to 4) won the right last month from the Supreme Court to condemn a parcel of land in a distressed part of the town to make way for economic development. The ruling has generated a tsunami of objection and an effort in many states and localities to have its effects undone -- including, for spite, a quixotic attempt to condemn Justice David H. Souter's New Hampshire farmhouse and turn it into a hotel. Thank you. I'd prefer the Bates Motel.
At the same time, in a far different area of the law, authorities are wondering if two men long ago convicted of murder might be innocent. This has generated almost no interest, no nationwide protest movement, suggesting that in this country it is far easier for the government to wrongfully take a life than a parcel of run-down real estate. Is this a great country or what?
I do not mean to belittle property rights, since I am a homeowner myself. I merely want to point out that the most awesome and, historically, most worrisome power of government is not to take property but to take life. In Europe in the past century, this was done on such a vast scale that today no European country retains the death penalty. Government, it has been shown, cannot be trusted with it.
The American experience has been different and so the death penalty not only persists, but in Texas and some other states it downright flourishes. Still, pesky facts have cast a shadow over this sunny institution. Since 1973, 119 people have walked off death row, exonerated by DNA or evidence, according to the Death Penalty Information Center. Had the wheels of justice turned as swiftly as the hang 'em high crowd would have liked, some of those people would exist in memory only and we would console ourselves that they were probably guilty of something -- or why else would the cops have been on to them. The logic is fiercely circular.
Now, though, we have two such cases and they are worth pondering for a number of reasons. The first involves Olmado Hidalgo, a New York City man who was convicted 13 years ago of murder -- on what the district attorney's office now concedes was weak evidence. The authorities are not saying that Hidalgo is innocent. But to their credit, they are now saying that some new evidence has surfaced that gives everyone pause. Lucky for Hidalgo that he was not convicted in another state where justice is swifter -- if somewhat less certain.
The other case involves the late Larry Griffin, who was executed by Missouri in 1995 for a drive-by shooting. The main witness against him, now dead, turns out to have had a pliable memory and an ugly resume. He was a career criminal and drug addict who happened to be facing serious felony charges at the time. After he usefully turned witness to the murder, he got to walk. Lucky man.
Griffin may turn out to be the Holy Grail of the anti-death-penalty movement. For some time the search has been on for the person who was wrongly executed. Scholars have examined court records and isolated likely cases, but none of them provide irrefutable proof. Griffin is not likely to provide that either. But the "scholar" in his case is the St. Louis prosecuting attorney, Jennifer Joyce. At the urging of the NAACP, she has reopened the case. Strictly speaking, Griffin will never be proved innocent. He might, though, be shown to be not guilty. That, after all, is our standard.
Both the Griffin and Hidalgo cases are important for what they lack -- DNA evidence. In this, they are typical. The victims were both shot at a distance: no DNA evidence. This is often the case. In the average crime, there is no exchange of body fluids (as in rape) and no tissue under the victim's fingernails or anything like that. DNA testing has done wonders -- both in getting convictions and in exonerating the innocent. But it cannot be used where it is not a factor. For that reason, capital punishment remains fraught with the possibility of injustice.
A part of me cannot comprehend why conservatives or, especially, libertarians, cannot appreciate how "liberal" capital punishment is: government to the max. They ought to think of it as the possibly wrongful condemnation of a person -- the ultimate in eminent domain. Poor Hidalgo. Poor Griffin. If they were buildings, more people would care.