On Executing the Innocent

I heard a most interesting interview on the radio this week with a guy from the Innocence Network, which is a group of organizations that work to exonerate individuals who have been wrongly convicted of crimes. As forensic science advances, it becomes possible to conduct tests on evidence that might not have been possible when the evidence was collected and the trial was held. If you can show that the DNA from a rape or murder does not match that of the convicted person then it is often possible to have the conviction thrown out, and the person can be freed.

It's bad enough when somebody spends years in prison for something they didn't do, but you really have to focus on cases where the guy has been executed. You can free a prisoner but once they've been put to death there is no apology that can correct the mistake.

ICM News is a British site generally aimed at commercial and business development managers. They have a good story about the problem.

The US death penalty has been brought into question following the release of a man wrongly imprisoned for 35 years. This brings the total number of exonerations to 140 since 1973 – 10 of which occurred this year.

The issue has been highlighted by the case of US citizen James Bain, who was charged with the kidnap and rape of a nine-year-old boy when he was just 19. Throughout his imprisonment Bain protested his innocence and now, aged 54, he has been cleared and set free following new DNA proof.

Washington’s Death Penalty Information Center (DPIC) has released its 2009 year-end report, which has revealed the number of people sentenced to death in the US has fallen considerably over the last few years – in 2009 there were 106 death sentences, compared with 328 in 1994.

Sadly, one possible reason for the drop in executions is the current economic crisis – for example, the cost of just one execution in Maryland is US$37 million (£23m). According to the DPIC, 11 states have considered abolishing the death sentence because of the high costs involved. US death penalty brought into question

Does anybody know why it costs thirty seven million bucks to kill a guy? I wonder how many people the government would execute if it was cheaper.

You can imagine a world where everything everyone did was recorded, and there was never an error in evidence or testimony. This would bring the wrongful conviction rate to zero, but would you want to live in a world like that? Every time you spit on the sidewalk the cops would come out and write you a citation. Oh, I know, you don't spit on sidewalks, I didn't mean you. You'd get a ticket for going twenty-six in a twenty-five zone, for crossing against the Don't Walk light, I'm sorry but I am not virtuous enough to wish for a world like that.

Instead of that, we wait until after a crime has been committed and then try to see if we can prove who did it, looking back at shreds of evidence including eyewitness testimony. And then we present that to a jury of the defendant's peers, roughly speaking, at least some randomly picked, hopefully unbiased citizens. They listen to the arguments on both sides and then decide whether the person is guilty or innocent.

So in the end, this is a process of social judgment, jurors look at all kinds of cues besides the evidence. I was on a jury once where a young black guy was charged with throwing a bag of dope on the ground as the police chased him, and as soon as we went into the jury room one lady said, "I'm a nurse and I see this all the time, he's guilty as can be." And I am not complaining, this human aspect of the jury also introduces the element of empathy. Sometimes a guy has technically broken the law but does not deserve to be punished.

I've been pointing out lately that science is a kind of social judgment process, based on peer review. Government, too, is founded on the principle of social judgment, the community elects the leaders of government in a pure moment of social judgment, putting a checkmark next to the name of the person they like the best. Law, too, depends on a special kind of social judgment, a judge or a jury evaluates the evidence and decides, maybe for the wrong reasons. All of these processes are known to be flawed, but they're the best anybody can think of. You sure wouldn't want a computer program deciding who should run the government, what scientific finding is significant, who is guilty or innocent.

American prisons are overflowing with people, we are a society that believes in punishment. There is no such thing as a politician being "too hard on crime." The bad guys in our movies are always ugly and evil to the core. We actually declared war on a whole country a few years ago because they belonged to an "axis of evil," we allowed our President to reason from that assertion to a declaration of a war that has no enemy but the people of the country, because they are evil. We don't think well about these things, let me say.

In the case of the recently-freed James Bain, the Innocence Project of Florida (IPF) helped secure his release. Bain had previously submitted handwritten motions four times requesting DNA testing, but he was denied each time. An appeals court overturned the denial of his fifth appeal.

Bain, having been imprisoned for 35 years, had missed much of life’s advances. He used a cell (mobile) phone for the first time in his life, and told CNN: “I’m not upset [about what happened] because I understand what took place. I always had God on my side.”

Sometimes you need more than that.