A visitor writes to express disagreement
with my claim, on this site and elsewhere, that the most compelling argument against the death penalty is the inevitable execution
of the innocent:
“Take Ruben Cantu, for instance, who was executed in 1993. Tell any representative group of Texans there
is strong evidence Mr. Cantu did not commit the murder for which he was executed and it seems there will be at least one who
will point to his gang activity and say, ‘Yeah, well, maybe he didn't do this murder, but he did plenty of other bad things
so he got what he deserved.’ . . . Even if you convince some folks to be
horrified (as you and I are) that their government is killing innocent people, the institutions that support capital punishment
(prosecutors, the prison system, victims rights groups, etc.) will make meaningless rhetorical adjustments and claim that
they have fixed the problem and carry on with the killing.”
It may be, as the visitor implies, that
many supporters of capital punishment simply accept the execution of the innocent as an acceptable price to pay for what
they consider the benefits of state-sanctioned killing. However, I doubt that these people will be any more persuaded by the
other arguments against capital punishment.
"Minnesota, Texas and Virginia have each founded powerful oversight boards
in the last two years that can investigate misconduct in crime labs. But not one of the new boards has yet reopened a case
-- either because they have refused to do so or because they haven't been funded."
In a Washington Post op-ed, Anne
Applebaum notes that the universal distrust of Sheik Khalid Mohammed’s confession is the price we pay for engaging in torture:
people will not trust information obtained through blatantly coercive means. If only everyone realized that modern interrogation
techniques, utilizing psychological manipulation more than physical abuse, also produce unreliable results.
Conservative columnist John Podhoretz writes of Mohammed's Confession: "there is reason to doubt every word this man
says, incuding his claims of responsibility for anything any everything." Podhoretz notes that Mohammed "might be a psychotic
megalomaniac with delusions of grandeur. Or he might be shouldering blame to deflect it from others still in detention."
Quite so. In addition, Mohammed has been subject to waterboarding and God knows what else. He may have
confessed to things he didn't do for the same reason many suspects do: subtle and non-subtle coercive interrogative
techniques drive them to conclude that they are better off doing so. But I rejoice at Podhoretz' analysis. The recognition
that confessions (whether by average suspects or infamous terrorists) cannot be taken at face value is extremely important.
A Japanese newspaper last month noted
“the presiding judge’s scathing criticism of the reliability of police and prosecutors’ records of their confessions, has
highlighted the lingering tendency of investigators to place too much emphasis on extracting confessions from suspects.”
Last month the U.S. Court of Appeals
for the Seventh Circuit dismissed concern that an interrogator’s promise to help the suspect with his immigration status could
have induced a false confession. The Court said that so long as the offer to assist is “not an outright and material lie,”
it isn’t problematic. This is the law in most jurisdictions, but it ignores the obvious fact that truthful offers of assistance,
no less than false ones, can lead a suspect to conclude that he is better off confessing.
Last month a court in Delaware
dismissed a claim by a Home Depot employee that he was discharged after store managers coerced him into a false confession
that he used sexually abusive and inflammatory language in the men’s room. The dismissal was based on a technicality, but
the case serves as a reminder that many corporations have adopted the police interrogation tactics known to produce false
confessions. Even as we learn more about the causes of false confessions, and take some measures to guard against them (especially
more and more police departments videotaping interrogations), false confessions are bound to increase.
Last week a court of appeals in Georgia
rejected a defendant’s argument that a trial judge erred in refusing to allow testimony from a false confessions expert.The court of appeals asserted that “the false confession theory” is “not reliable
and has not yet reached a verifiable stage of scientific certainty.” False confessions are not theory but fact, as suggested
by the 2004 study of 125 proven false confessions.Presumably the court meant
that explanations of the causes of false confessions remain insufficiently grounded to justify expert testimony. But if the
standard is “scientific certainty,” virtually no expert on any subject is qualified to testify. In the case of false confessions,
there has been extensive research on (among other things) how modern interrogation techniques cause false confessions.Depriving jurors of knowledge about this subject is indefensible.