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Innocence Is No Excuse
Jeffrey Dahmer deserved to die. He was a serial murderer and cannibal, but he did not receive the death penalty. Wisconsin, the state in which he was convicted, has not had the death penalty since 1853. Ironically, his murder in prison two years after his conviction probably ensured that he died much sooner than he would have had the death penalty been imposed.

Many death penalty supporters use people like Jeffrey Dahmer as an argument in favor of the death penalty. However, this conflates two questions that should be separate. Whether some people deserve to die is different from whether the state should be killing people. On the latter question, the US Supreme Court has issued many decisions. Moral issues have not held much sway; the Court's mandate is to assess constitutional issues. Is the death penalty fair? Is it “cruel and unusual punishment”?¹ How do we decide who dies? Rather than focus on too many issues, we'll simply consider the question of potential innocence.

In Herrera v. Collins, the defendant was sentenced to death. Ten years after his sentence, he filed for habeas relief² arguing that newly discovered evidence proved he was innocent. Unfortunately, Texas law requires that a request for a new trial based upon new evidence must be made within 30 days of the imposition of sentence. Herrera was a decade too late.

The Supreme Court refused to allow the new evidence and ruled against the defendant, stating “Federal habeas courts do not sit to correct errors of fact, but to ensure that individuals are not imprisoned in violation of the Constitution." This has been widely interpreted to mean that it is not unconstitutional to put an innocent man to death, so long as he has received a fair trial?

In the case of Gary Graham not even a fair trial appears to be required. Graham was convicted of murder and sentenced to death. He was convicted solely on the testimony of one woman, Bernadine Skillern, who claims that she saw him, late at night, through the windshield of her car, shoot and kill the victim. There was no physical evidence linking Mr. Graham to the crime. A felony conviction requires the state prove “beyond a reasonable doubt” that the defendant is guilty. Is a single witness enough to establish guilt “beyond a reasonable doubt?”

The gun that was presented at trial was not the gun used to kill the victim, though the jury did not hear this. Graham's court-appointed lawyer did not call other witnesses to testify, though none were able to identify Graham and two positively stated that Graham was not the killer they saw. Skillern , the witness to the killing, was initially unable to identify Graham in a photo lineup, but when a live lineup was used, Graham was the only individual who was also in the photo lineup. It was only then that Skillern was able to identify Graham. Graham's jurors later stated that if they had known the full facts of the case, they would have voted to acquit. Graham was executed on June 22, 2000.

Anthony Porter is one of the lucky ones. He was convicted in Illinois of a 1982 double murder and sentenced to death. He wasn't much help in his own defense – his IQ is only 51. However, he was released from prison two days before he was scheduled to be executed. He was only released because the actual killer confessed on a videotape.

Anthony Porter, despite his death sentence, was innocent. Of the 17 Illinois people who have been wrongly convicted and sentenced to death in Illinois since 1977, 11 of them have been proven innocent not by the judicial system, but by journalism students at Northwestern University. Due to repeated mistakes in Illinois courts, Governor George Ryan commuted the death sentences of 150 Illinois prisoners to life in prison without possibility of parole, despite his being a pro-death penalty Republican.

The 1988 documentary, The Thin Blue Line, examined the conviction of Randall Adams for the 1976 murder of a Dallas police officer. His conviction was largely based upon the testimony of David Ray Harris. It appeared that Harris may have had a role in the crime, but prosecutors offered him immunity if he would testify against Adams. A choice between immunity and death is hardly a choice. Harris accepted and Adams was sentenced to death.

Due to concerns over the fairness of the trial, Supreme Court Justice Lewis Powell ordered a stay three days before Adams' scheduled execution. By an eight to one decision, the case was remanded back to Texas for further proceedings. The Dallas District Attorney later announced that a new trial would be a waste of money and convinced the governor to commute Adams' sentence to life in prison.

Had it not been for this lucky break and the subsequent documentary, this may have been the end of the story. However, after the intense scrutiny the documentary generated, Harris changed his story: he confessed to the murder. Reading about the Adams' case, we can clearly see from the beginning that the conviction was weak. The gun that killed the police officer was stolen from Harris' father. The defense was not notified that witnesses against Adams were to testify. The prosecution lied after the testimony and stated that two of the witnesses had left the state and were unavailable for cross-examination – even though the witnesses had merely moved across town. This might have exonerated Adams had the defense known about these witnesses. All of these witnesses had given contradictory statements that were somehow reconciled by the time of the trial or was simply ignored.

Texas has a long list of people who have been sentenced to death and later found to be innocent. We've already seen that Illinois has a similar list. Most other states have a list of such people, the size of which tends to be proportional to the number of people they execute each year. It is not a question of whether or not innocent people are being sentenced to death. We know that they are. It's often mere happenstance that prevents their death. Who knows how many innocent people have died? The question I like to ask death penalty supporters is “how many innocent people should we kill every year?” I want a number. One? Three? Ten? Abolishing the death penalty is the only way to reduce that number to zero. Keeping the death penalty is tacit approval of putting innocent people to death.

Herrera v. Collins.
Gary Graham.
Anthony Porter.
Journalism students find 11 wrongly convicted death row inmates.
The Thin Blue Line documentary.
Harris' testimony wrongfully convicts Adams.

Note: the following to links lead to lists of people convicted of serious crimes but later found to be innocent. Most of the sentences are for life in prison or death.
Texas convicts later found innocent.
Breakdown by state of convicts later found innocent.


1. A writ of habeas corpus is an order to prison officials to produce a prisoner for court to allow a trial to determine if he or she is being lawfully held.

2. One of Graham's 1993 appeals was rejected by the Supreme Court on the basis of the Texas “30 day limit” on new evidence.
25 Jan 2004 by Curtis "Ovid" Poe


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