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Hennis Follow Up

The comments thread in the Dallas Morning News Texas Death Penalty Blog has a lively discussion on the Hennis debacle with comments by, inter alia, Dudley Sharp, Richard Dieter, and yours truly.


I'd say the Hennis case was a debacle for Dieter. Most importantly, it was a victory for justice. Let's hope that Capt. Eastburn gets some comfort out of this. Murder is an awful crime--I suspect that in their heart of hearts, people like Dieter think the death penalty a greater transgression.

I have joined Kent, Dudley and many others in answering Mr. Dieter on the Dallas Morning News Death Penalty Blog. My response is:

The moral engine of the innocence-based argument for abolishing the death penalty is that we risk executing a person who DIDN'T DO IT. The question our citizens are interested in is factual guilt, not legalism: Do we have the right guy or not?

The notion that one needs to be God to know whether we have the right guy is preposterous. One need not be God, for example, to know that McVeigh did it. One need only pay minimal attention to the evidence. Mr. Dieter certainly knows this.

Of course there is a chance that we COULD execute an innocent person, since we are human beings. There is also a chance that someone we could legally have executed but didn't will take another innocent life, or several of them. Indeed, that latter prospect in not merely a possibility; it has happened. The two best known examples are Kenneth McDuff and Clarence Ray Allen. At least a half dozen innocent people died because McDuff and Allen remained alive. Did those people not also have rights?

Let's cut through the fancy dance. To say that a person has been "exonerated" of murder will be taken, and is intended to be taken (whatever the fine print disclaimer may be), as a statement that the person didn't do it. As Mr. Dieter meanderingly acknowledges through the fog of carefully chosen words, no such thing is true.

It has been 34 years and more than 1100 executions since the Supreme Court restored the death penalty, and NOT ONE SINGLE TIME has anyone proved in court, or come close to proving, that an innocent person has been executed. That being the case, it is a confession of weakness rather than a declaration of strength to continue to make these slippery, de facto claims of innocence.

Another death-row return visitor was California murderer Robert Lee Massie, who ended up waiving his appeals and was executed in 2001.


Bill-thx for mentioning Allen. I recently did a presentation on the case and it still sends chills down an audience. It remains a paradigm case.

I think that we do better when we acknowledge the possibility that a guy who "didn't do it" could get executed. The likelihood seems extremely remote given (a) the relentlessness of defense counsel and the abolitionist lobby and (b) the fact that death penalty prosecutions tend to be very thorough. The bottom line is that we have a system that can have human error. And the possibility of a mistake is there. Of course, the possibility of mistake does not keep us from imposing stiff sentences for any number of crimes. And very little attention is generally given to the vast majority of incarcerated people--"death is different" in that a factually innocent death sentenced person is far more likely to have the problem redressed.

The remoteness of the possibility that a guy who didn't do it has been executed in modern times is shown by the incredibly weak claims thrown out by the abolitionist lobby. Willingham? His own lawyer thinks he's guilty.

And as for Macduff--there is blood on the hands of our retiring Justice Stevens.

ward -- Thanks for your comment. I noticed in your response in the newspaper that a federal district judge had said that not all the people on the DPIC list are actually innocent. Do you have the citation for that?

federalist -- Acknowledging the risk of erroneous execution is the job of any honest man. But there are two key points that should follow on immediately.

First, since the prison system is even more fallible than the courts, it is simply false that eliminating executions will eliminate the government's role in taking innocent life. Indeed, as McDuff, Allen and common sense show, imposition of life imprisonment for some of these clever and relentless killers is the path to MORE deaths of innocents than the death penalty even conceivably could be.

No system of punishment is perfect, so it's a question of trade-off's. Will we preserve more innocent life by retaining the DP or by aboloshing it in all cases regaredless? The answer to that is easy. Prison security has even more holes than the judicial system. There are certain to by in-prison murders by the dozen (there are already); erroneous release; fatuous or politically-motivated clemency (Mike Huckabee, call your office)(George Ryan too); and escape.

After pointing out the inevitablilty of trade-off's, it's useful -- indeed it's devastating -- to note the actual track record.

The fact that there is no judicial finding (or finding by any neutral body) that we have executed an innocent person in the modern era is dynamite, and we should not hesitate to use it. The admitted POSSIBILITY of executing an innocent man simply must, in the real world, be measured against the historical truth about how often that has happened. The answer, so far as actual proof goes, is zero.

When I do law school debates, I challenge the abolitionists to quit relying on the Sister Prejean websites that cite one other as "proof," and do what any other advocate of a legal claim has to do, namely, prove it in court.

This is exactly what they have not done. The reason they haven't is not, as they falsely claim, a lack of resources. (I'm always amused to hear that George Soros has "a lack of resources"). It's the lack of a case, period.

I agree Bill. And I reiterate, that Willingham is held up as a possible innocent only highlights the weakness of their argument.

Bill-I was referring to the original federal district court opn in US v. Quinones:

Despite its sympathies, the federal district court in Quinones agreed that the DPIC List was overly inclusive. Quinones I, 205 F.Supp. at 265. After examining at least 101 descriptions of the cases on the DPIC List at that time, the court applied an undefined “conservative criterion” to conclude that only 31 of the defendants named on the DPIC List were “factually innocent.” The court also speculated that eight other defendants had substantial arguments of innocence. Id. at 265 & fn. 11

ward --

Thanks very much.

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