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Backsliding at the WaPo?

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The Washington Post's editorial page has generally been better on criminal law issues than, e.g., the New York Times.  Regrettably, today we see this editorial on the death penalty indicating a move in the wrong direction.  The problem is not an opinion I disagree with.  That is par for the course.  The problem is misleading assertions of fact made in the course of supporting that opinion.  The WaPo, like everyone else, is entitled to its own opinion but not its own facts, as the saying goes.  The editorial says, "Since 1973, some 130 death row inmates have been exonerated, largely through the use of DNA evidence."  Did they do any fact-checking at all?  I posted the following comment on their site:

That statement is stunningly ignorant. DPIC only claims DNA was "involved" in 18 of the cases only their list, not "largely" in any sense of the word.
More importantly, that list is not a list of people "exonerated" as most people understand that term -- shown not to have committed the crime. All that is required to get on the list is to have the conviction reversed and no new conviction made on retrial. In some cases on the list, murderers have gotten away with murder because essential evidence has been suppressed or is no longer available (e.g., because an essential witness is dead).
Timothy Hennis is still on the list. A subsequent advance in DNA technology proved beyond serious question that he really committed the murder.

The writer of this editorial has apparently not read the book by Charles Lane of your own staff. I recommend that everyone at the Post read it before writing anything on the death penalty.

14 Comments

"More importantly, that list is not a list of people "exonerated" as most people understand that term -- shown not to have committed the crime".

Wonderful. Unlawful death sentences don't really count as long as the exonerated defendants actually committed the crime.

Unlawful death sentences and unlawful executions are par for the course where capital punishment is concerned.

That wasn't Kent's point. You know, if the arguments for your side were so strong, then why is there a need to engage in sophistry? Dieter's formulation ("exonerated") deliberately fudges the difference between Jeremy Sheets and Kirk Bloodworth. Additionally, as Kent mentioned, most people, when they hear "innocent" or "exonerated" think "shown to have not done it". You may be of the view that the distinction between a Kirk Bloodworth and a Jeremy Sheets is irrelevant, but most assuredly the public does not, and it's intellectually dishonest to use language that elides the distinction. And the question is, Mr. Abolish, why the need to use an intellectually dishonest formulation?

“That wasn't Kent's point”.

I know. That is the tragedy.

And you cannot even address my points. Cute. It's easy to toss bricks, not so easy to deal with cogent criticism.

WaPo should get things right in its editorials. Let's start with that.

"Abolish the Death Penalty" and the WaPo writer seem to be missing the obvious. They both seem to imply that DNA is a great tool because it "exonerates" the innocent. Fine.

The wonderful corrolary to that argument is that it is an EQUALLY strong argument in the other direction. If it exonerates the innocent, it must damn the guilty and we can be sure that only the guilty are executed, taking one of the major objections for the DP away.

The logic behind the entire article then falls apart. Again, they are implying that the DP should be abolished because DNA has "proven" the innocence of 130 people convicted PRIOR to the common use of DNA. Well, we now have it. The criticism is essentially of a DP system that no longer exists and it is a logical fallacy to suggest that the DP system today should be abolished because of a shortcoming that has been rectified by the courts now using DNA.

It's kind of like screaming for the abolishment of the Ford Fusion because 1978 Ford Pintos used to catch on fire.

Federalist stated, "WaPo should get things right in its editorials."

Abolish the Death Penalty had said previously, "...unlawful executions are par for the course where capital punishment is concerned."

First, the use of the word "unlawful" is a rhetorical device called a weaseler. The entire sentence leaves the impression to someone reading it quickly that it is "par for the course" that innocent people are being executed. It's an absurd claim but some will buy it.

If called on it, however, "Abolish" can easily point to the word "unlawful" which has a different meaning (a guilty person can be "unlawfully executed") and feel he has a degree of plausible deniability and then attempt to argue fine points of the law regarding which are "unlawful."

That said, I still believe he would have a difficult time proving that "unlawful execution" is par for the course. Taken literally from the definition of par, he is stating that 50% of executions are "unlawful." I'd like to see his evidence for that.

Perhaps he needs to take Federalist's advice as well.

“'Abolish' can easily point to the word "unlawful" which has a different meaning.”

Indeed.

"...it is a logical fallacy to suggest that the DP system today should be abolished because of a shortcoming that has been rectified by the courts now using DNA."

Most capital defendants do not have the luxury of access to DNA evidence.

"Most capital defendants do not have the luxury of access to DNA evidence."

Please cite a single example of a capital case tried in the last 20 years where trial counsel asked to have relevant evidence tested for DNA and was denied.

Please cite a single example of a capital case where trial counsel does not have the luxury of access to DNA evidence because it is unavailable. That would be most capital cases.

Abolish the Death Penalty stated: "Most capital defendants do not have the luxury of access to DNA evidence."

Oh, then I must have misunderstood you.

Then your username is just an abbreviated version of your entire name, "Abolish the Death Penalty When Defendants Do Not Have The Luxury of Access to DNA Evidence?"

If not, then your (and WaPo's) argument is still just as much a fallacy as previously stated.

I'd also like to see your evidence that anything approaching 50% (the literal definition of what would be "par")of executions are "unlawful."

No hurry. I'll wait. I'm on vacation this week...

Heck, I'll even settle for 10%, no, I'll go one further and settle for 10 cases TOTAL.

Of course we both know that you cannot come close to even that much lower threshold.

Your statement was blatantly dishonest.

Abolish the Death Penalty stated: "Please cite a single example of a capital case where trial counsel does not have the luxury of access to DNA evidence because it is unavailable. That would be most capital cases."

Which still leaves the fact that if DNA has the power to exonerate, it has the power to damn. Even if there is just a small percentage of cases where DNA is available, we can execute those individuals where it is available and be sure we have the right person.

Thanks for your support of the DP, even if you did not intend to support it when you woke up this morning.

Okay, Abolish, I misunderstood your point.

In the next decade or two, the neuropsych folks will very likely come up with a lie detector that actually works, and the problem of wrongful convictions will be history. Until then, prosecutors should simply not seek the death penalty in cases where identity of the perpetrator is subject to serious question.

The number of cases of actually innocent people being sentenced to death and later having their convictions overturned is smaller than DPIC would have us believe, but it is sufficient that we need to guard against it.

This factor has been a consideration in the charging decision all along, but I believe it has been given greater weight in recent years. As noted in a previous post, this effect is likely a small portion of the drop in death sentences per murder. It is not a large portion, though, nor will it ever be. As the head of capital cases for the Los Angeles Public Defender testified, most capital cases involve no question of identity.

"...most capital cases involve no question of identity."

Most.

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