It should be noted at the outset that the dissent does not discuss a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.Many people believe that the Willingham case is that “rooftop” moment, Grann included, who concludes his article by stating:
There is a chance, however, that Texas could become the first state to acknowledge officially that, since the advent of the modern judicial system, it had carried out the “execution of a legally and factually innocent person."However, I will argue that it is not this moment, as much as I would like to put an end to the death penalty, for three main reasons. First, it is highly unlikely that anyone in Texas will admit that Willingham was innocent, due to the type of evidence used to both convict and potentially exonerate him. Second, Scalia's statement is wildly misinformed, as there have been many cases in which a clearly innocent person has been executed, yet these names have not become celebrated causes or toppled capital punishment in America. Finally, even if the state does admit that Willingham was wrongfully executed, it will make a good liberal rallying cry, but I do not believe that it will have the effect of dramatically shifting public opinion against the death penalty.
The evidence for and against Willingham
Just before Christmas in 1992, a fire raged through the Willingham home. Cameron, who was home at the time, managed to escape the fire, but the blaze killed the family's one-year-old twins and two-year-old daughter. Fire investigators quickly concluded that the fire had been intentionally set, leading to Willingham's arrest and trial for murder. Despite the lack of a clear motive, his history of domestic abuse and the expert testimony of the arson investigators convinced the jury that he was guilty of murder, and he was sentenced to death in 1993.
Willingham maintained his innocence throughout, claiming that a space heater in the children's room must have started the fire. Shortly before he was executed in 2004, his case came to the attention of outside fire experts, who concluded that every piece of evidence pointing to arson in Willingham's case was invalid. This report was sent to clemency officials in Texas in hopes of earning a stay to investigate the case further. The stay was denied, and Willingham was put to death February 17, 2004.
Willingham is dead, but his case has sparked an investigation in Texas into the practices of forensic scientists. When this commission releases its report next year, there is a chance that they could conclude that the investigation into this case was flawed, though a complete admission of wrongdoing is highly unlikely. And even if the fire evidence is brought into question, that does not mean that any judicial authority will exonerate Willingham – a flawed investigation is not ironclad proof of innocence, prosecutors will argue.
This case was built on eyewitness accounts and expert testimony, and these things, it can be argued, are always subjective. Prosecutors use this subjectivity to their advantage to get convictions at trial, and after the trial – or in this case, after the execution – they can use that subjectivity to cast a shadow of a doubt on Willingham's innocence. There is no irrefutable evidence in this case, like DNA, and even that is subject to endless questioning and posturing by lawyers.
As Scalia himself stated in the 2006 Kansas opinion, correctly this time, there has never been a case in which DNA evidence proved the innocence of an executed inmate. Now, there are a lot of reasons for this. For one, most inmates spend an average of 12 years on death row. Many of those currently incarcerated or recently executed were tried and convicted before the advent of DNA technology, meaning samples that could now prove their innocence were never collected or analyzed. Most importantly, though, once someone is executed, there is little reason to reopen the case, so DNA evidence is usually not preserved after the execution.
Names we should already be shouting
Willingham's case is indeed tragic, but not unique, despite Justice Scalia's protestations. In their article “The Execution of the Innocent” (published in Acker et al., America's Experiment with Capital Punishment, 2003) Michael Radelet and Hugo Bedau argue that while “never in the twentieth century has a government official in this country admintted that an execution carried out under his/her authority, or that of a predecessor, took the life of an innocent victim” (326), the execution of the innocent is neither rare nor unlikely.
In an earlier book, In Spite of Innocence: Erroneous Convictions in Capital Cases (1987, with Constance Putnam) these authors identified 23 cases in which likely innocent people were put to death just in the twentieth century. Many of the names would be familiar to any high school student, like Joe Hill, a labor organizer allegedly framed for murder in 1915, and Sacco and Vanzetti, Italian immigrants convicted of murder in Massachusetts in 1920 (the complete list, with unhelpful commentary from a third party, can be found here). But you don't have to be completely innocent to be wrongfully executed. In addition to these cases in which the executed inmates probably had nothing to do with the crimes, the authors have identified several classes of cases in which the defendant was involved in the victim's death, but this did not rise to the level of capital murder, such as accidental killings, homicides in self-defense, homicides by the mentally ill, and non-capital murders (Radelet and Bedau 2003).
Some argue that many of the failings of capital punishment have been fixed since the Supreme Court struck down all existing capital statutes in the 1972 Furman v. Georgia decision, and admittedly, only one of the 23 cases occurred after the death penalty was reinstated in 1974 (that of James Randall Adams). However, since the Radelet and Bedau study was conducted, more names have been added to the list – in Grinn's article, he adds the cases of Ruben Cantu and Larry Griffin. Furthermore, death row inmates continue to be exonerated, suggesting that people are still wrongfully convicted. According to Radelet and Bedau:
If the history of the last twenty years is any guide to the future, an average of three death row inmates per year will continue to be vindicated and released. How many equally innocent death row inmates will be unsuccessful in obtaining relief is impossible to know, but the number is most certainly not zero (2003, 334).Since 1973, 135 people have been exonerated and released from death row. Some people point to this fact as evidence that the system worked – despite a wrongful conclusion of their trials, the appeals process eventually led to the truth. But we must assume that the appeals process works as imperfectly as trials; just as certain people are convicted because of insufficient resources, ineffective counsel or misconduct, those same barriers exist – and are in fact greater – for defendants seeking a reversal on appeal.
Does Willingham's innocence even matter?
As stated earlier, I am a staunch opponent of capital punishment, and the case made here may sound cynical and defeatist. Willingham's case was an enormous miscarriage of justice, and I do not want to see any defendant, guilty or innocent, face that same fate.
But nonetheless, an admission of wrongdoing in this case will not turn the tide against capital punishment. As Justice Thurgood Marshall pointed out, most Americans are completely ignorant about the death penalty; they support it or oppose it on emotional, not evidentiary grounds. As for active proponents of capital punishment, many acknowledge that innocent people will be put to death, but they are willing to accept that in exchange for the retributive and deterrent benefits, which likely do not even exist. Ernest van den Haag likened the death penalty to any other activity in society which carries inherent risks: "Despite precautions, nearly all human activities, such as trucking, lighting, or construction, cost the lives of some innocent bystanders. We do not give up these activities, because the advantages, moral or material, outweigh the unintended losses."
This does represent a victory, however, for death penalty abolitionists, as Radelet and Bedau point out at the conclusion of their 2003 paper:
One of the amazing things that has happened in the fifteen years since our research was first released to the public is that those who defend the death penalty now concede the inevitability of executing the innocent ... We know of no defender of capital punishment who, prior to 1987, was willing to make such a concession in public.Despite this concession, a majority of Americans continue to support capital punishment, and it remains the law of the land in 35 states. So shout Cameron Todd Willingham's name from the rooftops; just don't forget to add his name to the others that have fallen on deaf ears.