Trial By Fire

Okay, it's in the New Yorker, the ultimate bastion of New York elitism; the temple of town house culture. But the article "Trial by Fire" is frightening and must be read.

For years I've been one of those people who have insisted that the biggest problem with the death penalty is that you can't switch somebody back on once they are dead. If the state makes a mistake and executes and innocent person there is no way to reverse the error. (apparently I am not alone in this: according to the article it is the one thing that shakes people's faith in the death penalty). A lot of death penalty proponents like to say that no innocent person has ever been executed since the re-institution of the death penalty, with all its procedural safeguards and appeals, in the 1970s. This is bull. We know deep down that it is impossible for any science as inexact as criminology, which relies on such things as intuition and inspiration, that often involves conflicting evidence, and that involves the outrage and anger of the public and a jury, to be 100 percent failsafe. It is a fact that over 400 death row inmates have been exonerated in the last twenty years, some of them coming within hours of their execution before being granted a stay. It is logically inconceivable that there would be no one who had not received that stay, that no one had slipped through the cracks, ever. Beyond a doubt, beyond a reasonable doubt, the state has executed innocent people. The argument therefore has always been that nobody has ever proven to have been innocent after they were executed. "Factually and legally" is the term. In spite of the fact that so many people have been exonerated right before they could be executed, this is the basis of the "it's never happened" argument. But that ignores a simple fact. Once someone is dead they cannot receive a new trial. They are dead. The appeals process ends. They are dead. The state does not have a mechanism to prove that a dead person might be innocent. Perhaps a civil trial could do so. Perhaps. But it is unlikely that it would ever be proven legally that someone was erroneously executed, because there is no legal method for doing so.

But this case comes close. And if it gets the attention it deserves, the legs may have been knocked out from under the pro-death penalty argument for good.