The Conservative Case Against the Death Penalty

Back in the day, I worked as a spokesperson for Attorney General William Barr, and one of my duties was to oversee the speech-writing operation. I can't tell you how many get-tough, pro-death-penalty speeches I worked on with our conservative team of writers, defending the death penalty as preventative, deterrent, retributive, and proportionate—all the usual reasons. Even though I considered myself pro-life, I had no problem with the death penalty at all. It was part of being tough on crime.

Then, a few years after we left office, Cardinal Joseph Bernardin died. His obituary highlighted his writings on "the seamless garment of life," in which he argued that one can't be simultaneously anti-abortion and pro-euthanasia, a big issue at the time of his death. It was an epiphany of sorts for me, as I suddenly saw the moral inconsistency of my pro-death-penalty stance: Pro-life means pro-life in all things, not just abortion. To me, that meant I couldn't be pro-life and pro-death penalty anymore. I can respect those who might come to a different conclusion; reasonable people can disagree when it comes to a question like this. But I decided to stop supporting the death penalty.

Part of what made the decision difficult was that death penalty advocates consider themselves the voice of the innocent victims and their families. It's hard to turn your back on innocent people whose lives have been destroyed. At the time, it seemed that most of the people on death row were vicious killers, proven beyond a reasonable doubt. Not so much anymore.

There are still plenty of vicious killers on death row, but it turns out there may also be some as innocent as the victims. Over the last 35 years, more than 130 people have been released from death row because of evidence of their innocence. From 1973 to 1999, there was an average of three exonerations per year. Between 2000 and 2007, that average rose to five per year.

Since 1977, Illinois alone has exonerated 20 death row inmates, seven of them since 2000. Earlier this month, Illinois Gov. Pat Quinn—who until now supported the death penalty—signed legislation outlawing capital punishment, making Illinois the fourth state to abolish the death penalty in the last decade, joining New Jersey, New York, and New Mexico. Overall, 16 states now ban capital punishment, and such bills have been introduced over the last few years in nine more, according to the Death Penalty Information Center.

Here's the interesting part: Quinn did not make his decision so much on moral grounds as on the unacceptably high number of wrongful convictions and discriminatory decisions. "I have concluded that our system of imposing the death penalty is inherently flawed," he said. "As a state, we cannot tolerate the executions of innocent people, because such actions strike at the very legitimacy of government."

Over the last decade, the number of death sentences imposed has dropped dramatically. In 1999, 277 people were sentenced to die; in 2009, only 112 were, according to the Bureau of Justice Statistics. The reluctance to impose the death penalty may be a reflection of the rise in post-conviction exonerations. According to the Innocence Project, DNA evidence has resulted in over 250 exonerations in 34 states since the late 1980s, the majority of which took place in the last decade. Seventeen of those freed had been on death row.

Because DNA results are irrefutable, they expose what's wrong with the rest of the case. According to the Innocence Project, there are several causes of wrongful convictions: most involve mistaken identification by eyewitnesses, whom studies show are less able to recognize faces of a different race than their own; unvalidated forensic science in other tests, such as bite mark identification or shoe print comparisons, that, unlike DNA testing, may be unreliable; false confessions, often by defendants who are younger than 18 years old or who are developmentally disabled; and the questionable testimony of jailhouse snitches. The problem appears widespread. Every day, it seems the newspapers have another story about a wrongfully convicted person being released, often after serving decades in jail. Just last week, Virginia Gov. Bob McDonnell released a man from prison who had served 27 years for rapes he did not commit. DNA testing cleared him.