Capital Punishment Enthusiasm Is Misplaced

In the Supreme Court of the United States decision of Kansas v. Marsh Justice Antonin Scalia stated,

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.

The court was considering the constitutionality of the death penalty in the Kansas, where the statute specifically provided for this punishment where the mitigating and aggravating factors during the sentencing of a murder were of equal weight. The Kansas Supreme Court had found this to be a form of cruel and unusual punishment. After dismissing what Justice Souter described in his dissent as the “risks inherent in capital punishment,” the SCOTUS ultimately overturned the Kansas Court’s decision and upheld the death penalty.

In the aftermath of the Michael Rafferty trial there is enormous anger and outrage. Even Mr. Justice Thomas A. Heeney concluded his comments at the sentencing this past Tuesday saying,

Only a monster could commit an act of such pure evil. You, sir, are a monster.

The strong swell of emotions has given rise to some calls for restoring the death penalty in Canada. If not for Rafferty, then for people like Paul Bernardo, where there are clear videos that appear to dismiss any doubts about their guilt.

The death penalty was abolished on July 14, 1976 in a close vote of 130 to 124, with certain exceptions retained under the National Defence Act retained which were later removed in 1998. Yet a 2012 Angus Reid public opinion poll indicated that 61% of Canadians supported reinstating the death penalty for murder in Canada, and Prime Minister Harper himself indicated he supported the death penalty in 2011.

The problem with perception that it rarely operates in certainties. And as compelling as a video may appear to be, mistakes can happen in identification. A recent study out of Columbia Law School has just demonstrated that not only can mistakes happen with the death penalty, but that they do.

Sorry, Antonin.

On December 8, 1989, the State of Texas executed Carolos DeLuna for the murder of Wanda Lopez. He consistently professed his innocence, as many on death row do, but also had the name of the man he believed actually committed the crime – Carlos Hernandez. Spanish culture has a word for people who share the first name, tocayos, and the two were referred to as such in their community in Corpus Christi, Texas.

But the two men shared more than just a given name. They were the same height and weight, and were often mistaken as twins. DeLuna was convicted based on the eyewitness testimony of Kevan Baker, who had seen the assault at a gas station which turned into the murder. The problem was that both Hernandez and DeLuna happened to be in the same location, and Baker acknowledged he had trouble distinguishing Hispanic people.

DeLuna was the one that police apprehended. Prosecutors refused to believe that Hernadez even existed, and suggested that DeLuna had simply made him up, even though Hernandez had an extensive criminal record. Forensics were never conducted.

Professor James Liebman recruited a dozen law students four years after the execution, and revealed a mountain of information which seems to demonstrate that DeLuna was innocent as claimed. The Columbia Human Rights Law Review (HRLR) has devoted the entire Issue 3 of Volume 43 of the journal to their findings, which are also detailed on a website, Los Tocayos Carlos.

Liebman details just some of the many things that went wrong with the trial:

There is bad eyewitness identification; an incomplete and imperfect [police] investigation – they spent two hours at the scene that night [and never returned during the day], and they missed all kinds of things or didn’t bring them up at the trial,” including bloody footprints inside the store. There was also ineffective lawyering by court-appointed counsel, possible prosecutorial misconduct – including the suppression of police audio of the manhunt for the killer that suggests the bulk of the 40-minute chase was spent pursuing a man fitting Hernandez’s description, and not De Luna’s – capped off with “not very thorough” post-conviction appeals.

The medieval rabbinical commentator Maimonides stated in Sefer Maitzvot,

It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death.

That single innocent may have been located. If there’s a rooftop in Canada where the lobby for capital punishment can be rebuffed you can expect they’ll now be shouting the name of “Carlos DeLuna” at every turn.


  1. Two words: Steven Truscott

  2. No, they most certainly won’t be saying anything from the rooftops. Those who support capital punishment do so out of ideology, not out of a sense of justice. The more I hear from them and whenever my sense of vengeance gets out of control, what they (and I from time to time) want is blood. Anyone’s blood will do. They want to be the screaming mob that cheers at the destruction of another human being. They want the death of another because they can finally kill someone (even if only very remotely). They want to lynch another human being to satisfy their urges to kill.

    For my part, I generally call for killing everyone. After all, not one is righteous and we’re all sinners deserving of an eternity in Hellfire. That seems fair enough for me and we have the nukes, biological and chemical weapons in numbers and quality sufficient to make it a reality. This is merely the logical outcome of our death penalty driving bloodlust in my view and there’s no good reason it ought not be pursued (we’ve spent trillions of dollars on this after all, and surely we didn’t spend all that money on pure stupidity and evil did we?).

    I won’t pretend that this view is seeking justice, but it sure as heck is seeking something that the human heart and soul deeply desires.

    The Wet One