It’s Not Just the Alaska Legislature: North Carolina

Ordinarily WC finds enough folly in the antics of the Alaska Legislature to permit him to largely ignore the antics of the other forty-nine. But sometimes the temptation proves to be too great.

The North Carolina state legislature – the same group that seemingly denies sea level rise is occurring – has reverted to type when it comes to criminal justice, race and the death penalty.

Background - The Racial Justice Act

In 2009, North Carolina enacted the Racial Justice Act. The law allowed death row inmates to ask a court to review their death sentences for jury selection bias. There are about 170 inmates on North Carolina’s death row; essentially all of them exercised their new rights under the Racial Justice Act.

Understand, if the inmates win they would get a life sentence without possibility of parole. They wouldn’t get a new trial. They wouldn’t be acquitted. They wouldn’t be released, ever. They just wouldn’t be executed.

To get their death sentences changes to life in prison without the possibility of parole, the inmates would have to establish systematic bias by the prosecutors in selecting jurors. That is, the inmates would have to establish that prosecutors, in “striking” or “excusing” otherwise qualified jurors, displayed plain racial bias, resulting in an unrepresentative jury.

Only one case made it through the full hearing process under the Racial Justice Act, a case involving Marcus Reymond Robinson. And in that one case, the trial judge found jury selection bias by the prosecutors. How bad was the jury selection bias? According to a study by Michigan State University or 172 capital cases, the prosecutors’ conduct was extreme:

Across all strike-eligible venire members in the study, prosecutors struck 52.6% (636/1,210) of eligible black venire members, compared to only 25.8% (1,594/6,185) of all other eligible venire members. This difference is statistically significant, p < .001; put differently, there is less than a one in one thousand chance that we would observe a disparity of this magnitude if the jury selection process were actually race neutral.

African-Americans were twice as likely to be booted off the jury as Caucasians. There was egregious prosecutor bias in jury selection, not just in Marcus Robinson’s case but as a part of a pattern across 172 death penalty cases. In April 2012, the trial judge in Robinson’s case moved Robinson off death row, putting him in prison for life instead, without possibility of parole.

What the North Carolina Legislature Did

The reaction of the North Carolina legislature was, in the ACLU’s phrase, to gut the Racial Justice Act. While it was labelled a reform, it was a practical repeal. Twice, North Carolina Governor Beverly Perdue vetoed the “reform” bill. The third time, the North Carolina legislature overrode her veto, and the Racial Justice Act is now gone.

Incredibly, one of the arguments in favor of repudiating the Racial Justice Act was that the law had “created a logjam” on executions. Never mind of the extremely strong evidence that the convictions were wrongfully obtained. Never mind that there is overwhelming evidence of misconduct by the prosecutors. Never mind that North Carolina is turning its back on that evidence. Never mind that by any sensible standard, the State of North Carolina has no business killing these inmates. The Racial Justice Act was delaying executions. North Carolina can’t have that. And now it doesn’t.

There’s a pattern here. The North Carolina Legislature has an aptitude, a willingness, a zeal to set short term goals ahead of reality.

In the case of oceanside housing construction, it’s denial of a rising sea level because that might result in higher building costs, or make some properties undevelopable. In the short term, the problem is solved. In the longer term, people and property will be endangered. When the next big hurricane comes in; when projected sea level rises occur; the short term solution will blow up in the face of the State of North Carolina. Properties are likely to be destroyed, with attendant property loss and risk of injury .

In the case of death penalties, people will be dead. People who are on death row because of prosecutor misconduct. People will be dead because prosecutors are infected with racial bias. But, by golly, the log jam to killing death row inmates will have been removed. Even if you see nothing wrong with the death penalty – quite a different debate – you should see something wrong.

Hall of Shame of Wrongful Convictions

The University of Michigan Law School and Northwestern University Law School have joined in an effort to create a national database of exonerated criminal defendants. It’s a kind of Hall of Shame of Wrongful Convictions. Beginning in 1989, the Registry documents over 900 exonerations, and is still assembling data.

Before Alaskans get too smug about Alaska’s criminal justice system, consider State v. Layo Sinegal:

One night in September 1994, police found a white woman drunk and in disarray in a city park in Petersburg, Alaska.  She immediately told the police that Layo Sinegal had forced her onto the ground and raped her.  Sinegal was a black seasonal worker who had gone out for a drink with her and some co-workers earlier that evening. Soon after, the police found Sinegal in the park with his belt undone.  Sinegal’s attorney hired a private investigator a month before trial.  The investigator was delayed in arriving in Petersburg, however, because his wife had a stroke, and did not show up until the night before jury selection began.  Sinegal’s attorney chose to proceed with the trial, and did not request a continuance to allow the investigator time to examine the physical evidence, even though the attorney himself had not examined the evidence either.  The victim identified Sinegal at trial, and two eyewitnesses testified that they had seen Sinegal on top of the victim with his hand covering her mouth.  In April 1995, a jury convicted Sinegal of sexual assault and he was sentenced to 5 years in prison.

Sinegal’s post-conviction attorney discovered new evidence of his innocence that Sinegal’s trial attorney either had not discovered or had failed to use.  Sinegal’s belt was a one prong style that could have come undone by itself.  The victim’s clothing was also clean, which contradicted her story of being forced onto the muddy ground, and there was evidence that another man was in the park with the victim that night.  In October 1997, a Superior Court judge overturned Sinegal’s conviction based on his trial attorney’s failure to conduct an adequate pre-trial investigation.  Sinegal was released pending the state’s appeal of the judge’s decision.  In October 1999, the Alaska Court of Appeals affirmed the lower court’s decision.  The state dismissed the charges in May 2000.

So much for Alaska always getting it right.

One of the arguments against the death penalty is the patent fallibility of the criminal justice system. In states likes Texas, Florida and Louisiana, the rate of wrongful convictions is frighteningly high. Illinois famously abandoned the death penalty because of its rate of wrongful convictions, and in particular prosecutor misconduct.

WC has railed against the death penalty. If you support it, WC invites you to read some of the case summaries in the Registry and decide if you want to reconsider.

Props to the two law schools for pulling this together. Well done.

Texas Murdered Another Innocent Man

Texas has the highest rate of government-approved murders in the nation, now approaching four times higher than the next state. And Governor Rick Perry doesn’t even pretend that he cares. He doesn’t even bother to look.

Carlos DeLuna, Wrongfully Executed

But a new study by Columbia University’s law school, a book length article in its Human Rights Law Review, conclusively proves that Texas executed the wrong man in 1989. Columbia Law School worked nine years, not just to vindicate the wrongfully executed man, Carlos DeLuna, but to finger the guy who did it, Carlos Hernandez, who died of cirrhosis of the liver in May 1999 while he was in prison for narcotics charges. The cops stayed away from Hernandez in the DeLuna investigation, apparently, because he was working for the cops at the time.

Comedian Sacha Baron Cohen (Borat, ) as his character Admiral General Aladeen, flogging his new movie, The Dictator, said, ”What people call genocide in my country is just the judicial system in Texas.”

Of course, Sacha is just being outrageous. Right?

There’s a word for killing the wrong guy: homicide. Shouldn’t it be a crime when Texas does it?

Department of Modest Victories: Connecticut Repeals Death Penalty

It took nine hours of debate, but the Connecticut House of Representatives voted to repeal the death penalty, following earlier approval by the state senate. Governor Dannel Malloy is expected to sign the bill into law, making Connecticut the 17th state to abolish the death penalty. WC’s views on this issue can’t be a surprise to readers: if and when the criminal justice system is perfect, then we can consider irreversible penalties. It’s not; we can’t.

This may be a hopeful trend. Connecticut will become the fifth state in five years to abandon the death penalty. In California, where the death penalty was expanded by initiative in 1978, the lead sponsor of that initiative is now calling for abolition of the death penalty. He points out California spent $4 billion executing just 13 criminals. If there is a deterrent – and that’s seriously open to question – you’re not getting much deterrent for $4 billion, and the money could be much better spent.

Call it a modest victory, or a hopeful sign.

Another Argument Against the Death Penalty

WC has a long and probably tedious record of opposing the death penalty. Rather than link all of the previous posts here, WC has added the term as a category in the right sidebar, if readers want to revisit those earlier posts.

WC will add a new argument to his earlier points. The death penalty is bad because prosecutors refuse to reconsider those cases when there is a death sentence imposed. Whether it is arrogance, overweening pride, embarrassment, or some combination of those reactions; there is a very troubling pattern of prosecutors refusing to consider that they might be wrong.

A couple of examples.

First, there is Alabama’s case against Thomas Arthur. As Andrew Cohen with The Atlantic has documented, there are real reasons to think that Thomas Arthur didn’t commit the crime for which he is sentenced to die. Among them: another man has confessed to the crime. There is potential DNA evidence which might exonerate Arthur. But the Alabama prosecutor refuses to consent to the tests that might establish his innocence. The defense has even offered to pay for the test. Arthur is admittedly not a nice person. He shot a prison guard in an escape attempt. But you have to ask why the state of Alabama is scared of the truth. So scared they are willing to possibly execute an innocent man on March 29. It should always be about the truth. Especially where it involves a man’s life.

Next, there is Ohio’s case against Tyrone Noling. Don’t get WC wrong, Noling is also not a nice person. But you don’t get the death penalty for that. There is strong evidence that witness testimony was coerced. All of them have recanted. There isn’t a shred of physical evidence tying Noling to the crime scene. It’s possible that the man who actually committed the crime has already been executed. There is DNA evidence that could be tested to find out. Ohio refuses to perform the tests. And Andrew Cohen points out,

What Ohio is doing to Noling is similar to what many other states do when confronted with shoddy capital convictions. Rather than spend resources to best determine the accuracy of those convictions, rather than getting to the truth, they spend energy defending the virtues of finality and certainty in the criminal justice system. They do so at the expense of counter values like reliability and accuracy. Better not to ever know if it was Wilson who murdered the Hartigs, Ohio now argues, since we’ve already blamed someone else anyway.

Maybe death penalty sentences are like trophies, and prosecutors are unwilling to chance having to give them up. But we are talking about human lives here, not prosecutors defending their turf. When there is DNA evidence that carries the potential to exonerate a defendant, so far as WC is concerned that DNA evidence must always be tested. There are no circumstances in which a prosecutor’s vanity, or bogus arguments about “finality” should get in the way.

WC is opposed to the death penalty, but recognizes others can sincerely disagree. But a refusal to perform DNA testing is indefensible. It should always be about truth. Not an attorney’s win/loss record. You know. Justice.

Finally: Juan Rivera Released

Juan Rivera was finally released yesterday, almost 20 years after being wrongfully convicted of murder. The Lake County, Illinois prosecutor’s office decided not to appeal the Illinois Appellate Court’s harsh criticism of what the prosecution had done. Apparently, they also decided not to apologize for stealing 20 years of the man’s life, for inventing fantasies about DNA evidence or their collective obsession with prosecuting Rivera.

Anyone who supports the death penalty needs to look very, very carefully at the facts of Juan Rivera’s case.

Texas Justice Revisited

Michael Morton - Photo by Callie Richmond for The Texas Tribune

Meet Michael Morton.

Mr. Morton was just exonerated after being wrongfully convicted of murdering his wife. He spent 25 years in prison for a crime he did not commit. Just another case of Texas justice, you say? Perhaps this time it’s a little worse. There are very strong indications of very serious prosecutorial misconduct in this case.

Morton’s 3 1/2 year old son witnessed the homicide. There’s a transcript. The kid exonerated his father. The prosecutor had the transcript. The transcript was not made available to Morton’s defense lawyers.

The victim’s credit card was stolen and used days later in another city. A check was forged over her signature after she was dead. The prosecutor knew of the exculpatory evidence. The evidence was not made available to Morton’s defense lawyers.

For six years, the successor district attorney fought to keep DNA tests from being made on a blue handkerchief found near the scene of the homicide. Finally, over the objections of the State of Texas and after five years of foot-dragging, the DNA tests were made and, once again, Texas was proven to have convicted yet another innocent man.

At least 45 Texas inmates have been exonerated by DNA evidence since the tests became widely available. When you keep in mind that DNA evidence is available only in a small percentage of criminal cases, that suggests a staggering wrongful conviction rate. The suppression by the county attorney of the other evidence of innocence strongly implies that in Texas a “win” for the prosecution is far more important than the truth; that a conviction, however obtained, is more important than justice. Perhaps that is “Texas justice.”

When you consider Texas also has the highest execution rate among the 50 states, and has already executed innocent men like Cameron Todd Willingham; well, if you care about true justice, you should be outraged.

But Mr. Morton is going a step further. He is attempting a court of inquiry, to determine if the prosecutor’s misconduct warrants ethical sanctions or even a criminal prosecution. Ken Anderson, the man who prosecuted Morton, and hid the evidence of innocence, is a judge now. That’s frightening in and of itself. Worse still, the successor county attorney, John Bradley, fought the request for DNA testing, based on advice from Judge Anderson, his predecessor and friend. Let’s think this through: Mr. Anderson knew of the exculpatory evidence. He knew the DNA evidence was going to exonerate Morton. He knew that would look bad for him personally. And he knew as a judge it was unethical for him to get involved. Yet he advised Mr. Bradley to fight the DNA testing?

And Bradley, who presumably knew about the exculpatory evidence, relied upon the advice of someone who had wrongfully hidden evidence, and had a personal stake in any DNA testing, to fight that testing?

The criminal justice system today, across the country but particularly in Texas, is fatally flawed. There are no consistent negative consequences for prosecutorial misconduct. The U.S. Supreme Court in a 5-4 decision threw out a  $14 million damages award against egregious misconduct by a Louisiana prosecutor. As Morton’s case demonstrates, self-serving prosecutors and wrongful convictions can rip a quarter century or more out of the life of an innocent man. Hiding evidence of innocence is despicable.

WC applauds the efforts by the Innocence Project to attach consequences to bad conduct. WC hopes it will be enough.

Update: Quis custodiet ipsos custodes?

In November, WC harshly criticized the Illinois prosecutors for their irrational rejection of DNA evidence that strongly supports the innocence of the wrongly convicted.

The Appellate Court of the Second District of Illinois just agreed. In a December 9 decision in the case involving Juan A. Rivera, Jr., the court, not to put too fine a point on it, chewed out the prosecutors:

After viewing the evidence in the light most favorable to the prosecution, we hold that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Because the State’s evidence was insufficient to establish guilt beyond a reasonable doubt, we must reverse the conviction of Juan A. Rivera, Jr.

According to the New York Times, the fixated prosecutors still haven’t let go. The Lake County state’s attorney, Michael J. Waller, said, “We are going to study the opinion, confer with our appellate attorneys on Monday and determine a course of action.” The Times reports he declined to elaborate.

Of course, there’s still the problem of imprisoning the wrong man for 19 years, too. And the problem of having the real offender still on the streets. But the Lake County DA wants to keep prosecuting the innocent man.

One other bit of good news: Michael Mermel, who was the lead prosecutor in Mr. Rivera’s last trial? The same DA who claimed that an 8-year-old murder victim may have come into contact with sperm — which didn’t match the DNA of her father, whom Mermel was trying to prosecute — by playing in woods where couples have sex or sitting on a bed where a man masturbated? The DA’s office has announced Mr. Mermel’s retirement.

Quis custodiet ipsos custodes?

The title is a Latin phrase from WC’s long-ago Latin classes. It means, roughly, “Who watches the watchmen?” Who keeps and eye on the criminal justice system, the cops and the prosecutors, and makes certain they adhere to the law?[1]

A woman attempts to report sexual harassment to the county police department, complaining she had been groped and propositioned by a police officer responding to a domestic disturbance call. Instead of getting help, she was arrested for recording the interaction with the cops. The District Attorney refuses to dismiss the charges.

Students at a university investigate a possible wrongful conviction, and find compelling evidence that the convicted man is innocent. They present their evidence to the county district attorney. Instead of acting on the students’ evidence, the district attorney attempts to seize the students’ notebook, class records and transcripts.

DNA evidence strongly support overturning the criminal convictions of four men accused and convicted of murder of a prostitute. And the DNA evidence arises in a county with an appalling record of wrongful convictions. Instead of applying the law and agreeing to reverse the conviction, the district attorney spins fantasies about how the wrongfully convicted man might be guilty anyway.

Cook County State's Attorney Anita Alvarez

What do these three cases have in common? The same District Attorney, specifically Cook County Prosecutor Anita Alvarez. Remember, this is Illinois, the poster child for corruption and wrongful convictions. Where it’s hard to remember a state governor who hasn’t ended up in jail. Where the last governor not to go to jail wound up commuting all pending death sentences to life in prison, because he had completely lost confidence in the criminal justice system. Where the state legislature wound up abolishing the death penalty because of the incessant string of wrongful conviction for capital crimes.

You’d think that history would make a state’s attorney err on the side of, you know, justice?

At least in the case of Anita Alvarez, you’d be wrong.

WC would like to applaud Ms. Alvarez: she’s the first woman and first Hispanic to be Cook County’s elected prosecutor. She’s done some good work in the past. She runs with reasonable effectiveness the 800-plus lawyer office, the second largest in the nation (after Los Angeles).

But she also appears to have a fatal flaw for a public official: she cannot admit when she is wrong. She cannot accept the possibility or error. So she subpoenas the records of college students, instead of examining their charges. She ignores the law of wrongful convictions. And, worst of all from WC’s point of view, she refuses to exercise her duties to supervise the Chicago Police Department. If it comes to choosing between the complaints of a civilian injured by Chicago’s corrupt cops and the corrupt cops themselves, she’s on the cops’ side every time.

WC hasn’t lived in Chicago for decades now, but the memories remain fresh. As long as the voters tolerate this kind of failure to act, Chicago will be as corrupt as it was four decades ago. Chicago deserves better. Prosecutor Alvarez needs to remember she work for the public, not the cops, and that she and the Cook County justice system are demonstrably fallible.

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[1] The quote is attributed to the Roman poet and satirist, Juvenal. It may be a later addition. If it was Juvenal, he was using it in the context of marital infidelity: you can surround your spouse with guards to keep his or her fidelity, but who watches the guards? It certainly sounds like Juvenal. The phrase’s connotative meaning has grown far beyond Juvenal.

Rick Perry: Another Cowboy from Texas

It’s apparent to everyone with an IQ  higher than room temperature that Rick Perry, Governor of Texas, thinks he is the right man to be president of the United States. WC respectfully disagrees. WC thinks the last thing this country needs is another cowboy from Texas. We haven’t finished paying the bills and resolving the problems created by the last one.

But at the risk of leaping to judgment, here are some issues about Governor Perry to keep in mind as he postures for the presidency.

1. Rick Perry is the only governor in our nation’s history to knowingly execute an innocent  man. Cameron Todd Willingham did not commit a crime; he was convicted on outrageously bad “expert” testimony. Gov. Perry could not be bothered to look into it. Willingham – an innocent man by all sane accounts – was murdered by the State of Texas. There are likely other, similar cases in the massive numbers of executions Texas performs, almost three times higher than the state with the second highest number of executions. By the by, despite an astonishing death penalty rate, Texas remains in the worst third of states measured by homicides.

2. Rick Perry is either a religious zealot or a panderer. There is no other way to understand Perry’s performance last weekend. In either case, it reveals a man oblivious to the separation of church and state, and a man who seems to see and seeks to make evangelical Christianity as the national religion. He seems to view the First Amendment as optional. And he hangs out with some seriously dangerous nut jobs.

3. Rick Perry’s governorship has been a disaster for the people of Texas. The failures are serious: Texas was worst in the nation in several categories, including teen pregnancies, high school completion, children without health insurance, and adults in the criminal justice system – a significant issue because 56% of inmates incarcerated in state or federal prisons have children under the age of 18. Most worrying are trends in infant mortality: While still below the current national average of 6.9 deaths per 1,000 live births, the rate in Texas has risen from 5.7 in 2000 to 6.6 in 2006.

4. Rick Perry doesn’t create jobs for Texas; he steals them. Perry’s claim to job-creation fame comes from his high-profile raids on other states. He is a master at the theater of job poaching. During a trip to California last November, “Perry crowed that he had stolen 153 businesses from the Golden State in 2010; some 92 companies moved the other way, leaving Perry with a net gain of 61 businesses.” In October 2010, as Washington State was preparing to vote on an income tax for those earning over $200,000, Perry sent a letter to 90 businesses, including Microsoft, Starbucks and Amazon, telling them, “If Washington doesn’t want your business, Texas does.” That’ll play real well in California and Washington. The jobs he doesn’t steal from other states tend to be minimum wage. But then low-wage jobs play an outsize role in powering Texas’ economic engine. The majority of the state’s workforce is paid an hourly wage rather than a salary, and 9.5 percent  of those workers earned the minimum wage or below compared to about 6 percent for the rest of the nation, according to the Bureau of Labor Statistics. From 2007 to 2010, the number of minimum wage workers in Texas rose from 221,000 to 550,000. “Hi. Welcome to Walmart.” Of course, Perry may not know about the minimum  age. He has never held a private sector job and has held elected office or government positions for the last 27 years.

5. As far as WC can tell, Rick Perry’s guiding principles are the same as the principles that govern a weather vane: which way is the wind blowing? He has flopped around on gay rights, climate change and too many other issues. Even some of the Teabaggers hold their noses. He’s widely seen as kind of stupid, possibly vindictive, ”unencumbered by conscience,” overly religious, ultraconservative and even, given his start as a Democrat, a flip-flopper. This is the same man, after all, who chaired Al Gore’s 1988 election campaign in Texas and then jumped ship to the Republicans. And he doesn’t always seem to “get it” - he recently vetoed a bill banning text messaging while driving on the grounds that it amounted to “government micromanagement” of people’s lives.

6. But mostly, WC doesn’t think we need another right wing, religious zealot cowboy from Texas. The country, resilient as it is, may not be able to stand it.

Or you’re feeling your freedom
And the world’s off your back
Some cowboy from Texas
Starts his own war in Iraq

Some humans ain’t human
Some people ain’t kind
They lie through their teeth
With their head up their behind
You open up their hearts
And here’s what you’ll find
Some humans ain’t human
Some people ain’t kind

John Prine, “Some Humans Ain’t Human,” Fair and Square (2005)

He’s Dead – Now What?

WC makes no claim to foreign policy or intelligence expertise. But bin Laden’s assassination by the U.S. is too large an event to pass without comment, even in as minor a forum as Wickersham’s Conscience.

WC’s opposition to the death penalty doesn’t permit him to rejoice in an assassination. However richly bin Laden may have deserved it, America has once again subverted its own laws, and that can’t be good.

At the same time, WC sheds no tears for death of this thug. The human misery he created, not just in the U.S. but around the world, would shock the conscience of any thinking human being. Among his many crimes, and not the least, was his ability to turn thinking human beings into unthinking killers who valued life not at all. And to transform our nation of laws into a nation that violated its own laws.

No one should fool themselves that this will stop terrorism, let alone al-Qaeda. In the short and middle term, it will worsen the risks by creating a revenge incentive. But it still a kind of moral victory for the United States. bin Laden’s evil transformation of warfare will be with us forever. Happily, though, bin Laden will not.

Avoiding Fatal Mistakes

There’s a moving opinion piece in the New York Times, written by a man wrongfully convicted of murder and robbery, who spent 14 years on death row. His conviction was finally overturned. He was denied recompense by the U.S. Supreme Court, despite compelling evidence of intentional prosecutor misconduct.

WC has long been an opponent of the death penalty. Not only are the kinds of mistakes and prosecutorial misconduct the article describes far too common. An all too fallible criminal justice system should have no place for an absolute penalty.

But more importantly, there is no evidence that the death penalty deters anyone. Consider this list of the top ten states in execution rates through April 17, 2009:

State/Rank	2008 Population	Cumulative Executions: 1976-April 17, 2009	Executions per Capita (x10,000)
1. Oklahoma	3,642,361	89	0.244
2. Texas	24,326,974	437	0.179
3. Delaware	873,092	14	0.160
4. Virginia	7,769,089	103	0.133
5. Missouri	5,911,605	66	0.112
6. Arkansas	2,855,390	27	0.095
7. South Carolina	4,479,800	41	0.092
8. Alabama	4,661,900	41	0.088
9. Louisiana	4,410,796	27	0.061
10. North Carolina	9,222,414	43	0.047

(What’s notable about this list is how many were in the Confederacy. But that’s an issue for a separate blog post. Fellow wonks: right, Oklahoma was not yet a state, but the territory was claimed by the Confederacy. Missouri was complicated. Delaware was a slave state but didn’t secede.)

So does execution deter homicides? Through 2009, the states with the highest homicide rates calculated as murders per 100,000 people are

YEAR	2009	2008	2007	2006	2005	2004	2003	2002	2001	2000	1999	1998	1997	1996
Louisiana	11.8	11.9	14.2	12.4	9.9	12.7	13	13.2	11.2	12.5	10.7	12.8	15.7	17.5
New Mexico	8.7	7.2	8.2	6.8	7.4	8.9	6	8.2	5.4	7.4	9.8	10.9	7.7	11.5
Maryland	7.7	8.8	9.8	9.7	9.9	9.4	9.5	9.4	8.3	8.1	9	10	9.9	11.6
Tennessee	7.3	6.6	6.4	6.8	7.2	5.9	6.8	7.2	7.4	7.2	7.1	8.5	9.5	9.5
Alabama	6.9	7.6	8.9	8.3	8.2	5.6	6.6	6.8	8.5	7.4	7.9	8.1	9.9	10.4
Mississippi	6.4	8.1	7.1	7.7	7.3	7.8	9.3	9.2	9.9	9	7.7	11.4	13.1	11.1
Missouri	6.4	7.7	6.5	6.3	6.9	6.2	5	5.8	6.6	6.2	6.6	7.3	7.9	8.1
South Carolina	6.3	6.8	8	8.3	7.4	6.9	7.2	7.3	6.3	5.8	6.6	8	8.4	9
Michigan	6.3	5.4	6.7	7.1	6.1	6.4	6.1	6.7	6.7	6.7	7	7.3	7.5
Oklahoma	6.2	5.8	6.1	5.8	5.3	5.3	5.9	4.7	5.3	5.3	6.9	6.1	6.9	6.8
Arkansas	6.2	5.7	6.7	7.3	6.7	6.4	6.4	5.2	5.5	6.3	5.6	8	9.9	8.7
Illinois	6.0	6.1	5.9	6.1	6	6.1	7.1	7.5	7.9	7.2	7.7	8.4	9.2	10
Nevada	5.9	6.3	7.5	9	8.5	7.4	8.8	8.3	8.5	6.5	9.1	9.7	11.2	13.7
Georgia	5.8	6.6	7.5	6.4	6.2	6.9	7.6	7.1	7.1	8	7.5	8.1	7.5	9.5
Florida	5.5	6.4	6.6	6.2	5	5.4	5.4	5.5	5.3	5.6	6.7	6.5	6.9	7.5
Arizona	5.4	6.3	7.4	7.5	7.5	7.2	7.9	7.1	7.5	7	8	8.1	8.2	8.5
Texas	5.4	5.6	5.9	5.9	6.2	6.1	6.4	6	6.2	5.9	6.1	6.8	6.8	7.7
North Carolina	5.3	6.5	6.5	6.1	6.7	6.2	6.1	6.6	6.2	7	7.2	8.1	8.3	8.5

So of the top ten states in execution rates, a total of eight, Oklahoma, Texas, Louisiana, Missouri, Arkansas, South Carolina, Alabama and North Carolina, are among the fifteen states that have the highest homicide rates. That’s hardly a compelling argument for deterrence. It’s a strong argument that in states that execute murderers often, the homicide rate remains high.

But let’s turn it around. Fifteen states don’t have a death penalty, including Alaska. Here’s a direct comparison of murder rates in states with and without the death penalty:

Year	1990	1991	1992	1993	1994	1995	1996	1997	1998	1999	2000	2001	2002	2003	2004	2005	2006	2007	2008	2009
Murder Rate in Death PenaltyStates*	9.5	9.94	9.51	9.69	9.23	8.59	7.72	7.09	6.51	5.86	5.70	5.82	5.82	5.91	5.71	5.87	5.90	5.83	5.72	5.26
Murder Rate in Non-death Penalty States	9.16	9.27	8.63	8.81	7.88	6.78	5.37	5.00	4.61	4.59	4.25	4.25	4.27	4.10	4.02	4.03	4.22	4.10	4.05	3.90
Percent Difference	4%	7%	10%	10%	17%	27%	44%	42%	41%	28%	35%	37%	36%	44%	42%	46%	40%	42%	41%	35%

It’s pretty clear, isn’t it? In 2009, the most recent year for which WC can find data, the murder rate was more than a third lower in states that don’t have a death penalty.

So, when you combine the mistakes and misconduct of cops and prosecutors, the very high expense and the absence of meaningful deterrence, shouldn’t you ask why we still kill people? Or is it just the Old Testament eye-for-an-eye reflex? Maybe that’s a Christian value we can move beyond?

Truth and All That

I went to law school in Cook County, Illinois. One of the inadvertent lessons I was taught was to be deeply suspicious of law enforcement. Lessons began on arrival: the first thing I saw, before even getting out of the taxi from the airport, was a Chicago Police Department cop taking a bribe for fixing a parking ticket. The following year, when Big Jim Thompson was U.S. Attorney and trying to clean up Mayor Richard J. Daley’s corrupt regime, every cop – every single cop, from the precinct captain to the lowest patrolman – at the Chicago Avenue Precinct was indicted and convicted of soliciting and receiving bribes.

The Center for Wrongful Convictions at my old law school was founded long after I had left. Supported by the Medill Innocence Project at Northwestern’s School of Journalism, they’ve proven the innocence of some 11 people, some of them sentenced to death. Their work persuaded an Illinois governor to suspend indefinitely all executions. My distrust of law enforcement and the proven track record of the Center have led me to make charitable contributions to the Center for some years now. And don’t get me started on the death penalty.

But the prosecutors and cops are apparently tired of being proven to be incompetent. The Center has submitted strong proof to the Cook County Circuit Court that Anthony McKinney, who was convicted of fatally shooting a security guard in 1978, is in fact innocent of the charges. Instead of addressing the merits of the evidence, or, better still, admitting they might have made a mistake, the Cook County state’s attorney has subpoenaed the school records of the journalism students, seeking their investigative memoranda, e-mail messages, notes from multiple interviews with witnesses and class grades.

The excuses offered by the District Attorney are silly and lame. The guilt or innocence of Anthony McKinney doesn’t turn on student grades. This is intimidation, pure and simple. This is a patent effort to discourage the Medill Innocence Project and the Center on Wrongful Convictions. It’s Chicago Machine politics at their worst: “get in my face and I’ll make you regret it.”

I don’t have a lot of faith in the judicial system in Cook County, either. Big Jim Thompson put a lot of trial judges in jail, too. But I hope the trial judge quashes the State’s subpoenas and sanctions the State’s attorney. I hope, too, that this blatant attack on the innocent and those who support them sparks enough public outrage that Cook County law enforcement learns to put its efforts into prosecuting the guilty, and not jailing the innocent. Or attacking those who try to repair the damage that has been done by clumsy law enforcement.

You know. Truth and all that.