Last night's Republican presidential debate generated no shortage of headlines and much coverage of the record number of prisoner executions during the administration of Texas governor Rick Perry.
Asked by NBC's Brian Williams if he struggles with the idea that any one of those executed prisoners might have been innocent, Perry answered: "No, sir. I've never struggled with that at all. ... In the state of Texas, if you come into our state and you kill one of our children, you kill a police officer, you're involved with another crime and you kill one of our citizens, you will face the ultimate justice in the state of Texas, and that is, you will be executed."
Much of the coverage thus far has focused on the theatrics of Perry's staunch defense of Texas' system for capital punishment, rather than the substance. The Washington Post's Chris Cillizza wrote this morning that Perry was one of the "losers" last night, but "salvaged the second half of the debate with a very strong answer on the death penalty." For those wondering what was so "strong" about it, tough luck: Cillizza didn't explain. In today's Politico "Playbook," Mike Allen counseled Perry to "give the same answer on executions in every debate."
A few media outlets have noted Texas' controversial record on capital punishment, and some even spotlighted the case of Cameron Todd Willingham as a counterpoint to Perry's faith in the Texas criminal justice system. Willingham, convicted of murdering his three daughters by arson, was put to death in Texas in 2004. Perry denied a stay of execution to allow the state to review evidence that the fire science used to convict Willingham was spurious. In 2009 he abruptly replaced several members the state forensic science commission just before it was scheduled to hold hearings on the matter.
Willingham's case is an important one, but we should also be talking about the many wrongly convicted prisoners freed from death row in Texas in the last ten years. They, more than the unresolved Willingham case, demonstrate conclusively not just that the Texas criminal justice system is capable of making catastrophic errors when meting out capital punishment, but also that such errors happen with appalling frequency.
The Death Penalty Information Center maintains records of all death row exonerations in the United States going back to 1973. Of the 138 inmates exonerated in that time, 12 have been from Texas. The most recent was in 2010 when Anthony Graves walked out of prison after 18 years. Texas Monthly meticulously detailed the sequence of judicial travesties that led to his death sentence. Perry himself commented on Graves' release, saying the exoneration shows that "we have a justice system that is working."
In 2009, Robert Springsteen and Michael Toney were released from death row in Texas. Springsteen was cleared by DNA evidence, and Toney's conviction was thrown out due to prosecutorial misconduct. Improved DNA testing technology also spared the life of Texas inmate Michael Blair, who was released from death row in 2008. Ernest Ray Willis was convicted of murder and sentenced to death in a Texas courtroom in 1987. He was released in 2004 when a review of his case revealed that prosecutors had withheld evidence.
The lives of these innocent men were spared by dint of incredible good fortune and the dogged work of journalists, lawyers, and other people working on their behalf. That there are so many of them forces us to believe that there are others languishing on death row because they lack resources and advocates. Can we really assume in good faith that the justice system will automatically correct its mistakes before they can't be reversed?
In a 2006 opinion upholding the constitutionality of the death penalty, Supreme Court Justice Antonin Scalia wrote that there has never been a case in which an executed prisoner has been clearly and incontrovertibly proven innocent after the fact. "If such an event had occurred in recent years," Scalia wrote, "we would not have to hunt for it; the innocent's name would be shouted from the rooftops by the abolition lobby."
Well, we've had several near-misses in Texas, not to mention the dozens of exonerations in other states. And if their names aren't going to be "shouted from the rooftops," they should at least be mentioned when reporting on capital punishment in the Lone Star State.