Death Penalty

Columbia Professor and Students Reveal Texas Justice Executed the Wrong Man in 1989


Ann Coulter, George W. Bush, and Justice Anton Scalia have one thing in common; all of them have at some point expressed total confidence in the American justice system and, in particular, its ability to never, ever execute people who were not guilty. (To be fair, in Coulter's case she just thinks that the Americans executed since 1950 were all guilty.)

Whoops, says Columbia University Professor James S. Liebman and 12 of his law students after six years of research. The story of the conviction and 1989 execution of Carlos DeLuna for what turned out to be a murder committed by Carlos Hernandez is a textbook example of everything going wrong in a murder case. The cost of such errors are two murders instead of just one (to say nothing of a lack of restitution for the victim, if that's your bag.)

Says the The Guardian, the Spring 2012 Human Rights Law Review has 400-plus pages on this disaster:

Starting in 2004, they meticulously chased down every possible lead in the case, interviewing more than 100 witnesses, perusing about 900 pieces of source material and poring over crime scene photographs and legal documents that, when stacked, stand over 10ft high.

What they discovered stunned even Liebman, who, as an expert in America's use of capital punishment, was well versed in its flaws. "It was a house of cards. We found that everything that could go wrong did go wrong," he says.


From the moment of his arrest until the day of his death by lethal injection six years later, DeLuna consistently protested he was innocent. He went further – he said that though he hadn't committed the murder, he knew who had. He even named the culprit: a notoriously violent criminal called Carlos Hernandez.

Rest here. The HRLR's full report is over here.

And over at The Atlantic, Andrew Cohen had this to say:

No one can ever say again with a straight face that America doesn't execute innocent men. No one. Barry Scheck told me Friday: "If Carlos DeLuna were still alive, [the Article] would form the basis of a habeas petition that would have exonerated him."

Anyone who cares about the integrity of our justice system, and the constitutional values it is supposed to reflect, should expect Justice Scalia to read the Review article this summer—and certainly before he writes another word for the Court about the death penalty. We'll see. I also especially recommend Los Tocayos Carlos to anyone and everyone—judge, prosecutor, police official, witness, medical expert, etc—who had anything at all to do with making the DeLuna case the symbol it will now become.

DeLuna was reportedly slow as a child and tested as mildly mentally retarded as a juvenile. Later, he was in and out of trouble with the law until he was found (and was perhaps beaten) by the police on the night of the Lopez murder. There is great doubt even today that he fully understood the magnitude of the trouble he was in, even as he was nearing the end in 1989, which is why he made such a perfect patsy for Carlos Hernandez.

The ultimate villain of this awful story, Hernandez died in prison, in 1999, boasting to the end that he had killed Wanda Lopez and allowed another man to take the fall for it. The cops knew this. The prosecutors knew or should have known it. Witnesses knew it. And yet no one did anything to stop the state executioners from carrying out their job. Why no one listened to Hernandez for all those years, and why no one hears the cries of others today, is a question Justice Scalia and many others have to answer for themselves.

As Cohen noted, this is definitely not the first time American justice has succeeded at killing an innocent man. There's no need to even wade back into last year's Troy Davis controversy. Texas's long history of executions also includes Cameron Todd Willingham, the father who almost certainly did not set the fire which killed his three kids in 1991 and for which he was executed in 2004. 

Death, like the more banal pursuits, is not given out fairly or justly (if there such a thing) by governments, their officials, or even the jury pool drafted for the noble, alarming task of deciding the fate of a stranger. Fans of the death penalty should at least have the decency to admit that they're okay with errors like the one that killed Carlos DeLuna. 

Reason on capital punishment

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  1. I have no confidence in the justice system. Yet a whole lot of people need killin’.Rather than totally rejecting “capital punishment”, I just oppose giving the state a monopoly on it.

    1. I hereby sentence you to death, SIV.

  2. What is sadder than an innocent man being murdered is that this will get 0 fucking MSM coverage. None.

  3. Prosecute judge, jury, prosecutor executor for murder. That would lower wrongful convictions instantly.

    1. But they had good intentions

  4. There was a case like this in Canada. Steven Truscott was convicted of murder in 1959, and was slated to hang by the neck until he was dead, dead dead. Only he was innocent.

    This story has a less grisly ending. The Prime Minister at the time, John Diefenbaker, commuted Truscott’s sentence to life imprisonment. The poor fellow still rotted in jail, but he did live to see himself vindicated in the 1990s.

    Brian Mulroney, one of Diefenbaker’s proteges, had his party end the death penalty once he became Prime Minister in the 1980s.

    1. Whups, the 2000s.

  5. [snark] Look, the guy they executed was Hispanic, right? He must have been guilty of something! [/snark]

  6. Fans of the death penalty should at least have the decency to admit that they’re okay with errors like the one that killed Carlos DeLuna.

    You mean just like opponents of the death penalty are OK with the death of innocents through recidivism?

    1. Yes. In order to have freedom, you have to accept some risk. Perfect security is an unattainable concept in a free and just state.

      Besides which, your question is a false choice between the death penalty and recidivism. Life imprisonment is a third option.

      1. Because those who have been sentenced to life imprisonment never kill? The guards or other prisoners that they murder don’t count or it never happens?

        Don’t get me wrong, the killing of an innocent is a tragedy. Taking one side of the death penalty while ignoring the other just doesn’t make sense to me. At some number, I would think it more just to be wrongfully killed by the State than to have 100 wrongfully killed by recidivist murderers. (Of course I have no life so this may not really count). This execution happened over 20 years ago. Have there really not been dozens or even hundreds of deaths by convicted murderers in that time? I don’t know the actual numbers. This article, and most like it, do not inform me, either. Indeed they act as if it NEVER happens, which I seriously doubt.

        There is also the Justice factor. Murders deserve to die, not live long and healthy lives at the expense of the productive.

        1. Murders deserve to die, not live long and healthy lives at the expense of the productive.

          So therefore you support the immediate execution of the Prosecutors, Cops, Judges, Jury Members, and the executioner who committed this act of murder, right?

          Committing another act of murder in an act of “justice” does not make the action morally right. If it would be an act of murder for one of the victim’s family to kill the person they felt had killed their loved one, it is equally an act of murder for the Government to do it in their stead.

          This is not just a matter of making “mistakes” once in a while (it may be rare for an innocent to be executed, but it is also not common that those in prison for murder will kill others). It is a moral principle about justifying murder and giving that power to a Government who never truly acts in the interest of the Governed.

          1. it is also not common that those in prison for murder will kill others


            1. Death Rates of Prisoners
              A 2005 study. Homicide rates in all prisons nationwide are about 5 in 100,000 inmates. Which is roughly 1/10th the homicide rate (per 100,000 people) in the US Population as a whole. So you actually are less likely to be killed in prison than walking down the street.

              I couldn’t find the percentage of total US prisoners who are in jail for murder, but the statistics for federal prisoners Show that only about .13% of the population of the prisons are being held on murder charges.

              Those percentages make it appear very unlikely that if you are killed in prison it was done by someone being held on murder charges.

        2. At some number, I would think it more just to be wrongfully killed by the State than to have 100 wrongfully killed by recidivist murderers.

          I imagine it’s especially easy to think it when you’re not part of the demographic groups likely to be falsely convicted of a crime.

          1. Since I am not a recognized minority my positions are clearly biased?

            This coming from a woman?

      2. Perfect justice is also unattainable. You either have to completely do away with the justice system or accept some level of risk that you will have wrongful convictions. It’s a trade study, does the death penalty save more lives then it costs.

        1. But the current system ASSUMES it is perfect — that’s the problem. Specifically, the problem is immunity from any wrongdoing.

          Like affenkopf mentioned above: “Prosecute judge, jury, prosecutor executor for murder. That would lower wrongful convictions instantly.”

        2. By the only measurable statistic we have, the answer to your question is no. We know that the death penalty kills people. We have absolutely no proof that it prevents a single murder.

          The death penalty has never been about “justice”, the death penalty is simply an act of vengeance.

    2. Life in prison is just as effective at preventing recidivism as the death penalty. The main difference is that life in prison can be “corrected” if exculpatory evidence comes out.

      Also, I’d rather risk being murdered by a sociopath than risk participating in murder through the state.

    3. There’s a big difference between commiting an injustice and a failure to prevent one.

  7. Justice Scalia has said that the Constituion does not gurantee factual perfection. Instead, it gurantees a rigorous fact-finding process. No human process will ever be perfect, and therefore it is possible, legal, and constitutional for the factually innocent to be found legally guilty.

    1. Fine, I’ll admit we have to accept occasionally convicting an innocent person. The only way to prevent it would be to convict no one. But we don’t have to accept occasionally putting an innocent person to death.

      1. This, this, this.

        (also — Chinese restaurant: “Waiter, I’ll have the cream of sum gui naw.”)

    2. The solution, then, is to end the death penalty so that if a convicted person is eventually exonerated, he or she can be released. Death kinda-sorta doesn’t lend itself to the ability to correct mistakes.

    3. And like in a truly free market system, if everyone were truly equal under the law, it would be balanced with actual risk. Why should lawmakers and those part of the system be exempted?

      Again, affenkopf’s solution of removing immunity for everyone, judge, jury, prosecutor, is the right and most logically consistent solution for what is preached.

      I can guarantee that whatever is lacking now, its flaws will be immediately reversed on their own.

      An alternative discussed by H.L. Mencken of special courts dedicated to prosecute officials as in the old Prussian system:


        Not only, he adds, were they subjects to ordinary criminal law but also to special courts for “offenses?peculiar to their offices.” Prussia maintained a court where any citizen was free to lodge a complaint against an official, and a guilty official could be punished in many ways?forced to pay damages against a victimized citizen, removed from office, and/or sent to jail.

        “Had a Prussian judge in those far-off days of despotism, overcome by a brainstorm of kaiserliche passion, done any of the high-handed and irrational things that our own judges, Federal and State, do almost every day, an aggrieved citizen might have hailed him before the administrative court and recovered heavy damages from him….” Furthermore, the law “specifically provided that responsible officials should be punished, not more leniently than subordinate or ordinary offenders, but more severely. If a corrupt policeman got six months a corrupt chief of police got two years. More, these statutes were enforced with Prussian barbarity; and the jails were constantly full of errant officials.”

      2. (cont’d)

        But in America…judge and prisoner would often be fellow Democrats or fellow Republicans, and hence jointly interested in protecting their party against scandal and its members against the loss of their jobs.

        “What is needed,” concluded Mencken, “is a system (a) that does not depend for its execution upon the good-will of fellow jobholders, and (b) that provides swift, certain and unpedantic punishments, each fitted neatly to its crime.” Mencken’s proposed remedy provides that any

        [citizen]…having looked into the acts of a jobholder and found him delinquent, may punish him instantly and on the spot, and in any manner that seems appropriate and convenient?and that, in case this punishment involves physical damage to the jobholder, the ensuing inquiry by the grand jury or coroner shall confine itself strictly to the question whether the jobholder deserved what he got.

      3. (cont’d)

        In other words, I propose that it shall no longer be malum in se for a citizen to pummel, cowhide, kick, gouge, cut, wound, bruise, maim, burn, club, bastinado, flay, or even lynch a jobholder, and that it shall be malum prohibitum only to the extent that the punishment exceeds the jobholder’s desserts. The amount of this excess, if any, may be determined very conveniently by a petit jury, as other questions of guilt are now determined…. If it decides that the jobholder deserves the punishment inflicted upon him, the citizen who inflicted it is acquitted with honor.

        If, on the contrary, it decides that the punishment was excessive, then the citizen is adjudged guilty of assault, mayhem, murder, or whatever it is, in a degree apportioned to the difference between what the jobholder deserved and what he got, and punishment for that excess follows in the usual course….

  8. Instead, it gurantees a rigorous fact-finding process.

    Right, except it doesn’t. Watch The Thin Blue Line for a good example.

  9. “Ann Coulter”

    Who gives a fuck?

  10. My opinion — This is a better argument for relooking/retooling the appeals process for the death penalty.

    Perhaps mandatory independent review with higher requirement of proof for validation of the death penalty (reversion to life in prison). I’m generally OK with the delays, because it prevents some loss of innocent life (and likely allows some guilty parties free).

    Shoould be separate and less onerous than the actual appeal process.

  11. The Death Penalty is certainly a tough problem.

    Generally speaking I am opposed to a “Death Penalty” because I do not believe any system of “Justice” which is based on punishment can ever function rationally.

    Threat of punishment does not deter people from engaging in activities that would be illegal and it only very rarely serves to correct behavior after the fact and therefore there is no benefit to anyone. The victim(s) may get some sense of satisfaction in the form of vengence but their damages are not made in any way whole, offenders are not given any form of benefit to help avoid future offenses, and society is not in any way protected from further crimes. No one benefits.

    Therefore we need to switch the focus of the Criminal Justice system to be one based on restitution and rehabilitation, which on it’s face would seem to rule out killing criminals for their crimes.

    However there is a wrinkle, what do you do with that small percentage who can never be safely released into society? Keep them in jail forever? Frankly in my opinion that is more cruel and inhumane than just killing them quickly, it’d be nice if we had somewhere to exile them to but no such place exists and so that leaves just killing them so I can see an argument for state sanctioned killing of the most dangerous criminals, not as a punishment but rather as a way of safely and permanently removing them from society.

    1. “Threat of punishment does not deter people from engaging in activities that would be illegal”

      That is not true. The only reason I don’t set up a grow-op in my house (I have a super green thumb) is because if the cops found out, they’d take all of my stuff.

      1. Yeah but last I checked they don’t give you the death penalty for growing drugs.

        But the real point i’m getting at is it is not the punishment per se you fear, it is the “getting caught” chances are you would be just as dissuaded from setting up your own grow operation if the punishment were merely being locked in a room having to listen to Kenny G albums for a few hours as you would by the prospect of a few years in jail because the average law abiding citizen is naturally disinclined to break the law and when they do so it is either because they lost control in a fit of emotion, they did not realize they were breaking the law at the time, or they did not believe they would be caught.

        The relative severity of the punishment is almost never a factor in their decision making process.

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