When Governor George Ryan reached the line “I will no longer tinker with the machinery of death” at Northwestern University last Saturday, announcing his decision to commute the death sentences of 167 inmates of Illinois’s death row, his audience leapt to their feet and applauded.
Now, think about that. Why would people cheer the news that 167 convicted murderers would no longer be at risk of execution?
If those present were convinced that innocent men were on death row, they might reasonably be relieved that a grave miscarriage of justice had been averted. But they would also know that men guilty of terrible crimes, whose victims were still mourned by their families, would not receive the punishment that the law decreed — and that very likely they would be released on parole within a decade a so. And they would also be miscarriages of justice.
The governor’s audience would also know that if he wanted to prevent miscarriages of justice, as he maintained, he could have confined himself to commuting the sentences of those few convicted murderers where there was a reasonable doubt of their guilt. But he extended the commutation to all 156 — including those whose crimes are admitted or undeniable.
And those cheering, finally, must have been aware — uneasily, one trusts — that Mr. Ryan was abusing his power of commutation not to save innocent men but to repeal a law passed by the Illinois legislature and supported by the voters of Illinois that he and his political allies are unable to repeal by democratic debate and electoral struggle. We might call that a miscarriage of democracy.
In all these circumstances, the cheering and applause for Ryan’s were — the word is unavoidable — “obscene.” Ryan’s moral grandstanding to a supportive crowd must have distressed the families of those murdered as well as disturbed those who believe in democratic government accountable to the voters. And his audience should have reacted accordingly — i.e. quietly and somberly rather than like a football crowd greeting a goal.
It cheered, of course, because the death penalty has become the latest skirmish in the ongoing culture war between the American people (70 percent of whom continue to endorse capital punishment) and its academic, media, and political elites. These latter have determined that capital punishment is the mark of a brutal and uncivilized society and that it is therefore legitimate to resort to override democracy in order to eradicate it. Ryan’s commutations were an important step forward in that campaign — which, of course, is intended to climax with the Supreme Court’s outlawing the death penalty as a “cruel and unusual punishment.” Hence the cheering.
Many arguments will be deployed in that campaign in the months to come. For the moment the favored one is that the death penalty unavoidably means that innocent men will be occasionally executed. That argument has been around a long time. But it failed to persuade enough people until now because only a handful of such miscarriages were known to have occurred.
Recently, therefore, organizations such as the Death Penalty Information Center have been arguing that such wrongful executions are in fact a much greater risk than commonly supposed. How many people have been wrongfully executed then?
At this point death-penalty opponents change the subject slightly. The DPIC argues, for instance, that over the last three decades more than 100 innocent people have spent some time on death row before their sentences were overturned or commuted. And this claim has been widely accepted by the New York Times, Senator Patrick Leahy, the ACLU, and the usual suspects.
Yet as my National Review colleague, Ramesh Ponnuru, demonstrated in a careful examination of these statistics, the DPIC is able to reach this number only by including people who were plainly guilty of murder but whose convictions were later quashed because of some technical flaw in the evidence against them.
For instance, Jeremy Sheets and his friend Adam Barnett, both white men, raped and murdered a young black girl. Barnett confessed, said that Sheets had stabbed the girl, and then committed suicide. Sheets was found guilty by a jury but freed by the Nebraska supreme court because his lawyer had been unable to cross-examine the dead Barnett. Still, Sheets counts as one of the more than 100 “innocent” men listed by the DPIC.
When Ponnuru eliminated people who were technically innocent but factually guilty from the list, he concluded that about 32 people had spent time on death row when they had not committed a capital offense. Of those, none had been executed. Yes, you read it right first time: there were no known wrongful executions in the period covered.
Might there have been wrongful executions we know nothing about? To be sure, that is a possibility — although an unlikely one given the efforts of the DPIC and similar groups to bring such an injustice to light.
Set that risk, however, alongside two sets of relevant statistics:
1. A few years ago there were 810 people in American prisons for their second murder — i.e. they had murdered someone, been released, and murdered again. (Of those second murders, five were committed in prison.)
2. An Emory University statistical analysis — “Does Capital Punishment have a Deterrent Effect?” — concluded that each execution deters future murders to the extent of approximately eighteen lives saved per execution.
So Ryan and his audience were more anxious about the infinitesimal risk of wrongful execution than about the substantial risk that his mass commutation would increase the number of murders both directly (because the murderers will kill again) or indirectly because he had virtually removed the deterrent effect of executions.
A quick back-of-the-envelope calculation suggests that Ryan’s brave moral gesture for a more civilized society risks the murder of more than 3,000 innocent people.