In a blockbuster New Yorker piece this week , David Grann persuasively demonstrates that in 2004, Texas executed an innocent man, Cameron Todd Willingham. It is chilling reading. Whatever you think about the death penalty, you can’t want it to misfire. So how did we get here, to a legal regime in which a junk-science arson investigation was never questioned by indifferent defense lawyers, as Grann portrays them, nor by unsympathetic judges, parole board members, and Texas Governor Rick Perrry’s office?
My answer starts with the 1996 Antiterrorism and Effective Death Penalty Act, which President Bill Clinton signed in the wake of the Oklahoma City bombings. The Supreme Court also gets a share of the blame for the noose-tightening way in which it interpreted AEDPA. Justice Antonin Scalia has led this charge and went so far as to write recently, in the appeal of Troy Davis, “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” But more centrist justices also lined up on the side of “finality” - the idea that there is value in closing the doors of due process. Grann quotes Justice Sandra Day O’Connor, who wrote in a 1993 case that the “execution of a legally and factually innocent person would be a constitutionally intolerable event.” But in that case, Herrera v. Collins , O’Connor ruled against the defendant. And that is one of a string of rulings from her that made it more and more difficult for defendants to bring to light new evidence and to get the courts to pay attention to flaws in their convictions. Cameron Todd Willingham is dead because of a bad and abstruse law and a series of even worse legal rulings from our high court.
Photograph of death penalty protesters by Chip Somodevilla/Getty Images.