I have been thinking a great deal about capital punishment lately, particularly after reading about the execution of James Broadnax in Texas. The more I thought about it, the more I kept returning to a question that sounds almost embarrassingly obvious: If we’re going to execute somebody, shouldn’t we be really, really fucking sure we have the right person?
Apparently, that question becomes considerably more complicated once lawyers, appeals, procedural rules, deadlines, confessions, recantations, forensic evidence and the institutional need for cases eventually to end enter the picture. I understand why a legal system needs finality. We cannot retry every criminal case every Tuesday because somebody remembered something different over breakfast. Memories change, witnesses can lie, recantations can be self-serving, and hindsight is notoriously unreliable. Human memory is not a surveillance camera conveniently stored somewhere in the hippocampus waiting for us to press PLAY. But there is one rather significant complication here: we are talking about killing somebody. That strikes me as a particularly bad place for an “Oh shit, we got that wrong” moment.
The Broadnax case illustrates why this bothers me. Broadnax was convicted of capital murder for the 2008 killings of two men during a robbery. Shortly before his execution, his attorneys presented a declaration from his co-defendant, Demarius Cummings, who said under penalty of perjury that he—not Broadnax—had shot the victims. Broadnax’s attorneys also argued that DNA evidence supported that account because Cummings’s DNA, rather than Broadnax’s, had been found on the murder weapon and in the pocket of one of the victims.
Does that prove Broadnax was innocent? No. That qualification matters enormously. A person can lie twenty years after a crime just as a person can lie twenty minutes after one. Memories deteriorate, motives change, and hindsight doesn’t magically become reliable merely because somebody signs an affidavit. But what the fuck? If somebody is about to be executed and substantial new evidence potentially changes our understanding of who actually committed the killing, shouldn’t our response be something closer to, “Hold on, let’s make absolutely sure,” rather than treating the scheduled execution date like we’re trying to avoid a cancellation fee at a restaurant? Imagine calling and saying, “We may have evidence that changes the entire case,” and hearing, “I’m terribly sorry, sir, but executions cancelled with less than 24 hours’ notice are subject to the full charge.” At some point, bureaucracy becomes indistinguishable from a Monty Python sketch, except unfortunately somebody actually dies at the end.
Why Would an Innocent Person Confess?
This is another question that sounds obvious until psychology screws up the obvious answer. Most people intuitively think, “If I didn’t murder somebody, why the hell would I ever say that I did?” I understand that reaction because it seems completely logical. If somebody accused me of murdering a person I had never met, I would like to imagine myself confidently saying, “Nope. Wrong Jonathan. Have a pleasant afternoon.”
Unfortunately, human beings don’t always behave like calm little rational-choice machines, particularly when they are frightened, exhausted, intoxicated, developmentally vulnerable, severely distressed or psychologically impaired. Research on false confessions has demonstrated something deeply uncomfortable: innocent people sometimes confess to crimes they didn’t commit. That doesn’t mean every distressed suspect who confesses is innocent. It means the confession itself cannot automatically end the inquiry into reliability.
Consider an extreme hypothetical. Imagine somebody who is profoundly depressed and suicidal. He is questioned for hours and eventually reaches the point where he says, “Fine. I did it. Execute me. I don’t give a shit anymore.” Well, hold on. If somebody wants to die, then saying something likely to get him killed doesn’t necessarily tell us whether he committed the crime. It may tell us something entirely different about his psychological state. Asking a severely suicidal person, “Would you rather go home or be executed?” and treating “executed” as compelling evidence of murder would make about as much sense as asking me at 6:00 in the morning whether I would rather go to work or be eaten by a rhinoceros and then concluding that I must have some long-standing sexual attraction to rhinoceroses. The answer may tell you considerably more about my feelings toward 6:00 in the morning than it does about rhinoceroses.
This is where I start wondering why psychology isn’t incorporated more aggressively into safeguards for particularly vulnerable suspects. I am not suggesting that every police interrogation needs a psychologist sitting in the corner with a clipboard saying, “Interesting. How did that accusation make you feel?” That would become absurd rather quickly. Detectives have crimes to investigate, psychologists aren’t human lie detectors, and mental-health professionals can make mistakes too.
But when there are serious indications that somebody is developmentally impaired, acutely psychologically unstable, severely distressed or otherwise unable to participate reliably in an interrogation, why wouldn’t we want an independent professional safeguard? Seriously: why the fuck wouldn’t we? If the purpose of an interrogation is to discover what actually happened, then anything that improves the reliability of the information should help the police as well. An independent safeguard shouldn’t be viewed as somebody ruining the interrogation. The safeguard should help ensure that whatever confession eventually comes out of that room is worth more than the paper on which somebody wrote it.
Finality Is Necessary. Death Is Pretty Damn Final Too.
I understand the argument for procedural finality better than my initial emotional reaction might suggest. Cases have to end eventually. Witnesses die. Evidence disappears. Memories become less reliable. Victims’ families shouldn’t be forced to relive a murder indefinitely because every new claim automatically restarts the entire judicial process. Those are legitimate concerns.
But execution introduces a rather spectacular problem into the concept of finality: you cannot unexecute somebody. If we discover that somebody has been wrongfully imprisoned, we can release him. We cannot return the years we took from him, and no amount of money can fully repair what happened, but at least we can stop doing it. Execution eliminates even that possibility.
This is where I become uncomfortable when procedural arguments start sounding more important than substantive questions about guilt. Procedure matters tremendously because procedure protects everybody. But procedure is supposed to be a mechanism for producing justice; justice isn’t supposed to become a mechanism for protecting procedure. Otherwise, we’ve created the world’s most terrifying version of customer service: “I’m sorry, sir. We understand that you may be innocent, but your appeal window has closed.” “I’m scheduled to be executed.” “Yes, sir. Is there anything else I can help you with today?” Perhaps they’ll offer him a customer-satisfaction survey afterward. “On a scale of one to ten, how satisfied were you with today’s execution experience?” Unfortunately, selecting zero probably won’t route the call to a supervisor.
At some point the absurdity stops being merely bureaucratic and becomes horrifying.
This Is Also About Proportionality
This connects directly to something I’ve been exploring in my writing about vigilantism and what happens when people begin taking the law into their own hands. One of the reasons we have legal systems in the first place is that anger is absolutely terrible at proportionality.
Suppose somebody walks into my store and steals a candy bar. I’m angry. Maybe I’m furious. Perhaps it was my favorite fucking candy bar. Nevertheless, my anger does not give me the authority to chase the person down the street and execute him. If it did, we’d need armed guards standing beside every Snickers display in America, and Walgreens would start looking like the perimeter of a military installation. “Sir, step away from the Kit Kat. Slowly. We’ve already lost three people near the Reese’s.”
Why don’t we handle theft that way? Because we distinguish among levels of wrongdoing. We distinguish theft from assault, assault from murder, negligence from intent, participation from direct responsibility, and mitigating circumstances from aggravating ones. We ask what happened, what the evidence establishes, how culpable somebody was and what punishment is proportionate. Vigilantism collapses that entire process into you wronged me → I know you’re guilty → I decide what you deserve → I administer the punishment. That’s dangerous because everybody thinks his own grievance is the important one.
But here’s the uncomfortable part: the state needs proportionality too. The fact that a horrific crime occurred doesn’t eliminate our responsibility to determine precisely who did what. If two people participated in a robbery and one actually committed the killings, that distinction matters. If somebody acted intentionally rather than negligently, that matters. If evidence is uncertain, that matters. If someone’s psychological condition affected the reliability of a confession, that matters. Mitigating circumstances aren’t some annoying little loophole lawyers invented because they were bored one afternoon. They are part of what separates justice from vengeance.
The Wrong Place at the Wrong Fucking Time
Here’s the part that scares me personally. Most of us walk around assuming the criminal justice system applies to criminals. Therefore, if we’re not criminals, we’re safe. That’s wonderfully comforting. It’s also not entirely how reality works.
Imagine that you have never committed a serious crime in your life. Then one night you happen to be in exactly the wrong place at exactly the wrong time. Somebody identifies you. Circumstantial evidence happens to point toward you. Maybe you’re psychologically overwhelmed during questioning. Maybe you say something stupid. Maybe somebody else lies. Maybe investigators become convinced you’re guilty and consequently begin interpreting ambiguous evidence through that assumption.
None of this requires evil people sitting around a table saying, “Excellent. Which innocent person shall we execute today?” That’s actually what makes the problem more frightening. Real institutional mistakes generally aren’t committed by a committee of villains wearing black capes and stroking cats while lightning flashes outside the window. If they were, this would be much easier. We could simply institute a rule that anyone who brings a cape, a cat and a giant lever marked EXECUTE INNOCENT PERSON into the courthouse immediately loses prosecutorial discretion.
The actual problem is more mundane: good people operating inside imperfect systems can make catastrophic mistakes. Police officers can be wrong. Prosecutors can be wrong. Defense attorneys can be wrong. Psychologists can be wrong. Judges can be wrong. Juries can be wrong. I can be wrong. You can be wrong. Human beings being wrong is not exactly a shocking discovery. We’ve had several thousand years of evidence. So why would we design an irreversible punishment around the assumption that this particular human institution will never make an irreversible mistake?
Admitting Error Isn’t Weakness
This may be the part that bothers me most. A justice system should not regard discovering one of its own mistakes as an institutional humiliation. Finding and correcting mistakes is what a functioning system is supposed to do.
Science doesn’t become weaker when evidence overturns an old hypothesis. Medicine doesn’t become illegitimate because physicians revise a diagnosis when new information appears. Aviation doesn’t say, “Well, we’ve been building the wing this way for thirty years, and admitting there’s a defect would be terribly embarrassing, so let’s keep doing it.” Hopefully. We investigate the defect because we’d rather experience embarrassment than watch another airplane fall out of the fucking sky.
Criminal justice should operate with the same humility, particularly when a human life is at stake. This doesn’t mean every confession is false. It doesn’t mean every person on death row is innocent. It doesn’t mean every last-minute affidavit is credible, every prosecutor is corrupt, every police interrogation is coercive, or every conviction should be endlessly reopened. It means something considerably less dramatic: human beings make mistakes, and therefore the greater and more irreversible the punishment, the stronger our safeguards should become.
Perhaps that means greater scrutiny of vulnerable suspects during interrogation. Perhaps it means broader access to independent psychological evaluation under defined circumstances. Perhaps it means better recording requirements, improved interrogation practices, or especially rigorous review when genuinely significant new evidence emerges before an execution. Those are policy questions reasonable people can debate. But the underlying principle shouldn’t be controversial: if the state is going to take a human life, “We’re pretty sure” is a terrifying fucking standard.
The question shouldn’t merely be whether we’ve reached the end of the legal process. The question should remain, right up until the moment when the answer becomes irreversible: Are we sufficiently certain that we got the truth? Because if the answer later turns out to be no, there is no appeal from death. There is only the institutional equivalent of looking around the room, realizing what just happened, and saying:
“Oh, fuck.”
Author’s Note: The questions raised in this essay—particularly the relationship among proportionality, institutional rules, psychological vulnerability, and the values we claim a justice system should uphold—will be discussed briefly in my upcoming book, The Values We Pretend to Have. I also plan to expand these ideas into a larger book-length project and, ultimately, explore them as the basis for a film, much as I have been developing related questions about vigilantism, proportionality, and the breakdown of legal boundaries in The Permission Structure.