A friend of mine was once detained on suspicion of murder.
He was driving across Texas, headed down to College Station where he had enrolled in a doctorate program. It was after midnight when he stopped in a little piney-woods town for gas. Apparently the clerk who took his money thought he looked like a composite drawing they'd broadcast on the TV news a couple of hours before, so he did the good citizen thing: as my friend drove off, his license plate number was being called into the sheriff's office. Minutes later, flashing lights filled up his rear view. My friend pulled over and found himself surrounded by officers with weapons drawn. It took a few hours before they sorted it out and sent him on his way.
My friend wasn't happy about being detained, but on reflection he understood that no one had acted inappropriately. He did resemble the police sketch and couldn't blame the officers for taking the necessary precautions. No one had roughed him up; no one had verbally abused him. They had no way of knowing they weren't dealing with a dangerous and desperate armed individual. In the end, everything worked out as it should.
Most of us understand living in society requires us to occasionally acquiesce to civil authority. If the police have legitimate questions and we can provide answers, most of the time we should cooperate with them.
We ought to remember that some of us have more reason to trust in the good faith of civil authority than others. If you are stopped and detained by police on a regular basis because you live in a certain neighborhood or fit a certain profile, then you'll likely have a different attitude about the motives and intentions of the police. But we are taught that our police and courts have an interest in upholding "justice"--that they are sensitive to questions of guilt and innocence. Their mission ought to be to protect society, not to punish individual wrongdoers. Hence the William Blackstone quote: "It is better that 10 guilty persons escape than that one innocent suffer."
My friend may have been traumatized at the time, but the episode for him has become an after-dinner anecdote, a story to embellish. It was one night, long ago, and all it cost him was a little time. It was an aberration, a blip in his chart. He is free to believe he was never in any real legal jeopardy, for he didn't murder anyone.
If you didn't do anything wrong, you've got nothing to worry about, right?
I admit that I sometimes fall into lazy thinking. I know police and prosecutors don't always behave honorably, but I still assume that anyone who manages to get arrested is probably guilty of something. Prosecutors sometimes overcharge defendants to leverage plea bargains, and officers say things on the stand to help make a case (they call it "testilying") but I still tend to believe in the good faith of civil authority.
Even though I've seen plenty of instances where guiltless people have been sent off to jail. And that, since 1973, 156 death row inmates have been exonerated.
None of those inmates were in Arkansas, where we haven't carried out an execution in nearly 10 years. Two were scheduled for Wednesday but Judge Wendell Griffen issued a stay to allow attorneys for the inmates to conduct discovery for their ongoing lawsuit challenging the state's new lethal-injection law and the particular lethal-injection protocol adopted by the Department of Corrections.
But the problem isn't the protocol, it's the barbarity. The state oughtn't be in the vengeance-taking business. Most of the Western world has come to this conclusion, which is the reason we've had trouble procuring the chemicals necessary to carry out lethal injections in the first place.
In September Supreme Court Justice Antonin Scalia said he "wouldn't be surprised" if the Court abolishes the death penalty in the United States within a few years. It seems part of the inevitable evolution of our society; the death penalty is morally problematic and impossible to fairly administer. Given human fallibility, and how tempting it is for elected officials to pander to the basest instincts of the mob, to sanction this sort of institutional death-dealing is to accept that innocents will be killed in error. Maybe not many, but some.
University of Michigan law professor Samuel Gross has published a study suggesting at least four percent of people on death row were and are innocent.
Maybe that's high. Scalia once wrote an op-ed for the New York Times which he asserted the error rate in felony convictions was only about 0.027 percent. That's probably way low: Scalia made a computational error, factoring in all felony convictions, not just the capital crimes Gross studied.
Yet even if Scalia is right, I'd reject the idea that a 0.027 percent chance of error is acceptable in capital cases. Yes, I'm amending Blackstone: Better that 4,000 guilty people go unpunished than a single innocent die at the hands of the state. Except we don't even have to let them let go unpunished. We just have to stop killing them.
And we will. It would be good if we already have.
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Philip Martin is a columnist and critic for the Arkansas Democrat-Gazette. Email him at pmartin@arkansasonline.com and read his blog at blooddirtandangels.com.
Editorial on 10/20/2015