The case for a death-penalty moratorium is one of those propositions that must be true, or so its adherents believe, and thus we find that any news event or legal development further proves the case.
If the judicial system overturns a wrongful conviction of a person on death row, that illustrates that capital punishment is flawed. If the judicial system doesn’t overturn what protesters believe is a wrongful conviction of a person on death row, that also illustrates that capital punishment is flawed. If some anguished family members of murdered victims come out in favor of a moratorium, that shows that the death penalty brings no comfort and achieves no useful purpose. If some anguished family members of murdered victims come out against a moratorium, that shows that the death penalty is just a nod to irrational and vengeful emotions and achieves no useful purpose.
The latest example of the non-falsifiability of said proposition is how moratorium supporters have latched onto the Darryl Hunt case and two recently overturned capital convictions. Hunt was twice convicted nearly two decades ago of a rape and murder in Winston-Salem. DNA evidence not available at the time of the trial has now put the finger on a different perpetrator, who said that Hunt was not involved. After years of agonizing delay and torment, Hunt has been freed.
How does this tragic case prove the need for a moratorium on the death penalty? Well, presumably the argument is that this miscarriage illustrates the fundamental flaws of our criminal-justice system. But Hunt was never on death row, though in the original trial he was charged with a capital murder and was found guilty but was then sentenced to life in prison. Thus I’m not sure why the case is being treated as directly relevant to the use of capital punishment.
Moreover, it would be absurd to suggest that any human institution, including the trial courts of North Carolina, can be perfect. Mistakes should be minimized but they will never be entirely eliminated. That’s why we have an appellate process to allow additional review of the law and the evidence to act as a double-check, triple-check, or more. After all, even if North Carolina had no death penalty, it would still be important to ensure that convicted criminals had some recourse to appeal, and to seek constantly to refine and improve this process. Death-penalty foes are fond of saying that you can’t take back an execution but the truth is you can’t take back any punishment inflicted on the wrongfully convicted. Just ask Darryl Hunt, who lost nearly 20 years of a life and cannot get it back.
Similarly, moratorium proponents cited two Supreme Court decisions overturning convictions in capital cases as further evidence that the system is flawed, executions should be suspended, and a thorough study undertaken. Huh? The appeals courts did their job and overturned the convictions. Is the assumption that a reformed judicial system would never see lower-court convictions overturned by the Supreme Court? And why should executions be suspended while a study is conducted? There is no logical necessity to link the two policies, unless the goal is simply to eliminate capital punishment by making it harder to reinstate later.
I would take the argument a step further. As far as I know, there has never been substantiated a case in which a person has been executed for murder and then subsequently found to be innocent of the crime. But even if such a case were ever to be discovered, I would not view that as a decisive argument against the continued application of the death penalty. Again, human institutions are imperfect. We cannot make them perfect no matter how hard we try. That means that the alternative — life in prison without the possibility of parole — is also imperfect. The (perhaps remote) potential exists for escape, for inmates to kill other inmates as happened to the pedophile priest in Massachusetts, and for future politicians to change the law to allow parole once again.
Given imperfection, the best we can do is ensure that to the very best of our ability, justice is done in North Carolina. In my view, that requires the death penalty, as there are some egregious crimes for which no punishment short of execution can ever be considered just.
And in the meantime, I propose a moratorium on illogical arguments for a moratorium.
Hood is president of the John Locke Foundation and publisher of Carolina Journal.