Executing the Innocent: Genetics and the Death Penalty

Most meat-eating Americans pursue their prey down supermarket aisles, oblivious to the primal requirements that transpire prior to the packaging of the cold flesh they’ll soon call supper. Hunters, ranchers, and farmers know better.

Joshua was the convict’s name. We were told he was a young one, so we figured it wouldn’t be difficult. Then the farmer pointed him out. Joshua had left being a lamb many moons before and was well on his way to ram status. My son looked at me and said, “I told you we should have brought the gun.” It took us nearly an hour to get him corralled away from the flock and situated for slaughter.

Joshua perched peacefully atop the galvanized pipes we had placed under his shoulders and hindquarters; which elevated him slightly above the ground, making it impossible for him to run away and unwilling to try. I whispered kind and gentle words to him behind his ear while I petted his head. And then, ever so calmly though my heart beat rapidly inside its cage, I raised his muzzle and ran the butcher knife deeply across his throat. The air escaped from his lungs in a rush as his blood splashed down to the ground. It was then that Joshua decided it was time to run. But it was too late. With no possibility of survival, he fought for life anyway; thrashing atop the poles and nearly trapping me against the makeshift barricade.

We pulled the pipes out from under him and laid him down on the ground. Though it felt like hours, it only took a few moments longer for him to expire. All the gutting, skinning, and carving that I did for the next couple of hours couldn’t compare to the difficulty of that first cut. Killing is hard. Life doesn’t die easy.

On April 29, 2014, Clayton Darrell Lockett died in writhing distress as the state of Oklahoma attempted to administer a lethal injection. His lunges against the restrains and the moans of his pain were evidence that he was no more willing to die than Stephanie Neiman; whom he beat, shot twice, and buried alive while she fought for her life. It is unclear as of yet whether the drugs or the trauma of them being delivered subcutaneously caused his heart attack. Regardless, his pain and suffering once again raised the issue of whether lethal injection qualified as cruel and unusual punishment and as such should be deemed unconstitutional. Based on the plethora of our medically supervised industrial infanticide facilities and the level of violence in our movies, one would think that Americans had a stronger stomach for killing. But alas, most have never seen their meat come from anywhere but the market.

The idea that executing anyone could be painless is fanciful at best and delusional at worst. Lethal injection was supposed to resolve the question of the executioner’s cruelty. Death row inmates could go gentle into that good night; the rest of us could sleep comfortably, swaddled in our humane dreams. But lethal injection has the highest botch rate of all execution methods used in the U.S. since 1890.[1] The usual mistakes involve missing or blowing a vein which causes the death-delivering cocktail to burn and push its way through muscle and fat. Even so, the damage and pain caused is a far cry from what the Framers considered “cruel and unusual”; having in mind as they did the English spectacle of being hanged, drawn, and quartered.[2]

But botched executions are the least of death penalty’s problems in America. Due to the serious nature of the sentence, death row cases cost nearly four times as much as criminal cases where the death penalty isn’t sought. And death row inmates are much more expensive to house. The costs are so exorbitant that it is cheaper to give them life imprisonment without parole.[3] And then there is the matter of innocence.

No one was in doubt of Lockett’s guilt, least of all Lockett himself. But since 1973, 144 death row inmates have been exonerated after having wasted a total of 1,485 man years in prison. Nobody knows how many innocent people have been released from death row via the execution chamber, but chances are that it is not a few. Of the 144 exonerations mentioned, only 18 of them were due to DNA evidence. DNA testing, it turns out, plays a more sinister role in conviction than it does a benevolent one in exonerations.

Under the DNA Identification Act of 1994, our federal government has amassed the largest collection of seized genetic profiles in the world.[4] The Combined DNA Index System (CODIS) is a program run by the Federal Bureau of Investigation. Federal, state, and local participating forensic laboratories supply CODIS with DNA samples collected from convicted offenders, arrestees, and detainees.[5] Though DNA evidence enjoys the myth of being infallible, the reality is that neither the science nor the personnel handling it is. With arrests and detentions being disproportionately employed against minorities, the warrantless retention of their genes for continual questioning relative to any unsolved crime only adds to the weight of possible injustice. When false positives occur, which they can do from sheer coincidence, it can make defending the accused nearly impossible.[6]

The greatest indicator of the racial disparity in our justice system is the fact that those accused of murdering whites are more likely to receive the death penalty than those who murder blacks.[7] Simply put, our justice system places a higher value on its white citizens. Since 1976, twenty white defendants have been executed for the murder of black victims. In the same time period, two hundred and seventy-one black defendants have been executed for the murder of white victims.[8] I leave it for the reader to discover if these numbers in anyway represent the demographic of our nation.

I believe in the death penalty as a tool of justice. I don’t believe in it because it is cheaper. It isn’t. I don’t believe in it because it deters crime. It doesn’t. I believe in it because it is right: a murder’s life should be forfeit, not extended in incarceration. But the problem arises in its application. We in this country have had a difficult time applying it justly. And the dual specters of racial injustice and the possibility of executing the innocent should give us great pause. I only know of one execution carried out under those conditions that ever turned out to benefit society at large. But that Lamb wouldn’t keep to his grave.

[1] According to a study done by Austin Sarat of Amherst College as cited by Death Penalty Information Center about 7% of all lethal injections are botched. http://www.deathpenaltyinfo.org/node/5772, accessed 6/8/14.
[2] https://www.rutherford.org/constitutional_corner/amendment_viii_cruel_and_unusual_punishment, accessed 5/26/14.
[3] http://www.nbcnews.com/id/29552692/ns/us_news-crime_and_courts/t/execute-or-not-question-cost/#.U5UXwvldXLl, accessed 6/8/14.
[4] Dorothy Roberts, Fatal Invention: How Science, Politics, and Big Business Re-create Race in the Twenty-first Century (New York: The New Press, 2011), p. 264.
[5] http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet, accessed 6/9/14.
[6] Roberts, p. 272-274.
[7] United States General Accounting Office, Report to Senate and House Committees on the Judiciary, “Death Penalty Sentencing”, February 1990.
[8] http://www.deathpenaltyinfo.org/race-death-row-inmates-executed-1976


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