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Diann Rust-Tierney

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Test the DNA

Posted: 11/02/11 06:53 PM ET

Capital punishment is continuing to lose credibility as a reasonable response to crime. While we all have some level of understanding of the desire to see a murderer suffer a fate in kind, in practice the idea of making sure murderer's get their just desserts, we are coming to see as increasingly difficult -- if not impossible.

Most glaring is the challenge of maintaining a fair system that does not punish the innocent along with the guilty. A little over a month ago the nation witnessed an execution in Georgia that left everyone shaking their heads. How could the state of Georgia execute a man when there was so much doubt about his guilt? What purpose was served? What principle of law was upheld, if fundamentally it didn't matter whether we were certain he committed the crime?

Now another case in Texas leaves people shaking their heads again. Hank Skinner has an execution date set for November 9, 2011. But he has cases pending in federal and state courts to compel the State of Texas to conduct DNA tests on all of the untested evidence in his case. Wait a minute; shouldn't we be certain Skinner committed the crime before he's executed? Wait a minute, you mean there's DNA evidence and it hasn't been tested?

The head wagging begins when you wonder what justice is served by Texas refusing Skinner's request for DNA testing for more than a decade, forcing him to go to court to challenge in the first place.

What justice is served now by Texas's apparent attempt at an end run on the courts by setting an execution before the courts might have an opportunity to rule?

The dangerous thing about the death penalty is that the stakes are so high, that it is too easy to be more focused on winning than on justice. It's so horrible and taxing that it is easier to focus on getting it over with than doing all the painstaking, even hard things necessary to make sure we've got it right. And in this case it's easy. But this observer sees more than a little human pride at work as well.

For goodness sakes, test the DNA -- it's a win-win for justice.