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Radley Balko


Why Americans Still Support The Death Penalty

Posted: 09/28/11 01:00 PM ET

A couple days later, Hobbs confessed to the murders. He even offered details of the murders that police say were only known to them and the killer. If ever there were a clear-cut candidate for the death penalty, Hobbs seemed to be it.

But when DNA test results came back on the semen found in Hobbs' daughter, it didn't belong to Hobbs. He later recanted his confession, claiming his admission was the result of hours of coercive and abusive police interrogation.

Prosecutors didn't buy it. Lake County, Ill., Assistant State's Attorney Michael Mermel put forth an unlikely explanation for the DNA results: The semen may have somehow entered the girl's body while she was playing in a wooded area where teenagers were known to have sex, Mermel said.

In 2010, five years after Hobbs' arrest, DNA from the crime scene hit a match in a national database. The semen came from 21-year-old Jorge Torrez, who at the time was in custody for a series of attacks on women in Arlington, Va. Torrez is now serving five life sentences for those crimes and stands accused of the Zion murders, as well.

Hobbs was cleared of the murder charges and freed last year. He is now a walking argument against the death penalty, proof that in the face of scientific evidence, even the slam-dunk cases can come apart.

Most Americans support the death penalty out of a desire for vengeance or retribution. Some crimes, the thinking goes, are so heinous that death is the only appropriate punishment. According to Gallup, about 60 percent of death penalty supporters back capital punishment under some form of this reasoning. It's probably also the strongest argument in favor of the death penalty.

But the hunger for vengeance or retribution can also cloud judgment. Something certainly clouded that of ASA Mermel in the Hobbs case.

Particularly heinous crimes often bring more pressure on police to arrest a suspect, and on prosecutors to secure a conviction. ProPublica recently published a lengthy investigation showing that the deaths of children in particular can cause law enforcement officials to fixate on a suspect, overlook evidence that contradicts their theories, and even find crimes where none may have been committed (charging accidental deaths as homicides, for example).

A 2008 Columbia Law Review examination of the first 200 DNA exonerations found that just 18 of the convictions were at one time reversed by appellate courts. Another 67 convicts had their appeals denied with no written ruling at all. In 63 of the cases, appellate court rulings described the defendant as "guilty," and in 12 cases it referred to "overwhelming" evidence of guilt. In the other cases, appeals courts either found the defendant's appeal without merit or found that the errors in the case were "harmless"--there were problems with the case, but those problems were insignificant due to the other evidence indicating guilt. In each of these cases, the defendant was later proven innocent.

Yet protestations of innocence often inflame the state's desire for retribution. In 2008, for example, the same Georgia Board of Pardons and Paroles that refused clemency to Troy Davis granted clemency to Samuel David Crowe, who was convicted of killing a lumber store manager during a robbery. Since Crowe is white, Davis supporters have suggested that race was the determining factor in both cases, but it could just as easily have been contrition. Crowe admitted guilt and expressed remorse. Davis maintained his innocence. Governors are far more likely to use their pardon or clemency powers for someone who shows remorse than to free a convict because of doubts about his guilt.

A New York Times article on plea bargaining this week supports this theory, explaining how criminal defendants are often punished with added charges and increased jail time for maintaining their innocence and insisting on a trial. (See also the case of Richard Paey.)

There are of course plenty of cases where there's both a heinous crime and irrefutable evidence of guilt. But there have been a plenty of others where a defendant's guilt at one point seemed certain and the state's case later unraveled. There is honest disagreement over what role retribution should play in the criminal justice system. But it's important to bear in mind that the desire for retributive justice can easily (and often does) bleed into vengeance. We want the criminal justice system to seek truth by way of reason, evidence, fairness, and good judgment. Vengeance doesn't sit well with any of those values.


The 273 DNA exonerations since the early 1990s have uncovered some significant problems with the criminal justice system. Forensic specialties once thought foolproof, like fingerprint analysis, hair fiber analysis, and ballistics identification, have been proven to be flawed, or at least overstated in court.

These exonerations have also confirmed decades of warnings by academics regarding eyewitness testimony and the reliability of jailhouse informants, as well as proving that prosecutorial and police misconduct aren't isolated problems.


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