Cruel and Unusual Punishment

Capital Punishment in America Has Reached a Crisis Point; We Must End It Now

Henry McCollum had been the longest serving prisoner on North Carolina’s Death Row, until September 2, 2014, when Superior Court Judge Douglas Sasser overturned his conviction finding that he and his half-brother, Leon Brown were wrongfully convicted of rape and murder in 1983. According to the Raleigh, NC News and Observer, Leon Brown was also on death row, for five years until his sentence was reduced to life in prison after a 1992 re-trial. Thirty years is a long time for anyone to hold their breath wondering whether today will be the day the government will give him/her a lethal injection in their arm. It is an especially long time if you didn’t do it. It’s cruel and unusual punishment and prohibited by the Eighth Amendment of our Constitution. Unfortunately for America, McCollum and Brown’s stories, while extraordinarily tragic, are not the worst. It is now virtually certain that we have already executed an innocent man in the United States.

In 2004, the state of Texas executed Cameron Todd Willingham for allegedly murdering his three young daughters by intentionally setting their house on fire. The Washington Post reported that the main pillars of evidence against Mr. Willingham in his 1992 trial were a forensic expert’s report ruling the fire arson and the testimony of a jailhouse informant, Johnny E. Webb. Webb testified that Mr. Willingham had spontaneously confessed to him while they were both in prison together. Since Willingham’s 2004 execution, numerous scientific experts, including the Texas State Forensic Science Commission, have discredited the deputy fire marshal’s finding that the fire that killed Mr. Willingham’s daughters was arson. Additionally, Johnny Webb has now admitted that he lied on the witness stand about Willingham’s jailhouse confession in order to get his own sentence reduced. At trial, the prosecutor asked Webb whether the government had ever promised him anything in return for his testimony against Willingham. Webb under oath said no. Yet, in 2000, four years before Willingham’s execution, Webb wrote a handwritten letter to the Texas District Attorney’s Office stating that he wished to recant his 1992 testimony and stated that Willingham was innocent. This letter was never placed in Webb’s file or sent to Willingham’s attorneys. This despite the fact that the U.S. Supreme Court had ruled in Brady v. Maryland, 373 U.S. 83 (1963), that evidence such as this which is exculpatory and in the possession of the government must be turned over by the prosecutor to the defense. On July 25, 2014, the Innocence Project filed a complaint with the State Bar of Texas alleging prosecutorial misconduct against the trial attorney for the government. The prosecutor denies the charges. Webb’s recent public admission that he lied when he testified against Willingham comes ten years too late for Cameron Todd Willingham. This is an unspeakable tragedy.

Supreme Court Justice Antonin Scalia famously wrote in the case Kansas v. Marsh, 548 U.S. 163 (2006), that those who support abolishing the death penalty could not even cite one single case where an innocent man had been executed for a crime he did not commit. It appears for Justice Scalia and America that day has finally come. The New York Times wrote on September 3, 2014, in an editorial titled “Innocent on Death Row,” that the death penalty in light of the McCollum and Brown cases was, “irretrievably flawed as well as immoral.” I could not agree more. The Times editorial went on to ask, “Can the American people be assured that [no more innocent people] will be killed by the state? For this reason alone, the death penalty must end.”

I do not reach this conclusion lightly. Up until 2001, I was a supporter of the death penalty. Then I went to law school, learned about how the death penalty is administered in this country and was mortified. I had previously believed that the death penalty was reserved for the cruelest murders. I learned that statistically, whether you receive the death penalty in America has more to do with your income, the color of your skin, and the color of the skin of the person you are accused of killing more than with the evidence of the crime. I then worked with the legal team of a man on death row in North Carolina. It changed my heart.

The details from the McCollum, Brown, and Willingham cases should sound an alarm at the gate of the American criminal justice system. At this critical juncture in American history, we desperately need leadership from the courts and lawmakers. The U.S. Supreme Court should declare the death penalty cruel and unusual punishment and a violation of the Eighth Amendment of the Constitution, which it previously did in 1972 in Furman v. Georgia 408 U.S. 238 (1972). There are signs that our states are heeding the alarm at the gate. According to The Washington Post, eighteen states have abolished the death penalty, including six since 2007. State supreme courts and state legislatures should follow the lead of North Carolina and nine other states, which have formed independent commissions to review all death sentences. Simply put we cannot afford to spend another day holding our breath waiting to see how many more men and women will be exonerated for capital crimes for which they have received the death penalty.

Terry Eaton -
Attorney, Professor & Speaker

Terry Eaton is the Founder and Principal at the Eaton Law Firm, PLLC.  Mr. Eaton focuses his practice defending

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