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What Should We Do If We Wrongly Execute Someone? (& Related Stories)

August 11th, 2011 by Celeste Fremon

Since the advent of DNA evidence, America has been dealing with an ever growing list of men
and women who have been found to be innocent of serious crimes after having spent years or decades behind bars.

When the innocent are released we have laws in place (on a state by state basis) that allow an individual and a family to bring suit for the harm done.

But what if the injustice is taken to the extreme? What happens if we find that we have executed an innocent person? What then are we obligated to for the surviving family?

Professor Meghan Ryan has written a provocative paper about this question.

You can find the abstract here. (You can also download the full paper at that same site.)

In the meantime, here’s a clip:

The first legal determination of wrongful execution in the United States may very well be in the making in Texas. One of the state’s district courts was recently in the midst of investigating whether Cameron Todd Willingham, who was executed in 2004, was actually innocent. The court has been interrupted by objections from Texas prosecutors and the presiding judge’s retirement, but if the court proceeds, this may very well become a bona fide case of wrongful execution. Texas, just like other jurisdictions, is ill-equipped to provide any relief for such an egregious wrong, however.

This Article identifies the difficulties that the heirs, families, and friends of wrongfully executed individuals face in attempting to obtain compensation for this wrong. The Article highlights that statutory compensation schemes overlook the issue of wrongful execution and the greater injustice it entails and urges that the statutes be amended in light of this grievous wrong that has come to the fore of American criminal justice systems.

Part I traces Willingham‘s story of a man who was executed in the face of evidence suggesting that he was innocent. It takes a look at his relatives‘ recent attempts to clear his name and explains that his story is not yet over. Part II examines the difficulties of exonerating individuals who have been wrongfully executed. It explains how DNA is often essential to posthumous exonerations and notes prosecutors‘ reluctance to release DNA evidence for fears that it could undermine interests in finality of convictions and even prosecutors‘ own convictions rates. Part III explores possible remedies for determinations of wrongful executions….


The ACLU has released a new report called Smart Reform Is Possible:
States Reducing Incarceration Rates and Costs While Protecting Communities.

It looks in detail at what six traditionally “tough on crime” states — Texas, Mississippi, Kansas, South Carolina, Kentucky, and Ohio — in the way of significant reforms to reduce their prison populations and budgets. These same states saw their crime rates drop while the new policies were in place.

The report also looks at some states that are “working toward reform,” with California at the top of the list as the governor works to successfully implement his realignment strategy.


The LA Times’ Catherine Saillant, who is covering the trial, writes a nuanced and sad story on the issue that has become a big deal in McInerney’s defense.

Here’s a clip:

Brandon McInerney is the defendant in the Chatsworth courtroom, accused of bringing a gun to his middle school and killing gay classmate Larry King. But as the case unfolds, the school itself has come under scrutiny.

One teacher after another has testified in the murder trial about their deep worries that King’s feminine attire and taunting behavior could provoke problems — and that E.O. Green Junior High administrators ignored them.

It wasn’t just that King, 15, had begun wearing makeup and women’s spiked-heeled boots, witnesses testified. It was that he seemed to relish making the boys squirm at his newly feminized appearance and was taunting them with comments like “I know you want me.”

“They wanted to beat Larry up for what he was doing to them and they came to me because I wanted to keep them out of trouble,” E.O. Green teacher Jill Ekman testified. “I told them that I would work on getting assistance from the office and we would work this out.”

But that didn’t happen, Ekman and others testified. After days of escalating tensions between King and McInerney, McInerney, then 14, brought a handgun to the Oxnard school on Feb. 12, 2008, and shot King twice in the back of the head. King died two days later.

Photo courtesy of Willingham family

Posted in crime and punishment, criminal justice, Death Penalty | 3 Comments »

3 Responses

  1. jim hitchcock Says:

    According to the John Grisham book `The Confession’, Texas is one of a very few states that does not require a body to be found to execute a person convicted of murder. Now THAT’S scary stuff.

  2. John Moore Says:

    If malice or negligence was involved, then those responsible should be prosecuted. Otherwise, it’s just a cost of the justice system – akin to being hit by a stray cop bullet.

  3. Sure Fire Says:

    Having read everything I could get my hands on regarding this case there is no doubt in my mind that he was executed as a result of his absolute guilt. Unlike others who tie there opinions to a single piece of the puzzle I like putting all the pieces together to find the truth. People with the preconceived notion that the death penalty should be abolished will stretch cases like this to create the illusion that Willingham was innocent, it’s how they operate, when nothing anyone has written actually shows that.

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