I like watching work at construction sites, and I particularly like cranes. They denote strength and optimism. So it was a particular treat this week to get a close view of some hardworking guys putting up a big crane on a building site one block up from, and almost level with, our apartment. It took two guys about a day a a half to put up the structure, and a group of five worked on the cabling for another day and a half.
There are lots of good arguments against the death penalty, including that it doesn’t deter crime, it costs way too much, and it conflicts with the fundamental moral rule against killing. Recently I was powerfully reminded of another one: our criminal justice system inevitably gets some cases wrong and convicts innocent people.
It was front page national and local news recently that Henry Lee McCollum was found innocent after 31 years on death row. As a younger attorney, I volunteered to represent McCollum in one of his appeals (to the N.C. Supreme Court). He’d been convicted – found guilty beyond a reasonable doubt by a unanimous jury – of a horrible crime – a particularly gruesome rape and murder of a 13-year-old girl. After I’d spent many hours studying the record and the elaborate constitutional doctrines surrounding the death penalty, I pulled together a lengthy brief of what I thought were the best arguments for not executing him.
In my brief, I did not mention the possibility of innocence. Truly, despite McCollum’s innocence claims, I never seriously considered the possibility. He’d made an elaborate, detailed, signed confession. Why would anyone confess to a crime they didn’t commit?
Of course, we know now that this is all too possible. Coerced confessions happen. The case of the Central Park five, young men convicted of a brutal rape of a young woman jogging in the park back in the 80s, is a dramatic example. Just this month New York City agreed to a settlement of $41 million to compensate the young men for their wrongful conviction and imprisonment.
McCollum was and is a mentally disabled person (IQ of around 60, as I recall), and when I met him, in the visiting room at Central Prison, he seem gentle and soft spoken. He was still a teenager at the time of the crime. It’s not hard to imagine that he could be coerced into doing something contrary to his interests. Apparently after the interrogation and confession were complete, he asked, Can I go home now?
I’d thought about him from time to time over the years, and figured he would probably escape execution because of later developing Eighth Amendment (“cruel and unusual punishment”) law barring execution of the severely mentally disabled. It was cheering to hear that a team from the Center for Death Penalty Litigation had worked diligently on his behalf. But it’s also horrible to think of the injustice our state (that is, us) inflicted. Putting a man on death row for 31 years is, in a very real sense, robbing him of his life.
We now know that eye witness identifications are far from completely reliable. Confessions are not always reliable. Memories can seem absolutely certain, and still be wrong. We are inevitably going to make some mistakes in on the basic question of guilt or innocence. This argues strongly against punishing people with death.
Mistakes Were Made
The more I learn about how error-prone our thinking processes are, the more I think we should be a little more humble about the power of our brains and the reliability of our notions. I’m re-reading Mistakes Were Made (But Not by Me), by Carol Tavris and Elliott Aronson. Tavris and Aronson are social psychologists, and their book is a lively guide to the systemic flaws in our perceptions and theorizing. Their primary subject is cognitive dissonance, and the comedy and tragedy of self-justification that flow from it.
Dissonance occurs when we try to hold two conflicting ideas in our heads at once. It causes us discomfort, and we will perform remarkable mental gyrations to avoid it. Thus it is amazingly hard to talk someone out of strongly held beliefs. Dissonance makes us ignore and suppress facts and arguments that don’t fit with those beliefs. To avoid dissonance, we come up with justifications for our most egregious mistakes.
Tavris and Aronson convinced me that this is not something that happens only now and then, but rather is pervasive. One of their numerous examples is police coercion. The police “know” (strongly believe) that a suspect is guilty, and therefore feel justified in using extreme coercion to extract a confession. The innocent suspect is confronted with powerful dissonance – actual innocence and authority figures forcefully insisting on guilt. One path to eliminating dissonance is to confess. It isn’t that hard to imagine that a young or weak person could go that way.
They note that even scientists are vulnerable to this basic mechanism, but suggest that science itself can help us address our inborn tendency to avoid dissonance. The ability to allow for the possibility that we might be wrong is incredibly valuable. It can keep us from making terrible mistakes.