In a recent op-ed in the Houston Chronicle, for­mer Texas District Attorneys Grant Jones and Sam Millsap (pic­tured) encour­aged the state leg­is­la­ture to recon­sid­er the death penal­ty. ​“Both of us have been involved in the exe­cu­tion of men who may well have been inno­cent,” they said, men­tion­ing three cas­es that ​“raise seri­ous doubts about the wis­dom of con­tin­u­ing the death penal­ty.” Two of the cas­es, those of Carlos DeLuna and Ruben Cantu, involved pos­si­ble eye­wit­ness errors. In the third case, Cameron Willingham was exe­cut­ed for set­ting the house fire that killed his daugh­ters, but new evi­dence sug­gests the fire was acci­den­tal. Jones and Millsap said Texas is part of a ​“nation­wide trend away from the death penal­ty” and that ​“Texans are less will­ing to take the risk of exe­cut­ing peo­ple who are inno­cent. You see it when they sit on juries. Death sen­tences in Texas have dropped more than 75 per­cent since 2002 and remain near his­toric lows in 2012.” They con­clud­ed that recent reforms ​“make the sys­tem more accu­rate, but no one argues that they will catch every mistake.…The pro­fes­sion­als who admin­is­ter our jus­tice sys­tem can­not guar­an­tee that they will nev­er be with­out fault.” Read the entire op-ed below.

(G. Jones and S. Millsap, ​“Legislature should seri­ous­ly recon­sid­er the death penal­ty,” Houston Chronicle, December 13, 2012). See New Voices and Innocence.

Legislature should seri­ous­ly recon­sid­er the death penalty

As dis­trict attor­neys in the 1980s, we believed that the death penal­ty was the best pun­ish­ment for cer­tain crimes. We no longer believe that today. We haven’t gone soft. We have come face to face with some hard truths. Both of us have been involved in the exe­cu­tion of men who may well have been innocent.

This year, an inves­ti­ga­tion by a law school revealed that eye­wit­ness­es might have mis­tak­en Carlos DeLuna, who was exe­cut­ed for mur­der in 1989, for anoth­er man, also named Carlos. The two men bore such a strong resem­blance that even fam­i­ly mem­bers mis­took pho­tographs of one man for the oth­er. No one will ever know for sure whether a mis­take was made, but cas­es like DeLuna’s raise seri­ous doubts about the wis­dom of con­tin­u­ing the death penalty.

Long after Ruben Cantu was put to death in 1993, an inves­ti­ga­tion by this news­pa­per per­sua­sive­ly argued that he was wrong­ful­ly con­vict­ed and exe­cut­ed. Two decades after the tri­al, the only eye­wit­ness recant­ed his tes­ti­mo­ny and explained that he felt pres­sured by the police to iden­ti­fy Cantu as the shoot­er. This wit­ness had noth­ing to gain by chang­ing his position.

As long as human beings are in charge, there will be mis­takes. Even peo­ple who are hard­work­ing, and act­ing in good faith, make mis­takes. In most crim­i­nal cas­es, the appeals process is there to iden­ti­fy and rem­e­dy errors. But the prob­lem with the death penal­ty is that once it is car­ried out, there is no way to go back and fix a mistake.

Family mem­bers of Cameron Willingham know this fact all too well. This year, they peti­tioned the Texas Board of Pardons and Paroles to grant him a posthu­mous par­don. Willingham was exe­cut­ed in 2004 for set­ting a house fire that killed his chil­dren, but new evi­dence shows that the fire was acci­den­tal and he was almost certainly innocent.

There are signs that Texans are less will­ing to take the risk of exe­cut­ing peo­ple who are inno­cent. You see it when they sit on juries. Death sen­tences in Texas have dropped more than 75 per­cent since 2002 and remain near his­toric lows in 2012.

In fact, only 22 of 254 Texas coun­ties have imposed death sen­tences over the last five years, accord­ing to a new report by the Texas Coalition to Abolish the Death Penalty. From a bud­get stand­point, this means the sig­nif­i­cant finan­cial bur­den of the death penal­ty is gen­er­at­ed by a small minor­i­ty, but paid for by all taxpayers.

Our state is part of a nation­wide trend away from the death penal­ty. Last year, the num­ber of death sen­tences across the coun­try dropped below 100 for the first time since cap­i­tal pun­ish­ment was rein­stat­ed in 1976. Five states in five years have end­ed the death penal­ty, includ­ing our neigh­bors in New Mexico. By every mea­sure, the death penal­ty is being used less and less.

In recent years, the Texas Legislature has passed impor­tant reforms to address the caus­es of wrong­ful con­vic­tions. We have improved eye­wit­ness iden­ti­fi­ca­tion pro­ce­dures, expand­ed access to post-con­vic­tion DNA test­ing and done more to ensure that poor defen­dants have com­pe­tent lawyers. These mea­sures make the sys­tem more accu­rate, but no one argues that they will catch every mistake.

TV shows like ​“CSI” have led to the mis­con­cep­tion that DNA tech­nol­o­gy pre­vents the con­vic­tion of the wrong per­son. Without a doubt, when­ev­er DNA exists, it should be test­ed. What few peo­ple real­ize is that only a small frac­tion of cas­es involve the type of evi­dence that can be sub­ject­ed to DNA testing.

Next month, when the leg­is­la­tors con­vene for a new ses­sion, they should seri­ous­ly recon­sid­er the death penal­ty. A sen­tence of life with­out parole — that is, with­out any pos­si­bil­i­ty of release under any cir­cum­stances — keeps soci­ety safe while elim­i­nat­ing the chance of an irreversible mistake.

The pro­fes­sion­als who admin­is­ter our jus­tice sys­tem can­not guar­an­tee that they will nev­er be with­out fault. Once we accept that fact, we have to ask our­selves, as a civ­i­lized soci­ety, whether we can live with a sys­tem that promis­es noth­ing more than to get it right most of the time in death penal­ty cas­es. We sub­mit that we cannot.

Jones served as dis­trict attor­ney for Nueces, Kleberg and Kenedy coun­ties from 1983 to 1991; Millsap served as dis­trict attor­ney for Bexar County from 1982 to 1987.

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