A Capital Crime

I make no great claims as a prognosticator, but I do feel certain that, unless manmade or natural disasters return us as a race to a state of prehistory, moral progress will soon stop us from doing two things. One is eating our fellow creatures and the other is executing our fellow human beings. At the end of 2018, according to Amnesty International, “142 countries (more than two-thirds) had abolished the death penalty in law or in practice.” Twenty-one U.S. states have also abolished capital punishment, and four more have a moratorium on it. During the past decade, ours has been the only country in the Americas to execute a prisoner. Texas alone accounted for 13 of the 25 people executed in the United States in 2018.

As Lincoln Caplan explains in his cover story in this issue, legal thinkers across the political spectrum are in favor of abolishing the penalty, and before the 2016 presidential election an increasing number of Supreme Court justices, both liberal and conservative, had turned against it. So its days seemed numbered. But like so much else that has happened since that fateful election, abolition’s historical momentum has been put on pause while Trumpish politicians and Supreme Court justices demonstrate their red-meat cred.

Which brings us to Billy Joe Wardlow, whose many poor choices range from the horrific one of murdering a neighbor so that he could steal his pickup to the existential one of committing the crime in Texas. Scheduled to be executed at the end of April, Wardlow is not a candidate for the Innocence Project. Caplan, who has written more than 60 pieces about the death penalty for The New York Times or for newyorker.com, does not argue that Wardlow was wrongly convicted, but that almost everything since his conviction has been bungled, beginning with the jury’s decision to sentence him to death rather than to life in prison.

Wrongful conviction, racially inspired or not, is clearly the most powerful case to be made against the death penalty. Caplan offers a subtler argument, that there are serious shortcomings in the legal mechanisms of the death penalty that undermine the whole system of criminal justice. Through carelessness or worse, states can make terrible mistakes in capital cases, and those mistakes, even when proven, do not often lead to a change of sentence from death to life.

One reason Texas is such a bad place to be convicted of a capital crime is that its high volume of death sentences makes it likelier, according to one study, that serious judicial mistakes will occur there. With Wardlow having waited on death row for a quarter century, it’s hard to argue that the state of Texas has rushed to execute him. You might instead argue that 25 years should have been time enough to get this right.

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Robert Wilson's most recent book is Barnum: An American Life. He was the editor of the Scholar for more than 17 years.


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