By Mark W. Fowler

“If angels were to govern men, neither external nor internal controls on government would be necessary.” —James Madison, Federalist 51

The imposition of imprisonment — and even more so the death penalty — is a power that government must use judiciously, reluctantly, and with certainty. Unfortunately, fallen men run the government, and certainty is not a common commodity. Lamentably, honesty is also not as common as is needed. The criminal justice system operates at the junction of human frailty, and uncertainty is compounded by the fact that many defendants have limited resources with which to resist the government. Add to that mix politically elected judges and district attorneys, whose motives are not always pure, and the risk of injustice increases.

John Grisham, an attorney and successful fiction writer, has made a name for himself selling books casting a less-than-favorable light on the legal profession. One wonders how many plot twists were inspired by his observation of legal malfeasance. He has teamed up with Jim McCloskey, a Princeton Divinity School graduate and founder of Centurion Ministries, to produce Framed, a narrative of innocent individuals wrongly convicted who either faced or received the death penalty. It is a compelling work — well researched and free of legalese — but at the same time troubling for its revelation of prosecutorial and police misconduct. Ten cases of such misconduct are highlighted in the book. In most of those, the police and/or the prosecuting attorney followed the wrong path (or created it) in pursuit of convictions that were inappropriate.

A conservative can be both for a strict criminal justice system and concerned about its fairness. Conservatism recognizes that men are not angels, and the power of government must be constrained. For the most part, the adversarial system works to elicit the truth or stay the hand of a capricious criminal justice enforcement system. But the balance is a delicate one. Prosecutors typically don’t bring cases they can’t win, but they can let the desire to win (and get reelected) overcome their judgment. Or they have no scruples and judgment at all. Sometimes, as Grisham and McCloskey report, in conjunction with corrupt police, they lie. Throw in a prosecution-oriented judge, and the constitutional protections intended to protect individuals from erroneous convictions are watered down to nothing.

There are, of course, appellate courts and federal courts to provide additional protection, but the success rate of appeals is very low.

Progress in scientific techniques will increase the accuracy of trials, protect the innocent, and convict the guilty. But even then, that accuracy depends on the integrity of trial experts, and there are significant weaknesses in such testimony. Grisham and McCloskey report tragically on one case in which a father was wrongfully convicted of arson leading to the death of his children based in part on the testimony of an expert whose findings were later completely discredited. The father received the death penalty, compounding the tragedy of his loss.

As a former public defender, I was compelled to reflect on my case load. I was fortunate to practice against a kind, decent, and honest district attorney. I just wish there were more like him. I managed a number of death penalty cases in my career. None got the death penalty, although two cases come to mind where it was surely warranted. My clients were lucky.

In 1994, Justice Harry Blackmun of the United States Supreme Court observed that the experiment in the death penalty had failed, and thereafter he would “no longer … tinker with the machinery of death.” After reading Framed, I’m inclined to think he was right.

Mark W. Fowler is a board-certified physician and former attorney. He can be reached at [email protected].