McCollum and Brown Freed

Chalk another exoneration up to DNA evidence:

Thirty years after their convictions in the rape and murder of an 11-year-old girl in rural North Carolina, based on confessions that they quickly repudiated and said were coerced, two mentally disabled half brothers were declared innocent and ordered released Tuesday by a judge here.

The case against the men, always weak, fell apart after DNA evidence implicated another man whose possible involvement had been somehow overlooked by the authorities even though he lived only a block from where the victim’s body was found, and he had admitted to committing a similar rape and murder around the same time.

The startling shift in fortunes for the men, Henry Lee McCollum, 50, who has spent three decades on death row, and Leon Brown, 46, who was serving a life sentence, provided one of the most dramatic examples yet of the potential harm from false, coerced confessions and of the power of DNA tests to exonerate the innocent.

It’s cases like this that have moved me to a neutral position on the death penalty and now have me leaning against it. Had we gotten the speedy execution that many wanted, not only would we have executed two innocent men, the real murderer might never have been identified.

In the end, the case against the death penalty is not a liberal one. I’m not terribly moved by appeals to mercy for those who have none. Nor do I think executing men who rape and murder little girls makes us “no better than them”; there is a colossal moral difference between raping and murdering a child and executing that murderer. No, the case against the death penalty is a conservative one: that the government has demonstrated, a couple of hundred times now*, that it can not be trusted with the power to execute people.

For death penalty supporters, the horrifying facts of the girl’s rape and murder only emphasized the justice of applying the ultimate penalty. As recently as 2010, the North Carolina Republican Party put Mr. McCollum’s booking photograph on campaign fliers that accused a Democratic candidate of being soft on crime, according to The News & Observer of Raleigh, N.C.

In 1994, when the United States Supreme Court turned down a request to review the case, Justice Antonin Scalia described Mr. McCollum’s crime as so heinous that it would be hard to argue against lethal injection.

This crime was particularly heinous. If there was anyone you’d want executed, it would be two mean who raped and murdered an 11-year-old girl. But does the horror of the crime justify potentially executing the wrong men? Is that horror not compounded by the man who committed this horrible crime getting away with it for thirty years? We were lucky he was arrested before he could do it again. In the Michael Morton case, where an innocent man was sent to prison for life because of prosecutorial misconduct, we were not so lucky. The real killer likely murdered another woman two years later. Would we know that if Morton had been unjustly executed instead of being sent to prison for 25 years?

Ultimately, I keep circling back to the victim in this case, a girl who was the same age as me when she was so brutally killed. If she had not been slain by Roscoe Artis, she would now be 42, possibly with a family of her own. When a child is murdered, an entire universe of possibility is destroyed. For all the mocking Scalia is getting on the liberal blogs, he was right: it is hard to argue against lethal injection for someone who would do such a thing. Frankly, it’s hard to argue against beating them to death right there in the courtroom. But an execution wouldn’t have brought Sabrina Buie back. And I don’t see there is any value in adding two more tragedies to that one. And for someone depraved and evil enough to do such a thing, I don’t think the threat of the death penalty is what’s holding them back.

Two innocent men have been freed and a guilty man identified. That’s something and we should be happy about it. But we came very close to killing two innocent men for a horrifying crime they didn’t commit. And it’s not the first time. That should give us all pause.

(*Hard numbers on the number of death row inmates exonerated are surprisingly difficult to come by. Anti-death penalty advocates say it’s a couple of hundred. Pro death-penalty advocates say it’s less than that, but admit to at least a few dozen.)

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