What nearly became the last hours of Robert Roberson’s life can barely be imagined. On Thursday evening, he sat for hours in a cell next to the death chamber at a Texas state prison awaiting execution for an act that may well not have been a crime at all: the death, over 20 years ago, of his infant daughter Nikki.
While three successive Texan courts decided whether to grant a reprieve, Roberson endured what must have felt like torture. Relief came just 90 minutes before his scheduled execution, when the Texas Supreme Court issued a temporary stay. Next week he will get a final chance to present evidence of his innocence.
In one respect, this case is exceptional: Roberson would have been the first prisoner in the US to be executed on the basis of “shaken baby syndrome”, a pseudo-medical concept that describes the shaking to death of infants that should have been consigned to forensic dustbin long ago.
Its other aspects are all too typical, and include serious flaws in the procedural safeguards for those accused of capital offences, a slow and ineffective appellate process, and the psychological trauma inflicted on those sentenced to death. It also illustrates a gap between justice in the US and international law.
The revelation that forensic science is neither immutable nor infallible has for the past few decades undermined confidence in criminal justice systems worldwide. Shaken baby syndrome is an especially fallible category.
Starting in the Seventies, British and American prosecutors secured murder convictions with testimony from “experts” who said that when a baby died without fractures or visible wounds, their death resulted from a “non-accidental head injury” caused by someone taking care of them. They claimed that intracranial injuries such as cerebral bleeds were proof of a violent death, and could only arise from shaking. Any other explanation offered by a parent — such as a fall — was deemed to be a lie.
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SubscribeThis author Carolyn Hoyle makes a good case, and I agree with her conclusion, but her citations to international law are misleading.
Strictly speaking, there is no international law that binds the United States to anything. International treaties once ratified become federal law, so they are enforced, but not as international law by some international tribunal. Only the federal courts can enforce them.
The treaties cited here, on civil rights and on torture, have been ratified by the US Senate, but only in a way that robs them of any power. The provisions of those treaties on the death penalty and torture were designated as non-self-executing. That means that Congress must pass a new law, and the president must sign it, for those provisions to have any effect.
What that boils down to is that international law is not law in the US. We jealously guard our ability to make and enforce laws, and citations to international law that suggest otherwise should not be made.
Nonetheless, I’m sure that there are commentators on Unherd who will insist that the death penalty in the US is jolly good, despite all evidence to the contrary. Personally I have no problem with the idea that some people are not deserving of life in our society, but it seems obvious that crafting laws and then operating a legal system to firstly separate them out and then be 100% certain of their guilt is literally impossible – unless someone can identify a system where that has been done, of which I am most certainly unaware.
I don’t disagree with you, Tony, but I would go one step further and ask, which of us deserves life? What did any of us do to deserve, by some objective measure, to be born? Answer: none of us. We are alive either as a gift from God or an accident of physics (which would also be a pure gift), none of us lives because we *deserve* to or have *earned* it in some way. So maybe the death row inmates don’t deserve to live, but neither do the rest of us. I don’t say this because we’ve done something wrong. It’s just because life doesn’t work that way. You aren’t born because you deserve to be born. you don’t have healthy lungs and a beating heart because you *deserve* them. Thus, I find the whole idea of designating certain people as deserving of life and other people as not deserving of life to be a flawed conceptual framework, and one that allows us to sit in judgment of others and put them to death because we think in those terms.
then, on top of all that, you have cases like this one in the article and many many other cases that you are pointing out where we can’t be 100% certain and I think it is high time we abandon this ineffective and cruel form of punishment.
I even feel sorry for the people on the other side of this issue, can you imagine being one of the prosecutors or district attorneys who is fighting to kill this man? How haunted must be their dreams?
It’s an interesting point you make about deserving. But I think it’s applied more to the idea that some people commit such heinous crimes they don’t deserve to be among the living.
But to the idea of the death penalty as it stands there is something seriously flawed in it. For a start it obviously does not deter serious, brutal crime. That in itself is enough to reconsider it. The fact that so many are proven innocent through the advancement of DNA is another strong reason. Possibly the strongest argument against the death penalty is the justice system itself that convicts innocent people.
For a modern society we still seem to be very fixated on killing as a solution to problems: the death penalty, abortion and currently AD.
Yes couldn’t agree more
Years ago as a first-year law student an older student talked me into joining a prisoner counseling program. We would go to a prison 30 miles away one night a month to talk for a few hours to any prisoners who wanted help. She said it would open my eyes, and it did.
We were just students and couldn’t help on the law, but we could do what any other non-lawyers could do. Listen sympathetically. Contact people on the outside. Read and write things. (Some prisoners were illiterate. Other prisoners could help them with that, but usually charged a fee. We did it for free.)
Over my three years of law school I talked to over 100 prisoners. I wasn’t much help to them, but that experience colored my views on criminal justice. I think the US puts way too many people in prison, under conditions that are inhumane. The death penalty in particular sounded reasonable to me in theory, but seemed inescapably barbaric in practice.
Later as a lawyer working in Japan I saw a criminal justice system that works a lot better, though it too has its faults. Interestingly the death penalty is still enforced in Japan, but like the US, rarely.
Criminal justice is a complex system that is needed, but it will always have problems. It’s hard to improve, and I don’t have good solutions that I can support with rigorous analysis. But I do think we should start by getting rid of the death penalty. That belief comes not from my head, but from my heart.
We should get rid of the death penalty not just for the prisoners who would be saved from death, but for the executioners. The men and women who make the decisions and take the actions to legally snuff out another person’s life. That is a power no person should have.
Your final sentences are absolutely spot on. If murder is illegal then how can we allow state sponsored murder, which is, after all, what an execution is?
I don’t see any problem, in theory, with the death penalty for appropriate cases partly as punishment, deterrence etc but mainly because some people’s crimes are so hideous that wasting the money for decades of detention is insane.
HOWEVER there are so many cases where the initial sentencing is found to be clearly wrong, and even more where it is unsafe, that it must only be used in cases where there is no doubt of guilt.