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Robert Roberson does not deserve the death penalty

The Texas Supreme Court issued Roberson a temporary stay. Credit: YouTube

October 19, 2024 - 5:00pm

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.

However, since Roberson’s trial in 2003, there has been an enormous shift, and the consensus now is that intracranial injuries are not infallible evidence of homicide at all. In 2020, the American Association of Paediatrics determined that shaken baby syndrome had been misinterpreted by legal and health authorities.

On both sides of the Atlantic, this has led to successful appeals, and if Roberson gets a new trial, the jury will be told that the prosecution’s science has been discredited.

Fresh evidence also suggests that Nikki died from pneumonia leading to sepsis. She had suffered antibiotic-resistant infections, requiring treatment in hospital — where she was given toxic drugs now thought inappropriate for infants.

International law does not prohibit the death penalty, but allows it for only the “most serious” offences, defined as “intentional crimes with lethal or other extremely grave consequences”. Clearly, Roberson’s daughter died in his care, but there is no evidence that this was his intention, nor that a crime was committed.

For a conviction to be quashed by appeal courts, there does not have to be proof of innocence, only evidence that it is unsafe. In Roberson’s case, there is plenty. However, while exonerations of innocent people in America have induced some states to abolish the death penalty, US courts have repeatedly shown themselves reluctant to reverse convictions based on faulty science — as, until now, they have been with Roberson’s.

International law does prohibit the death penalty following unsafe and arbitrary processes, and insists that the evidence must be properly scrutinised throughout the trial and subsequent appeals. Yet despite the flaws in the prosecution case and the failure thus far to address them,  Roberson found himself waiting hours from death while his lawyers and a bipartisan committee of politicians pleaded with the authorities to stop the execution.

Welcome as it was, his stay was far from timely, and his ordeal could arguably be seen as torture — which unlike the death penalty, is prohibited under international law.

This has led some abolitionists to consider whether the death penalty per se could be also defined as torture, and indeed, some of the 55 countries that retain capital punishment have already determined that long spells on death row in themselves constitute unacceptable mental anguish, often described by psychiatrists as “death row syndrome”.

In Jamaica, for example, any prisoner who has been on death row for more than five years will have their sentence commuted to life. In America, the average gap between sentencing and execution has climbed to about 23 years. Like other US death row inmates, Roberson will have spent his time on the row largely in solitary confinement, all the while aware he is likely to be put to death.

Arguably, this alone amounts to “cruel and unusual punishment” in breach of the US constitution, and a case could be made that, like his wait to learn if he would live or die on Thursday, it equates to torture.

Yet prisoners’ rights to appeal when the state intends to kill them cannot be curtailed, especially when science is evolving: there is, therefore, a contradiction between avoiding death row syndrome and allowing enough time for appeals. Abolishing the death penalty altogether is the only feasible way to resolve it, and to remedy its myriad injustices.


Professor Carolyn Hoyle is Director of the Death Penalty Research Unit, part of the University of Oxford’s Centre for Criminology at the Faculty of Law, and co-author of Reasons to Doubt, a study of wrongful convictions.    

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Tony Price
Tony Price
24 days ago

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.

Gio
Gio
24 days ago
Reply to  Tony Price

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?

Brett H
Brett H
23 days ago
Reply to  Gio

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.

Benedict Waterson
Benedict Waterson
24 days ago
Reply to  Tony Price

Yes couldn’t agree more

Tony Price
Tony Price
23 days ago

Thank you. What I don’t understand are the downvotes – I specifically asked how the system might work, or examples thereof, and the lack of replies rather indicate that it can’t – so why downvote?

Brett H
Brett H
22 days ago
Reply to  Tony Price

Yes, the downvotes are a mystery.

Andrew Fisher
Andrew Fisher
16 days ago
Reply to  Tony Price

The retention of the death penalty in the US is good because that it reflects the popular will regarding appropriate punishments for the worst crimes. As in the most areas of elite opinion, this is a terrible inconvenience for those people who want to impose their own progressive agenda at all the times. There is a huge correlation between liberal attitudes on the death penalty and for example net zero, white supremacist guilt, and general wokery.

Of course it may well be that the US judicial system and / or those of many states have biases and too many innocent people get executed, but to me that is not the fundamental issue. If we can prove people cannot have committed a murder through, for example. DNA testing and of course they should not be executed. But vastly more innocent people are killed by criminals. We could legitimately argue say that liberal crime policies are responsible for the deaths of at least some o those people, who by the way have committed no crime at all. I think philosophically and logically their deaths can be attributed at least as much to state policy as those of the people being executed.

But “cruel and unusual punishment” etc: by way of contrast, we have the remarkable uninterest by these progressives in the rights of people not to have their genitals hacked off as a young age in the pursuit of some completely imaginary category of trans.

Carlos Danger
Carlos Danger
24 days ago

This 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.

David Giles
David Giles
23 days ago
Reply to  Carlos Danger

OK, I agree with your raw analysis; how, for example, can ‘International Law’ possibly in practice prohibit the death penalty where there is inadequate process? However, there are international, or should we say universal standards that an nation such as the US. and all states within it must surely wish to follow; no, to lead.

Carlos Danger
Carlos Danger
23 days ago

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.

Nicholas Heneghan
Nicholas Heneghan
23 days ago
Reply to  Carlos Danger

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?

Andrew Fisher
Andrew Fisher
16 days ago

No, state execution is not “state sponsored murder”! It is a judicial punishment after due process, one of a range of many such punishments that could be imposed. I do wish people sometimes on this forum would make some arguments from principle and logic, rather than simply redefining well understood words and terminology! Killing enemy soldiers on the battlefield is also not “murder”!

One reason the US still has judicial execution is that the US is despite everything still subject more to popular will than European countries. I have absolutely no problem whatsoever with terrorists and mass murderers being executed, rather than being kept alive at great expense so that they can pursue endless judicial appeals and eventually released – sometimes to carry out similar crimes – as does happen!

I consider that those people who are most concerned supposedly about taking the lives of criminals, are very often the least concerned about protecting the public, or at least they are entirely relaxed about the collateral damage being wrought upon them by over liberal judicial punishment.

Another commentator said correctly the Japan has very strict criminal laws including the death penalty, and it also has a very low crime rate.

Rob N
Rob N
23 days ago
Reply to  Carlos Danger

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.

denz
denz
23 days ago
Reply to  Rob N

I’d be quite happy for the Southport stabber to get the chop. Not sure about who would do it and how though.

Seb Dakin
Seb Dakin
22 days ago
Reply to  denz

I doubt you’d be short of volunteers to be honest.

Andrew D
Andrew D
23 days ago

‘Robert Roberson does not deserve the death penalty’
I agree. I enjoyed Call My Bluff and while Ask The Family was execrable, the death penalty is a bit harsh

David Giles
David Giles
23 days ago

One thing that has always bothered me: I would find the abolishioniists’ case better made if they didn’t always choose cases where there is doubt over conviction. If the death penalty is wrong, then it is wrong for the unambiguously and unrepentantly guilty. What does innocence matter to this debate?

And please don’t anyone say”we can never be certain”; we can!

Miss Fit
Miss Fit
23 days ago

Another proof that ‘experts’ can be wrong. Thank you for speaking about this story, this should make everyone if favor of the death penalty rethink their position. This is a very disturbing story, I wish him well.

Andrew Fisher
Andrew Fisher
16 days ago

The reference to the often farcical “international law” makes for a very weak argument indeed, since there is absolutely no chance whatever that the rising powers in the world, most notably China, have any intention whatsoever of abolishing – or indeed circumscribing the death penalty.

I suppose we could end up with the UN or some international body determining that the US should not employ capital punishment, because it is an imperialist white supremacist power or something, but that the “Global Majority” can execute away to their hearts’ content!

Andrew Fisher
Andrew Fisher
16 days ago

I don’t think a case where the evidence is very weak weakens the case for the death penalty as such. We literally now have terrorists who laugh in the face of any conceivable punishment that can be imposed. And of course they can then use every judicial argument at their disposal, to eventually have their sentences reduced and re-released, perhaps to commit other crimes – as has happened! Why don’t the abolitionists consider that this is on THEIR conscience?! It is often as if the only people’s lives that matter other people on death row, none others! A bit like the effectively adopted position that the only black people whose lives we should be concerned about are those tiny number killed by the police in the United States, rather than the vast numbers killed by criminals! (By the way this is not an unrelated issue)

The fact is there is one issue about whether we can prove someone is guilty or not. There is quite another issue about whether people who have committed the most terrible crimes deserve to live or have the same human rights as everybody else. Since at least we rhetorically accept the notion of confining people to prison, depriving them of some aspects of family life, and perhaps not allowing them the vote, then we DO in fact accept this.

However this position is weakening fast in Western elite progressive opinion, very unfortunately in my view. It is largely the very same people seeking the abolition of capital punishment, who are also very concerned about how terrible prison is in the United States – clue: it’s supposed to be a punishment!! In other words they actually WANT a sentence of effectively being consigned to a nice hotel.

But even that is perhaps too cruel for the sensitive left liberal progressive conscience. Of course it can be argued that it is “cruel” to consign people for many years – in whatever conditions. So they should be released regularly – in fact why not release them completely! That indeed is exactly the liberal ongoing shift of the Overton window that has already occurred in many western countries. What the majority feel – we don’t care whether it’s “cruel” or not! We feel that the worst criminals have forfeited some of their rights and indeed that this is a much more “just” position than weeping solely over the rights of a relatively small number of people on death row, the vast majority who HAVE without any doubt committed terrible crimes!