Off-duty police officer Donald Williams was shot on Christmas Day, 1997 and later died. Timothy Mckinney was convicted of first degree murder and sentenced to death for it. This, despite a lack of physical evidence, conflicting eyewitness testimony and more. On appeal, the Tennessee Court of Criminal Appeals said that his defense counsel was so bad that it meant he had been denied a fair trial.

There are costs when we don’t get it right. For the defendant, they’re obvious. For prosecutors, exonerations are embarrassing, expensive and potentially (although rarely) career-ending. So it shouldn’t come as a surprise that they take steps to avoid them. After more trials, all of which ended in a hung jury, finally, the prosecution offered McKinney a deal: Plead guilty to second degree murder and be released on time served.  Of course, he took it.

This deal reminds me of other cases where the route to freedom was via an Alford Plea. An Alford Plea means that the defendant is permitted to maintain that he is innocent as long as he’s willing to agree that the state has enough evidence to convict. Innocent people would prefer not to have to take such a deal, but, when it means the difference between spending more time in prison (especially on death row)  and walking out, you can understand why it would be attractive. In fact, this has become a trend in criminal cases, including capital cases where the defendant was sentenced to die.

Can we be sure that McKinney isn’t guilty of the murder of Donald Williams? No, not beyond the shadow of a doubt, in part because important evidence wasn’t tested and was sold at a police auction.  But that’s not really the point, is it? There’s that inconvenient part about “innocent until proven guilty.” The point is that the legal standard for a conviction is “beyond a reasonable doubt,” not beyond that shadow of a doubt. Knowing what we know now, that burden of proof could not be met. Even more disturbing is the thought that the real killer may still be walking among us, but let’s leave that for another conversation.

McKinney’s case is just the most recent where a plea was offered and accepted after evidence of misconduct by the prosecution comes to light. Prosecutors can get away with this, even though they know they won’t be able to win a conviction, even after it’s painfully clear that a defendant is innocent. In this case, they did it even though the police auctioned off a car that might have contained exculpatory DNA evidence. Oops. There are an increasing number of cases where, rather than risk their reputations and public outcry, they offer a deal to save their own hides.

One such case that did make the news, to the discomfiture of the DA’s office, is that of the West Memphis Three. Damien Echols, age 18, was sentenced to death, Jessie Misskelley, Jr., age 17, was sentenced to life imprisonment plus two 20-year sentences, and Jason Baldwin, just 16,  was sentenced to life imprisonment. After more than 18 years, (but really, who, other than those directly impacted, is counting?) and with overwhelming evidence of their innocence, the men decided to accept an Alford Plea deal. Despite the absence of physical evidence pointing to them and the presence of exculpatory DNA evidence, they were given an offer they couldn’t refuse instead of being exonerated. After all, one of them was sitting on death row waiting for execution. The case was mishandled from start to finish, but, we wouldn’t want that to come to light, would we?

My guess is that we’ll see fewer and fewer official exonerations, not because we won’t turn up innocent people in prison, but, rather because there are so few consistent consequences for mishandled prosecutions. Evidence withheld or destroyed, witnesses encouraged to lie in exchange for leniency, witnesses mislead during questioning, or pointed to the preferred subject in photo arrays and line ups … the list goes on and on. We must not let ourselves be fooled by the use of subterfuge to disguise these things. Rather than forcing an innocent person to take a deal, why not address the issue of  prosecutorial misconduct?

There is no doubt that the vast majority of those convicted for murder are guilty. What Timothy McKinney’s case, and others like it show us is that the criminal justice system is not perfect. Sometimes we get it wrong. The wrong guy is convicted. Do we then abandon it all together and allow the guilty among us to go free, unpunished for their crimes? Of course not. But, do we dare risk that we may kill the wrong guy? What kind of plea can we offer to somebody we killed? How about the one where you get to keep saying you’re innocent and we get to say we have enough evidence to convict you. Oh wait, never mind.

What we need is to get out of the execution business. There are no “do-overs” and “oops” just isn’t good enough. It’s irreversible. It’s killing a human being, one of us, in our names and it’s carried out by the same government that we worry can’t calculate our tax burdens accurately. Sentencing a person to death guarantees that we will execute an innocent person. It’s happened before (read up on Cameron Todd Willingham, for just one) and, unless we abolish capital punishment, it WILL happen again. It’s just a matter of time. Innocent people already have come shockingly close to execution; we’re talking within a matter of hours.

When we do kill another innocent person, make no mistake about it, there will be blood on our hands. On our hands, that’s yours and mine, because we know that the system is not infallible, because we know about the 142 exonerations of people we sentenced to die, because we know we’ve already executed at least one man, and probably more, for a crime he didn’t commit. If for no other reason, and there are many others, we have to stop this insanity now and forever. It’s time to end the death penalty. Let’s do it now, before it’s too late.