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April 01, 2007

A Journey to Abolition

by Virginia Sloan

As the elected Bexar County District Attorney in San Antonio, Texas, Sam Millsap oversaw the prosecution of several men charged with capital murder. All of them were executed. Recent events suggest that one of them, Ruben Cantu, was most likely innocent.

Even before doubts about Cantu emerged, Millsap had begun a journey from “full-throated” death penalty supporter (those are his words) to one of the country’s most powerful advocates for abolition.

Despite substantial evidence that other innocent people have been convicted and sentenced to death, and perhaps even executed, no other prosecutors have come forward to express doubts about their cases. Millsap appears to be the only former prosecutor who—at least publicly—bears the agonizing burden of knowing that he may have helped send an innocent man to his death. Now, as a member of the Constitution Project’s Death Penalty Committee, Millsap is traveling the country and the world, warning others about the tragic reality of the death penalty.

Some former law enforcement colleagues have told him in no uncertain terms that they strongly disapprove, and that no matter what doubts he has, he should keep them to himself. Fortunately, Millsap has rejected this advice because he believes he has a moral and ethical duty to accept responsibility for what happened to Ruben Cantu.

Millsap believes that the Cantu case did not suffer from the most common problems leading to wrongful convictions and death sentences: inexperienced defense lawyers with woefully insufficient resources, prosecutorial misconduct, and faulty investigative work, for example. Instead, he says, he made an error in judgment—approving a death penalty prosecution based on the testimony of a single eyewitness—that became a tragedy when the witness, who had, as Millsap says, “absolutely nothing to gain but trouble for doing so,” recanted his sworn trial testimony.

There are some, including Supreme Court Justice Antonin Scalia in his concurring opinion in Kansas v. Marsh, 126 S. Ct. 2516 (2006), who say they know of no innocent person who has been executed. I challenge them to stand in Millsap’s shoes.

The problems afflicting the capital punishment system, described elsewhere in this issue, might be remedied. They might not, especially because there seems to be little political will to do so. Ultimately, though, does it matter? We rely on the criminal justice system to decide who will live and who will die, and as Millsap’s experience shows, it is a system governed by fallible human beings. It is not enough to get it right most of the time. It is not acceptable to say that we must tolerate a few mistakes to make sure we convict the guilty.

As Millsap mordantly says, he would “rather be back in San Antonio having a root canal” than talking publicly about his journey. But his choice is to talk to anyone who will listen, and his warning is one that must be heeded.

Virginia Sloan

Virginia Sloan is the president of the Constitution Project, a Washington, D.C.-based think tank that promotes constitutional safeguards.