Mike Fox
Ohio’s Republican Governor Mike DeWine—who once helped to restore the state’s death penalty—recently made headlines by breaking ranks with his party to call for an end to capital punishment in the state, citing the simple fact that it’s not an effective deterrent.
While deterrence is a significant practical metric, an even more fundamental flaw plagues the system. The Constitution contemplates the death penalty, and reasonable libertarians can disagree on its philosophical appropriateness. However, any system administered by a fallible government faces an existential crisis when the stakes are absolute, because once the state takes a life, there’s no going back. Criminal prosecution is a remarkably high-stakes game, yet it’s played by actors who function in a world devoid of personal accountability.
When the state is granted the ultimate power to end a human life, the system executing that power must be flawless and completely transparent. Instead, the American legal system operates under rules where police and prosecutorial misconduct can—and does—flourish with virtually no consequences for the bad actors. Through the judicially constructed doctrines of qualified immunity for police and absolute immunity for prosecutors, the legal system has erected an impenetrable shield around its own operators.
If a prosecutor intentionally hides evidence that proves a defendant’s innocence or suborns perjury, they cannot be sued for civil damages. Internal accountability for law enforcement and prosecutors is nonexistent. The criminal prosecution of police officers remains exceedingly rare, and the prosecution of prosecutors themselves is virtually unheard of, to the extent that their culpability even rises to the level of a crime.
This environment asks inherently flawed human beings, who are often driven by intense political or professional pressures, to wield the power of life and death without any skin in the game. When there are no consequences for cheating, cheating becomes a highly viable, risk-free strategy to win high-profile cases.
The story of Walter McMillian bears this out with terrifying clarity. In 1986, a young white woman named Ronda Morrison was murdered in Monroeville, Alabama. Under immense public pressure to solve the case, local law enforcement didn’t look for the truth; they looked for a scapegoat. They focused on McMillian—a black man with no criminal record—who had an affair with a married white woman who was going through a public divorce.
The state’s case against McMillian was an absolute fabrication from top to bottom, made possible only because the state actors knew they would never be held responsible for their tactics. Local law enforcement pressured an accused criminal from another county, Ralph Myers, into fabricating a story placing McMillian at the scene. Myers later recanted, stating that he was threatened with the death penalty himself if he didn’t cooperate.
In a grotesque abuse of power designed to break his spirit, Monroe County officials arranged for McMillian to be placed on death row before his very brief trial even began—housing an innocent man awaiting trial alongside condemned men. During the trial itself—which was largely performative—the prosecution actively hid multiple pieces of exculpatory evidence, including an audio recording of Myers complaining that the police were forcing him to frame an innocent man. The state completely ignored the testimony of multiple black alibi witnesses who placed McMillian at a church fish fry at the exact time of the murder.
McMillian wasn’t tried by a local jury as our Constitution commands. Rather, because of the case’s publicity, he was tried in a neighboring county. While the crime occurred in a county that was 40 percent black, the trial took place in a county that was 86 percent white—meaning residents had sharply different outlooks on the criminal justice system. He was swiftly convicted and sentenced to life in prison. But a judge overrode the jury’s recommendation and condemned him to die. In the end, McMillian spent six agonizing years on death row before the Equal Justice Initiative proved the state’s witnesses had lied and that the prosecution had illegally suppressed evidence. In an unrelated case, the Alabama Court of Appeals later found that both the judge and the prosecutor had employed racial discrimination in jury selection.
To make matters worse, when McMillian was finally exonerated and freed in 1993, he tried to sue the county and the sheriff who framed him. His lawsuit went all the way to the US Supreme Court, which held that the county sheriff was shielded against liability by immunity doctrines. The officials involved were never criminally charged. The prosecutor retired shortly after the trial and never faced any personal or professional consequences. The sheriff was re-elected repeatedly and retired comfortably decades later. The state fabricated a story and colluded to strip a man of his liberty and ultimately his life—and nobody paid a price.
The question of whether irreversible punishments can coexist with a system that shields its own actors from the consequences of misconduct merits serious debate. Yet, regardless of one’s position on that issue, a foundational truth remains: prosecutors and law enforcement wield the immense power of the state to strip individuals of their liberty or their lives. Given the gravity of these stakes, ensuring genuine, systemic accountability for those who exercise this authority is paramount.