Last week, Judge Noël Wise of the Northern District of California entered judgment in Stanford Daily Publishing Corp. v. Rubio. The plaintiffs were the university's student newspaper and a Jane Doe holding an F-1 visa. The opinion runs some 90 pages and collapses two legal statuses that the Constitution and the Immigration and Nationality Act keep apart. An American citizen and a foreign student may stand at the same rally and chant the same slogans for Hamas, the same organization that murdered, raped, and kidnapped Israeli civilians on October 7. The First Amendment forbids the government from jailing, fining, or prosecuting either of them for those words alone. That protection is real. It is also not the question this case decides.

The question is whether a foreign student, admitted for a limited purpose on conditions attached by Congress, may retain the invitation after the secretary of state concludes that his presence carries potentially serious adverse foreign policy consequences. Judge Wise held, in effect, that once the guest begins speaking, the invitation hardens into something the secretary cannot touch. She treated a permission as if it were a right. The citizen holds this country the way an owner holds a house. The visa student is a guest. Nothing in the First Amendment converts the second position into the first.

Section 221(i) of the Immigration and Nationality Act, codified at 8 USC 1201(i), is written for guests. After a visa is issued, the secretary of state "may at any time, in his discretion, revoke" it. The power does not expire when the student clears customs. The judgment belongs to the secretary, not to a jury, a prosecutor, or a district judge in San Jose. A companion provision, 8 USC 1227(a)(4)(C), makes an alien deportable when the Secretary has reasonable ground to believe that his presence or activities would have potentially serious adverse foreign policy consequences. Congress then added the sentence that should have stopped this lawsuit at the courthouse door. There shall be no means of judicial review of a 221(i) revocation, except in the narrow case where the revocation is the sole ground for removal. Congress knows how to open the courthouse. It does so constantly. Here it closed the door on purpose, because visa decisions sit where foreign policy, intelligence, and diplomacy meet, and because courts have the least competence in that arena.

Judge Wise brushed past that text. Reporting on the order describes a holding that noncitizens enjoy broad speech protections and that the government may not deport on the basis of criticism of Israel or support for Palestinians. The newspaper's own theory was that visa threats had chilled student journalists. That may be a real reporting problem for an editor. It is not a reason to convert a discretionary visa into a tenure-like interest in remaining. If the holding is as reported, it has to assume two things the law does not give her. It has to assume that a temporary guest's interest in staying outweighs an express grant of discretion. It has to assume that a district court may supervise a decision Congress specifically shielded from review. The first assumption revises the Constitution. The second revises the United States Code.

This is not a theory invented in 2025, nor a novelty of the Trump administration, though writers at the Heritage Foundation and elsewhere have been right to keep repeating it. In 1950, in Knauff v. Shaughnessy, the Supreme Court called the exclusion of aliens "a fundamental act of sovereignty" and described admission as "a privilege granted by the sovereign United States Government." Ellen Knauff was the German wife of an American veteran, a far more sympathetic figure than a graduate student praising a terrorist organization, and the Court still refused to substitute its judgment for the executive's. Three years later, in Shaughnessy v. United States ex rel. Mezei, the Court held that judges could not retry the government's conclusion that an alien's entry would harm the public interest, even when the evidence was confidential. Those cases are old. Their logic is not.

The closest analog to the argument pressed on Judge Wise arrived in 1972. In Kleindienst v. Mandel, American professors claimed that the exclusion of a Belgian Marxist scholar violated their First Amendment right to hear him. That was a stronger claim than the one available to an F-1 student, because it was made by citizens about their own speech and inquiry. The Court said no. Where the executive acts on a facially legitimate and bona fide reason, courts will not look behind the decision or balance it against First Amendment interests. Even when actual Americans asserted actual First Amendment claims, the visa decision stood. If the professors could not conscript immigration law into the service of their seminar, a guest cannot conscript it into the service of his rally. Judge Wise's ruling gives a foreign national more leverage over immigration policy than the Supreme Court was willing to give American faculty.

Later cases have not loosened that rule. They have tightened the grip. In Trump v. Hawaii, the Court described immigration policy as vitally and intricately interwoven with foreign relations. In 2024, in Department of State v. Muñoz, the Court held that even a U.S. citizen has no fundamental constitutional right to have her noncitizen husband admitted to the country. If marriage to a citizen creates no constitutional claim to admission, enrollment at Stanford does not create a constitutional claim to remain. This April, in Matter of M-K-, the Board of Immigration Appeals held that the Secretary's determination of adverse foreign policy consequences is presumptive and sufficient evidence of removability, because Congress assigned the secretary unilateral judgment on that question. The Board understood what the district court did not. Second-guessing that judgment pulls adjudicators into foreign policy, a field the Constitution assigns elsewhere.

Someone will say that revocation is just punishment for speech under another name. Revocation of a permission is not punishment in the constitutional sense. No one is jailed, fined, or prosecuted. The student loses nothing he owned. He loses a conditional invitation, the same thing roughly 6,000 student visa holders lost in 2025, about 4,000 of them over criminal conduct such as assault, DUI, and burglary. No serious argument treats a DUI revocation as a Sixth Amendment event. A conditional system that cannot be revoked after the condition fails is not a conditional system. It is a disguised entitlement.

The speech at issue is also not ordinary campus debate. Hamas is a designated Foreign Terrorist Organization. In Holder v. Humanitarian Law Project, the Supreme Court upheld a federal ban on even ostensibly peaceful assistance coordinated with such groups, because, as Chief Justice Roberts explained, that kind of support can legitimize a terrorist organization and free resources for violence. If Congress may criminally punish citizens for coordinated support of terrorists, it may decline to keep hosting foreign guests who celebrate them. The point is not that every slogan at every rally is a federal crime. The point is that the political branches may decide that celebrating a designated terrorist group is a reason to end a visit.

FBI data recorded 1,832 anti-Jewish hate crime incidents in 2023, a 63% increase over the prior year. In 2024, Jews, roughly 2% of the population, were the targets of 69% of all religion-based hate crimes. The ADL counted 6,274 antisemitic incidents in 2025, the third highest total it has ever recorded. Jewish students at elite universities have been harassed, blockaded, and told to hide their identities on campuses their families help fund. Congress wrote a preventive standard into the law for a reason. An alien is removable when the secretary has reasonable ground to believe his activities would have "potentially serious adverse foreign policy consequences." The word potentially is doing the work Congress assigned it. The government does not have to wait until advocacy matures into fundraising, fundraising into recruitment, and recruitment into an attack. A judge who demands that wait has substituted her risk tolerance for the one the statute chose.

The worry that some future secretary will abuse the discretion is a fair worry. It is not a warrant for a district court to rewrite the statute. The secretary answers to an elected president, the president answers to the voters, and Congress can narrow Section 1201(i) tomorrow if it wishes; that is the accountability structure the founders built for foreign affairs and it is not improved by letting a single district judge in California superintend the nation's visa policy because she finds the policy distasteful. Officials who make predictive judgments about foreign threats can be fired. Judges who delete review bars cannot.

America owes its own citizens, including the Jewish students walking past encampments that glorify their would-be murderers, a government willing to treat support for a terrorist organization as a security problem rather than a campus fashion statement. It owes foreign guests fair treatment and nothing more. A country that cannot withdraw its welcome from visitors it reasonably believes threaten its interests does not control its borders in any meaningful sense; it merely staffs them. The First Amendment will survive the revocation of a visa. It is less clear that the rule of law survives judges who set aside the statutes they are sworn to apply. Judge Wise's ruling should be appealed and reversed, and Congress should seriously consider impeaching her.

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In Dante’s Inferno, fraud ranks deeper than violence in the circles of hell. The Transportation Security Administration (TSA) is the living embodiment of bureaucratic fraud: a colossal, costly illusion of safety, wrapped in blue uniforms and plastic trays. We were promised that a federally centralized security regime would reduce costs and fortify protection. Instead, the TSA has grown into a bloated, inefficient juggernaut, failing at its singular purpose while draining billions from taxpayers and passengers alike. It is time to dismantle this costly experiment and restore security responsibilities to airlines and airports under the oversight of the Federal Aviation Administration (FAA).

The Financial Disaster: Exploding Costs, No Accountability

Like any other federal behemoth, the TSA has predictably ballooned in cost since its inception in 2001. Born in the wake of 9/11 with a mandate to standardize airport security, the TSA was initially envisioned as an efficient, protective xxxxxx. The agency's first-year budget was $6.8 billion. Today, its budget has exploded to a staggering $10.5 billion, a 54% increase, with projections surging even higher—$11.8 billion by 2025.

Yet TSA’s appetite for taxpayer money is rivaled only by its inefficiency. A significant portion of its funding comes from passenger security fees, a hidden tax that has grown 330% since the TSA’s creation. This translates to $4.5 billion per year drained directly from travelers—not to mention the billions pulled annually from congressional appropriations.

One might ask: With this level of funding, surely we are safer? Quite the opposite. The TSA’s performance is so abysmal that it would be comical were it not so dangerous. In 2015, a Department of Homeland Security (DHS) report revealed that undercover agents successfully smuggled weapons and explosives past TSA checkpoints 95% of the time. Out of 70 tests, TSA agents failed 67 times—a failure rate that would embarrass even the most dysfunctional private enterprise. In short, the agency built to secure our skies cannot even secure its own checkpoints.

Theater, Not Security

The TSA is a perfect example of “security theater,” a term coined by security expert Bruce Schneier to describe measures that provide the illusion of security rather than its reality. Removing shoes, confiscating shampoo bottles and subjecting passengers to invasive pat-downs—these are hollow rituals designed to pacify anxious travelers rather than thwart real threats.

The TSA’s reliance on outdated, rigid procedures creates vulnerabilities that real-world attackers exploit with ease. Terrorists are not defeated by confiscating baby formula or harassing elderly women in wheelchairs. They adapt, as demonstrated by the TSA’s shocking failure to detect threats during DHS tests.

The American people have paid dearly for this theater. They pay in exorbitant fees, endless lines and constitutional dignity. To add insult to injury, TSA staffing—now approaching 65,000 employees—has become a bureaucratic jobs program with no demonstrable benefit to national security.

A Better Path: Returning to Airline and Airport Control

Before the TSA’s creation, airlines and airports managed security through private contractors. While imperfect, this decentralized model incentivized competence. Airlines, after all, had every financial and reputational reason to ensure passenger safety. Under such a system, security would be responsive to market forces, accountable to consumers, and tailored to the unique needs of individual airports.

Critics argue that privatizing security would sacrifice standards. Nonsense. The FAA can establish rigorous regulations and conduct frequent audits to ensure compliance. The FAA already governs the safety of aircraft and pilots with great success; there is no reason it cannot oversee security protocols.

Moreover, successful alternatives to the TSA already exist. The Screening Partnership Program (SPP), a little-known initiative, allows airports to opt out of TSA screeners in favor of private contractors. The program remains obscure not because of its lack of success but due to bureaucratic inertia and the TSA's resistance to promoting a solution that undermines its monopoly. Airports that wish to join the SPP must navigate a convoluted approval process, one riddled with red tape and subject to TSA oversight—a clear conflict of interest. Despite these hurdles, the program has thrived where implemented, offering tangible proof that privatized security can outperform the federal model in both efficiency and passenger satisfaction. As of today, approximately 22 airports have embraced the program, proving that private security is not only feasible but often superior.

San Francisco International Airport (SFO) is the most prominent example. As the largest U.S. airport under the SPP, SFO has relied on private screeners since the program’s inception. A 2022 report revealed that SFO’s private screeners consistently outperform TSA agents in efficiency, with passengers experiencing 15% shorter wait times on average. Customer satisfaction surveys also rank SFO’s screening process among the highest in the country, further demonstrating the program’s superiority over TSA-managed airports. Reports consistently show that SFO’s private screeners deliver faster, more efficient service while maintaining higher customer satisfaction compared to their TSA counterparts.

Kansas City International Airport (MCI) was among the first to adopt SPP, signaling an early recognition that a decentralized, competitive model could outperform the federal alternative. After transitioning to private contractors, MCI reported reduced wait times and operational costs, demonstrating measurable improvements in efficiency while maintaining rigorous security standards. This early success set a precedent for other airports to follow, proving that private security can deliver tangible benefits where the TSA consistently falls short. Smaller airports have followed suit, benefiting from the program’s flexibility. Bozeman Yellowstone International Airport (BZN), for instance, reports faster screening times and greater adaptability with private contractors. Orlando Sanford International Airport (SFB) transitioned to private screeners specifically to improve passenger experience, and by all accounts, it has succeeded.

These airports demonstrate that private contractors, when held to FAA standards, can deliver higher-quality security services tailored to the specific needs of airports and their travelers. The FAA ensures consistency by setting rigorous security protocols, mandating regular audits, and requiring compliance with standardized screening practices. These regulations ensure that private contractors meet or exceed the same security benchmarks expected of TSA-managed operations, while offering the added benefits of efficiency, flexibility, and customer-focused service. In essence, the FAA provides the framework, but private contractors deliver the results. They are not anomalies but harbingers of what a fully decentralized, competitive system could achieve nationwide. If these airports can succeed under the Screening Partnership Program, what justification remains for the TSA’s bloated, failing bureaucracy?

If SFO can secure millions of passengers a year with private contractors, why can’t other airports follow suit? The answer lies in a combination of political opposition, entrenched bureaucracy and TSA lobbying. The TSA has every incentive to resist the expansion of the Screening Partnership Program, as its success exposes the agency’s failures. Additionally, misconceptions about privatized security—fueled by bureaucratic scaremongering—lead some to believe that decentralization compromises safety, despite clear evidence to the contrary. Navigating the convoluted process to join the program also deters many airports, as approval requires TSA oversight—a glaring conflict of interest that protects the agency’s turf rather than prioritizing passenger safety.?

The Inevitability of Bureaucratic Decay

As Cicero once observed, “The more laws, the less justice.” So too with the TSA: The more centralized the bureaucracy, the less security. Bureaucracies are inherently self-serving, prioritizing their own expansion over mission success. For two decades, the TSA has proven this axiom true. Its ballooning budget and dismal results reflect not a failure of resources, but of incentives. No matter how much funding it receives, the TSA has no incentive to improve because its failures do not jeopardize its survival.

In a competitive, privatized system, failure has consequences. Airlines and airports that fail to provide adequate security face economic ruin and legal liability—powerful motivators for competence and innovation. Government agencies, on the other hand, simply lobby for more funding and blame systemic shortcomings.

Restoring Sanity and Security

Eliminating the TSA would represent a restoration of sanity in both governance and air travel. Passengers would benefit from shorter lines, lower fees and security measures that reflect genuine risk rather than bureaucratic theater. Taxpayers would save billions annually. Most importantly, America’s airports would be safer under a system that rewards competence rather than protects incompetence.

The FAA can and should assume a regulatory role, setting standards and auditing compliance. But the task of implementing security should return to those with a vested interest in its success: airlines and airports.

In Atlas Shrugged, Ayn Rand warns of what happens when competence is sacrificed at the altar of bureaucracy. The TSA is precisely this sacrifice. It is long past time to reclaim security, dismantle the TSA, and let airports and airlines do what the federal government cannot: secure the skies.

Conclusion

The TSA stands as the perfect candidate for elimination by the Department of Government Efficiency (DOGE), the agency led by Elon Musk and Vivek Ramaswamy. It is a bloated, taxpayer-funded relic that inconveniences millions, burns through billions and fails spectacularly at its core mission: security. The TSA is not just inefficient—it is the poster child for bureaucratic stagnation, a monument to how government power grows fat and unaccountable while delivering nothing of substance.

For DOGE, dismantling this $10 billion farce would be the low-hanging fruit. Replacing the TSA with competitive private screening under FAA oversight would slash costs, relieve taxpayers, and finally deliver security that works. Musk’s flair for innovation and Ramaswamy’s relentless focus on cutting red tape would streamline airport screening into a model of efficiency and customer satisfaction—everything the TSA is not. America’s travelers deserve real security, not theater, and DOGE has the mandate, the vision, and the leadership to make it happen.

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A Capital Idea: Retrocession, Not Statehood

In the heart of the swamp, where the Potomac River meanders through marble edifices and murky political waters, Washington, D.C., stands as a peculiar anomaly. Neither state nor fully integrated into any other, the District of Columbia has been a perennial thorn in the side of representative democracy—a cause célèbre for Democrats eager to score two additional Senate seats. While the radical left Democrats may dream of turning the nation's capital into a fortress of progressive power, the solution lies not in statehood but in retrocession.

Republicans, now holding the trifecta of power with President-elect Trump returning to the White House in January, along with majorities in both houses of Congress, have a narrow but golden opportunity to act. Retrocession—reducing the federal district to its constitutional core while returning the remaining land to Maryland—is the answer that resolves representation concerns, strengthens governance and preserves the Founders' vision of a neutral federal seat of power.

Representation Without Distortion

Let us begin with the most oft-cited grievance from the Democrats: representation. It is true that D.C.’s residents, numbering over 700,000, lack voting representation in Congress. This issue is no trivial matter. Rev. Martin Luther King Jr. and other civil rights advocates historically linked D.C.'s lack of representation to broader struggles for racial justice and equality. Since D.C. has a historically significant Black population, the disenfranchisement of its residents has been portrayed as a continuation of systemic inequities.

As D.C.'s non-voting delegate to the House of Representatives, Eleanor Holmes Norton has tirelessly championed the case for representation. She often underscores the fundamental unfairness of D.C. residents paying federal taxes, serving in the military and fulfilling all obligations of citizenship without full congressional representation. In her own words:

"D.C. residents pay the highest per-capita federal income taxes in the United States, fight in wars, and serve on juries, yet are denied the representation they deserve."

This grievance taps into the core democratic principle that governance requires consent, a principle rooted in the American Revolution's rallying cry against taxation without representation. Additionally, prominent Democrats like Rep. Jamie Raskin argue that denying representation to D.C. residents undermines the equal protection clause of the 14th Amendment. Even in the 19th century, John Quincy Adams described the disenfranchisement of D.C. residents as an affront to constitutional principles. He believed that a government deriving its authority from the consent of the governed could not justifiably exclude any segment of its population.

Yet, statehood is not the only solution. Retrocession would integrate D.C.’s residents into Maryland, giving them two senators and representation in the House—all without upending the balance of power in the Senate. The solution is elegant in its simplicity and avoids the political land grab that statehood represents.

Imagine, if you will, a nation where every urban enclave with a grievance demanded statehood. Shall Brooklyn declare independence next? Or how about Los Angeles’ Hollywood Hills? This slippery slope undermines the federal structure carefully constructed by our Founding Fathers. Retrocession achieves representation without setting such a dangerous precedent.

Protecting the Republic from Political Manipulation

D.C. statehood is not just a Democratic talking point; it is a strategy—one designed to solidify their grip on the Senate by adding two permanent Democratic senators. Consider the reality: Washington, D.C., is one of the most overwhelmingly Democratic jurisdictions in the country, with over 90% of its residents routinely voting blue. The Founders’ careful checks and balances are already strained; granting statehood to D.C. would exacerbate partisan divides and tilt the scales irreparably.

By pursuing retrocession, Republicans can defuse this ticking political time bomb while ensuring the District’s residents receive the representation they seek. Maryland gains the population, Congress maintains its balance, and the nation avoids creating a hyper-powerful state within its borders.

Governance: From Dysfunction to Competence

Even ardent supporters of D.C. statehood must admit that the District’s governance leaves much to be desired. D.C. has long been plagued by mismanagement, high crime rates and inefficiency. Returning the majority of the District to Maryland would place its governance under a more competent state government with established institutions and resources.

It is a truth universally acknowledged—outside the pages of the Washington Compost, of course—that local government in D.C. is a mess. Retrocession would inject new life and accountability into the city’s administration, delivering better outcomes for its residents. Maryland, with its broader tax base and experience managing diverse urban and rural areas, is far better equipped to handle the needs of D.C. residents.

Upholding the Founders’ Vision

James Madison, in Federalist No. 43, articulated the importance of a federal district independent from state control. He understood that placing the seat of government under the jurisdiction of any state could lead to undue influence, favoritism or coercion. But Madison’s vision was not one of sprawling neighborhoods and bureaucratic inefficiency. It was a vision of a compact, focused seat of federal power, distinct from but not at odds with the states.

Retrocession honors this vision. By reducing the federal district to its essential core—the Capitol, White House, Supreme Court and other critical federal buildings—we preserve the neutrality of the federal government. At the same time, we ensure that the District’s residents are no longer disenfranchised. The Founders’ intent remains intact, and the Republic’s stability is preserved.

The Precedent is Clear

To those who argue that retrocession would require a constitutional amendment, history provides a rebuttal. In 1846, Congress retroceded the portion of D.C. south of the Potomac River back to Virginia. This precedent demonstrates that Congress has the authority to act decisively on this matter without the arduous process of amending the Constitution. With plenary power over the District, Congress can legislate retrocession, sidestepping the labyrinth of constitutional hurdles.

Yes, there remains the issue of the 23rd Amendment, which grants the District three electoral votes. But this too can be resolved. With no permanent residents in the shrunken federal district, these electoral votes would be moot. Congress could amend or leave the amendment intact, rendering it irrelevant in practice.

Timing is Everything

The clock is ticking. With Trump’s new administration poised to take office and Republicans controlling both chambers of Congress, the time to act is now. Maryland will need time to incorporate its new citizens and territory, and the 2030 census looms large. By acting swiftly, Republicans can ensure a smooth transition, proper representation for D.C. residents and the preservation of constitutional principles.

The Democrats are unlikely to let the matter lie if they regain power. Statehood remains a key priority for their agenda, and without action, Republicans risk losing the chance to resolve this issue on their terms. Retrocession offers a solution that satisfies fairness while safeguarding the Republic from partisan manipulation.

Conclusion: A Bold Step for the Future

Retrocession is not merely a political maneuver; it is a reaffirmation of the Founders’ vision and a practical solution to a thorny problem. It resolves the lack of representation for D.C. residents without granting undue power to one political party. It places the District’s governance into more capable hands, ensuring better outcomes for its citizens. And it preserves the neutrality of the federal seat of power while honoring Madison’s wisdom.

In this moment, Republicans have the opportunity to lead with conviction and clarity. Retrocession is the path forward—a bold, decisive step that ensures the nation’s capital remains a symbol of unity, not division. The time to act is now.

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The new "ask amuse on 𝕏" feature on my website surfaced something uncomfortable. Readers were asking where I stand on the death penalty, and the system had nothing to give them. Despite writing more than 1,000 op-eds I had never published my position on capital punishment. The omission was not an accident. My view is unpopular with much of my audience, and I suspect I avoided the subject because I knew it would cost me. That ends today.

Here is my position, stated plainly. I support the death penalty in theory. Certain crimes are so depraved that death is a proportionate punishment, and I feel no squeamishness about saying so. A man who tortures a child to death has forfeited any moral claim to continue living. My objection is not to that principle. My objection is to the people who must apply it. Prosecutors conceal evidence. Police pressure witnesses. Government experts overstate junk science. Defense lawyers fail to investigate. Judges overlook misconduct, and bureaucracies protect themselves. Because an execution cannot be corrected, I do not trust the state with the power to carry one out.

Notice what this argument is not. It is not an argument for leniency, and it is not sympathy for murderers. It is an argument against government infallibility, which is to say it is the most conservative argument I know how to make. Consider an analogy. A gun can be a perfectly legitimate tool while remaining too dangerous to hand to a man with a documented history of recklessness. The question is never only whether the tool is justified. It is also whether the particular hands reaching for it can be trusted. Capital punishment is the tool. The state is the hands.

Conservatives already understand this logic everywhere else. We do not trust the IRS with political power. We do not trust intelligence agencies with surveillance power. We spent the pandemic learning exactly how much deference public health bureaucracies deserve, which is to say very little. We assume, correctly, that government agencies pursue their own interests, shade the truth, resist accountability, and defend their mistakes long after those mistakes are exposed. The death penalty asks us to suspend that entire worldview for one government program, and not just any program, but the only one whose errors are permanently uncorrectable. A wrongly imprisoned man can be released and compensated. A wrongly executed man cannot be unkilled. Every other serious sanction preserves the possibility of correction. Execution alone destroys it.

Perhaps you think wrongful death sentences are a hypothetical, the sort of thing law professors imagine and legislatures need not worry about. The record says otherwise. At least 202 people sentenced to death in the U.S. since 1973 have been exonerated, roughly one exoneration for every eight executions carried out. A peer-reviewed study in the Proceedings of the National Academy of Sciences estimated that at least 4.1% of defendants sentenced to death were falsely convicted, and the authors explained why even that figure understates the problem, since many condemned prisoners leave death row through resentencing before anyone examines their innocence claims seriously. These are not the numbers of a system with rare, freakish failures. They are the numbers of a system that routinely places innocent people within reach of the execution chamber.

Why does this keep happening? The National Registry of Exonerations studied 2,400 exonerations and found official misconduct in 54% of them. In murder exonerations the rate rose to 72%. In death-sentence murder exonerations it reached 79%. Read that again. In nearly four of every five cases where the state condemned an innocent person to die, government officials had behaved improperly. The misconduct was not exotic. It was evidence suppression in 61% of murder exonerations, plus witness tampering, official perjury, and prosecutors knowingly permitting false testimony. The Registry's 2025 report shows the problem is current, not historical: 70 of 97 exonerations that year involved official misconduct, including 55 failures to disclose exculpatory evidence and 30 cases of official perjury.

Now ask the follow-up question a skeptical reader should ask. Surely officials who help convict the innocent face consequences? They do not. Among 729 exonerations involving prosecutorial misconduct, prosecutors were professionally disciplined in 26, or about 4%. Exactly two were criminally convicted, and between them they served five days in jail. Think about the incentive structure this creates. A prosecutor who hides evidence gains a conviction, headlines, and political advancement. If the misconduct surfaces decades later, the defendant has already served the time and the prosecutor typically loses nothing. Conservatives who understand why the administrative state misbehaves should recognize this pattern instantly. Unaccountable discretion produces abuse. It always has.

The corruption cases are chilling, but the incompetence cases frighten me more, because incompetence requires no villain. In 2015 the FBI acknowledged that its examiners had given erroneous microscopic hair testimony in 257 of 268 reviewed trials, a 96% error rate, including 33 of 35 reviewed death penalty cases. By the time the review concluded, 9 of the affected defendants had already been executed. The bureau's own root-cause analysis blamed vague standards, poor training, and weak supervision rather than malice. The National Academies reached a similar diagnosis in 2009, finding that outside nuclear DNA analysis, no forensic method had been rigorously validated to identify a specific source with consistently high certainty. An honest mistake kills as permanently as a corrupt act. That sentence carries the whole argument, so let it sit for a moment.

If the statistics feel abstract, the cases are not. Louisiana was days from executing John Thompson when a defense investigator found a hidden laboratory report showing the perpetrator's blood type did not match his. The report had sat in the government's own files for years while Thompson spent 14 years on death row, and when he finally received a fair trial, a jury acquitted him in about 35 minutes. Texas prosecutor Charles Sebesta manufactured a capital case against Anthony Graves by concealing exculpatory statements and threatening a witness's wife; Graves came within days of execution twice before his exoneration, and Sebesta was not disbarred until 2015, two decades after the trial. And in Oklahoma, Republican Attorney General Gentner Drummond, a death penalty supporter who has personally witnessed executions, refused to defend Richard Glossip's conviction after learning prosecutors had knowingly allowed false testimony. The Supreme Court vacated the conviction in February 2025. Drummond never declared Glossip innocent, and that is precisely the point. He concluded that a verdict obtained through uncorrected false testimony could not justify a killing, whatever the underlying truth turned out to be. That is what law-and-order integrity actually looks like.

The skeptic's last refuge is reform. Fix the labs, discipline the prosecutors, fund the defense bar, and keep the penalty. Illinois tested that theory. Republican Governor George Ryan entered office a death penalty supporter and left it having emptied death row, because the audit was unanswerable: the state had executed 12 people while exonerating 13, roughly half of nearly 300 capital cases had been reversed, 33 condemned men had been represented by lawyers later disbarred or suspended, and prosecutors had used jailhouse informants in 46 death row cases. Ryan told the Senate the odds of justice being done were as arbitrary as a coin flip. Illinois already had every safeguard reformers propose, the trial judges and the appellate courts and the professional standards and the constitutional protections, and the failures penetrated every single layer anyway, which tells you the problem is not a missing rule but the permanent character of human institutions under political pressure. The Columbia University study of 5,760 death sentences found serious reversible error in 68% of fully reviewed capital judgments. A system is only as reliable as its weakest necessary link, and capital cases have many links.

Cato Institute cofounder Edward Crane put the position in a single sentence in 2003, writing that the government is often so inept and corrupt that innocent people might die as a result. Arthur Rizer and Marc Hyden, writing in The American Conservative, observed that the state is not God and capital punishment is not infallible. Rod Dreher was blunter still: I don't trust the state to get convictions right. Even Justice Sandra Day O'Connor, a Reagan appointee with no abolitionist sympathies, warned in 2001 that the system may well be allowing innocent defendants to be executed. None of these voices romanticizes the condemned. Each applies ordinary conservative skepticisim of state power to the one program where a mistake lasts forever.

So here is where I land, and where I should have landed publicly years ago. The moral question was never whether some murderers deserve death. They plainly do. The question is whether a government with a documented record of suppressed evidence, coerced witnesses, official perjury, overstated forensics, and near-zero accountability deserves the power to make an uncorrectable mistake. Life imprisonment without parole is severe, permanent in practice, and protective of the public, yet it preserves the one thing execution destroys, which is society's ability to correct the state when the state is wrong. Prudence is supposed to be our virtue. A prudent people does not hand an irreversible power to institutions it correctly refuses to trust with reversible ones. I support the death penalty in theory. I oppose giving it to this government, or any government staffed by human beings, and I no longer intend to be quiet about it.

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