Death penalty abolitionist cause harmed by lawyer leadership

A student conference in Austin this week dubbed the "Anti-death penalty alternative spring break" may interest Grits readers. It includes several events open to the public that may be worth attending, particularly on Thursday, when they'll hear a panel of exonerated men who'd been sentenced to death row. Here are the basics:

Anti-Death Penalty Alternative Spring Break, March 15-19, 2010

Join us March 15-19, 2010 in Austin, Texas for the award-winning Anti-Death Penalty Alternative Spring Break. It starts at 4:30 PM on Monday, March 15. The location is the Jesse H. Jones Communication Center - CMA room 3.112 on the campus of The University of Texas at Austin. CMA is on the corner of Whitis Avenue and Dean Keeton, (Google Map). The room is located on the entrance level of the building.

Special guests will be six innocent death row exoneress: Shujaa Graham, Curtis McCarty, Ron Keine, Derrick Jamison, Perry Cobb and Juan Melendez. They are attending alternative spring break to speak with participants about how innocent people can end up on death row. Altogether, the six exonerees attending the alternative spring break spent a total of about 65 years on death row for crimes they did not commit.

And here's the full schedule of events.

While I'm glad to see in-depth discussions on the topic and an outlet for student enthusiasm, perusing the schedule reinforces a sense I've had about death-penalty politics for many years now: That the biggest barrier to abolitionists' political success is probably the fact that the movement is led by death-penalty lawyers instead of political operatives.

The reason is simple: In most death penalty cases, the big issue is not guilt or innocence but whether or not to execute. So the most successful death-penalty lawyers focus on "mitigation" - giving explanations for offender behavior, documenting mental illness, childhood abuse or past trauma that may have contributed to the crime, and generally humanizing defendants for the jury. The Alternative Spring Break conference is filled with such "mitigation" discussions, as well as perspectives from family members on death row and recent exonerees.

These approaches focus primarily on generating sympathy for the death-row inmate, which is absolutely the right approach at the sentencing phase of trial but the wrong approach when discussing the issue with the public. After all, the murdered victim(s) deserve sympathy, too, but they're not around to receive it.

What's more, too often focusing exclusively on the death penalty sidetracks other important criminal justice reform efforts. Death-penalty debates, because they're such an iconic part of modern culture-war disputes, tend to suck all the oxygen out of the room, diverting attention from reforming less contentious problems. The best example is the Todd Willingham case, where debates over the death penalty scuttled a reexamination of faulty arson forensics.

Were I advising abolitionists on political strategy, I'd suggest a public-policy approach that appeals to the interests of mainstream voters instead of just encouraging sympathy for offenders. Too often death-penalty debates boil down to competing claims for "victim" status, and except in innocence cases, the real (murdered) victim will always weigh more heavily with the public, for totally understandable reasons.

The best, most persuasive arguments against the death penalty don't focus on defendant-as-victim but what's best for the public at large. Here are what I think are the most effective abolitionist arguments, in no particular order

1. Corruption: The system tolerates overt misconduct that taints results and undermines public confidence.
2. Fairness to victim families: Long waits between sentencing and punishment - sometimes running into decades - are cruel for victims' families and drag out the process instead of bringing "closure." However we can't quicken the process because of (5) below.
3. Cost: Death penalty cases are expensive budget busters that can bankrupt a county and divert resources from priorities with greater public safety benefit. Because of years of legal wrangling, the cases cost more than it would to incarcerate the offender for the rest of their life.
4. Little public safety value: Compared with Life Without Parole, the death penalty provides little if any additional deterrent.
5. Errors/Innocence: Exonerations show the system sometimes gets it wrong, and exculpatory evidence is not always immediately available. Life sentences preserve the chance of later correcting mistakes.

Of these, the last argument is the least effective. Public opinion polling clearly shows that people support the death penalty, even if they believe innocent people have already been executed. That argument will not result in overturning the death penalty as public policy, though it's helped reframe the issue in important ways and reinjected a more cautious ambivalence into the arguments of proponents that has, to some extent, moderated the inherent shrillness of the debate.

For my part, I'm not personally a full-blown abolitionist, though I believe the death penalty is used too frequently in Texas and IMO there's a great chance we've already executed multiple innocent people. (Nineteen percent of Texans executed since 1982 professed innocence on the gurney before they were killed, according to a recent study of their final statements.) In particular, I think capital punishment is appropriate for those already sentenced to life in prison who kill someone on the inside; otherwise, every murder after the one that got them incarcerated amounts to a freebie. But obviously the punishment is issued more often than in just those narrow circumstances, and there have been a significant number of Texecutions I thought were unnecessary and unjustified.

I also believe there is value in respecting and abiding by majority rule (within limits, where minority rights aren't abrogated), even when one disagrees with their views. An overwhelming majority of Texans support the death penalty, even though in practice its use has been declining. When the issue is debated, it becomes apparent that for most folks the symbolism of keeping it on the books outweighs all other concerns. People want it to be possible for the "worst of the worst," even if it's seldom used. When I was younger, I was more likely to discount the value of such symbolism, seeking to base public policy solely on empirically based results. That's still generally my inclination, but these are emotional debates driven by conflicting values: In practice, rational analysis of outcomes has very little to do with what positions people hold on this subject on either side of the debate.