Monday, March 15, 2010

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.


Michael said...

I can't agree that death-penalty opponents are to blame for Rick Perry's scuttling of the Todd Willingham investigation by the Texas Forensic Science Commission. Perry's appointment of Williamson County DA John Bradley to bury the Willingham investigation -- or at least delay it past the Republican primary -- had more to do with not embarrassing Perry, rather than squelching debate on the death penalty. And even with the commitment to obscuring the truth shared by Perry and Bradley, it wasn't foreseeable that Perry would go to such great lengths to keep the mishandling of the Willingham case from becoming an issue for Kay Bailey Hutchison.

Gritsforbreakfast said...

M, certainly I don't "blame" death penalty opponents for Perry's actions, but I do believe the investigation wouldn't have been scuttled if Willingham were a non-capital case.

Texas Lawyer said...

(1) I hope that anyone reading this post will at least take some time to look at the Hank Skinner case, and to send a letter to Governor Perry and/or the Board of Pardons requesting testing of the remaining evidence; even DP supporters should insist upon that testing lest this case become another weapon in the arsenal of the abolitionists.

(2) While I recognize this is potentially an argument for greater use of execution, I think I would add to your #2 the fact that so many victim families are denied whatever "closure" or "finality" might come from execution. Execution is a very, very rare event, even in Texas. The vast majority of intentional murders just never present the opportunity for a capital case.

Why should we worry so much about the supposed rights of the miniscule number of victim-families in capital cases, when the remaining families are denied those same supposed rights?

admin said...

The problem with the Skinner case is the evidence, not just that which remains untested. If the result of the DNA testing would only further "muddy" the waters and not answer the question the CCA is reluctant to order it. If you think that is not true, look at the Raby opinion(s), and outcome. DNA was exculpatory, and he remains on death row, and the ADA remains convinced the right man is in the right place.
I am not going to be in attendance this week, I am focusing on Washington. I agree with the writer that it is a perception that will make the difference.

Staur said...

Any winning abolistionist argument MUST either somehow allow for the execution of the Bin Laden, Hitler, McDuff type killers or somehow otherwise manage to convince people that life in prison is worse fate than death.

Good luck with that.

Gritsforbreakfast said...

Actually, Staur, IMO LWOP arguably IS a worse punishment than death, which is a fate we're all sentenced to eventually. Not all of us, though, will end our days locked up in a cage.

Texas Moratorium Network said...
This comment has been removed by the author.
Texas Moratorium Network said...

Part of Tuesday's activities at the Anti-Death Penalty Alternative Spring Break include passing out a flyer in downtown Austin with information on the Hank Skinner case and urging people to contact Rick Perry and the Board of Pardons and Paroles.

Also, Bill Pelke, president of Journey of Hope … From Violence to Healing will speak and present a film of the work of Journey of Hope. The film documents family members of murder victims speaking out against the death penalty. Bill's grandmother was murdered on May 14, 1985.

Also on Tuesday, death row exoneree Curtis McCarty who spent 19 years on death row in Oklahoma, will arrive in Austin and speak at the conference.

Anonymous said...

Grits, I couldn't agree with you more on your point about death penalty lawyers in this instance. I know one of your "pet issues" concerns unethical prosecutors. But let me tell you: many death penalty defense lawyers have absolutely ZERO regard for the truth and no ethical constraints whatsoever. They have one goal and objective---to keep their client alive. They believe that end justifies any means and they are quite willing to manipulate an already sympathetic media to their advantage. That's why most people in the public are skeptical of the media accounts of many of these high publicity death penalty claims. This Hank Skinner case is the perfect example. I have absolutely no confidence that the media is objectively reporting all of the evidence in that case. They are simply regurgitating information spoon fed to them by the defense. Another example was the misinformation spread by David Dow and his colleagues on that case that got Sharon Keller in such hot water. Come to find out, there was no credible information regarding a computer malfunction. But here again, the truth is no obstacle to creating a good story in opposition to capital punishment. And in today's internet society, the truth will eventually get out. And when the public learns that they've been sold a bill of goods from some slick talking defense lawyers, they become even more skeptical.

I have a tremendous amount of respect for those who have legitimate qualms about the death penalty for the reasons mentioned in your post, Grits. People who have moral misgivings about the death penalty and are consitent in their belief (i.e., oppose war, abortion under any circumstance, etc.) are entitled to their opinions and should be commended for at least being honest in their stance. On the other hand, death penalty lawyers are merely advocates for their client's best interest. They have no reason to be honest and objective in their dealings with the courts, the media or the public. That corrupts the argument and shifts the focus away from the legitimate issues for debate. Good post!

Anonymous said...

Anonymous 8:36:00 AM claims that death penalty defense lawyers have "no ethical constraints whatsoever."

No ethical constraints whatsoever? Excuse me, but you do know that they are members of the bar, right? That it is forbidden for a defense lawyer (or indeed any lawyer) to mislead the tribunal, right?

The job of a criminal defense lawyer is to zealously advocate for his client even if he knows that his client committed the deed for which he was indicted. By contrast, the job of a district attorney is to pursue justice. These are two different roles.

When I sit on a jury, I expect a criminal defense attorney to proffer the best arguments he can muster, and to put as much positive spin on the facts as he can.

I don't expect - or rather, I shouldn't expect - police officers to lie, or prosecutors to suborn perjury. Unfortunately, police officers and prosecutors are essentially free to engage in dishonesty and misconduct with impunity. See Ex Parte Randall Dale Adams.

In theory I don't have a problem with the death penalty. Some folks just need killin'. In practice, our criminal justice system is so broken that a reasonable person cannot have faith that only the worst of the worst will get the needle.


Alan Bean said...

It is a defense attorney's job to try to keep the client alive; it is the prosecutor's job to attain a conviction if that, in the opinion of the prosecutor, is what justice demands.

Secondly, even inconsistent and inarticulate death penalty opponents are entitled to their opinions. If I believe the death penalty is popular but immoral it is my responsibility to shift public opinion on the issue. The majority is often flat wrong on the most important moral issues--at least that's my humble opinion.

I would be the first to admit that my opposition to the death penalty is rooted in religious conviction. Life and death issues are ultimately decided on moral grounds and morality implies religion. We can be moral without religion, but we have a hard time justifying our beliefs and actions in the public square on the basis of a higher principle.

Public support for the death penalty moved in a punitive direction because the culture shifted from a dominant prophetic and ecumenical religious vision to a more punitive and sectarian religious foundation. It will be impossible to move Texas away from the promiscuous use of the death penalty without a revival of prophetic religion, and I don't see that happening any time soon.

Alan Bean

xxxxxx said...

I am actually here AT the alternative spring break and I can tell you now that your "perusing the schedule" is no reason for you to start criticizing this event and how it is run. You do not have an understanding of what we are doing here or what is being taught or discussed. We have people from all different "camps" of the movement and so far we've only discussed mitigation once-today. For an hour. One hour of the whole week. We've done a ton of stuff already, and none of it had to do with mitigation except for the one event.

One thing I have definitely observed is what I've grown to see as te biggest problem in the anti-death penalty movement: nobody will shut up long enough about what they think is the "best" approach or whether life without parole is a good option or WHATEVER long enough to actually get anything done. While your arguments drag on, people die. Stop micromanaging and START SAVING LIVES.

xxxxxx said...

Also, I find it disgusting that so many of you can sit back an blog about this and that and about what the arguments need and what they don't need and this and that about Hank Skinner, when I just met his wife and what she told me is different than what you all keep arguing about. Please try not to "muddy the waters" of the ADPM by trying to debate things you haven't properly researched.

Jess said...

Hey Scott.

You are a bag of self-important hot air.

admin said...

I don't believe anyone is debating the Skinner case, Texas Lawyer made a request "that anyone reading this post will at least take some time to look at the Hank Skinner case" to which I responded because I have looked at the Skinner case, and further testing of the "rest" of the evidence will raise more questions than it will answer. The question at hand is whether or not the defense attorneys harm the movement more than they help. Whether by "humanizing" the convicted we disregard the victims and their families. This question is "spot on" and when objectivity is lost, emotions step in. That really doesn't help.

PirateFriedman said...

Nice title. When are we going to have the article "Society harmed by lawyer leadership".

BJ said...

Yeah. Dang those stupid lawyers.

Get a brain morans! This country is what it is BECAUSE of lawyers. Who do you think wrote the declaration of independence and constitution? farmers? silversmiths?

This nation was different and BETTER for the average citizen than any that came before it for one reason: Lawyers designed the government.

Try to show a little gratitude.

Michael said...

BJ, I can't tell if you are being serious or kidding. Don't call people morons if you don't know how to spell "morons". Don't disparage silversmiths unless you think Paul Revere was something less than a patriot. And don't knock farmers unless you don't care for George Washington or the other fifteen signers who made their living from the ground.

PirateFriedman said...
This comment has been removed by the author.
Gritsforbreakfast said...

Ah, I knew if I looked away from this string for a minute it would liven up.

Let's run through what we have here.

1:58, 4:48, agreed on Hank Skinner. They need to do the DNA testing.

3:56, I was not "criticizing this event and how it is run." I am saying that the goals and necessary tactics of defense lawyers in court are not the same as a winning political strategy or a message that will turn the public debate.

4:06 I've worked on criminal justice reform in Texas for 15 years, my opinion is far from uninformed, just different from yours.

admin, I don't believe I said defense attorneys "harm the movement more than they help," just that the strategy that's most appropriate at trial (their purview) isn't the best POLITICAL strategy. The focus on mitigation is precisely the correct LEGAL strategy for individual defendants.

Gee, Jess, anonymous, unaccountable ad hominem attacks. How surprising. If you ever wonder why so many people don't take death penalty activists seriously, you're demonstrating why - too cowardly to use your full name but full of name calling venom in response to reasoned argument. Good luck with that approach.

This is why I don't write about the death penalty much. As mentioned, "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."