Trying to understand America's death penalty system and why we still have it.

AuthorGeraghty, Thomas F.
PositionBibliography

FRANKLIN E. ZIMRING, THE CONTRADICTIONS OF AMERICAN CAPITAL PUNISHMENT (NEW YORK: OXFORD UNIVERSITY PRESS 2003). 258 PP.

BEYOND REPAIR? AMERICA'S DEATH PENALTY (STEPHEN P. GARVEY ED., LONDON: DUKE UNIVERSITY PRESS 2003). 244 PP.

JOAN JACOBS BRUMBERG, KANSAS CHARLEY: THE STORY OF A 19TH CENTURY BOY MURDERER (NEW YORK: VIKING 2003). 273 PP.

ILL. GOVERNOR'S COMM'N ON CAPITAL PUNISHMENT, REPORT OF THE GOVERNOR'S COMMISSION ON CAPITAL PUNISHMENT (APRIL 2002).

  1. INTRODUCTION

    Opponents of the death penalty have a lot of ammunition in their arsenals. This country's history of the administration of the death penalty is fraught with evidence of racism. Only in rare instances has anyone other than a poor person been executed. There is no evidence that the death penalty deters crime. The United States is the only western country that continues to execute. The United States is one of the only countries in the world that still executes juveniles, only recently having been prevented from executing the mentally ill. The Supreme Court and Congress have placed obstacles in the way of fair adjudication of capital cases that elevate procedure over substance to the extent it is not clear that our court of last resort would step in to save the life of a defendant whose innocence is substantially established. All of this despite the fact that we have come precariously close to executing innocent defendants. All of this despite the fact that other countries with well-established respect for human rights have either eliminated the death penalty or carry it out as punishment for only the most egregious of crimes.

    The three books reviewed in this essay take different, and equally effective, approaches to describing these contradictions and to suggesting strategies to abolish the death penalty in the United States. Franklin Zimring, in The Contradictions of American Capital Punishment, examines the American death penalty in the context of international and national politics and public policy. (1) He asks why the death penalty persists in the United States in light of the international consensus against it and the many rational and compelling reasons for its abolition in the United States. He argues that an intelligent campaign for abolition can only be charted if the challenges mounted by the opposition are fully understood. The collected essays in Beyond Repair? America's Death Penalty, (2) address in detail specific issues relevant to the death penalty, ranging from the influence of public opinion to the difficulties involved in ensuring that capital juries are capable of understanding and following the jury instructions that should, but in fact may not, control their life and death decisions. Finally, Professor Joan Jacobs Brumberg's Kansas Charley: The Story of a 19th Century Boy Murderer, (3) is a detailed examination of one nineteenth century case involving the execution of a juvenile. Professor Brumberg's book brings home the importance of the examination of individual cases as a means of understanding the phenomenon of American capital punishment. Her book confirms what many who represent defendants in capital cases know: the more familiar we become with a client, the more we understand the forces and influences which led both to the crime and to the prosecution, the more compelling the case for abolition.

    Having attempted to make the point that these three books taken individually and especially together make an unassailable case for abolition, I recognize that I must be wrong about this assertion. The arguments, explicit and implicit, made in these books have been made before. Yet the public is not rising up against the death penalty. Quite to the contrary, support for the death penalty in the United States seems strong and in little immediate danger of waning in the near future. Perhaps the best proof of the strength of support for the death penalty is the fact that no candidate for state-wide or national office could win an election after announcing opposition to the death penalty. Even the most "progressive" politicians I know or read about regard opposition to the death penalty as a veritable kiss of political death.

    There is a vast political and emotional disconnect between death penalty opponents and those who embrace the death penalty. This is not a unique observation. But it is reinforced by personal experiences--one ordinary, one unusual. The first experience, that is shared by every lawyer who represents clients in death penalty cases, is facing the equally committed and aggressive positions and actions taken by prosecutors who favor the death penalty. Prosecutors who favor the death penalty do so for as many reasons as those who oppose the death penalty. Just deserts, the political advantage of being perceived tough on crime, and retribution are all part of the mix.

    The "unusual experience" was that of representing four defendants in the Illinois clemency hearings held in the Fall of 2002. These hearings preceded Governor Ryan's pardons of four death row inmates and commutation of all then existing death sentences in Illinois to natural life without parole. Prosecutors brought the families of victims to those hearings. Although many of the presentations made by defense lawyers on behalf of their clients were powerful in addressing systemic and case-specific shortcomings of our death penalty system, no objective observer could contend that our (the defense lawyers') presentations were anywhere near as powerful as the pleas of victims' family members. The pain expressed by family members of victims brought tears to the eyes of even the most cynical defense lawyer and further outrage to the hearts of death penalty proponents. Despite the sound logical arguments that can be made against resting life and death decisions on such understandably emotional appeals to passion, it is not possible to ignore their power.

    What can be done to create a meaningful dialogue between the emotional/political power of pro-death penalty advocates and the rational arguments made by abolitionists, which point to irrefutable flaws in a system that condemns the innocent, that fails to provide adequate representation to defendants, and that has restricted meaningful appellate and collateral review? As it stands now, the two communities of interest are talking past each other. There is little reason to believe that this will change. Perhaps that is why leading thinkers on the subject, such as Frank Zimring, believe that appealing to the lawyers, judges, and legislators who control the death penalty system is of secondary importance. They believe that the primary focus should be on mounting an effective public campaign against the death penalty which focuses on an emerging human rights consensus and on the system's propensity to commit error without a corresponding willingness to correct those errors.

    This conclusion, while realistic, is distressing to lawyers like me who would like to see changes made before the end of our careers. It means business as usual, at least in the courtroom, for the foreseeable future. I suggest that there is another alternative, at least for lawyers. Take the information, analyses, and stories presented by the books reviewed in this essay and use them to fashion a more concerted effort to bring to more states what has been accomplished in Illinois--a moratorium followed by a thorough examination of the death penalty process, followed by legislation designed to address systemic defects. This approach is best illustrated by the Report of the Governor's Commission on Capital Punishment (4) (hereinafter referred to as "Ryan Commission's Report"). In states where suspension of the imposition of the death penalty is not a political possibility, examination of the process could be undertaken and legislative proposals made. State commissions examining capital punishment systems should be drawn from all communities and should include those in favor of and those opposed to the death penalty. Exposing defects and proposing improvements may substantially reduce the number of death penalty prosecutions while ensuring a fairer process for those defendants the state seeks to execute. (5) The books reviewed in this essay and the Ryan Commission's Report suggest the need for such an approach while we wait for further developments, based upon perhaps now unforeseen developments, in the court of public opinion. The Ryan Commission's Report sets the bar high for continuing use of the death penalty, a bar that our justice system may not be able to meet. Moreover, the setting of such standards, even by a non-legislative body, are bound to become a meaningful, although not a controlling, component of the common law of Illinois' capital punishment system. Just as international norms regarding capital punishment are seen as potentially powerful influences in the American debate over the death penalty, norms established by such bodies as the Ryan Commission may be seen as increasingly influential.

    The books and report reviewed in this essay, through their examinations of the phenomenon of American capital punishment, expose flaws in our criminal justice system, not specific to death penalty cases. These flaws suggest that our system of justice may not be the best in the world as is widely proclaimed. The phenomenon of capital punishment, with all of its flaws, gives our justice system a bad name, especially in the international community. Wrongful convictions in death penalty cases occur with unsettling frequency. Is there any reason to believe that the systemic defects (under-funded and poor lawyering, especially in investigation and trial preparation, over-reliance upon confessions in police investigations, reliance upon informants and "jail house snitches," investigative "tunnel vision," and reliance on poor science) identified by the Ryan Commission do not infect the rest of the criminal justice process? (6)

  2. THE...

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