The Death Penalty: Why We Fight for Equal Justice





The Buck and Davis cases are a reminder of how far we’ve come, and how far we have to go, toward fair and accurate capital punishment in America


Last week, Texas officials refused to halt the execution of Duane Edward Buck even though his 1997 capital murder trial was concernedly tainted by unconstitutional racial testimony from an expert witness. The Supreme Court, which temporarily blocked the execution, will review Buck’s case later this month. Meanwhile, on Wednesday, Georgia officials plan to execute convicted murderer Troy Davis, whose guilt is much more in doubt today than it was two decades ago when he was sentenced to die. Despite the public protests over Davis’s fate, the justices in Washington will likely have to intervene there, too, if his life is to be spared while the “new” evidence is meaningfully re-examined.

At a Republican presidential debate earlier this month, just the mere mention of Rick Perry’s record execution rate — he’s overseen more executions than any governor in modern history — generated a primal war-whoop from the partisan crowd. And as to the solemnity of the act itself, of the lethal injection execution protocol whereby the government prematurely ends a natural life in the name of the people? Evidently it has become so routine in the Lone Star State that the governor quapresidential candidate was fundraising in Jefferson County, Iowa on the night Buck was scheduled to die. I can’t imagine a more solemn or important function for an elected official than presiding over an execution. But for Gov. Perry, it was just another day out of state on the campaign trail. He was available by cellphone.

The roiling uncertainty surrounding the Buck and Davis cases is a sad but timely reminder that the center has not held on capital punishment in America. The legal compact demanded by the United States Supreme Court when it reinstituted capital punishment as a sentencing option in 1976 has been broken, repeatedly, not by convicts, but by hundreds of overzealous administrators of the nation’s justice systems. In Texas, GeorgiaFlorida, and in the other states which continue to push capital punishment, the “law” in capital cases now is mostly used as a weapon — not as a shield for the individual against the might of government. It is not justice under law. And it is certainly notequal justice under the law. It is instead far too often a perversion of justice — and of the Court’s well-meant  precedent.

In the modern era of capital punishment — since the Supreme Court’s decision in Gregg v. Georgia — three main camps have emerged. First, there are those who are for the death penalty all the way; the ones who lament the time and money it takes from trial to execution. Then, there are those who are against capital punishment all the way; the ones who believe that the state should never be in the business of killing its own citizens. And between the two solitudes, there is a vast middle; those who believe that there is a place for the death penalty, but only if it can be administered fairly and accurately, free from the sort of arbitrary and capricious decision-making that pushed the justices to do away with it in the first place in 1972 in Furman v. Georgia.


With the Buck case coming back around later this month, with the Davis case right before us this week, with a leading presidential candidate making his capital punishment record a point of political pride, and with the Tea Party crowd cheering execution statistics, now seems as good a time as any to dig around a little at this strange legal confluence we’ve come to on the death penalty. Nearly 40 years after the Supreme Court first took away the death penalty, we may be closer than many people think to another turning point on capital punishment. We may be reaching the Icarus point — and don’t say I didn’t warn you.


Hobbes v. Locke

When the Supreme Court reinstituted the death penalty in 1976 in a brief per curiam opinion, it congenially (and conveniently) assumed an awful lot of unapparent virtue and goodness in the present and future participants of the criminal justice system. Justice Byron White, the Kennedy appointee who turned out to a staunchly conservative vote, endorsed Georgia’s new death penalty statutes, writing that the law:

not only guides the jury in its exercise of discretion as to whether or not it will impose the death penalty for first-degree murder, but also gives the Georgia Supreme Court the power and imposes the obligation to decide whether in fact the death penalty was being administered for any given class of crime in a discriminatory, standardless, or rare fashion. If that courtproperly performs the task assigned to it under the Georgia statutes, death sentences imposed for discriminatory reasons or wantonly or freakishly for any given category of crime will be set aside (my emphasis).

The Pollyanna-ish idea behind Gregg v. Georgia was that: 1) juries would be judicious and free from the heat of prejudice and bias; 2) state court judges would be free from the pressures of majoritarian influence; 3) prosecutors would put law over politics and reasonably control the agenda of victims’ rights groups, and; 4) legislators would courageously protect the rights of capital defendants by ensuring meaningful access to procedural guarantees in appellate court. None of these assumptions were practical. In the real world, every one of those constituencies is vociferously aligned against capital defendants, who of course have no constituencies beyond their lawyers and (sometimes) immediate families.

Millions of words have been written about the Eighth Amendment’s prohibition against “cruel and unusual punishment” as it relates to capital punishment. Thousands of hours of debate have ensued over whether the death penalty is moral or ethical or lawful. But it was the Justice William O. Douglas, in Furman v. Georgia, the case which briefly ended America’s long experiment with the death penalty, who perhaps said it best. Looking backward on the cases before him, and presciently looking forward toward today, Douglas wrote:

The generality of a law inflicting capital punishment is one thing. What may be said of the validity of a law on the books and what may be done with the law in its application do, or may, lead to quite different conclusions. It would seem to be incontestable that the death penalty inflicted on one defendant is “unusual” if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices…

As the Buck and Davis cases show — as hundreds of other dubious capital cases have shown over the past 35 years — Justice Douglas was right. When it comes to capital punishment rules and regulations, when it comes to the law in its application, it would have been much more prudent for the Court in Gregg to have hoped for the best and expressly guarded against the worst. “Death is different,” is the mantra of the murder case and, indeed, on both a micro- and macro-level it is. So different, in fact, that it often makes people forget about the due process and equal protection clauses of the Constitution.

An Eye For An Eye

“In the state of Texas, we believe in our form of justice, we think it’s appropriate.

— Rick Perry, campaigning in Iowa, Friday, September 16th

Last week, when Duane Buck’s case was on America’s docket, the most-asked questions (of me, anyway) were (to paraphrase): Why should I care about the procedural technicalities of this guy’s sentencing case when his guilt is not in doubt? Since he’s guilty of murder, how fair does his legal treatment really need to be? People of all political stripes asked the same questions. For them, Buck’s guilt evidently vitiated any need for an honest evaluation of the manner in which he was sentenced to death. Texas in 2000 conceded that Buck’s trial was impermissibly unfair? The other men similarly situated got their new trials? Who cares. The guy did it. He is getting more justice than he gave to his victims.

That last part is true. Of course, defendants like Duane Buck get more justice than their victims. That’s the whole point of our criminal justice system — and of the rule of law. That’s why we outlaw lynching, why angry mobs can’t storm jailhouses, and why we have judges. It’s why we have a Constitution. In America, we aim to give the guilty more justice than they deserve. We do so because of how that reflects upon us, not upon how it reflects upon the guilty. And when we fail to do so it says more about us than it does about the condemned. Although Let’s look just at Texas, again, for a moment.

When Gov. Perry says he believes in “our form of justice” what he is really saying is a significant majority of Texans are comfortable with a death penalty regime that has, in virtually every way, undercut the premise of Justice White’s formula in Gregg. For example, Texas is only one of seven states to have its state court judges elected via popular vote after partisan elections. The result is apatently unfair process that pretends that judges have superhuman power to separate their campaign promises with their subsequent (or their past) work on the bench. “Killing for Votes” is an apt headline, used years ago by the Death Penalty Information Center. Plenty of “room for the play of prejudices,” to use Justice Douglas’ memorable line, also would work as a headline.

A campaign promise to “be tough on crime” or to “enforce the death penalty” should disqualify a judge, Justice John Paul Stevens famously told the American Bar Association in 1996. But have you ever seen a television campaign ad in a judicial election in Texas? If so, you are probably not surprised to learn that when an earnest local judge tried to hold a meaningful hearing on capital punishment in Texas late last year, the political furor was so great it was almost immediately shut down by the Texas Court of Criminal Appeals. That court, not incidentally (and in the grand tradition of southern justice), has established itself as a local bulwark against defendants, many of them black, whose rights have been violated by trial judges, juries, prosecutors, and witnesses. “Ourform of justice,” says the governor.

The way Texas elects and retains its state judges is fundamentally inconsistent with the assumptions of Gregg and its progeny. So what about the executive branch? Before Gov. Perry set his ongoing record on executions, there was Gov. George W. Bush, who handled the clemency process with the same cronyism and negligence that marked the worst moments of his presidency. And in both administrations there was the Texas Board of Pardons and Paroles, which is an oxymoron, to put it mildly, since it virtually never recommends the commutation of death penalty cases. In the fantasy world of Gregg, the executive branch would rectify the mistakes made by the judicial branch in capital cases. In the real world, it just doesn’t happen. Just ask the folks on Texas’ “forensic panel” who were until recently working on the Cameron Todd Willingham case.


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