The New York Times recently wrote about the American Law Institute’s decision to, essentially, walk away from the death penalty. This is significant in that the ALI is the body responsible for the synthesis and (usually theoretical) standardization of our system of laws. Thus, the ALI developed the model penal code (the “MPC”), including language providing for the death penalty. Some states adopted the language of the MPC, some didn’t, but now the ALI has decided that, in the words of the NYT, “the system could not reconcile the twin goals of individualized decisions about who should be executed and systemic fairness.”
I come at this from a slightly different angle, as a prosecutor addressing matters of life and death every day, working on cases in which real people are murdered and mutilated in body, not in theory. I do not discount the value of an intellectual and theoretical approach to the death penalty, after all I went to a (Southern) Ivy League law school where such matters were debated hotly. I even worked with the school’s death penalty clinic (highest grade, thank you very much).
But as a practicing prosecutor, since the days of law school my views on the death penalty have shifted. A disclaimer, though: I have not handled a death penalty case myself, though I am no stranger to murder cases. Here, in Travis County, Texas, we have a special approach to cases that qualify for the death penalty. We do, of course, observe the constitutional requirements regarding aggravating factors and future dangerousness, but we go further. Only the most heinous of cases get presented to a committee of experienced senior prosecutors (including our elected DA) to consider whether or not the death penalty should be sought. A great deal of consideration, including the facts of the case, proof issues, and the wishes of the family of the victim, goes into each case. The result is that when we seek the death penalty here, we go to trial believing completely several things: that the defendant is truly guilty of a very heinous murder (or series of murders); that he presents a risk to other inmates and guards in prison; that the family of the victim(s) support our decision.
The ALI’s decision appears, from what I have seen, to be based on the impossibility of procedural consistency, an inability to make sure the same kinds of defendants are getting the ultimate sanction for the same types of crimes. That, as opposed to a more fundamental intellectual or moral objection to the death penalty itself. But from my view, the thoroughness with which we in Travis County, Texas, approach these cases, there is little risk of an innocent man being executed, or of racial discrimination, or of some other disparity that raises procedural or substantive inconsistencies (and therefore unfairness). Nor do I see incompetent lawyers being assigned these cases, not at all.
Which is to say what? Really, to echo an idea that I am by no means the first to express: the application of the death penalty isn’t something that can be micro-managed by learned professors or berobed intellectuals a thousand miles away (literally and figuratively). A better system, should one exist at all, should be entrusted to those working with detectives and victims, those who see the prison violence first-hand and have access to gang information. People who have taken a solemn oath to see that justice is done, for victims and those charged with crimes. To people who live in the communities where these crimes take place.
I suppose one point I would like to make clear is that in my view, blanket assertions that the death penalty is per se immoral are acceptable, legitimate, and intellectually supportable. What I prefer not to see, are blanket statements suggesting that in all jurisdictions the death penalty cannot be sought in a thoughtful, considered, fair, and even-handed manner. The New York Times article begins by noting that the number of death sentences has been falling, and that is certainly true here in Texas. I wonder if those jurisdictions who are seeking it less often are, perhaps, following the approach we use here in Austin. That, if so, while not being a victory for those who oppose the death penalty, should give some comfort at least.
One final point. Every single case I handle, like all my colleagues, requires a synthesis of punishment and fairness; the bank robber with no other criminal history, the embezzler who stole because his own retirement account was plundered. And one possessor of cocaine will not necessarily get the same sentence as the next possessor of cocaine. To me, this means that there needs to be more to the generalized criticism of the death penalty, a criticism that “every case is different so uniformity is impossible.” If that were a bar to imposing serious sentences, our prisons would soon be empty. But I agree, as the Supreme Court has noted, the death penalty is different. Which is why we, here in Austin, treat it the way that we do.
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