In the final days of this year’s Supreme Court term, Justice Stephen Breyer unexpectedly launched a new offensive against the American system of capital punishment. The offensive was announced in his dissenting opinion in a case upholding the legality of Oklahoma’s lethal injection protocol.
Some commentators believed that Breyer was training his artillery on one particular target: namely, Justice Anthony Kennedy, the Roberts Court’s perennial swing voter. Just days earlier, Kennedy had displayed his taste for making history in a grandiloquent opinion for the Court in the same-sex marriage case of Obergefell v. Hodges. He might be ripe for conversion.
Others argue that Breyer had a wider array of targets in mind. The Obama administration is waning. A presidential campaign is in its early stages. With four justices of the narrowly divided court over 75 years of age, the electorate might decide to make the death penalty an issue. Breyer, these onlookers contend, wants to shape that battlefield in advance.
Breyer’s immediate objective may be veiled, but his general strategic approach is perfectly clear. He will attack the death penalty simultaneously on four fronts, and for his ammunition he will use empirical research.
Breyer gave us the numbers on capital punishment as it has been practiced in the United States from its reinstatement in 1976 up to today.
He mobilized research showing that the time between sentence and execution now extends so grossly that any penological purpose of the ultimate punishment is undermined, while simultaneously condemning prisoners to excruciating doubt and barbaric solitary confinement. The capital punishment process itself has become “cruel” in Eighth Amendment terms, independently of and apart from the ultimate taking of a life, and comprehensive research shows no signs that it generates a deterrent effect.
He tallied the number of state and local jurisdictions that have effectively retreated from using capital punishment. (In 86 percent of American counties there is effectively no death penalty; three states account for 80 percent of all executions.)
He marshaled statistical findings indicating that no rational distinction could be made between murderers who were executed and other murderers who were not—that, in effect, to be executed is the equivalent of being “struck by lightning.”
He detailed the evidence proving that the punishing time periods devoted to reviewing cases promote neither effective compliance with procedural rules nor factual reliability. He pointed to findings of prejudicial error in 68 percent of capital post-conviction cases.
He set out the findings of exonerations in capital cases (115 since 2002), and he named cases where there was conclusive scholarly proof that the prisoner who was put to death was factually innocent.
Breyer aimed to win minds, not hearts. Whether because of temperamental preference or as a strategic judgment, he did not share the personal stories of the innocents who were condemned while he unrolled his inexorable tide of numbers. Breyer would call his presentation rigorously “evidence-based.”
Justice Antonin Scalia called it “Gobbledegook.”
It may be that Breyer sticks to numbers and leaves the narratives alone because he is perfectly confident that a legion of writers and producers stands ready to take up the story-telling task. They will show the nature of miscarriages of justice: they can answer not, “How many are there?” but, rather, “How do they happen?” and “To whom?”
Within days, Rachel Aviv, a staff writer at The New Yorker, did just that.
Aviv’s report, “Revenge Killing: Race and the Death Penalty in a Louisiana Parish” in the July 6-13th issue, tells the story of Rodricus Crawford, a Louisiana African-American on death row for a crime neither he nor anyone else committed. Crawford was sentenced to death for murdering his infant son, although incontrovertible medical evidence shows that the child died of pneumonia.
Aviv’s is a perfect piece of its kind: detailed, colorful, empathetic, propulsive. It is careful, yet saturated with understated human drama.
But by its perfection Aviv’s story illuminates the fact that the “evidence-based” approach of Justice Breyer and the traditions of fact-based journalism are not necessarily complementary.
In fact, reading Aviv’s New Yorker story alongside Breyer’s opinion reveals a fundamental dissonance between the two anti-death penalty themes.
Caddo parish, where Crawford was prosecuted, is the site of another notorious wrongful conviction: the case of Glenn Ford.
Ford died July 6, less than two years after he was freed from prison after spending 30 years on death row for a crime he did not commit. He was 65.
The prosecutor in the Ford case had recently issued a widely covered apology for his failure to protect Ford’s innocence.
The current Caddo prosecutor, Dale Cox (Crawford’s prosecutor) reacted to questions about that that exoneration by saying “I think we need to kill more people.”
Cox’s conduct had become so erratic that other lawyers wondered, as reported in The New Yorker article, whether he might “have a brain tumor or something.” Statues of Confederate generals stand on the courthouse lawn; an Assistant District Attorney displays a portrait of Gen. Nathan Bedford Forrest (a founder of the Klu Klux Klan) on his office wall. The supporting cast seems to have been drawn from a repertory company mustered by William Faulkner, Carson McCullers and Flannery O’Connor to present melodramas of Gothic Dixie.
Aviv’s story offers a terrific abundance of the kind of local color and florid characters that fuel a successful “pitch” and get a story past an editor and into print in the first place.
But when these features constitute the price of admission to the magazines, the television documentary series, or the public space in general, there is a problem.
The story-driven media approach embodies a tacit etiology of wrongful convictions and miscarriages of justice. It makes it seem to casual readers that wrongful executions are no threat unless the sort of local features Aviv catalogues prevail.
The piquant features of these stories are so bizarre, and the chances of their combining and cascading seem so slim, that Justice Breyer’s statistical compilations are actually undercut, not reinforced, by their publication.
But without those details, there would be no story.
What the traditions of the journalism market conceal is that most wrongful convictions are not generated by villainous prosecutors out of central casting, or by an archaic racial climate surviving from ante-bellum days. The sources of most wrongful convictions are common, ordinary—even banal.
Most miscarriages of justice are not produced by a swashbuckling outlier like Aviv’s version of Dale Cox; they are, as a recent report of the National Institute of Justice argued, “organizational accidents”: ordinary system-errors made up of small mistakes combined with each other and latent weaknesses, involving normal people in normal organizations.
That is true beneath the surface even of cases like Rodricus Crawford’s.
The Crawford case was set in motion by a mistaken medical examiner. There is nothing freakish about that: in rural jurisdictions, competent forensic pathologists are scarce; in urban ones, they are over-worked. Even highly respected doctors have swallowed until recently myths such as the “shaken-baby syndrome.”
Crawford is an African-American, and Caddo Parish is in the Deep South, but the facts of disparate treatment of African-Americans by all elements of the criminal justice system in all parts of the country could hardly be more clear.
The detectives investigating the Rodricus Crawford case quickly succumbed to “tunnel vision” and focused on Crawford’s guilt as the only possible theory. There’s nothing unusual about that either; “tunnel vision” is one of the most common human cognitive biases, and it is predictably aggravated by the pressure of high-stakes emotionally charged cases.
Dale Cox was an overzealous, driven prosecutor. That is not a unique feature of backward Caddo parish; you can find the same sort of performance among, for example, Yale-educated Assistant United States Attorneys in Washington, D.C.
Crawford’s defense team, knowing their client was innocent, concentrated on the guilt phase and failed to prepare for the penalty phase. The law libraries bulge with examples of over-worked, under-funded, ill-trained or inexperienced defenders who did the same.
The problem for anti-death penalty advocates is that unless they find a way to convey the frequency and the terrible ordinariness of the root causes of wrongful convictions they will have written themselves into a trap.
Breyer’s numbers can show that an execution is like being struck by lightning. Aviv’s narrative can describe a certain rare kind of lightning strike.
People know about death by lightning, and they don’t like to see it happen.
But they don’t see lightning strikes as an emergency, and they don’t see any urgency in doing something about them.
The challenge is to show that erroneous capital sentences have their roots in the human condition, not in the unique atmosphere of remote Louisiana parishes.
Americans should recognize that while error is inevitable, death should not be its result.
James Doyle, a Boston defense lawyer and author, was a 2011-2014 Visiting Fellow at the National Institute of Justice, and the principal essayist in the National Institute of Justice Special Report, Mending Justice: Sentinel Event Reviews (2014). The opinions expressed here as his own. He welcomes comment from readers.