Why the Death Penalty Lingers On in America

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Photo by Charlie O'Hay via Flickr

Support for capital punishment has declined in the U.S. to its lowest level in 50 years. In March, Virginia, formerly one of the staunchest supporters of the death penalty, became the 23rd state to abolish it.

But getting rid of it entirely promises to be an uphill struggle, says Marc Bookman, executive director of the Atlantic Center for Capital Representation. Bookman, whose nonprofit organization provides services for individuals on Death Row, explains why in his recently published book, A Descending Spiral a collection of 12 essays exploring the systemic, political and emotional barriers to full abolition.

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Marc Bookman. Photo by Sarah Miller Photography

In a chat with TCR, Bookman, who served in the Homicide Unit of the Defender Association of Philadelphia, discusses why the most draconian forms of punishment retain traction among many players in the U.S. justice system, why he believes things might change if prosecutors were held accountable for their actions at trial, and how capital punishment decisions are affected by systemic racism in the courts.

The following transcript has been edited for space and clarity.

The Crime Report: How did your experiences working in the justice system lead you to writing this book?

Marc Bookman: I’ve always been a writer, but you know what brought me to write these essays was really my work. The one thing I’m absolutely certain of is that if people knew the facts about the death penalty, they would think differently. There’s a quote from Hemingway’s The Sun Also Rises in which a character is asked how he went bankrupt. “Two ways,” he answers. “Gradually, then suddenly.” That’s capital punishment.

When you first get into it, you start to learn about all the problems with it slowly; but, after a while, it all just falls on your head like a stone. The problems become more and more apparent the more work you do. This book reflects that. I would start out writing an essay about a bad lawyer, but the essay would also quickly expose racism, or a prosecutor who hides evidence, or the courts that purposely overlook a problem with the case. And that’s the amazing thing: any capital punishment case almost never has just one problem. In these cases, all of the problems tend to coalesce.

TCR: Your book points out that courts and judges will often override a jury’s more lenient decision and push for capital punishment. What explains this dogged pursuit of the most punitive forms of justice? 

 MB: I think a desire for retribution is still a regrettable part of human nature. Why did we elect Donald Trump president? He said a lot of venal, vindictive and mean-spirited things, and yet he still got a significant percentage of the population to vote for him. However, I’m also absolutely convinced that the courts, politicians, and prosecutors are all under the misperception that capital punishment is more popular than it really is. I think there are two explanations why courts go out of their way to sentence someone to death: Either the people involved are venal, or they feel that the public wants them to do this and that they may lose an election, or be frowned upon in their community if they don’t.

 TCR: Conversations about capital punishment often focus on the actions of police, attorneys, judges, and the lower courts. But your book reveals that even the Supreme Court often upholds or even flat-out ignores these cases where a person’s life is on the line.

 MB: There are common misconceptions that the law, as written, creates a revolving door where people commit horrible crimes and then walk out the front door because of a technicality. The reality is exactly the opposite. Some of our most regrettable laws, such as the Anti-Terrorism and Effective Death Penalty Act (ADPA), are written so that judges can feel better about ignoring compelling evidence. And it’s the beginning of the road to fairness and justice that is the most important.

So, if a bad ruling or [bad] lawyering occurs at the beginning of a trial―and it often does―ADPA is designed to shield that bad behavior from scrutiny. And once a state court makes a bad decision based on bad evidence and information, then that decision is deferred through the whole process. So, we see federal courts saying this is a decision made by the state court, we owe a deference; and, therefore, the Act prevents us from doing anything in this case. ADPA is designed to give cover to judges that, frankly, want to screw our clients. It’s one of the worst laws ever written and the technicalities are really designed to hurt defendants, not help them.

TCR: Your book also reveals that judges make decisions based on how they will affect their careers, often deciding cases one way or another only because they’re worried about losing their jobs.

 MB: [Many polls on capital punishment ask people whether they are in favor of the death penalty] but that’s the wrong question. The right question is: what do you feel is the appropriate punishment for someone who has been convicted of first-degree murder? The death penalty, life without parole and restitution to the victims, or life with parole and restitution to the victims? That’s the correct question because it’s the question jurors are faced with. It doesn’t matter what a guy thinks when he’s walking down the street, it matters what he thinks when he’s imposing a sentence someone convicted of an death penalty-eligible crime.

When you ask that question, the answers come out to about 35 or 40 percent in favor of the death penalty, 35 or 50 percent in favor of life without parole and restitution to the victims, and the rest is life in favor of the possibility of parole and restitution. And once judges and politicians realize that the death penalty is not nearly as popular as they think it is, they won’t feel compelled to act in a fearful way to support the death penalty and they won’t feel that they’re going to lose the next election. The death penalty is simply not the trigger that it used to be. And the sooner we can persuade politicians and judges that they can do what’s right, and not what is necessary to keep their jobs, then the better off we’ll be in terms of justice.

TCR: How does politics influence the conversation?

 MB: Politics is a broad word. I think that until relatively recently the public might have thought that the U.S. Supreme Court was getting its answers from law books. In other words, they might have thought the answer is there somewhere, we’ll go and find the case that addresses this point of law, and then we’ll write an opinion and that point of law will be explicated, and we’ll know the answer.

What we now know, and what people like me and many others have known for years, is that the answer does not lie in the law books. It lies in, for lack of a better word and relying on the broadest use of the word, politics. Which is that people bring their thoughts, background, and experience to their decision making. W.B. Yeats said, “How can we know the dancer from the dance?” You can’t separate politics from legal decisions, because the answer doesn’t lie in the law books; it lies in what the court thinks is the right answer. The decision on whether someone should live or die is the only moral decision that we make in the justice system; so, how do you separate out a person’s individual “politics” from that decision? I don’t think you can.

TCR: Your book exposes the countless number of circumstances that can affect the course of a death penalty case. Among them are the failings of prosecutors and defense attorneys. How do we improve their accountability?

 MB: Let me deal with prosecutors first. The book describes a number of circumstances where prosecutors intentionally hid evidence or intentionally didn’t turn over exculpatory evidence. And if we catch someone intentionally hiding evidence, and we prosecute that person for obstruction of justice, I guarantee you fewer prosecutors are going to hide evidence. How do we deter theft? We prosecute it. How do we deter any crime? We prosecute it.

When a prosecutor is intentionally hiding evidence, that’s a crime. At the very least it’s obstruction of justice, and it may be more than that. There’s an essay in the book, where three police officers take the Fifth when confronted with the errors in their own investigation. Nothing happened to them. How do we expect to stop misbehavior by the prosecution or the police if we’re not going to prosecute them when they are actually seeking refuge in the Bill of Rights? Prosecute a couple of them, and they’ll stop doing it.

Defense attorneys are a different issue. If a defense attorney intentionally undermines the case, that’s a crime as well, but you don’t see that. What you do see is incredibly sloppy behavior. The answer isn’t to disbar them or force them to testify; or punish them. It’s to stop giving them more cases and have them practice some other kind of law. There has to be a merit-based scrutiny of defense attorneys handling capital cases.

cover artThe best example possible is Virginia. About 15 years ago, experienced and well-resourced capital defense attorneys were brought in, and the state of Virginia, enlightened by the fact that the death penalty was not realistic anymore, went from being one of the highest execution states, to not having a death penalty at all. Instead of wasting a huge amount of money trying to fix all the mistakes that defense attorneys are making, let’s put good defense attorneys in there from the beginning who aren’t going to make those mistakes.

TCR: Why do you think there is a disconnect between the understanding and acceptance of scientific evidence by the courts, especially when it comes to things like mental illness?

 MB: Fifty years from now we’re going to look back at our understanding of the brain, and be appalled. When you talk about scientific evidence, the first problem is that the courts consider that kind of science soft. Severe mental illness is seen as an excuse. It’s not like cancer, it’s not like a stroke, it’s not like heart disease. But plenty of people know right now that severe mental illness is just as profound, just as provable, and just as able to be assessed as any of those issues. We have to overcome this prejudice, the idea that (mental illness) is some kind of an excuse for a person who is just evil. Anybody that does what I do doesn’t believe in evil. That’s naive, black-and-white nonsense, and it’s just wrong.

TCR: When it comes to the problem of understanding evidence in the courts, please explain the role of Brady evidence and the potential for biased interpretation?

 MB: One of the biggest ironies in criminal justice is that the people prosecuting the case are the same people that decide what evidence should be provided to the defense. The Brady Rule requires that exculpatory evidence be turned over to the defense. Ideally there would be some neutral body that was looking over the evidence and making a decision on what should be turned over and what shouldn’t or doesn’t have to be turned over. In a world where we really want to make sure we’re not making mistakes, where we really want to make sure every defendant has a fair shot, we would have a totally open file policy and the defense would get everything.

But we’re not living in an ideal world. The prosecution has to decide what gets turned over and what doesn’t get turned over, but of course they have the motivation to win and, presumably, believe their case is a strong case. So what seems significant to me may not seem significant to them. But a huge irony in our practice is that the wolves guard the henhouse.

TCR: One essay in your book focuses on how a judge’s racism affects his decisions. Please discuss the role of race in capital punishment.

 MB: Justice Lewis Powell, late in his life, said the one decision he really regretted the most was McCleskey v. Kemp. It’s important that he said that. McCleskey demonstrated pretty clearly that there’s an incredible racial bias that permeates our justice system. That cannot come as a surprise to any person who’s paying attention. And if we find racial discrimination in these capital cases, what’s to say that the same discrimination doesn’t permeate the rest of the cases that are not capital? And of course it does. It’s silly to think that we have racial discrimination in capital cases but we don’t have them in forgery cases or in robbery cases.

Justice William Brennan once said there’s a fear of too much justice. He meant that (judges) were afraid to be honest about what the evidence shows, because of the consequences of that honesty. We have to deal with the fact that our society still has an endemic racial discrimination problem. The story of the racist judge you’re referring to is not the only one. In Pennsylvania. we had a scandal recently that rocked the judiciary. Two justices on the (state) Supreme Court had to resign because they were passing around racist, pornographic and misogynistic emails between the court, the prosecution and a couple of defense attorneys.

This problem is systemic and you can find problems like it in almost every case. McCleskey v. Kemp proves that we basically looked the other way at pretty clear evidence of race discrimination then and we’re still looking the other way now.

TCR: Along with discrimination, another systemic problem that you discuss is the issue of confessions.

 MB: False confessions are so counterintuitive to most of us. Who in God’s name thinks that if they confessed to a horrible crime, they can then just go home? There’s a recognition, even by our Supreme Court, that lower-functioning people are more likely to confess. That’s one of the reasons the courts decided you can’t seek the death penalty against the intellectually disabled. Another reason, aside from moral ones, is that they are more likely to get caught up in the criminal justice system.

The story dealing with this in the book is pretty amazing. Not only did two people confess, but one of them took a deal for 15 years in prison and then testified against the other one. There was no doubt that both were clearly innocent, and they were later released from prison because of their innocence. But think about the power of false confessions when a low-functioning guy, who was probably intellectually disabled, was actually able to testify to a crime that he didn’t commit. Then look at the list of DNA exonerations, where we found out who the right person was by DNA.

A significant percentage of exonerees had actually confessed to the original crime, and a lot of these false confessions are caused by the police. In the story described in the book, the police came to the conclusion that the individuals they arrested were guilty after firstg threatening them with the death penalty. The method of interrogation used by the police is essentially designed to coerce confessions. And the biggest problem with false confessions is that a jury cannot imagine somebody falsely confessing. And the eleven always pressure the one who can.

TCR: At the end of the book, you say that change is coming, albeit slowly. Where do you see this change occurring and why are you optimistic for the future?

 MB: I’m hopeful because I can look at the data and see that sentences are going down and executions are going down. And the explanation for that is the more people know, the less they are enamored of capital punishment. The more we know that lawyers screw up, that people falsely confess, that juries make mistakes, that race discrimination has permeated our justice system, the more all those things come into the public’s view and the less enamored they become. The public and jurors are getting more knowledgeable.

That’s the main reason I wanted this book to come out, because I think that the more people read about these things the less they’re going to like capital punishment as a public policy.

It’s a truly failed public policy.

I write that it’s going to come to a slow grinding halt because something like the Trump administration comes along and executes 13 people in seven months. It’s disgraceful. But, the more we recognize that we have made a lot of mistakes like this, and that it’s wrong, then the more progressive prosecutors get elected and the more likely it becomes that we’re going to end capital punishment. And states are regularly getting rid of it, if only for the fact that we’re just throwing money away on a failed policy. So changes are around the corner; it just depends on how far away we perceive that corner to be.

Isidoro Rodriguez is editor of TCR’s Justice Digest.

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