Today's post is from David R. Dow, Distinguished University Professor at the University of Houston and the litigation director at the Texas Defender Service, is the author of Executed on a Technicality: Lethal Injustice on America’s Death Row, as well as a memoir, The Autobiography of an Execution, which will be published by Twelve in February.
It is dangerous to disagree with Adam Liptak’s legal analysis, but I think I am going to have to. Liptak’s column in yesterday’s New York Times discusses the decision of the American Law Institute to abandon the death penalty.
(The ALI is a supposedly elite group comprised of around 4000 lawyers, judges, and academics. I say "supposedly" because I am a member, and so I think I can say that membership has a lot to do with whom you know. As a federal judge whose name I will not reveal once said, the major qualifications for getting appointed to the federal bench are: (i) having a law license, and (ii) being friends with your U.S. Senator (or being a friend of a friend). The same might be said for membership in the ALI. But I digress.)
Liptak points out that when the death penalty was reinstated by the U.S. Supreme Court in 1976, after a brief four-year hiatus, the framework shared by the death penalty laws that the Court upheld was created by the ALI. Essentially, this framework was designed to insure that the death penalty be reserved for the so-called worst of the worst.
Over time, a deep fissure developed in death penalty law. On the one hand, defendants facing the death penalty were allowed to place before the jury any and all so-called mitigating evidence -- that is, evidence that would warrant a life sentence, rather than a death sentence. On the other hand, juries could not be given too much discretion, because the consequences of too much discretion tend to be impermissible discrimination. So states had to channel the jury's discretion to try to wall off the factors juries were not supposed to take into account, while permitting them to take into account everything else.
In short, death penalty law had at its very heart a fundamental contradiction. Juries were to base their decision on personal characteristics of the defendant so as to identify the worst of the worst. Yet certain personal characteristics (like race and sexual orientation, for example) are irrelevant. Consequently, basing a decision on personal characteristics of the defendant is a recipe for all kinds of impermissible discrimination.
Now, as an academic matter, I am not so sure that there really is a deep contradiction at the core of death penalty jurisprudence, but most people think there is, including the people that count most: the Justices on the Supreme Court. So for the past thirty-four years, the courts have struggled with this intractable problem.
As Liptak points out, Justice Scalia solved the contradiction, or tension, by deciding that states could restrict a jury’s discretion as much as they wanted to. If everyone who kills a cop, for example, automatically gets sentenced to death, then juries will have less opportunity to favor white cop-killers over black cop-killers in dispensing punishment. But Justice Scalia’s solution has a price, because it means that juries also do not get to distinguish between a cop killer with an IQ of 110, and one with an IQ of 70.
Consequently, excepting Justice Scalia, most judges, and most commentators, kept tinkering with the variables, hoping to produce a regime that discriminated, but not unlawfully -- that is, a regime that discriminated in a good way by singling out the worst of the worst, while eschewing all forms of invidious discrimination.
Sixteen years ago, in a case from Texas, Justice Blackmun, who had once agreed with Justice Scalia that states could restrict jury discretion any way they wanted to, changed his mind. The Court’s efforts to create a just death penalty system had failed. "From this day forward," Justice Blackmun famously wrote, "no longer shall I tinker with the machinery of death."
But his colleagues kept tinkering: ruling out the death penalty for accomplices who neither took a life nor knew that a life would be taken; prohibiting the states from executing the mentally retarded and juveniles; demanding that lawyers representing capital defendants perform robust investigations into their clients’ backgrounds to try to ascertain all the reasons their clients should be spared from death. But the thing about dikes is: they keep springing holes. As Liptak observed, the ALI finally concluded that the death penalty system is irretrievably broken.
I agree with Liptak about all that. Where I think he’s wrong is in his assessment of the ALI's significance. This is how he puts it:
There were other important death penalty developments last year: the number of death sentences continued to fall, Ohio switched to a single chemical for lethal injections and New Mexico repealed its death penalty entirely. But not one of them was as significant as the institute's move, which represents a tectonic shift in legal theory.
Liptak quotes three well-known academics -- Franklin Zimring, Sam Gross, and Roger Clark -- who agree with him and think the ALI’s action is a big deal. In some sense, I suppose, maybe it is. But if the measure of import is impact, I don’t think the ALI decision means much at all.
Of course, my view is shaded by where I work and live, and Texas is an interesting place. In 2009, there were 52 executions in the U.S. 24 of them were in Texas. In 2008, a year where a de facto moratorium existed until June, there were 37 executions nationwide, of which 18 were in Texas. Liptak himself wrote a column not too long ago noting that Texas was on a pace to be carrying out two-thirds of the nation’s executions. The lesson is: If you aren't changing things in Texas, you aren't changing things.
So whether the ALI's shift really is tectonic boils down to the question of whether it will matter in Texas, and I remain deeply doubtful about the prospects of that. The courts in Texas have been brazenly ignoring the U.S. Supreme Court, and even the Constitution itself, for years now. We execute people who are mentally retarded, who are mentally ill, whose lawyers abandon their clients, and whose juries systematically had all people of color removed. These are not subtle constitutional violations; they are egregious, and they are common. Police and prosecutors run amok, defense lawyers sleep, and judges -- state and federal both -- do nothing about it.
So now the ALI has said that the experiment has failed, that the death penalty regime remains lawless. That is undoubtedly true. But it has been true for a generation. Mr. Liptak's analysis doesn’t persuade me because I don't see any reason to believe that the truth will begin to matter in Texas just because the ALI has finally seen it.
I obviously hope that Adam Liptak, and Professors Zimring, Gross, and Clark are all right and that I am wrong. But to accept that the ALI's change is tectonic, at least down here, requires that you believe that Texas prosecutors and judges care a whit about what a bunch of elitists think. I don't think they do. The death penalty will undoubtedly die, even here, but not because the members of the ALI have finally acknowledged the obvious.