Perfecting the Death Penalty

by David R. Dow

When the death penalty was resurrected in 1976, following a brief four-year hiatus, death penalty lawyers made a fateful tactical decision. They decided to abandon the goal of abolition and instead elected to chip away gradually. Rather than arguing that the death penalty is always unconstitutional – that it is necessarily arbitrary, that it is necessarily racist or class-ist, that it is necessarily cruel and unusual, that it is always wrong for the state to execute – lawyers representing the condemned chose to home in on a particular feature of their client’s case that made his death sentence unconstitutional, while leaving other death sentences intact.

A lawyer’s job is to save her client, not to save the world. For that reason, the legal strategy that death penalty lawyers have embraced over the past generation is undoubtedly the correct one. Lawyers will save individual lives, but not every life, because abolition will not come from the courts – especially not the current Supreme Court. The courts believe in perfection, and perfection is the enemy of abolition.

Abolition will come anyway, because perfection (even if there is such a thing) costs a bundle. You can send a murderer to prison for life, or you can spend a million dollars more and execute him. In Texas, more than four hundred men and women have been executed in the modern death penalty era. Four hundred million dollars could have built quite a few schools; it could have raised teachers’ salaries, provided health care for uninsured kids, and filled lots of the state’s potholes. It could have paid for more police and more social services that would have averted many of those murders in the first place.