According to the Sixth Amendment, Dzhokhar Tsarnaev, the Boston Marathon bomber, was entitled to a public trial at which he would be judged "by an impartial jury of the State and district" drawn from the community where the crime occurred. Yet while well more than half the people from the Boston community opposed the imposition of the death penalty, Tsarnaev was nevertheless sentenced to death. How did that happen?
A day after the verdict, a handful of major media outlets, including Esquire magazine and MSNBC, reported the news by observing that it was a big loss for Judy Clarke, Tsarnaev's lead defense counsel, as if the trial were a baseball game, and Clarke had struck out with bases loaded and two outs in the bottom of the ninth. The reality is, to switch metaphors, Clarke and her team had about as much chance as saving Tsarnaev as a craps player has against the house rolling loaded dice. In fact, it would have been miraculous if Clarke and her team had eluded a death sentence for their client, because Tsarnaev's fate had been sealed long before he ever met his lawyer.
So when exactly was it sealed? It did not happen on that spring day in 2013 when Tsarnaev placed a homemade bomb in front of the Forum restaurant on Boylston Street, which exploded and killed Martin Richard, an eight-year old child, and Lingzi Lu, a 23-year-old graduate student from China who was studying at Boston University. Nor did it happen on January 30, 2014, when the U.S. Justice Department announced it would seek the death penalty. It was not even sealed on March 4, nearly two years after the horrific bombing, when Tsarnaev's jury was finally selected and his trial began.
And it wasn't even sealed during the trial itself. Quite the contrary: According to media reports, three jurors believed Tsarnaev had acted under the influence of his older brother; two believed he was genuinely remorseful. Considering that all it takes to avoid a death sentence is a single juror who holds out for life, the fact that these jurors accepted at least one of the major themes of the defense narrative suggests that Judy Clarke and her team did their job well and that fact reinforces the same question: Why, then, was Tsarnaev nevertheless sentenced to death?
There were hundreds of protestors outside the prison. From the sky the streets looked tiled with satellite dishes. There was live coverage on CNN, and a front-page story in The New York Times. The national conversation about capital punishment had finally begun.
That’s what I wrote ten years ago, talking about two executions in Texas: Karla Faye Tucker, who was guilty but repentant; and Gary Graham, who was unrepentant but almost certainly innocent. Troy Davis was like Gary Graham all over again, but with an additional decade of internet connectivity. Where a few hundred people wrote the Texas Board of Pardons and Paroles urging clemency for Graham in 2000, upwards of half a million wrote the Georgia Board urging that Davis’s life be spared. Nobody was tweeting during the Graham execution, and Karla Faye Tucker, for all her photogenic appeal, did not have a Facebook page.
Over at Slate, the always insightful Dahlia Lithwick thinks the Davis case is the tipping point, but I don’t think so. I think the Davis case only tells us what we already know: that a solid minority of Americans oppose capital punishment, and that some capital punishment supporters believe we should not be executing someone if there is uncertainty about his guilt.
The problem with the former group is that they are, to repeat myself, a minority. The problem with the latter group is that they don’t really believe what they say; if they did they’d be against virtually all executions. I’ve been a death penalty lawyer for more than twenty years. I know a lot of executed offenders who might have been innocent. Because most death penalty cases are not DNA cases, some degree of uncertainty is the norm. States have been trying for decades to perfect the machinery of death and insure that only the guilty get convicted and only the worst of the worst sent to the gurney, but both quests run headlong into one simple ineradicable fact: human beings err. Every inmate who has been exonerated was sent to prison because twelve people were sure about his guilt.
Death penalty supporters endorse an immoral punishment, but they are not morons. They know human beings make mistakes. If someone (a) knows human beings err, and (b) supports the death penalty anyway, we can safely say that person has determined that the cost of taking an innocent life every now and again is a price worth paying.
Be careful about rising too fast to argue with that calculus, because at some level we all believe it. That’s why we support the building of interstate highways, space exploration, and search for alternative fuels, not to mention urban warfare in Afghanistan, even though we know with actuarial certainty those government programs will cause innocent people to lose their lives. What’s different about the death penalty? Morally speaking, the answer is probably nothing.
Troy Davis is just the newest chapter in the quixotic abolitionist effort to end the death penalty on the shoulders of a single prisoner. The problem is, no matter how many “I am Troy Davis” t-shirts you print, the only people who wear them are people who were already against the death penalty before they’d heard of Troy Davis. Rick Perry and his supporters don’t think they are Troy Davis. You can ask them, What if you were the innocent prisoner caught in this snare? And their answer will be, Airplanes crash, but I fly anyway.
People do not abandon the death penalty because they suddenly realize human beings make mistakes (see, for example, Gary Graham), or because a single death row inmate strikes them as redeemed (see, for example, Karla Faye Tucker). People abandon the death penalty because they realize it is an obscene waste of resources, or because they acknowledge quite simply that it is wrong for the state to kill.
Perhaps a few people, bombarded for weeks by the Davis media spectacle, reached one of those conclusions or the other. But four hours before Davis was put to death Texas executed Lawrence Brewer, and the day after Davis died Alabama executed Derrick Mason. Davis didn’t save either of them, and his death won’t save anybody else either, because you can’t change a death penalty supporter’s mind with posterboys. America will indeed abandon capital punishment, but it won’t happen until the majority believes that killing even an unquestionably guilty murderer is wrong.
Photo of Mentalgassi, “Making the Invisible Visible," from Marie A.-C. on Flickr. Used under Creative Commons.
Somewhere between the parking lot and the entrance to Rick Perry’s prayer-fest at Reliant Stadium, before a female security guard waved me through the turnstile rather than pat me down after her male counterpart had deserted his post in the blistering heat that felt hotter than the 102 degrees my dashboard thermometer warned, I saw a black guy wearing a tallit, a Jewish prayer shawl, over his shoulders and head, standing in the shade cast by a solitary tree, blowing a ram’s horn, known in Judaism as a shofar. I learned how to blow one when I was in Jewish day school. It takes practice, more like playing a trumpet than a kazoo. I asked him how long it had taken him to be able to get such good sound. He said, Not very long. It is a gift from God.
He was the last black guy I saw for a while. In Houston this is surprising. When I ride my bike at lunch-time from my office at the eastern edge of the University of Houston’s sprawling 700 acre campus over to the student center, I hear a dozen languages and see people from twenty countries. Houston’s population has nearly as many blacks as whites, more Hispanics than either, and one of the most rapidly growing Asian populations in the U.S. Inside Reliant Stadium, I could have been in Maine or Montana. After the guy blowing the shofar, I didn’t see another black face until a female pastor talking too softly for me to hear gave the morning’s second sermon.
News reports claim there were 30,000 people there, but I don’t think so. I’d put the number at half that. People walked out and came back in – I did twice. But either way, it wasn’t the number I noticed. It was the complexion. The woman on stage doing a very impressive job of simultaneous Spanish translation had no listeners. In a state where non Hispanic whites make up less than half the population, 90 percent of the people inside Reliant were white folks. If this demographic is the future of the Republican Party, the Republican Party has no future.
Outside there were some protesters, but not many. (It cost $15 to get into the parking lot.) A single engine plane circled overhead pulling a sign extoling the first amendment. One guy stood on the perimeter waving a huge Israeli flag, and three or four people stood in the draft trying to keep cool. I spotted a couple carrying a hand-written sign reading Separation of Church and State Protects Religious Liberty.
Inside the mood was tentative. Nobody seemed quite sure whether this was supposed to be an innocuous Sunday morning service at a megachurch or a fiery Tea Party insurrection. After a long introductory musical set, the program stuck to a routine: a short sermon, then a song, another sermon, another song. During the music, maybe five percent of the people would stand and sing along, or just sway, arms raised in a V, the Protestant expression of piety roughly equivalent to Orthodox Jews rocking back and forth, eyes closed, before the Torah.
Of course, if any Jews were there to pray, much less any Muslims, Buddhists, Hindus, or Sikhs, they would have had to select their own biblical passages. The pastors on stage seemed locked in a competition to see who could mention Jesus the most times in a single sentence.
By that measure, Rick Perry himself fared pretty well. When the Governor took the stage, about two hours in, you could feel the crowd straining to create energy, like a baseball game where the home team is trailing by a run in the bottom of the ninth, but it fizzled. More than half of the Governor’s remarks were readings from Scripture, and his cadence is designed for the stump, not the pulpit. People cheered at every twanged mention of Jesus, but he never gave the crowd the red meat they’d come for. When he finished, hundreds streamed for the exits, like there were two outs, two strikes, and nobody on base.
The closest the day came to controversy was when a speaker warned against tolerating sexual immorality. He could have been talking about divorce or premarital sex, I suppose, but I got the sense it was code for gays. Yet even he couldn’t stir up the crowd. Maybe it was the poor acoustics. Between musical sets, except for when the Governor was talking, people paid about as much attention to what was happening on the stage as frequent fliers pay to the flight attendants when they tell you how to fasten your seatbelt. Or maybe even the Evangelicals are more concerned about unemployment than who is sleeping with whom.
After nearly four hours I’d had enough and headed back to my car. Under that same scrawny tree I saw that same black guy still blowing the shofar. I asked whether I could take his picture. As he said I could, a security guard rolled up in an electric cart and told him he had to move along.
(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.
TIN and other groups like it have helped to overturn numerous death penalty convictions, but earlier this week, one of Dow's clients, Michael Richard, was executed when a judge refused to accept a last-minute appeal. Dow weighs in on this case, and about the Kentucky lethal injection challenge before the Supreme Court, which has prompted a virtual moratorium on lethal injection, in the Washington Post. While the judge in question, Sharon Keller, has rightly come under fire, Dow asserts that there is plenty of blame to go around.