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Wednesday, October 05, 2011

A Cynical Take on the Death Penalty

My question: Is the recent spike in public attention to the death penalty a fleeting feature of Republican Primary coverage, or does it signal a more durable interest in capital process and outcomes.

I am a native Texan, so identifyng a most-repulsive Rick Perry moment is no mean feat. I do, however, represent Texas capital inmates, so I have one. At Perry's first Republican primary debate, Brian Williams asked Perry whether he "lost any sleep" over any of the 234 offenders executed during his gubernatorial tenure. Maybe, Williams asked, one or more could have been innocent. Before Perry could tell Williams that he didn't miss a wink, the debate audience erupted in a cheer that I can only describe as homicidal. After the ghoulish Death Cheer, the media carpet bombed the death penalty issue. Perry's rapid rise to Republican frontronner status coincided with two other stories, each of which reflects a different critique of the death penalty.

 First, the Troy Davis case became a vehicle for the media to convey to a mass audience what anybody who has enjoyed sustained exposure to capital procedure already knows - states have killed innocent people. I don't know whether Troy Davis was innocent or not. I can't tell you whether Cameron Todd Willingham was a murderer. I do work with one death-row exoneree, Anthony Graves, who puts it pretty simply: "The State of Texas tried to kill me for something I didn't do." Anthony is one of 273 DNA exonerees. The information we know from DNA and other wrongful conviction cases renders the fact that states have executed many innocent inmates a statistical certainty. To believe otherwise is to live in denial of basic probability. The best death penalty defenders can say is that we can't pinpoint the specific cases. That's not the point.

Second, the Supreme Court stayed a Texas execution in a case where a Texas "expert" testified that the offender was more likely to be a "future danger" because he was black, thereby increasing the likelihood that he would receive a death setnence under the Texas capital statute. That "expert" had in fact testified to the same effect in many other cases. After Atkins v. Virginia (2002) established that states could not execute offenders with mental retardation (MR), a different psychiatric "expert" spent years testifying that IQ test scores for black people were deflated by "cultural factors", an assessment designed to death qualify offenders that were otherwise ineligible under Atkins. Texas executed my client, Milton Mathis, on June 21. Milton murdered two men and paralyzed a woman in a drug-deal-gone-bad. Milton also had two full-scale Wechsler IQ scores in the low 60's (70-75 is considered the MR cutoff). The State didn't even bother with the witness in Milton's case; it expressly found that Milton's IQ was artificially low because of "cultural factors" without any expert. Five days before Texas executed Milton, it lethally injected Lee Taylor. Out of the 470 modern-era Texas executions, Taylor's was the second that involved a white killer and a black victim. You read that correctly. The death penalty is racist to the core. McCleskey v. Kemp (1987), which will ultimately assume its rightful place in the anti-canon next to Dred Scott and Korematsu, involved an equal protection challenge to the death penalty. Recently-deceased Professor David Baldus provided as evidence a study that showed that, controlling for other variables, non-white offenders were 1.7 times as likely to receive a capital sentence as white offenders. Killers of white victims were 4.3 times as likely to be capitally sentenced as were killers of non-white victims. This, the Court ruled, was just the cost of doing the states' capital business.

So, back to my question. In light of these two critiques - featured prominently alongside Perry's bruising ascent through the primary field - is the recent spike in focus on the death penalty durable? Will any lasting coalition for legislative change develop? Or is the interest a byproduct of our cable-tv fascination with jarring political personalities? I don't feel optimistic. The first calls on Milton's case from the national media were from well-intentioned reporters seeking to situate the execution in a broader narrative about Perry.  And media coverage of the death penalty generally has sputtered while Perry's star fades.

But maybe even the passing surge of interest is enough to counter the inertia in death penalty states? Nope. The problem is less Rick Perry per se than it is the constituency to which he genuflects. While general support for the death penalty has fallen to 67 percent nationally, and while the public is particularly concerned about wrongful executions, let's not confuse a national sample with the audience at that Republican debate. That audience looks a lot like the electorate in Republican primaries of deep-red, high-execution-volume states like Texas and Alabama. And I'm guessing support for the death penalty in that ampitheatre approached 100%, innocence and systemic racism be dammed.  

Posted by Lee Kovarsky on October 5, 2011 at 02:31 AM | Permalink


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I am one of Anthony Graves' attorneys, and wanted to clarify that Anthony's case was not a DNA exoneration. After his conviction was reversed in 2006 because of prosecutorial/police misconduct, the state elected to retry him. In 2010, the special prosecutor dropped the charges against him after determining that there was NO incriminating evidence against him and never had been. She described his original prosecution as "a criminal justice system's nightmare."

Posted by: Nicole Casarez | Oct 7, 2011 11:35:04 PM

Dear Lee, on your last question, I guess I think you are free to call yourself whatever you want! Seriously, though, when *I* think of abolitionism, I think of the position which insists that the death penalty should be rejected even in those cases (and there are such cases) where guilt and culpability are clear, where fair and sensible procedures have been carefully followed, and where the accused has been well represented by counsel. But, as you suggest, many (most, maybe?) death penalty opponents, it seems to me, oppose capital punishment because, given all the givens, it is systemically too expensive and biased, and cannot prevent absolutely errors.

Posted by: Rick Garnett | Oct 5, 2011 1:38:01 PM


I'm certainly guilty of using some inflammatory language there, and in doing so perhaps I left myself susceptible to the reading that I believe that the audience and the constituencies it mirrors are indifferent to innocence and systemic racism. What I believe is the other reading to which the post is susceptible, which is that primary electorates in the relevant states are more willing than is the average person to accept systemic error and racism as a cost of imposing the penalty in other cases.

And I should add that there have been, actually, some positive changes involving DNA access statutes, but DNA doesn't really fit my critique because DNA can (but doesn't always) tell you categorically whether the accused committed the crime for which (s)he was convicted. There's not the same probabalistic assessment of guilt happening, where you point to a hundred capitally sentenced inmates, say that 13 are innocent, but can't specify which ones.

And Rick - and others - I have a question about terminology. Specifically, about the use of the term "abolitionist." If I believe that a perfectly-administered death penalty would be constitutional (and even good, as a policy matter), am I still an abolitionist if I think that goal is, as a practical matter, impossible?

Posted by: kovarsky | Oct 5, 2011 10:47:22 AM

Lee, I share your opposition to capital punishment and, like you, have represented a person living under a death sentence. With all due respect, though, I do not think this line is fair: "I'm guessing support for the death penalty in that ampitheatre approached 100%, innocence and systemic racism be dammed." I do not believe that those who support capital punishment -- even in Alabama and Texas -- are indifferent either to innocence or systemic racism. True, many do not appreciate the seriousness of the risk that even a reasonably well functioning death-penalty regime will execute factually innocent people or understand the extent to which race matters in capital sentencing -- and I'm sure abolitionists have their blind spots, too -- but that doesn't mean they (or many of them) are subjectively (and culpably) indifferent.

In terms of a change: I continue to regret that nothing was done between 2008 and 2010 in Congress to roll back the federal death penalty. It seems that there was a moment when it might have been possible. (If I remember correctly, Sen. Feingold introduced legislation, but it went nowhere.) Still, the financial straights that many state and local governments are in might push criminal-justice policy in a better direction. In Indiana, where I live, arguments that the death penalty just costs too much (as does overcriminalization and overincarceration more generally) seem to get a fair bit of traction.

Posted by: Rick Garnett | Oct 5, 2011 8:23:49 AM

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