I used to support the death penalty. I changed my mind when I learned how lawless the system is. If you have reservations about supporting a racist, classist, unprincipled regime, a regime where white skin is valued far more highly than dark, where prosecutors hide evidence and policemen routinely lie, where judges decide what justice requires by consulting the most recent Gallop poll, where rich people sometimes get away with murder and never end up on death row, then the death-penalty system we have here in America will embarrass you to no end.
I don’t mean any disrespect by this, but police officers are some of the best liars in the world. Their philosophy seems to be, so far as I can tell, that they are the good guys fighting the forces of death and darkness and that entitles them to break the rules when they think they need to and lie about it later when they deem it necessary. Some would swear a lie on their dead mother’s grave if he they thought it would help convict someone they were certain was guilty. If I know anything, I know that. But knowing means nothing. Proof is what matters. Every second I spend fantasizing that some cop is going to confess to lying in court was just another second I might as well spend in prayer, for all the good it would do my client.
In the beginning of my career as a death-penalty lawyer my focus was on the law, on why some legal rule or principle meant that my client should get a new trial. The problem with this lawyerly approach is that nobody cares about rules or principles when they are dealing with a murderer. The lawyer says that the Constitution was violated every which way, and the judge days, Yeah, but your client killed somebody, right? The problem for the death-penalty lawyer is that in jurisdictions such as Texas the courts consist of judges who are utterly unprincipled and hostile to the rule of law. They look for ways to uphold death sentences even where constitutional violations are egregious.
In recent years an appeals court upheld a death sentence of a black inmate who was sentenced to death by an all-white jury after prosecutors systematically removed every potential juror of color from serving. It upheld the death sentence of a mentally retarded inmate after his lawyer, who was afflicted with Parkinson’s disease, neglected to point out the inmate’s IQ score. It upheld the death sentence of an inmate who was probably innocent on the ground that his lawyers had waited too long to identify proof of innocence. It upheld the death sentence of an inmate whose lawyer had literally slept through the trial. These judges get to be judges not because they are wise, but because they are friends with their U.S. Senator, or a friend of a friend. They are smart, however. That means they are very good at hiding their lawlessness inside of recondite-sounding legalese. They look for reasons to ensure that a death row inmate will get executed, and they usually find one. And not very many people care. Do you care that the rights of some murderer was violated? Most people say that the murder got treated better than his victim, and that pretty much sums up the attitude of the judges on the court of appeals too.
Justices on the Supreme Court are slightly better. They could hardly be worse. But the big problem with counting on winning a victory in the Supreme Court is that the justices are so inundated with cases that they don’t have time to be sticklers for principle, even when they are so inclined.
For all our so-called progress, the tribal vengefulness that we think of as limited to some backward countries is still how our legal system works. Deuteronomy trumps the Sixth Amendment every time. Prosecutors and judges kowtow to family members of murder victims who demand an eye for an eye, and the lonely lawyer declaiming about proper procedure is a shouting lunatic whom people look at curiously and then walk by.
This is the reality: when you know that you are not going to succeed, and that your client is going to die no matter what you do, and that it does not matter a whit whether the facts and the law are on your side, you can either do nothing and accept defeat, or modify your definition of success, but what you also have to realize is that even if you choose the latter route and opt to redefine the meaning of winning, and therefore count it as a small victory (for example) when you don’t sit quietly by while a district attorney puts on his black face and carries on for the cameras with a egregious display of overt racism, your client is still going to get escorted into the execution chamber, strapped down to the gurney, and put to death.
There are some philosophers who say that we create the world we live in with our language. I am sorry to say that this is not how it works. Reality is a relentless and crushing force, and it cannot be thwarted or outrun with a lawyer’s effete semantics.
I understand death-penalty supporters. I used to be one. I can relate to the retributive impulse. I know people I want to kill. I’ve tried my hardest to save all my clients, but some executions don’t make me cry. There are people who commit acts of cruelty so monstrous you have to barricade your senses from contemplating them because if you don’t their images will ruin every pleasure you know. When you are petting your dog, hugging your son, kissing your wife, they will slither in between you and the object of your affection and make you ashamed to be human. That’s why I shower when I get home from the prison and wash my clothes in a load of their own. I have friends who quit doing this work because they couldn’t keep the images from burrowing deep down into their consciousness and stealing all their joy.
I doubt the evil men I know were born that way, but maybe some were. Nobody really knows. But I’ll tell you this: Even the worse people I’ve ever known are sympathetic strapped to a gurney. They’re no longer cruel or evil. Some are repentant, some aren’t. What they all are, at that moment, are helpless, deeply broken men. Often my job is just to listen, send the condemned inmate some books or magazines and to fight for him no matter how difficult or impossible it is to win, so as to be sure he does not have to face death alone. My goal is to save my clients, but that objective is beyond my control. All I can control is whether I abandon them or not.
David R. Dow is the University Distinguished Professor at the University of Houston Law Center and litigation director at the Texas Defender Service, a non-profit legal aid corporation that represents death-row inmates.
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