Monday, May 7, 2012

Valuable But Annoying

The purpose of this book is not to make the case for or against abolition. . . . The foremost goal of the book is to determine whether the Supreme Court has achieved its goal of reserving the death penalty for the wors[t] offenders.
Those are the first and last sentences of the last paragraph of the introduction to Kenneth Williams's valuable but annoying new book, Most Deserving of Death? An Analysis of the Supreme Court's Death Penalty Jurisprudence
It's not giving anything much away to tell you that his answer is that it has not.
Part of the reason, a part Williams knows but doesn't acknowledge but that is a fundamental feature of how our legal system operates (this much in both theory and practice) and what the Court does (again in both theory and practice), is that the Court neither tried to achieve that goal nor could have  achieved it if it were so inclined.
Within strictures that the Court finds (or doesn't find) on any given day, it's the legislatures (state and federal) that determine what death penalty law will be and which offenses will make folks eligible.
It's not just murder.  As a very find lawyer I knew in Texas used to explain when picking a capital jury, "It's murder plus."  In Ohio, that plus is one of 10 specifications.
(1) The offense was the assassination of the president of the United States or a person in line of succession to the presidency, the governor or lieutenant governor of this state, the president-elect or vice president-elect of the United States, the governor-elect or lieutenant governor-elect of this state, or a candidate for any of the offices described in this division. For purposes of this division, a person is a candidate if the person has been nominated for election according to law, if the person has filed a petition or petitions according to law to have the person’s name placed on the ballot in a primary or general election, or if the person campaigns as a write-in candidate in a primary or general election.
(2) The offense was committed for hire.
(3) The offense was committed for the purpose of escaping detection, apprehension, trial, or punishment for another offense committed by the offender.
(4) The offense was committed while the offender was under detention or while the offender was at large after having broken detention. As used in division (A)(4) of this section, “detention” has the same meaning as in section 2921.01 of the Revised Code, except that detention does not include hospitalization, institutionalization, or confinement in a mental health facility or mental retardation and developmentally disabled facility unless at the time of the commission of the offense either of the following circumstances apply:
(a) The offender was in the facility as a result of being charged with a violation of a section of the Revised Code.
(b) The offender was under detention as a result of being convicted of or pleading guilty to a violation of a section of the Revised Code.
(5) Prior to the offense at bar, the offender was convicted of an offense an essential element of which was the purposeful killing of or attempt to kill another, or the offense at bar was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons by the offender.
(6) The victim of the offense was a law enforcement officer, as defined in section 2911.01 of the Revised Code, whom the offender had reasonable cause to know or knew to be a law enforcement officer as so defined, and either the victim, at the time of the commission of the offense, was engaged in the victim’s duties, or it was the offender’s specific purpose to kill a law enforcement officer as so defined.
(7) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary, and either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design.
(8) The victim of the aggravated murder was a witness to an offense who was purposely killed to prevent the victim’s testimony in any criminal proceeding and the aggravated murder was not committed during the commission, attempted commission, or flight immediately after the commission or attempted commission of the offense to which the victim was a witness, or the victim of the aggravated murder was a witness to an offense and was purposely killed in retaliation for the victim’s testimony in any criminal proceeding.
(9) The offender, in the commission of the offense, purposefully caused the death of another who was under thirteen years of age at the time of the commission of the offense, and either the offender was the principal offender in the commission of the offense or, if not the principal offender, committed the offense with prior calculation and design.
(10) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit terrorism.
Are those offenses the worst of the worst? Are they equally bad? What about if the offense was committed for fun and involved slowly torturing someone to death?  Ooops.  Not eligible unless one of the 10 specs applies.
So is Ohio's list the right one?  Could we ever all agree (not necessarily on whether there should be a death penalty - just on whether this or that offense is the worst possible?  The Court could say (and has said) that some offenses don't qualify.  It doesn't have the authority, really, it doesn't, to say, "Here's the list, guys."
And it certainly doesn't have the authority (or even the ability) to force prosecutors or grand juries or whatever system in your state to pursue a death penalty trial of every person who's the worst of the worst.  Nor can it get juries to always rule correctly.
It just can't do those things.  It can't do them systemically and it can't do them as a practical matter since it resolves cases one at a time, making rules - but even the rules are, at least to some extent, fact-bound and case-specific.  And since it can't do them, it can't ensure that the death penalty will be "reserv[ed]" for the worst of the worst, for those "most deserving of death."
That's not to say that the berobed ones at 1st Street, NE, in DC wouldn't like to see the death penalty reserved for those folks.  At least some of them would.  Hell, Harry Blackmun's explanation of why he concluded after more than 20 years on the Court that the death penalty is unconstitutional is basically just that.
From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.1 Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants "deserve" to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, 507 U. S. 463 (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, 509 U. S. 350 (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. 722 (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.
I'm laboring this because it points toward one of the two reasons why the book is annoying.  (I'll get to why the book is valuable in a bit, and to the second reason it's annoying after that.)  It pretends to be what it isn't and pretends to do what it can't.
It's not just theory and the system, either.
Consider this.  The first substantive chapter is about ineffective assistance of counsel.  Now, the truth is that a large percentage (and no, I don't know what the percentage is) of those who end up on death row were represented inadequately at trial.  Sometimes that's because counsel was lazy, incompetent, distracted, racist, asleep, conflicted, vicious . . . . I could go on. Sometimes it's because counsel was denied the time or resources to do the job adequately.  Sometimes it's all of that.  And sometimes maybe most of the time, maybe almost all of the time, those people would not have been sentenced to die were it not for those problems.
That's a serious flaw in our system, and one that the Court cannot remedy.  It can make the test for ineffective assistance easier to meet, but it can't prevent ineffective assistance.  It can make rules easing the burdens that must be met to obtain resources, but it can't make the states actually provide those resources.  And as a practical matter, it can't (and wouldn't if it could) scrupulously review every death sentence to try to correct those failings.
BUT, and this is really the point, none of that will guarantee that only those deserving of death (assuming the category could even be identified) will actually be sentenced to die.  Because there's too much that's ultimately random - including what those 12 people in the jury box will choose to believe.
Or consider the chapter on methods of execution.  Imagine that we found a killing method that is, every time and without exception, wholly quick and painless.  Would that have any bearing on whether it was applied to the right folks?  (The answer, if you're wondering, is that it would not.)
So we have this book with a declared goal, one repeatedly announced by the way, that it cannot and really does not even pretend to be able to meet.
Nor is it's asserted agnosticism about the death penalty supported by what's inside.
Take innocence. Please.
As I've said more than once, we're always looking for the incontestably dead innocent guy.  We've got a whole bunch of likely ones, but absolute, incontestable, definitively, no question about it, we killed the wrong guy?  Not yet.
Bear with me as I mention Cameron Todd Willingham.  Let me be clear about this if I haven't been before.
  1. I think he didn't do it.
  2. There's no credible evidence he did it.
  3. The bulk of the credible evidence suggests that he didn't, that it was a horrible accident.
  4. But he could have done it anyway.
Life is mostly like that. So are our innocence cases.  Unless you just believe.  Williams says that there are two sure, absolutely proved innocent but executed guys: Willingham and Ruben Cantu.  Like Willingham, Cantu has strong claims of innocence.  Like Willingham, it's possible that he did it.
You lose points, Williams loses points, when he turns likelihood into fact.
OK, so all that's annoying.
But the book is valuable anyway.
Williams is a law prof at the South Texas College of Law.  And he's done a remarkably good job of satisfying not his stated goal but his subtitle's claim in a short, understandable-for-the-layman, book.
An Analysis of the Supreme Court's Death Penalty Jurisprudence
Chapter by chapter he takes on how SCOTUS has dealt (and mostly failed to deal with) the capital law.  Along with those discussions of ineffective assistance, of innocence, and of execution technology, he takes the reader on a tour of the Court's evolving shifting rulings on race, on mental illness (a category in which he includes mental retardation, which will surely trouble many advocates, but the subject has to fit in somewhere, and that's probably as good a place as any), and on international law.  And he runs through the peculiarities of capital trial and post-trial procedures.  (He misses important and dangerous developments in habeas law from early in 2011, which is surprising given how up-to-date the book is, but there you have it.)
Finally, he talks about judges and why they are reluctant to overturn death sentences.  (Curiously he explains that no abolitionist can become a judge and then explains why those judges who are abolitionists don't always vote against death sentences.)
All this is important stuff.  And it's lucid, which is no small thing (especially from a law professor writing for a serious academic publisher.
If you're a lawyer who does death penalty work seriously you probably know all of this.  If you're an abolition activist, you might not know all the details, but the general outline won't contain any surprises.
For the general reader, on the other hand, I think this is probably a terrific resource.  It's informative, lucid, generally reliable.  (Though that missing word not in the second line on page 81 is a serious problem.)
Oh, sure, it's boring.  Keeping the book semi-scholarly and quite short means that Williams doesn't really tell stories (and the ones he tells get very short shrift).  Jack Webb went a long way reciting "just the facts."  Williams doesn't garner the same sort of drive reciting just the holdings.  But boring has its uses, too.  Because it makes clear that this is the everyday.  It's the norm.
We'll never agree, of course, on who is "most deserving of death."  Hell, that's a moral question - and an ethical one.  It involves peering into the human heart.  It's way beyond what law can do.
Really, the argument is a sham.  But if Williams's stated goal is specifically not be to make the case for abolition, he does a pretty good job of making much of the practical case for it.  The system he reveals is simply and necessarily unfair.  It's both ragged and rigged, and you won't find five people on the Court who are sufficiently bothered by that to change it in any fundamental way.  At least, not any time soon.
Williams makes that clear.  Which makes Most Deserving of Death? an important book.
OK, the last annoyance.  Remember my reference to the missing not on page 81.  That's just the grossest example.  The book is seriously in need of a copy editor.  Typos, clumsy and misleading phrasing, overstatements contradicted on the next page.
Look, I don't proofread this blawg, but despite the fact that the internet is forever, the blawg is really ephemera.  Williams has a serious scholarly press behind him that charges library rates for its books.  (Amazon has it priced at $99.95.)  They can and should do better.
And one more.  There are three supportive blurbs from law professors on the back cover. Two of those folks are thanked in the acknowledgements for reading the manuscript and making suggestions.
His mother probably has nice things to say about the book, too, though I notice he didn't thank her.


I solicited, and through the generosity of the publisher received, a free copy for review.

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