Wednesday, May 8, 2013

Death Penalty 101 - The Book

Those of you who aren't lawyers probably know that law school classes typically operate on what they call the "Socratic Method."  (It's a method that Socrates wouldn't recognize, but that's a different blog post.)  It's built around court opinions.  The idea (yes, I realize I'm oversimplifying to the point of being misleading; it doesn't matter here) is that by studying how judges reach explain their decisions, and by then exploring what would happen if the facts were a little different or if they created different rules, students will learn to think like a lawyer (which is sort of horrifying if you actually consider it).

The thing about court opinions, at least the ones that law students read, is that they're mostly stripped of life.  For one thing, the opinions as reproduced in case books (which are the typical law school texts) are edited to remove whatever doesn't advance the didactic points for which the books' editors chose those opinions.   For another, the opinions themselves, even unexpurgated, tend to rehearse only those facts ostensibly relevant to the decisions.
Murder at the Sup Court-MEDIUM 
Martin Clancy and Tim O'Brien had a different idea.  TV news producer/writer and legal reporter (they are, or maybe were, long-time partners at ABC), they wanted to write about the Supreme Court's death penalty cases while also telling the stories of the crimes.  And they wanted to do it all in layman's language - the language they used standing up in front of the camera with the marble facade of the Court in the background.  And, because this is 2013 and these guys are television people (yeah, O'Brien's also a lawyer, but he's primarily a television person), the wanted to include video.  Which gets a little tricky in a hardcover book.  But they found a way.

The book is Murder at the Supreme Court: Lethal Crimes and Landmark Cases and it's surprisingly good.*   Surprising because Clancy and O'Brien do a far better job than I had expected (sorry guys) of actually getting the legal stuff right.  Yeah, there's a quibble here and there, but they're truly minor.

Anyway, roughly speaking, here's what they've done.

They start with the Court's temporary abolition in Furman and its determination four years later in Gregg that the states solved the problems that led to Furman.   Then it's on to mitigation (Lockett) and the peculiar story of California's effort to execute Robert Alton Harris and the squabble between the 9th Circuit and the Supreme Court that eventually let it happen.  Race and the Baldus study and McCleskey get their turn.Then there's retardation and juvenile killers and the shifts that led to Atkins and Simmons. and Kennedy.  Review of non-killers takes us through Coker and Kennedy and the curious cases of Earl Enmund and Ray and Ricky Tyson.  Victim impact comes next, followed by the sad tale (seriously truncated, really there's so much more worth saying) of Willie Francis.  Finally, they come to innocence and incompetence.  That's not Ford incompetence, it's the attorneys.  

That's a lot of material to cover what with the details of the crimes and all, but the legal analysis is bite sized, sound-bite sized actually.  As I said, it's remarkably good.  But there's no real depth to it.  And there are what seem to me odd gaps. Two are particularly striking.  While they write about Willie Francis and Louisiana's effort to electrocute him a second time after the first didn't take, they don't make even passing reference to the only other case where that's happened - Romell Broom here in Ohio (whose second execution remains in legal limbo after several years).  Nor, despite a chapter on race and the death penalty, do they mention the case of Duane Buck in Texas who's penalty phase was, pretty much everyone agrees, infected with racial stereotype and bias - exactly the same racial stereotype and bias that got six other men relief.  But not Buck who remains on the row.

And then there's the video.  Scattered throughout the book are those horrible QR code things that look like bad Rorschach test pictures that you can (in theory, I didn't try it) snap with a smart phone and be taken to a video report on a case or to an interview with someone.  (For the moderate luddites among their readers, they also provide URLs.)  Frankly, it's not my thing.  But then I'm old.  Still, I can see how some people might find the video links appealing.  

It's strange, though, that with all the whiz-bang flashiness of including links to video, the photos (and there are a lot of photos) are all in black and white and, mostly, grainily reproduced on the book's pulp paper.

To judge from their "Closing Arguments," and though they studiously avoid saying so, my sense is that Clancy and O'Brien would support the death penalty if it could be this perfectly calibrated, mistake-free, engine of appropriate retributive justice.  They don't go there because, they say, it can't, and that lets them off the hook 
Our conclusion is that the system of capital punishment is broken and cannot be fixed.  That functional judgment makes it unnecessary for us to offer conclusions about what for many is the larger and more vexing question, whether the death penalty is immoral.
Murder at the Supreme Court isn't for specialists.  It's not a book for scholars or litigators or the full-time activists.  It won't answer all questions.  It pretty much completely ignores the real world consequences of the Supreme Court's death penalty rulings.**  And despite passing mentions, it basically buys into the idea that the Court (and by extension the courts) doesn't really reach decisions based on alleged principles which are really little more than policy preferences dressed in constitutional language.

But if you're just trying to get a grounding, a sort of constitutional death penalty 101, it's not a bad place to start.  Easy to read, easy to follow, remarkably accurate, and less-superficial than I'd expected.  It won't fill in all the blanks, and it certainly won't tell you anything useful about how any other case is likely to be resolved (don't be lulled into believing otherwise), but for the interested layman?  You bet.

*Oddly the cover on the copy the publisher kindly sent me to review is slightly different than the cover I've reproduced here - from the publisher's web site.   Not so different that you wouldn't recognize it, but different.  My copy has a red banner across the top with a glowing blurb (is there another sort?) from Barbara Walters, and the subtitle is set off with a horizontal line and is printed in a single line.  Trivia, but curious.  If I were sufficiently energetic, I'd go to a bookstore and see which cover they carry - I'm thinking it's the one I've got and that the other was a mockup they changed at the last minute.

**I'm not talking here about how they've loosed killers on an unwitting public, or sent dozens of factually innocent men to their deaths - the parades of horribles declared with disingenuous if not downright dishonest certainty by retentionists and abolitionists who argue from scare tactics bearing only a tangential relationship to truth. I'm talking about how those decisions are applied, followed, twisted, disregarded and ignored by lower courts.


  1. My attorney, Johnny the Hammer, told me once that I would have made a good lawyer. He was sober at the time.

  2. And you were wise enough not to go to law school.

  3. Looks good, Jeff - thanks for doing the legwork!