Beacon Broadside

by David R. Dow

When the death penalty was resurrected in 1976, following a brief four-year
hiatus, death penalty lawyers made a fateful tactical decision. They decided to
abandon the goal of abolition and instead elected to chip away gradually. Rather
than arguing that the death penalty is always
unconstitutional – that it is necessarily
arbitrary, that it is necessarily
racist or class-ist, that it is necessarily
cruel and unusual, that it is always
wrong for the state to execute – lawyers representing the condemned chose to
home in on a particular feature of their client’s case that made his death sentence unconstitutional,
while leaving other death sentences intact.

A lawyer’s job is to save her client, not to save the world.
For that reason, the legal strategy that death penalty lawyers have embraced
over the past generation is undoubtedly the correct one. Lawyers will save
individual lives, but not every life, because abolition will not come from the
courts – especially not the current Supreme Court. The courts believe in
perfection, and perfection is the enemy of abolition.

Abolition will come anyway, because perfection (even if
there is such a thing) costs a bundle. You can send a murderer to prison for
life, or you can spend a million dollars more and execute him. In Texas, more than four
hundred men and women have been executed in the modern death penalty era. Four
hundred million dollars could have built quite a few schools; it could have raised
teachers’ salaries, provided health care for uninsured kids, and filled lots of
the state’s potholes. It could have paid for more police and more social
services that would have averted many of those murders in the first place.

But Texas is a peculiar place. As Adam Liptak wrote recently in The New York Times, of the 42 executions carried out in the US in 2007, 26 – or more than 60 percent – occurred in Texas . (The other 16 executions were spread across nine states, no one of which executed
more than three people.) Nothing dramatic happened in Texas. The state has been steadily averaging
around 23 executions a year, or two a month for over a decade. What is changing
is the rest of the world. The most dramatic example, of course, came from New Jersey, which became
the first state to abolish the death penalty by legislation in forty years. But
what New Jersey did by law, other states have done unofficially, simply by reducing the number
of executions they carry out. Thus, Texas
accounted for 32 percent of the nation’s executions in 2005, 45 percent in 2006,
and 62 percent in 2007.

Both these occurrences – Texas’ remaining steadfast while the rest of
the country changes – reflect, I believe, the same phenomenon: the quest for
perfection. Practice makes perfect, and Texas,
which practices quite regularly, perceives itself to be close to perfection, if
it hasn’t arrived there already. Elected officials are therefore willing to
march relentlessly forward. Whereas governors and district attorneys in many
other states have conceded, in the face of literally hundreds of exonerations
based on DNA, that innocent people have been and will be executed, officials in
Texas insist, despite significant evidence to the contrary, that no innocent
person has ever been put to death in the Lone Star State.

In 1976, when the death penalty resumed, the Supreme Court
gave its approval to the laws from three states (Texas, Florida, and Georgia),
while disapproving of two (Louisiana and North Carolina). The
message was that perfection is possible. North Carolina and Louisiana rewrote their laws, copying the
statutes that the Justices had upheld. Since that time, the theme that runs
through nearly every death penalty case is perfectability.
When the Court ruled that the Constitution forbids the execution of the
mentally retarded, that states cannot execute offenders who were younger than
eighteen-years-old when they committed murder, that defense lawyers must
conduct adequate investigations into their clients’ backgrounds, that
prosecutors cannot strike potential jurors on the basis of race, it was perfecting. It was saying that it is okay to execute, so long as you do it the right way.

Pursuing perfection can be a good thing, but it can seem
perverse when the objective is homicide. On the first Monday of the new year,
the Supreme Court heard arguments in a Kentucky
case that involves a challenge to the lethal injection protocol, the essential
details of which are the same in all 36 states that use it as a method of
execution. First we perfect the process of selecting who will be put on trial
for his life, then we perfect the process of that trial, and finally we perfect
the method of killing him. During the first half of his career, Justice Harry
Blackmun, appointed to the Court by Richard Nixon, voted to uphold most death
penalty cases that he reviewed. When he finally threw up his hands – in a case,
ironically, from Texas – he did so because he believed that the decades of experimenting had not
gotten us significantly closer to perfection. I keep a copy of Justice
Blackmun’s hand-written draft opinion hanging on my wall. “From this day on,” it
says, “I no longer shall tinker with the machinery of death.”

Everywhere in America, except Texas that is, the states have come around to Justice Blackmun’s view. They’ve decided that perfection is not worth the price. The death-by-a-thousand-cuts strategy has worked to make the price of executions intolerable. But at the core of this strategy lies an inherent
and fatal limitation – a limitation that officials in Texas understand and exploit. If perfection
is your goal, the premise is that perfection is possible. New Jersey had eight
people on death row, and had not executed anyone since 1963, when lawmakers essentially
said that, given a choice between laptop computers in every classroom or a
perfect death penalty, they’d go with the former. Texas, on the other hand, has
carried out more than four hundred executions since 1980 and has nearly four
hundred others still on death row. Texas has spent so much that legislators
can’t stop now. For Texas to follow New Jersey – or even California, which has
700 people on death row but hardly executes anyone – is to acknowledge that it
has squandered half a billion dollars, with literally nothing to show for it. When
was the last time you heard an elected official confess an error of that
magnitude?

As always, however, the ultimate decision lies with the
people, and the people in Texas turn out to be not so different from the people everywhere else. Though Texas  officials continue to execute apace, Texas  juries are giving
them fewer opportunities. As the Liptak article reported, the death row
population nationwide increased by 300 in 1998, but by only 110 in 2007, and
the decline in Texas mirrors the national figure. From the mid 1990s through 2004, Texas  juries sent 34 men a year to death row (about 15 percent of the national total). In 2007, Texas’ death row increased by only 13 new faces (around 12 percent of the national total). The Justices on the Supreme
Court may believe that, if they just keep tinkering, perfection is possible,
and elected officials in Texas  may believe
that their state has already arrived, but the twelve women and men who must
make the decision, in Texas and everywhere else, seem to be a bit more humble.

David R. Dow is professor of law at the University of Houston Law
Center and an internationally recognized figure in the fight against the death
penalty. He is the founder and director of the Texas Innocence Network and the litigation director of the Texas Defender Service. Over the past
twenty years, he has
represented nearly one hundred death row inmates. Regularly quoted in publications
like the New York Times and the
Washington Post, Dow is the
author of Executed on a
Technicality: Lethal Injustice on
America’s Death Row and coeditor of Machinery of Death: The Reality of America’s Death
Penalty Regime. He lives in Houston, Texas.