The Death Penalty Up Close and Personal

A few days ago, a discussion about the death penalty broke out in the small, civil forum where I usually hang out. The argument quickly devolved into a debate about the validity of the conventional abstractions.  Does the death penalty deter or not?  How can the State justify taking a life as punishment for taking a life? A few of the anti's brought up the Illinois experience, both the blanket clemency granted by outgoing Governor Homer Ryan in 2003 and the 'exonerations' claimed by the Northwestern project. (The word 'exonerations' is in quotes because there is much to wonder about in those claims. But that's a subject for another day.)

To me, this approach to the subject is suspect in its entirety. There is no one, universal rule that applies to the death penalty. Each case is unique, absolutely idiosyncratic, a law unto itself. I can only explain myself anecdotally.

Back in 1999, I attended a brush-up seminar in evidentiary law. One of the presenters was a prosecutor working out of the District Attorney's Office in Alameda County. She was a blonde, suburban 'soccer-mom' type, working in inner Oakland. Despite the obvious demographic disadvantages (risking a little political incorrectness here), she presented her cases simply and directly and got excellent results.

Her topic was the use of thematic and demonstrative evidence. It was a first-class presentation, but the substance of one of her cases interested me more than the nominal subject. It concerned a capital case she had recently conducted successfully in Oakland. I was particularly struck by the conduct of the jury.

The facts were stark. The victim was a four-year-old child. The defendant had become involved with her mother, and they had had some sort of falling out. In some shortsighted move made either for revenge or to set accounts straight; the defendant had kidnapped the little girl and held her at gunpoint. The police were called, there was evidently, a short car chase, and then a hostage stand off. The car was surrounded. It became apparent that the defendant's plan had failed completely.  As the police called for him to give up, evidently feeling he had to prove he was not a braggart given to empty threats, he blew the girl's brains out in the front seat of the car. It was an absolutely pointless thing to do, a pure, vicious act of malice. There is worse. The girl was not only an only child, but also an only grandchild. The hopes of two generations vanished with her. The grief of the family was beyond telling

There was obviously no question of guilt in this case.  Also, there was no racial issue. Everyone who mattered -- defendant, victim, the majority of the jury, and above all, the jury foreperson -- was African-American. (Of course the prosecutor was white, and I don't know about the judge and defense counsel, but these don't matter.)  The only issue was the penalty.

The prosecutor was well trained philosophically. She themed the case around a maxim from the philosopher Immanuel Kant (as I recall, the primary slide actually attributed it to him) -- there are some crimes that are such an affront to humanity, such a horrific assault on human values, not to respond to them with the ultimate penalty, is to disregard and insult the victim's humanity. I am writing this from memory -- the actual formulation used at trial was much pithier and more direct. 

This theme resonated with the jury. (If it is not obvious already, this woman was a superb trial attorney.) I don't think the reason was the attribution to Kant. I have had some fun lately discussing expressions of apparent wisdom uttered by great men that are actually the reverse. But Kant's insight to my mind is the reverse. It resonates because it accurately describes the moral process involved in these cases at the level of jury decision. The primary criterion in resolving these situations is the moral quality of the act (although, to be sure, since that moral quality encompasses motive and purpose, the defendant's background and character are included implicitly). Though not always expressed explicitly, this is the guiding principle of most jury deliberations. It becomes lost completely in the appellate process.

The foreperson was a competent, extremely well organized young African-American woman, a young professional or junior executive. From the start of deliberations, she kept the jury focused on the primary issue -- was the nature of the defendant's act such that imposition of anything else but the death penalty was an affront to the small child's humanity? That was the question the jury felt it had to answer.

Over nearly seven (!) days, the jury discussed every aspect of the crime in exhaustive detail. The deliberations began with two-thirds of the jury members believing that death was the appropriate verdict. The others had reservations. The arguments were quiet and thoughtful, disagreements put respectfully.  As the days passed, one after another, the jurors in the minority came around to the notion that death was the only possible result. Finally, unanimity was reached.

That, however, did not end the deliberations. The forewoman directed the jurors to separate for an hour, reflect on themselves, their lives, and beliefs, and return. If after that interval any one of them doubted the moral correctness of the result, they would report themselves as divided -- for they had reached the end. When they regrouped, the verdict was still unanimous. The jurors held hands for a moment of silent prayer. Then they delivered their verdict, "guilty," to the court.

You may not agree with the outcome. That's not my point. What I want to emphasize is the real human content that occurred in this actual trial and how different in kind that it is from discussions of the subject in the abstract. If you had approached this jury panel and either extolled or berated them because their decision might (or might not) deter some hypothetical child killer who doesn't even exist in reality, I think they'd look at you as if you had two heads.  How on earth does that matter? And if you suggested that their agonizingly considered judgment should be vacated because of police misconduct in a different case in a different city, I believe they'd be rightfully furious. What the devil, they would say, has that got to do with this?  This trial was about that child and the man who killed her -- and if a different case has to be reversed, by all means reverse it. But what has the one case to do with the other?

In most of these arguments, it's usually the anti's clinging to the abstract, searching for some rule that would ban the death penalty in all places and under all circumstances. To them, the actual human and moral content of the particular case is inconvenient and irritating, often infuriating. But the reality is that each case is unique. There is no universal. Demonstrate an actual miscarriage of justice and of course it should be reversed, and the victim (defendant) compensated. But why should a defendant whose guilt is buttressed and reconfirmed by DNA analysis get the benefit of the test that exonerates someone else? Why should a Ted Bundy walk because of second thoughts about someone else?

The one and only thing that matters is the moral quality of the particular act at issue. The rest is noise.

Frank Dudley Berry, Jr. worked as both a deputy public defender and deputy district attorney in Santa Clara County. He blogs at WordPlay, AND can be followed on Twitter as 'fdberry'.
A few days ago, a discussion about the death penalty broke out in the small, civil forum where I usually hang out. The argument quickly devolved into a debate about the validity of the conventional abstractions.  Does the death penalty deter or not?  How can the State justify taking a life as punishment for taking a life? A few of the anti's brought up the Illinois experience, both the blanket clemency granted by outgoing Governor Homer Ryan in 2003 and the 'exonerations' claimed by the Northwestern project. (The word 'exonerations' is in quotes because there is much to wonder about in those claims. But that's a subject for another day.)

To me, this approach to the subject is suspect in its entirety. There is no one, universal rule that applies to the death penalty. Each case is unique, absolutely idiosyncratic, a law unto itself. I can only explain myself anecdotally.

Back in 1999, I attended a brush-up seminar in evidentiary law. One of the presenters was a prosecutor working out of the District Attorney's Office in Alameda County. She was a blonde, suburban 'soccer-mom' type, working in inner Oakland. Despite the obvious demographic disadvantages (risking a little political incorrectness here), she presented her cases simply and directly and got excellent results.

Her topic was the use of thematic and demonstrative evidence. It was a first-class presentation, but the substance of one of her cases interested me more than the nominal subject. It concerned a capital case she had recently conducted successfully in Oakland. I was particularly struck by the conduct of the jury.

The facts were stark. The victim was a four-year-old child. The defendant had become involved with her mother, and they had had some sort of falling out. In some shortsighted move made either for revenge or to set accounts straight; the defendant had kidnapped the little girl and held her at gunpoint. The police were called, there was evidently, a short car chase, and then a hostage stand off. The car was surrounded. It became apparent that the defendant's plan had failed completely.  As the police called for him to give up, evidently feeling he had to prove he was not a braggart given to empty threats, he blew the girl's brains out in the front seat of the car. It was an absolutely pointless thing to do, a pure, vicious act of malice. There is worse. The girl was not only an only child, but also an only grandchild. The hopes of two generations vanished with her. The grief of the family was beyond telling

There was obviously no question of guilt in this case.  Also, there was no racial issue. Everyone who mattered -- defendant, victim, the majority of the jury, and above all, the jury foreperson -- was African-American. (Of course the prosecutor was white, and I don't know about the judge and defense counsel, but these don't matter.)  The only issue was the penalty.

The prosecutor was well trained philosophically. She themed the case around a maxim from the philosopher Immanuel Kant (as I recall, the primary slide actually attributed it to him) -- there are some crimes that are such an affront to humanity, such a horrific assault on human values, not to respond to them with the ultimate penalty, is to disregard and insult the victim's humanity. I am writing this from memory -- the actual formulation used at trial was much pithier and more direct. 

This theme resonated with the jury. (If it is not obvious already, this woman was a superb trial attorney.) I don't think the reason was the attribution to Kant. I have had some fun lately discussing expressions of apparent wisdom uttered by great men that are actually the reverse. But Kant's insight to my mind is the reverse. It resonates because it accurately describes the moral process involved in these cases at the level of jury decision. The primary criterion in resolving these situations is the moral quality of the act (although, to be sure, since that moral quality encompasses motive and purpose, the defendant's background and character are included implicitly). Though not always expressed explicitly, this is the guiding principle of most jury deliberations. It becomes lost completely in the appellate process.

The foreperson was a competent, extremely well organized young African-American woman, a young professional or junior executive. From the start of deliberations, she kept the jury focused on the primary issue -- was the nature of the defendant's act such that imposition of anything else but the death penalty was an affront to the small child's humanity? That was the question the jury felt it had to answer.

Over nearly seven (!) days, the jury discussed every aspect of the crime in exhaustive detail. The deliberations began with two-thirds of the jury members believing that death was the appropriate verdict. The others had reservations. The arguments were quiet and thoughtful, disagreements put respectfully.  As the days passed, one after another, the jurors in the minority came around to the notion that death was the only possible result. Finally, unanimity was reached.

That, however, did not end the deliberations. The forewoman directed the jurors to separate for an hour, reflect on themselves, their lives, and beliefs, and return. If after that interval any one of them doubted the moral correctness of the result, they would report themselves as divided -- for they had reached the end. When they regrouped, the verdict was still unanimous. The jurors held hands for a moment of silent prayer. Then they delivered their verdict, "guilty," to the court.

You may not agree with the outcome. That's not my point. What I want to emphasize is the real human content that occurred in this actual trial and how different in kind that it is from discussions of the subject in the abstract. If you had approached this jury panel and either extolled or berated them because their decision might (or might not) deter some hypothetical child killer who doesn't even exist in reality, I think they'd look at you as if you had two heads.  How on earth does that matter? And if you suggested that their agonizingly considered judgment should be vacated because of police misconduct in a different case in a different city, I believe they'd be rightfully furious. What the devil, they would say, has that got to do with this?  This trial was about that child and the man who killed her -- and if a different case has to be reversed, by all means reverse it. But what has the one case to do with the other?

In most of these arguments, it's usually the anti's clinging to the abstract, searching for some rule that would ban the death penalty in all places and under all circumstances. To them, the actual human and moral content of the particular case is inconvenient and irritating, often infuriating. But the reality is that each case is unique. There is no universal. Demonstrate an actual miscarriage of justice and of course it should be reversed, and the victim (defendant) compensated. But why should a defendant whose guilt is buttressed and reconfirmed by DNA analysis get the benefit of the test that exonerates someone else? Why should a Ted Bundy walk because of second thoughts about someone else?

The one and only thing that matters is the moral quality of the particular act at issue. The rest is noise.

Frank Dudley Berry, Jr. worked as both a deputy public defender and deputy district attorney in Santa Clara County. He blogs at WordPlay, AND can be followed on Twitter as 'fdberry'.