Reuters

Last week, Texas officials refused to halt the execution of Duane Edward Buck even though his 1997 capital murder trial was concernedly tainted by unconstitutional racial testimony from an expert witness. The Supreme Court, which temporarily blocked the execution, will review Buck's case later this month. Meanwhile, on Wednesday, Georgia officials plan to execute convicted murderer Troy Davis, whose guilt is much more in doubt today than it was two decades ago when he was sentenced to die. Despite the public protests over Davis's fate, the justices in Washington will likely have to intervene there, too, if his life is to be spared while the "new" evidence is meaningfully re-examined.

At a Republican presidential debate earlier this month, just the mere mention of Rick Perry's record execution rate -- he's overseen more executions than any governor in modern history -- generated a primal war-whoop from the partisan crowd. And as to the solemnity of the act itself, of the lethal injection execution protocol whereby the government prematurely ends a natural life in the name of the people? Evidently it has become so routine in the Lone Star State that the governor qua presidential candidate was fundraising in Jefferson County, Iowa on the night Buck was scheduled to die. I can't imagine a more solemn or important function for an elected official than presiding over an execution. But for Gov. Perry, it was just another day out of state on the campaign trail. He was available by cellphone.

The roiling uncertainty surrounding the Buck and Davis cases is a sad but timely reminder that the center has not held on capital punishment in America. The legal compact demanded by the United States Supreme Court when it reinstituted capital punishment as a sentencing option in 1976 has been broken, repeatedly, not by convicts, but by hundreds of overzealous administrators of the nation's justice systems. In Texas, Georgia, Florida, and in the other states which continue to push capital punishment, the "law" in capital cases now is mostly used as a weapon -- not as a shield for the individual against the might of government. It is not justice under law. And it is certainly not equal justice under the law. It is instead far too often a perversion of justice -- and of the Court's well-meant precedent.

In the modern era of capital punishment -- since the Supreme Court's decision in Gregg v. Georgia -- three main camps have emerged. First, there are those who are for the death penalty all the way; the ones who lament the time and money it takes from trial to execution. Then, there are those who are against capital punishment all the way; the ones who believe that the state should never be in the business of killing its own citizens. And between the two solitudes, there is a vast middle; those who believe that there is a place for the death penalty, but only if it can be administered fairly and accurately, free from the sort of arbitrary and capricious decision-making that pushed the justices to do away with it in the first place in 1972 in Furman v. Georgia.

With the Buck case coming back around later this month, with the Davis case right before us this week, with a leading presidential candidate making his capital punishment record a point of political pride, and with the Tea Party crowd cheering execution statistics, now seems as good a time as any to dig around a little at this strange legal confluence we've come to on the death penalty. Nearly 40 years after the Supreme Court first took away the death penalty, we may be closer than many people think to another turning point on capital punishment. We may be reaching the Icarus point -- and don't say I didn't warn you

Hobbes v. Locke

When the Supreme Court reinstituted the death penalty in 1976 in a brief per curiam opinion, it congenially (and conveniently) assumed an awful lot of unapparent virtue and goodness in the present and future participants of the criminal justice system. Justice Byron White, the Kennedy appointee who turned out to a staunchly conservative vote, endorsed Georgia's new death penalty statutes, writing that the law:

not only guides the jury in its exercise of discretion as to whether or not it will impose the death penalty for first-degree murder, but also gives the Georgia Supreme Court the power and imposes the obligation to decide whether in fact the death penalty was being administered for any given class of crime in a discriminatory, standardless, or rare fashion. If that court properly performs the task assigned to it under the Georgia statutes, death sentences imposed for discriminatory reasons or wantonly or freakishly for any given category of crime will be set aside (my emphasis).

The Pollyanna-ish idea behind Gregg v. Georgia was that: 1) juries would be judicious and free from the heat of prejudice and bias; 2) state court judges would be free from the pressures of majoritarian influence; 3) prosecutors would put law over politics and reasonably control the agenda of victims' rights groups, and; 4) legislators would courageously protect the rights of capital defendants by ensuring meaningful access to procedural guarantees in appellate court. None of these assumptions were practical. In the real world, every one of those constituencies is vociferously aligned against capital defendants, who of course have no constituencies beyond their lawyers and (sometimes) immediate families.

Millions of words have been written about the Eighth Amendment's prohibition against "cruel and unusual punishment" as it relates to capital punishment. Thousands of hours of debate have ensued over whether the death penalty is moral or ethical or lawful. But it was the Justice William O. Douglas, in Furman v. Georgia, the case which briefly ended America's long experiment with the death penalty, who perhaps said it best. Looking backward on the cases before him, and presciently looking forward toward today, Douglas wrote:

The generality of a law inflicting capital punishment is one thing. What may be said of the validity of a law on the books and what may be done with the law in its application do, or may, lead to quite different conclusions. It would seem to be incontestable that the death penalty inflicted on one defendant is "unusual" if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices...

As the Buck and Davis cases show -- as hundreds of other dubious capital cases have shown over the past 35 years -- Justice Douglas was right. When it comes to capital punishment rules and regulations, when it comes to the law in its application, it would have been much more prudent for the Court in Gregg to have hoped for the best and expressly guarded against the worst. "Death is different," is the mantra of the murder case and, indeed, on both a micro- and macro-level it is. So different, in fact, that it often makes people forget about the due process and equal protection clauses of the Constitution.

An Eye For An Eye

"In the state of Texas, we believe in our form of justice, we think it's appropriate."

-- Rick Perry, campaigning in Iowa, Friday, September 16th

Last week, when Duane Buck's case was on America's docket, the most-asked questions (of me, anyway) were (to paraphrase): Why should I care about the procedural technicalities of this guy's sentencing case when his guilt is not in doubt? Since he's guilty of murder, how fair does his legal treatment really need to be? People of all political stripes asked the same questions. For them, Buck's guilt evidently vitiated any need for an honest evaluation of the manner in which he was sentenced to death. Texas in 2000 conceded that Buck's trial was impermissibly unfair? The other men similarly situated got their new trials? Who cares. The guy did it. He is getting more justice than he gave to his victims.

That last part is true. Of course, defendants like Duane Buck get more justice than their victims. That's the whole point of our criminal justice system -- and of the rule of law. That's why we outlaw lynching, why angry mobs can't storm jailhouses, and why we have judges. It's why we have a Constitution. In America, we aim to give the guilty more justice than they deserve. We do so because of how that reflects upon us, not upon how it reflects upon the guilty. And when we fail to do so it says more about us than it does about the condemned. Although Let's look just at Texas, again, for a moment.

When Gov. Perry says he believes in "our form of justice" what he is really saying is a significant majority of Texans are comfortable with a death penalty regime that has, in virtually every way, undercut the premise of Justice White's formula in Gregg. For example, Texas is only one of seven states to have its state court judges elected via popular vote after partisan elections. The result is a patently unfair process that pretends that judges have superhuman power to separate their campaign promises with their subsequent (or their past) work on the bench. "Killing for Votes" is an apt headline, used years ago by the Death Penalty Information Center. Plenty of "room for the play of prejudices," to use Justice Douglas' memorable line, also would work as a headline.

A campaign promise to "be tough on crime" or to "enforce the death penalty" should disqualify a judge, Justice John Paul Stevens famously told the American Bar Association in 1996. But have you ever seen a television campaign ad in a judicial election in Texas? If so, you are probably not surprised to learn that when an earnest local judge tried to hold a meaningful hearing on capital punishment in Texas late last year, the political furor was so great it was almost immediately shut down by the Texas Court of Criminal Appeals. That court, not incidentally (and in the grand tradition of southern justice), has established itself as a local bulwark against defendants, many of them black, whose rights have been violated by trial judges, juries, prosecutors, and witnesses. "Our form of justice," says the governor.

The way Texas elects and retains its state judges is fundamentally inconsistent with the assumptions of Gregg and its progeny. So what about the executive branch? Before Gov. Perry set his ongoing record on executions, there was Gov. George W. Bush, who handled the clemency process with the same cronyism and negligence that marked the worst moments of his presidency. And in both administrations there was the Texas Board of Pardons and Paroles, which is an oxymoron, to put it mildly, since it virtually never recommends the commutation of death penalty cases. In the fantasy world of Gregg, the executive branch would rectify the mistakes made by the judicial branch in capital cases. In the real world, it just doesn't happen. Just ask the folks on Texas' "forensic panel" who were until recently working on the Cameron Todd Willingham case.



What about the legislative branch? It's done some smart things. In 2005, for example, it gave jurors a "life without parole" sentencing option in capital cases, eliminating the "life with parole after 40 years" option that had sent so many jurors scrambling to vote for death. And this year Austin passed a new DNA measure which is designed to ensure more accuracy in capital cases by giving defendants more access to testing. But lawmakers still haven't fully responded to the U.S. Supreme Court's 2002 ruling in Atkins v. Virginia, which outlawed the execution of mentally retarded defendants. And the legislature has been slow to clarify jury instructions at the sentencing phase of capital cases-- the ambiguities, of course, favor the state-- while not pressuring prosecutors to adopt "open-file" discovery policies which also would make capital cases more fair.

Since 1976, it's not unfair to say Texas has gone out of its way to negate, eliminate, or simply leave uninstalled the institutional safeguards and double-checks that should reasonably exist in any fair death penalty regime. The legislature and state constitution have neutered the judicial and executive branches -- even if Gov. Perry wanted to commute Buck's sentence now, he couldn't. The state trial judges whose capital decisions are tainted by campaigns have their cases reviewed by appellate judges who slyly declare in affirming convictions that the condemned may seek relief from the Boad of Pardons and Paroles. And the federal courts are only so much help, thanks to Congress. Somewhere, somehow, in that great conference room in the sky, Justice Douglas is saying to Justice White: "I told you so, Whizzer."

Death Be Not Proud

When Duane Buck's execution was stayed Thursday night, after he already had eaten his last meal, there was a great deal of muted satisfaction on the part of death penalty foes. Some were happy for political reasons that Gov. Perry had been proved wrong, at least for now. Some were happy that a condemned black man in Texas -- twice deprived of his equal protection rights -- would get to have his case reviewed by the justices. Some see such stays of execution as vindication in their quest to outlaw outright capital punishment. No one dared to say, however, that they were happy for Buck himself, the murderer, who was said to be praying in his cell when Texas officials came in to tell him that he wouldn't be dying by lethal injection that night.

Here we have a fundamental disconnect between the pro- and anti-death penalty sides. Contrary to what you might otherwise hear, it is both possible and intellectually consistent to be glad that a court has stayed the execution of a condemned man without necessarily being sympathetic to the man himself or disrespectful to his victims. It is possible to see the vindication of rights -- or at least a good-faith effort by judges to vindicate rights -- as a victory in and of itself in our nation's constant struggle for justice under the law. It is possible to separate the sins of the condemned from the subsequent sins of the justice system, and to demand more of the latter than of the former. Indeed, this goes to the very heart of the age-old notion of bringing a measure of dispassionate justice to high and low alike.

I don't want to meet Duane Buck. I don't consider him any sort of a victim on a par with the victims whose lives he took and altered in 1995. And I certainly don't want him released from prison. But that doesn't mean I have to happily accept the fact that Texas now has screwed him over, not once, but twice. If we are to continue to pride ourselves on being a nation of laws, if the individual guarantees of the Bill of Rights are to continue to mean anything against the tyranny of the majority, even men like Buck have to be sentenced fairly in capital cases, without the ancient specter of racism further inflaming a southern jury's work. We don't just owe Buck that. We owe that to ourselves.

The unseemliness of this dichotomy -- not so much that any man's death diminishes us but rather that we all lose when we allow our justice system to be perverted by passions, prejudice, and politics -- is what I believe has soured so many Supreme Court justices to the idea of capital punishment. It's part of what Justice Harry Blackmun meant in 1994 in Callins v. Collins, a case about the death penalty in Texas, when he declared that he would "no longer tinker with the machinery of death." The rest of that sentence is instructive as well:

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored...to develop...rules that would lend more than the mere appearance of fairness to the death penalty endeavor...Rather than continue to coddle the court's delusion that the desired level of fairness has been achieved...I feel...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...

And it's not just Blackmun who turned. So did Justice Lewis Powell, the so-called great "centrist" of the Court who died in 1998. He told his biographer, understandably since it's a black mark on his career, that he regretted his vote in 1987 in McClesky v. Kemp in which the Supreme Court allowed a capital conviction in Georgia to stand despite empirical evidence that showed harsh racial disparities in the way the state administered capital punishment cases. Too little, too late, for Justice Powell. He might have altered the course of capital penalty jurisprudence. There are no such regrets for Justice John Paul Stevens, another Republican appointee to the High Court, who turned late in his long and distinguished career on the bench against the "machinery of death."

After retiring from the bench in 2009, moreover, Justice Stevens wrote a powerful essay in The New York Review of Books in which he chronicled some of the substantive and procedural inequalities that have cropped up in death penalty jurisprudence since Gregg. "The dynamic supporting a broader application of the death penalty," Justice Stevens wrote just recently, "is revealed in cases involving victim-impact statements, felony-murder, controversy over attitudes toward the death penalty in jury selection, and race-based prosecutorial decisions." It has to say something profound, does it not, that each of these men, none the least shrill zealots in their judicial views, would feel such remorse and regret over their roles in bringing the death penalty back to America. To me, it says they didn't get from the states what they thought they were bargaining for.

Nor, evidently, have others. In Ohio earlier this month, the Chief Justice of the Supreme Court of Ohio, Maureen O'Connor, asked aloud and in pointed fashion a question that is being muttered more often these days by participants in, and observers of, our criminal justice system. Calling for a statewide review of Ohio's death penalty regime, Justice O'Connor, a former prosecutor, asked: "Is this system the best we can do?" This is the essence of the question posed to the U.S. Supreme Court before Furman, it is the question Justice White hoped he had answered in Gregg, and it is the question even this most conservative of Supreme Courts will be asking of itself in the coming years.

Have states like Texas, in their zeal to execute even on the margins, overplayed their hand and generated some of the very same "cruel and unusual" evidence that ultimately convinced the Court in Furman to stop capital punishment in America? Justice Ruth Bader Ginsburg thinks so. Asked last week in San Francisco what she would like to accomplish during her remaining years on the bench, she replied: "I would probably go back to the day when the Supreme Court said the death penalty could not be administered with an even hand, but that's not likely to be an opportunity for me."

The Ever-Doubting Middle

Although you probably by now think otherwise, I reside in the middle of this debate. I believe that capital punishment has a role in the American criminal justice system. When I covered the Oklahoma City bombing trial, for example, I became convinced that the death penalty was an appropriate punishment for Timothy McVeigh, who cold-bloodedly killed 168 people at the Alfred P. Murrah federal building on April 19, 1995. Nor will I mourn if and when Khalid Sheikh Mohammed and Ramzi Binalshibh are tried, convicted and sentenced to death for their roles in the terror attacks of September 11, 2001. Sometimes, I believe, a murderer deserves the ultimate punishment.

But the McVeigh trial was nearly 15 years ago. Almost a generation. And I've come a long way since then. I have covered maybe a hundred capital cases (maybe more, I've lost count). In Texas alone, off the top of my head and just scratching the surface, there was the story of Charles Dean Hood, who was convicted and sentenced to death in a case where the judge and prosecutor had an affair and kept it quiet through the trial. And the story of Sharon Keller, the Texas Court of Criminal Appeals Judge who blew off a last-minute appeal from a condemned man named Michael Richards because she had to meet a handy-man at her home. And the story of Cameron Todd Willingham, so ably told by David Grann, which rolls on to this day.

Then there was the story of a Texas case styled Miller-El v. Dretke, in which the 5th Circuit deliberately disobeyed the mandate of the Rehnquist Supreme Court. And the ongoing story of Hank Skinner, who still cannot get DNA testing that he says could exonerate him even though Texas lawmakers earlier this year passed a statute that makes such testing more available to criminal defendants. And the story of James Jackson, who in the sentencing phase of his capital trial was refused the right to call as witnesses his family and friends. And the story of Anthony Graves. And, of course, who could forget the "sleeping defense lawyer" case of Calvin Burdine.

Beyond Texas, there's been the story of the California case of Stanley "Tookie" Williams, whose execution was marred by the failure of the lethal injection team to find an intravenous line. "Shit happens," a member of the state's "execution team" reportedly said at the time. In Ohio, there was the grisly botched execution of Romell Broom. In Florida, it was the grim execution of Angel Diaz. No wonder Ilinois ended its failed experiment with the death penalty and so many other states are contemplating such a move. Indeed, despite Gov. Perry's boast earlier this month, the fact is that capital punishment in America is trending downward, slouching toward a mostly regional punishment that harkens back to the ugly days of Jim Crow.

Each of these legal stories begs the same essential question: What are members of the criminal justice system so afraid of when they go so far out of their way to deprive condemned prisoners of their rights? For example, what does Texas think is going to happen if it relents, makes good on John Cornyn's old promise, and gives Duane Buck a new trial? The worst that could happen, from the state's perspective, is that Buck's new sentencing jurors would recommend a sentence of life in prison without parole. And what about that result, after a fair trial, represents such a defeat for the Texas justice system that officials there would rather contort both law and fact to avoid it? Here's where states like Texas lose me. And lose millions of others.

The same goes for Troy Davis. Whether the trial witnesses against him were lying then or are lying now, by fighting against his requested relief Georgia is saying that its interest in the finality of its capital judgments is more important than the accuracy of its capital verdicts. You can certainly find concern for such chilling sentiment in the gloomy language of Furman. But you sure can't find it in the puffy language of Gregg. In their zeal to make good on cynical campaign promises to be "tough on crime," in their pursuit of vengeance on behalf of grieving families, in their reckless disregard for the racial realities of capital punishment, elected or appointed proponents of the death penalty are in the process of ruining the mandate the Supreme Court gave them 35 years ago.

Fool me once, shame on you. Fool me twice, shame on me. I'll continue to cover these death penalty stories, sure I will, but I promise I'll no longer coddle what Justice Brennan called the "delusions" of opportunists like Rick Perry when they look into a camera and tell us that they've "never struggled" over death penalty cases. It's crazy talk like that, truly "wanton and freakish," to use Justice White's words in Gregg, which gave us Furman to begin with and which, I believe, will ultimately bring it round again.