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The Death Penalty: Racist, Classist and Unfair

By Laura Fitzpatrick Tuesday, Feb. 23, 2010

Some two-thirds of Americans support the death penalty, but few are forced to confront it on a daily basis. As an appellate lawyer in Texas — which leads the U.S. in executions — David Dow has represented more than 100 death-row inmates over the past two decades. In The Autobiography of an Execution, he recounts what it's like to do the job and then come home to his family and his dog. He talked to TIME about why he keeps doing the work, the problem with juries and what it's like to look murderers in the eye.

You call the capital-punishment system "racist, classist, [and] unprincipled," but say you feel sympathy for people who support the death penalty. How can the two coexist?
On a regular basis, I'm sitting face-to-face with murderers. When I imagine sitting face-to-face with somebody who might have injured somebody I love or care about, I can imagine wanting to injure that person myself. I used to support the death penalty. [But] once I started doing the work, I became aware of the inequalities. I tell people that if you're going to commit murder, you want to be white, and you want to be wealthy — so that you can hire a first-class lawyer — and you want to kill a black person. And if [you are], the odds of your being sentenced to death are basically zero. It's one thing to say that rich people should be able to drive Ferraris and poor people should have to take the bus. It's very different to say that rich people should get treated one way by the state's criminal-justice system and poor people should get treated another way. But that is the system that we have. (See the top 10 crime duos.)

Was there a particularly egregious case that helped you come to that conclusion?
It was incremental. Almost everybody I represented actually committed the murder that he was sent to death row for committing. But what I noticed is that they were committing murders that were not, in any meaningful sense, different from the thousands of other murders that occur where the person isn't on death row. You have about 15,000 homicides a year in the U.S. And you might have 60 executions. There wasn't any rhyme or reason to which crimes were resulting in executions, other than the operation of what I consider to be insidious types of prejudice and just sheer randomness.

You describe Derrick, your first client who was executed, as "a bad guy." And yet you were clearly torn up by his death. What's it like to develop a personal connection with unsavory characters?
Most of the cases I work on are tragic, but at a very deep level they make sense to me. I understand how [the crime] happened. Most of my clients dropped out of school; they've got extensive juvenile records; they came from backgrounds of deprivation. I'm not saying that excuses their conduct. I'm simply saying that there were any number of points in the lives of my clients where I truly believe that if society had intervened more aggressively, it could have done something. In other cases, though, I don't see that at all. There wasn't any deprivation and there wasn't abuse and there wasn't poverty. Those are the cases that just make you stay awake at night. (See the 25 crimes of the century.)

You are pretty critical of some death-penalty lawyers. Why?
The cases that I write about are cases that I was handling five years ago, which means that the trials were 15 years ago. And 15 years ago, the quality of trial lawyers in Texas, and really all over the so-called death-penalty belt — the southeast of the U.S. — was typically abysmal. Over the last five years, the quality of trial lawyering has gotten vastly better. There are still a handful of bad lawyers. [But] today the problem is that there aren't any resources. You can have the world's greatest lawyer. And if the lawyer doesn't have resources [to hire experts], then it doesn't matter.

What's your opinion of the juries you've encountered?
Juries can sentence somebody to death for the same reasons that kids in a gang will do something that they wouldn't do if they were by themselves. The group diffuses moral responsibility. I really do believe that jurors take their responsibility very seriously, particularly in a death-penalty trial. But I think that being a member of a group allows individual jurors to slough off the responsibility for the decision. That diffusion of responsibility continues up until the very end: the judges on the court of appeals are one of three or one of nine. It's a system where you can't ever point to a single person and say, that person is responsible for imposing the death sentence. (See the top 10 crime stories of 2009.)

What do you think is the future of capital punishment in the U.S.?
My prediction is that we're going to get rid of it for economic reasons. We spend at least a million dollars more on a death penalty case than on a non-death-penalty case. In the U.S., where we've executed 1,200 people since the death penalty [was reinstated in 1976], that's $1.2 billion. I just think, gosh, with $1.2 billion, you could hire a lot of policemen. You could have a lot of educational programs inside of prisons so that when people come out of prison they know how to do something besides rob convenience stores and sell drugs. There are already counties in Texas, of all places, that have said, this is just not worth it: let's fix the schools and fill the potholes in the streets instead of squandering this money on a death-penalty case. You don't need to be a bleeding heart to make that argument.

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I have always wondered about the perspective of the executioner and a lawyer for the person on death row.. and here we have the latter. Some of it is very surprising, others not so much. I feel sad for the person who has to do the job.

What he is sharing is highly illuminating. Definitely something to read and think about.

Here is the sentence that stands out for me in the entire article.

I'm simply saying that there were any number of points in the lives of my clients where I truly believe that if society had intervened more aggressively, it could have done something.
I also find his observation on juries and judges on the court very interesting.  He compares their decision-making to "group behavior".


What's your opinion of the juries you've encountered?

Juries can sentence somebody to death for the same reasons that kids in a gang will do something that they wouldn't do if they were by themselves. The group diffuses moral responsibility. I really do believe that jurors take their responsibility very seriously, particularly in a death-penalty trial. But I think that being a member of a group allows individual jurors to slough off the responsibility for the decision. That diffusion of responsibility continues up until the very end: the judges on the court of appeals are one of three or one of nine. It's a system where you can't ever point to a single person and say, that person is responsible for imposing the death sentence. That is extremely interesting. Would they rule differently if they were called upon to think of it as an individual decision??  I have to wonder.


As to the opportunity cost i.e., opportunity lost assessment of the money wasted and not otherwise used to reform the system, police the society and reform the people to prevent "death row" - I wonder if the death row is removed we would have more reckless behavior.  I wonder if the fact that there is the likelihood of death row makes any difference at the moment of "near insane" action that results in killing other humans (for reason other than self-defense). 

Oh, just a little jurisprudence for late night fun! LOL



-- Edited by Sanders on Wednesday 24th of February 2010 12:25:43 AM