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July 9, 2011

"Death Penalty, Still Racist and Arbitrary"

The title of this post is the headline of this New York Times op-ed authored by law professor David Dow. Here are excerpts:

Last week was the 35th anniversary of the return of the American death penalty. It remains as racist and as random as ever.

Nationwide, blacks and whites are victims of homicide in roughly equal numbers, yet 80 percent of those executed had murdered white people. Over the past three decades, the Baldus study has been replicated in about a dozen other jurisdictions, and they all reflect the same basic racial bias. By insisting on direct evidence of racial discrimination, the court in McCleskey essentially made the fact of pervasive racism legally irrelevant, because prosecutors rarely write e-mails announcing they are seeking death in a given case because the murderer was black (or because the victim was white).

In Texas, though, they do come close. In 2008, the district attorney of Harris County, Chuck Rosenthal, resigned after news emerged that he had sent and received racist e-mails. His office had sought the death penalty in 25 cases; his successor has sought it in 7. Of the total 32 cases, 29 involve a nonwhite defendant.

Since 1976, Texas has carried out 470 executions (well more than a third of the national total of 1,257). You can count on one hand the number of those executions that involved a white murderer and a black victim and you do not need to use your thumb, ring finger, index finger or pinkie.

Well, you might need the pinkie. On June 16, Texas executed Lee Taylor, who at age 16 beat an elderly couple while robbing their home. The 79-year-old husband died of his injuries. Mr. Taylor was sentenced to life in prison; there he joined the Aryan Brotherhood, a white gang, and, four years into his sentence, murdered a black inmate and was sentenced to death. When Mr. Taylor was executed, it was reported that he was the second white person in Texas executed for killing a black person. Actually, he should be counted as the first. The other inmate, Larry Hayes, executed in 2003, killed two people, one of whom was white.

The facts surrounding Lee Taylor’s execution are cause for further shame. John Balentine, a black inmate, was scheduled to die in Texas the day before Lee Taylor’s execution. Mr. Balentine’s lawyers argued that his court-appointed appellate lawyer had botched his case, and that he should have an opportunity to raise issues the lawyer had neglected. Less than an hour before Mr. Balentine was to die, the Supreme Court issued a stay.

Lee Taylor’s lawyers watched the Balentine case closely; their client too had received scandalously bad representation, and, they filed a petition virtually identical to the one in the Balentine case. But by a vote of 5-to-4, the justices permitted the Taylor execution to proceed. If there were differences between the Balentine and Taylor cases, they were far too minor to form the boundary between life and death. But trivial distinctions are commonplace in death penalty cases. Justice Lewis F. Powell Jr., one of the five justices in the McCleskey majority, retired from the court in 1991. Following his retirement he said he had voted the wrong way. If Justice Powell had changed his mind a year sooner, Warren McCleskey, who was executed in Georgia in 1991, would still be alive.

And because of a vote from a single Supreme Court justice, John Balentine lives while Lee Taylor died. When capital punishment was briefly struck down, in 1972, Justice Potter Stewart said the death penalty was arbitrary, like being struck by lightning.

It still is, and it’s the justices themselves who keep throwing the bolts.

July 9, 2011 at 12:26 PM | Permalink


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"It still is, and it's the justices themselves who are throwing the bolts."

I couldn't have said it better myself. What is constitutional in 1990 isn't in 2002.(Ring) I could go on and on. Justices flipflopping, Scalia: Lockett/Eddings mitigating circumstances, Walton/Ring,etc.

One of the reasons the death penalty is so expensive?

Posted by: DaveP | Jul 9, 2011 12:36:17 PM

David Dow rolled the dice with his client's LI claim by waiting until the very last minute to file it. He got his client killed. We shouldn't be listening to anything this charlatan says.

With respect to W/B executions in Texas, there are two more scheduled this year. So Dow's cute little pinky reference has a short shelflife. Perhaps somewhere in his screed Dow could address the fact that W/B murders (i.e., non-Hispanic W/B murders) are pretty rare.

Posted by: federalist | Jul 9, 2011 1:29:03 PM

Good for Professor Dow for getting his op-ed in the ever-outraged New York Times.

Once upon a time, Professor Dow shared the floor with another distinguised abolitionist, Natasha Minsker, who heads the Northern California ACLU Section on Death Penalty Policy.

They squared off against two unrepentant, block-headed and bloodlusting Neanderthals who might be familiar to readers of this blog.

The exchange can be found here:


Posted by: Bill Otis | Jul 9, 2011 4:40:32 PM

123D solves all problems. Take all discretion from the lawyer, including the prosecutor. The citizen charges the defendant. Then the count starts at age 14, so no criminal gets to 18, the beginning of their career peak. The families of violent crime victims should begin the counterattack on both the violent criminals in their midst. Kill them as young as tolerable. Then research all responsible for loosing the criminal. Kneecap them. To deter. This violence has full moral, intellectual and policy justification, especially from the airtight, self-dealt immunity of the lawyer traitor. I include feminist indoctrinated jurors. Bring street justice to them. Burn them out. To deter.

Such violence is a tiny response to the 5 million violent crimes a year, the 17000 murders, 2000 committed by paranoid schizophrenics based on delusional beliefs, and 5000 of them being of excessive black males (compared to their fraction of the population).

To better understand this citizen duty to kill and to burn out, imagine black middle class people targeted by the KKK in 1911. Fully immunized by the lawyer vermin, there is no legal recourse. The night riders and hundreds of spectators and cheerleaders come around. With absolute immunity, they will lynch the successful, productive male, take his assets, distribute it to other judges and lawyers. What authority can one go to? After the KKK Act, there was the Union Army. It hanged the lawyer KKK vermin by the dozen. The KKK went away. In 1876, the Army was removed in a deal to give the Republican Party lawyers the disputed Presidential election (dispute was far worse, more threatening, and longer than Gore v Bush). The KKK came roaring back with its business plan.

Today, the business plan is far more sophisticated. It has a feminist Trojan Horse. It has a rent seeking scheme that dwarfs the KKK business plan by many orders of magnitude. The lawyer vermin has total control of the US government now, there is no Union Army to run to for help. Imagine the course of civil rights if black middle class males unified, and killed the judges, prosecutors, and jurors members of the KKK, protecting the lynch mobs. Imagine the course of civil rights if the lynch mob was met with cannon fire and Gatling guns, instead of passivity, and compliance with the extra-judicial execution.

The duty to kill the violent criminal and the protector of the violent criminal, as a matter of deferred self-defense, defense of the person and of the nation.

There are countries with low crime rates. Some are very poor. Some are very rich. Some in between. All have one thing in common. A high degree of immediate, direct, on the spot self-help. No American law academic will ever reveal or discuss this self-evident data. I will bet ten cents Prof. Berman never mention self-help in class except to absolutely condemn it as a total threat to the rule of law. It is the opposite, the sole source of the total rule of law, and a threat only to the lawyer rent. And Prof. Berman is not even on the lunatic fringe of leftie academics. He is more mainstream.

He cannot utter the V word. He cannot utter the S word, self help. He can utter the V word only in the context of Victim Impact, a future lawyer job generator.

Posted by: Supremacy Claus | Jul 9, 2011 6:37:28 PM

Within the US, there are great variations in the crime rate by geography. There are places where the crime rate is as low as any in those low crime rate countries. These places all have something in common. They are small, and the chances of getting away with any crime is small. The feedback from the neighbors would be immediate and devastating. Eventually, someone among the neighbors would just get rid of the person. And oh, one more feature of those places, very few lawyers work there. The density of lawyers has never been examined as a causative factor in crime, but it appears to be a powerful correlate. So there are countries with more lawyers per population than ours. Example? South American countries with an even higher crime rate than ours.

Posted by: Supremacy Claus | Jul 10, 2011 12:49:36 AM

This is the same NYT editorial that said their would be irrepriable harm to US Mexico relations if Medellin and Leal were executed in 2008 and 2011. Same liberal clap-trap with a few facts, over-blown assertions, hand-picking of stats and cases that fit their cause, and liberal lefty quotes. It will never end as long as the NYT and WAPO are still in business. A great man once said the fourt estate is the fifth column. How true.

Posted by: DeanO | Jul 10, 2011 10:55:24 AM

The reaction of the Mexican public to Medellin's execution was a collective "Meh." My guess is that the reaction to Leal's execution will be the same.

Posted by: federalist | Jul 10, 2011 11:55:22 AM

"The exchange can be found here:

Bill, you should really have a talk with your photographer about the photo at the referenced site. Perhaps it is supposed to represent a "pensive, reflective" mood but any professional photographer worth his/her salt will quickly tell you that the pose is a very feminine pose and seldom used with a masculine client. But then perhaps the photographer captured exactly what you were looking for.

Posted by: Old Photog | Jul 10, 2011 4:21:02 PM

"... the pose is a very feminine pose and seldom used with a masculine client. But then perhaps the photographer captured exactly what you were looking for."

Not one word about the debate, not one word about the issue, but instead a strictly ad hominem crack implying, I guess, that I'm gay or something.

This is what abolitionism has come to. And then you people wonder why you're losing.

Posted by: Bill Otis | Jul 10, 2011 5:09:33 PM

Bill: I knew litigators had to be good looking. You are handsome, and masculine looking. I see rich, perhaps bookish, but I do not see feminine. Old Photog is invited to post a pic of himself for comparison. Not that there is anything wrong with being gay, as Seinfeld often said.

Posted by: Supremacy Claus | Jul 10, 2011 6:01:49 PM

Bill: You look like this guy's brother. More like a twin brother.


Posted by: Supremacy Claus | Jul 10, 2011 6:08:56 PM

It's not the only case where Dow has failed his client. In the Daniel Simpson case, he waited to last minute to file appeals and after his client was executed he was censured for misconduct. The only reason he's allowed to work on capital cases is because of the poor quality of representation in Texas. It's ironic that he constantly comments on this issue in regards to other lawyers and never himself.

Posted by: MikeinCT | Jul 10, 2011 7:30:41 PM

SC --

It occurred to me that, when Old Photog implied, in a negative way, that I'm gay, he was showing himself to be behind the times. Forty years ago, saying that someone was gay was an insult. I guess Old Photog needs to keep up.

On a few occasions, I have been mistaken for the late actor Christopher Reeve. This is pretty odd, since, although we were born at about the same time and looked similar facially, he was half a foot taller.

A more recent photo is here: http://www.fed-soc.org/publications/author/william-otis.

Posted by: Bill Otis | Jul 10, 2011 7:39:11 PM

SC --

That link doesn't work because I put a period on the end. This one should:


Posted by: Bill Otis | Jul 10, 2011 7:49:55 PM

Very nice.

If I may ask a personal question. Do you still do appellate advocacy? Or would you consult on appellate advocacy?

Posted by: Supremacy Claus | Jul 10, 2011 8:34:27 PM

re: the debate, there were twice as many "pro" entries than "con" entries. i'm not sure what produced the disparity, but thought it worth noting.

substantively, i'm not sure it's possible to meaningfully single out the worst of the worst without considering a broad range of attributes of the person being singled out (in other words, I agree with the Supreme Court's decision in Lockett). It's the Lockett-based investigation that is a uniquely, and enormous, cost.

i also thought KS's suggestion about devoting more resources to collateral review for non-death sentenced inmates was interesting and worthwhile.

Posted by: John | Jul 10, 2011 9:16:23 PM


Posted by: John | Jul 10, 2011 9:17:15 PM

SC --

I no longer write briefs, but occasionally make suggestions for people who do.

Thanks for your posts today.

Posted by: Bill Otis | Jul 10, 2011 10:13:53 PM

John --

The ground rules of the debate were that the pro side would go first, and the anti side last, and in between, anyone could say anything he or she wished whenever so inclined.

It is neither neither possible nor important to specify with anything like precision who is the "worst of the worst." Is a child murder like Couey worse than Major Hasan, who killed no children but had many more victims?

The only relevant question is, not whether Killer A is "worse" than Killer B, but whether the crime of either is so sadistic, heartless, cruel etc. that no reasonable argument could be mounted that a jail term is proportionate to the offense. Only in a very broad sense is it even possible to "compare" killings. For example, almost everyone would agree that when Mr. X kills Mr. Y in a bar fight, that is less appalling than either a Couey or Hasan type killing.

Lockett requires no more than this. Indeed, there have been more than 1250 executions since Lockett was decided in 1978, and none of them, and no Supreme Court case, has required anything like a rank ordering to decide whether one capital murder(s) was "worse" than the next.

Posted by: Bill Otis | Jul 10, 2011 10:33:38 PM

"Not one word about the debate, not one word about the issue, but instead a strictly ad hominem crack implying, I guess, that I'm gay or something.

Wow!!!! Just try to offer a little helpful information to help someone improve his image and all you get is snark. As I don't know you from Adam and care less what your proclivities may be, so much for being "behind the times") there was no "implication" of anything. Only an acknowledgement that if the pose projected the image you wanted it to project then ignore my critique of the photographers choice of poses. BTW, I do not happen to oppose the death penalty so your "abolitionism" crack also has no validity. Oh, and the more recent photo is much better. Perhaps you use it but Christopher Reeve, now that is quite a stretch .

Posted by: Old Photog | Jul 10, 2011 11:11:13 PM

i thought the point of lockett to be that the jury has to be given the opportunity to consider any aspect of the defendant's life that would make them worthy of mercy, with the idea being that the DP should be reserved for those who are not, the "worst of the worst," to re-use the phrase that sparked some disagreement.

"we conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." sounds a bit different than simply finding aggravators that make a person death eligible (and, hence, only comparing murderers in a "broad sense.") note that Lockett also allows some emphasis on the person being sentenced to death in addition, of course, to the crime.

Bill, do you dispute that you want the supremes to reverse lockett?

Posted by: John | Jul 11, 2011 12:31:23 AM

Old Photog --

No one reading your original remark could possibly have viewed it as intended to be "helpful." Nor am I trying to improve my "image;" the photo is incidental and was put up by the debate host. I did not recommend using that or any photo.

If, as you say, you do not oppose the DP, good, you have reached the right answer.

Posted by: Bill Otis | Jul 11, 2011 9:15:03 AM

John --

What you say now about the point of Lockett, while correct, is not at all the same as what you said in your first post. There, it certainly seemed that you invoked Lockett to suggest that, legally, the DP may be given to only "the worst of the worst." As I noted, that is incorrect. Through the hundreds of executions that have occurred in the more than 30 years since Lockett, no court of which I am aware has ruled that there has to be some rank order of "worseness," and that the DP could be handed out only to those at the top of the list.

"Bill, do you dispute that you want the supremes to reverse lockett?

It's curious that you seem to want to put me on the defensive about Lockett while having invoked it to begin with to support a propostion it does not embrace.

But I'll answer directly anyway. I think Lockett could use some re-visiting, you bet, but since hundreds and hundreds of executions have gone forward with Lockett on the books, I hardly view it as the Darth Vader of capital sentencing law.

Now let me ask you a couple of questions. Do you oppose the DP? If so, do you think that, for McVeigh, Couey and Gacy, there was either any sane doubt of guilt or any persuasive argument that their behavior warranted a sentence qualitatively identical to the sentence you'd give a heroin pusher or a car jacker?

Posted by: Bill Otis | Jul 11, 2011 9:34:51 AM

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