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February 23, 2010

"The Death Penalty: Racist, Classist and Unfair"

The title of this post is the provocative headline given to this (not especially provocative) piece in Time magazine.  The piece is just a brief Q&A with David Dow, the author of the new book The Autobiography of an Execution. Here is the Q and the A that prompts the headline of the piece:

Q: 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?

A:  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.

February 23, 2010 at 07:39 AM | Permalink

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Comments

The remedy is to execute a lot more rich, white people.

A little self-centered. His feelings don't matter, and should not enter the debate. Time magazine is a left wing propaganda organ, devoid of credibility.

Also, it is frustrating that abolitionist have stymied the death penalty, then claim it is ineffective. I am frustrated not by the abolitionists, but by the failure of intellectuals in the field to point that out. Or, perhaps, to even realize that, the dumbasses. The latter term is not an epithet but a loving lawyer term of art, said only in the nicest way.

Posted by: Supremacy Claus | Feb 23, 2010 8:57:11 AM

David has become a rock star as of late, but frankly, as a post-conviction litigator in Texas his (and the entire Texas Defender Service's) reputation is not exactly that sterling. While TDS provides a home for wayward Europeans looking for pen pals on Texas Death Row their prowess and success rate is pretty paltry. A defendant would do better with one of the many serious appellate attorneys that pick up habeas work but don't seek out interviews with NPR or book deals.

Posted by: Ferris Bueller | Feb 23, 2010 9:27:47 AM

"The remedy is to execute a lot more rich, white people."

The 15,000 strong lawyer hierarchy is a good start for this new policy. Year after year, with the foreseeability of planetary orbits, they nearly immunize the violent criminal, resulting in 17,000 extra-judicial executions. Their forbearance constitutes a crime against humanity and not just insurrection against the constitution.

Posted by: Supremacy Claus | Feb 23, 2010 10:00:29 AM

my individual reputation might warrant supremacy claus's condemnation. but it is absurd as applied to the superb lawyers at tds. there were 24 executions in texas in 2009; we (i.e., tds lawyers) were involved, to a greater or lesser degree, in last-minute litigation in around 20 of them.

also in 2009, there were 9 stays or modifications, involving 7 inmates. tds lawyers were involved in seven of those stays.

a 20:7 ratio in texas in crisis litigation could be better, but it could be a lot worse.

Posted by: d.r. dow | Feb 23, 2010 12:13:04 PM

David, Supremacy Claus is a nutjob, if I were you I wouldn't bother.

That said, with respect (and I mean that), whatever one's personal beliefs I think that for people who oppose capital punishment, the message "The Death Penalty: Racist, Classist and Unfair" promotes precisely the type of liberal, theoretical, eggheaded, jargon-laden approach that marginalizes your movement.

I'm not actually a DP abolitionist, but I've been around the political block on criminal justice reform long enough to know that message won't stick with anybody but the already-convinced. Instead of "racist, classist and unfair," a better message would be that it's expensive, prone to error, and the lengthy, unworkable process is cruel to victims' families, promising closure but in practice too often delivering the opposite.

Messages that portray the issue in terms of the killer being the victim or the process being "unfair" are out of touch with public sentiment and doomed to marginalization. After all, it wasn't fair for those murdered, either.

Posted by: Gritsforbreakfast | Feb 23, 2010 3:00:40 PM

The death penalty is in fact racist, classist and unfair. Any objective observer - particularly those involved with its day-to-day operation - knows this this to be the truth. These disparities in administration have been documented by numerous studies as well - not only as to race, but to income level, geography - and several other factors. In the past, the US Supreme Court declared the death penalty unconstitutional because of its haphazard, discriminatory implementation. In recent years, the Court has acknowledged these problems anew, but - because of the current makeup of the court - the problems are deemed not to rise to the level of unconstitutionality.

These are pretty obvious truths.

Why is it not OK to speak about them?

Posted by: Samuel | Feb 23, 2010 3:56:14 PM

Samuel;

It is perfectly OK to speak about them but your audience will consist of small set of those who share your viewpoint everyone else will tune you out.

The most probably outcome of a DP is that it will revert to LWOP at about ten time or more the cost of LWOP in the first place.

Posted by: John Neff | Feb 23, 2010 4:17:46 PM

perhaps, mr. dow, you should pay more attention to supervising last minute appeals than providing your misleading spin on the death penalty--you didn't exactly cover yourself with glory leaving a last-minute appeal to a paralegal, who may, by the way feel some guilt. non-hispanic white killers are more likely to be executed than their minority counterparts. additionally, the w/b murder combo, iirc, is more likely than the average capital murder to receive a death sentence,

Posted by: federalist | Feb 23, 2010 4:44:23 PM

Mr. Dow: I appreciate the courage you show to rebut with facts and numbers. The lawyers here are cowards who refuse to take on a civilian about the work they do.

These numbers evidence a high error rate, you seem to imply. This high error rate justifies your changing your mind about your support for the death penalty. Say there are 40 executions a year, and 10 are false. There are 17,000 extra-judicial executions a year. Please, say something about that number of murder victims.

Next, say something about stopping all modes of transportation, including being a pedestrian. They all kill orders of magnitude of innocent people than the death penalty every year, three orders of magnitude, around 40,000. These folks go rough. They are bashed, sliced, and shredded by blunt and sharp metal edges. Many linger for hours before death mercifully takes them. I apologize in advance for this inappropriate comment. However, Grits lost a loved one. This was a beautiful girl, and a great kid. I shed a quiet tear for her and for her family. I cannot imagine a greater cosmic injustice than the tragedy that befell Grits and his loved ones.

Yet, this left wing ideologue and you do not call for a moratorium on transportation until the problem of the "error" rate is solved.

See if you can contain yourself reading about this beloved angel.

http://gritsforbreakfast.blogspot.com/2009/08/hour-for-mourning-maggie-lee-henson.html

Now why not stop all transportation? Why not the same book and interview about the outrages of transportation mistakes? Because the criminal generates massive lawyer make work alive, and nothing if dead. And the transport user generates lawyer fees dead or alive.

The innocence rate is low, and provides zero justification for any moratorium or slowing of the death penalty.

Posted by: Supremacy Claus | Feb 23, 2010 10:19:40 PM

With all do respect Prof. Dow, as a long time Harris County criminal defense attorney, TDS doesn't have the best reputation among the appellate bar or the defense bar at large. Sorry. Thems the facts.

If success is judged by results rather than the high percentage of earnestness then TDS doesn't fare as well as some of the people in the trenches downtown. That doesn't make your staff bad, or outside the norm since 90% of the lawyers at the CJC should stay far away from capital work - both trial and post-conviction.

But I'd find it hard to recommend to anyone, let alone a someone facing CP, an appellate lawyer who's never tried a case - or for that matter - who has moved straight from law school into a isolated ultra-niche practice like TDS. It's a problem of experience.

And you know as well as I that TDS is outside the criminal defense community rather than a part of it - and that is to it (and the client's) detriment. The pool of excellent criminal litigators in Harris County is heavily composed of former ADA's, and when you are talking about real capital experience, it's almost exclusively thus, but since they don't travel in the same political circles as the true believers at TDS they don't get called in to assist on these cases and the results are predictable.

It's fair to say the results might be similar whatever you might do, but TDS' isolation from the criminal bar isn't a good thing. This lack of outreach to the local defense bar, reliance on foreigners with a political ax to grind, and studenty bent make the program look pretty sophomoric.

None of that is to take away from your public advocacy against a system that is unfair and rife with error and bias. And as I've met you on a few occasions over the years I will say you seem to have the best intentions, but you should know that TDS is largely ineffective because it stakes a claim outside the community rather than within it.

Posted by: Ferris Bueller | Feb 24, 2010 8:55:38 AM

And just to add to the above, Prof. Dow, now that Judge Lykos has purged, literally, hundreds of years of experience from the HCDAO, it would be the perfect time for your organization to set aside the politics and reach out to these professionals for assistance in these cases. That would be impressive. Getting on NPR? Not so much.

Posted by: Ferris Bueller | Feb 24, 2010 9:18:49 AM

SC, none of the extra-judicial executions you cite was carried out on my behalf as a citizen of the state.

Transportation accidents are accidents. Executions aren't.

Grits is right, of course. High-minded arguments against CP don't count for much.

Then again, practical arguments don't fare much better. Certainly all the clamoring about the costs of mass incarceration and capital punishment has yet to stir much action… never mind that challenging orchestrated killings with bean-counter tacks seems feckless and trite.

So some of us abolitionists continue to talk about race, class, fairness and how the veneer of civilization seems somewhat thinner each time the government plans and carries out a killing.

Posted by: John K | Feb 24, 2010 11:19:14 AM

Central to a disfcussion about the death penalty is the morality of the "People" of a state, really the people of a county, killing a human being. When they undertake this killing they afford a due process trial of sorts and argue that the defendant was evil, immoral, wrong in killing his/her victim, and deserves death. They employ all sorts of euphemisms in conducting this killing whether at the trial stage or in the public relations jargon thereafter. It is similar to the task undertaken by the state in killing unwanted kittens--they are "put to sleep". In an "execution" it is seldom reported that the man is strapped down and injected with poison until he is dead. They have some numbskull physician present to "assist"

Many of the commenters above state that the language of the article: racist, classist and unprinciples--are perhaps shallow. The one commentator above is spot on when he points out that a defendant who is white, wealthy and whose victim is a black person, has a better shot at avoiding getting the death penalty or avoiding it after getting sentenced

One of my friends who has practice criminal law for 40 years says that the proper manner of procedure would be to have the foreman of the jury shoot the defendant in the head on the courthouse square once all the appeals are exhausted. Hangings on the courthouse square no longer happen. Maybe they should be reinstated so that the public cannot hide behind all the euphemisms. Some courthouses in America post a large version of the Ten Commandments. Hanging someone within plain view of that document might provoke some thoughts within the so-call good Christians who support the killing of human beings by the State.

Posted by: mpb | Feb 24, 2010 1:41:19 PM

Most of the executions in the US were in other states, nor carried out in your name, either. Because they are so foreseeable, like the orbits of a planet, the 17,000 murders cannot be done without the forbearance of government. The latter does act in your name. You also know that 5000 of them will be of black folks, but in a single year. That is the number of lynchings by the KKK over 100 years. I hope both mass murders bother you, but those allowed by the lawyer are as 100 times as big. Were you ever told, these lynchings has a lawyer business plan? They lynched the rich and took their property. Today, we lynch 100 times as many and take taxpayer money, a much more reliable source of money.

Most accident are preventable, and have human factors. You know that. There is no such thing as an accident. A gaggle of factors clusters together and causes an accident. Prevent one of a dozen, and no accident takes place. I do not see the difference between car crashes and executions, except that crashes are 1000 more horrific and unfair.

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Posted by: LAWYERS FOR POOR AMERICANS | Feb 24, 2010 6:27:09 PM

Many of the commenters above state that the language of the article: racist, classist and unprinciples--are perhaps shallow. The one commentator above is spot on when he points out that a defendant who is white, wealthy and whose victim is a black person, has a better shot at avoiding getting the death penalty or avoiding it after getting sentencedsupra shoes
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