An article you must read about humanity and a real lawyer (who is also a prosecutor)

Luckily, I have never had to impose the death penalty.  But, I review death penalty habeas cases and, not infrequently, find no room to spare the defendant. It is not enjoyable work.

Now, imagine you are an elected state prosecutor in a small town, say in Texas (or Nebraska). You have to decide whether to seek the death penalty. What type of a person, what kind of lawyer, do you want to make that decision?  Before you answer, read this absolutely superb piece of writing by Maurice Chammah, To Kill? Or Not to Kill?As executions decline in Texas, a small-town prosecutor decides whether to seek the death penalty, Texas Observer (April 23, 2014).


PS. Great thanks to Southern Law Student (SLS) for the tip. By the way, I predict that SLS will become a really great lawyer, and a highly introspective one at that.

21 responses

  1. I found this part the most striking. On why Reis decided to watch the execution:

    “let’s not mince words, let’s not play games. We’re killing a human being. Would you look him in the eye? Would you blow his brains out and watch him die? That has to be the visceral picture of what you’re doing. Can you cold-bloodedly kill this human being? If you cannot, why would you ask 12 people to make an executioner do that?”

    Judge, I read your post on sentencing and allocution where sometimes you take off your glasses when things get tough. Would you have done the same if the sentence was death?

  2. Life and death, left to a guy’s personal moral, rhetorical, religious and empathetic whims. That’s no basis for a system of governmen that kills people.

  3. SHG,

    First, I am going to take the clip to my cancer center, and in the infusion room, put it up on the big screen TV. EVERYONE SHOULD SEE IT BEFORE THEY DIE. I laughed my ass off.

    Second, you have heart, though you protest not. You flirt with (or I should say scream about) legal realism, but you really think there is simple justice out there. That is both admirable and confusing.

    Finally, aside from telling red necks (like me) that you don’t get to kill monsters who slaughter others even though life for the innocent is nasty, brutish and short absent the sword, what the hell is your solution to leaving the death penalty to a prosecutor’s “personal moral, rhetorical, religious and empathetic whims?” I know, more government rules!

    All the best.


  4. I wouldn’t kill the kid who with the brother set the bomb at the Marathon. So, I couldn’t get the job as the prosecutor, could I? Nothing could convince me to sign a death warrant. Do you really think any political decision in Texas is fair, what with the way the voting districts are aligned. It’s bad enough we send so many people to jail; killing them is a worse sin.

  5. Lorin,

    Your point really gets to the heart of the matter, as does the comment by SHG. Should anyone get to make that decision? In a democracy, that depends upon courts to protect the rights of individuals from the mob, what is the role of the judiciary when it comes to the ultimate punishment?

    Thanks, as ever, for writing.

    All the best.


  6. Judge:
    Great article. Whatever differences I might have with DA Reis, he sounds like a good man who is trying to do his best. I hate to sound like a bleeding heart liberal here (in fact, I consider myself extremely conservative), but the death penalty–unique amongst all the penalties in the criminal justice system–can never provide easy resolutions. Whether a prosecutor seeks it or not, it seems that its implications must cause all of those involved to toss and turn at night. At that may not necessarily be a bad thing.

  7. TF,

    Yes. See, for example, here for a death penalty case where I wrote the report and recommendation as a magistrate judge that was adopted by the district judge and resulted in the granting of the writ and ultimate imposition of a life sentence. See also here where I granted the writ in a death case and got reversed.

    All the best.


  8. I don’t think there is “simple justice” out there. I don’t know what “justice” is, but whatever it is, it’s never simple. It’s a rhetorical device that’s widely used to justify whatever someone wants it to be when there is no better rationale. Therein lies the trick I play.

  9. Robert,

    The article I thought perfectly captured your final thought. The article is a beautiful piece of journalism about a decent man who is trying his fragile best. In the real world, I think that is about all we can expect. That said, we should never sleep easy when we snuff out the life of another citizen.

    All the best.


  10. RGK,
    From the way I understand it, the judiciary’s role (at least in the trial phase) as an executor is practically nonexistent here in South Carolina. They are mere administrators of the trial. They have nothing to do with the life and death decision. That heavy burden is in the hands of two groups: the prosecutors and the jury’s.

    We split the responsibility between the two groups. Prosecutors must give notice of the intent to seek the death penalty, and then must argue to the jury, first that the defendant is guilty of murder, and then second, that he should be punished by death. Then, the jury retires to deliberate. The jury form is divided into two segments. One, the recommendation of life, only requires that the foreman sign it and return it. The other, the recommendation for death, requires all twelve jurors to sign and to list the aggravating factors.

    An experienced lawyer seems to be best to make the call whether or not someone should be death eligible. Prosecutors have a unique set of experience that allows them to determine more effectively than other groups who should be considered for death penalty. They see criminal cases day in and day out, and they know how to separate the regular murders from the truly horrific cases. But leaving the responsibiltiy of death in the hands of an educated elite without input from the community leads to tyranny. It’s not the answer.

    But a jury of your peers should also make the decision. Forcing 12 individuals with different life experiences to agree on such a serious matter before carrying out the punishment places the responsiblity squarely in teh right corner. It shows that the case has been considered by many different people, from many different walks of life, and they all agree on the outcome. But leaving the responsibility of death soley in the hands of the mob also results in tyranny. Jurors can be manipulated, and their passions can blind them to complex issues such as constitutional rights.

    I don’t know much about other systems, but I am comforted by that split. Giving either group sole control could lead to a gross injustice. Splitting the difference helps prevent that (although it does not eliminate it, as we have all seen).

    I would never pretend this system is perfect. I am certain I will see such things again and again. Things happen, and people abuse their positions. But, unfortunately, I can’t think of a better system. We are human beings, and we live in a human system.

    I think Mr. Reis is a model for how prosecutors should act. He shows understanding of the power he holds, and thinks very carefully before using it. That is a man I would trust with my community’s safety.

    Now, I’m young, and there’s a lot I don’t understand. But hopefully these insights are useful. This article made me do a lot more thinking; it was excellently written. RGK, thank you for the very kind words in the original post.

  11. In some states the jury merely recommends a sentence, the judge is not bound to jury’s decision.

    Some SCOTUS justices have thought that this is incorrect (see Breyer in Apprendi) and just recently I believe there was a case denied cert (but Sotomayor and Breyer dissented from cert vigoriously). The case was out of Alabama where state judges are elected. There was statistical data that suggested that the judges more frequently used these “judicial overrides” of jury recommendations of life (thus imposing death) on election years.

  12. LTL,

    Jury sentencing generally, and jury sentencing in death cases, makes a lot of sense to me.

    In fact, as we drift more and more away from the guided judicial discretion of the Guidelines in the federal courts, I am inclined toward a system of submitting Guideline enhancements and mitigators to juries in each and every federal case. I would allow the jury in the federal court to express the precise sentence and I would allow the jury to ignore proven Guideline enhancements and mitigators if they thought best, although I would make the jury make findings on such. As for supervise released after prison, I would allow the jury to set the length of supervised release and the standard conditions.

    Now, I don’t for a minute agree with Justice Scalia that jury sentencing was required at the Founding. He was just wrong as a historical matter. But, I have come to the conclusion that properly selected jurors are every bit as good as judges when it comes to sentencing. And allowing juries to sentence within a controlled environment, with lawyers and judges to guide the jury and to protect the interests of the criminal, strikes me as the proper balance.

    This is all whimsy. But old men are like that.

    All the best.


  13. Mr. Duckman, with all due respect, you’re not from here.

    There are some people for whom the death penalty is the best and most appropriate solution. Kenneth McDuff comes to mind.

    I agree that we send too many to jail, it is a result of the failed war on drugs. I do not agree that executing people is a sin, nor that it is uncalled for. Texans take a more retributive or Kantian view.

    “If an offender has committed murder, he must die. In this case, no possible substitute can satisfy justice. For there is no parallel between death and even the most miserable life, so that there is no equality of crime and retribution unless the perpetrator is judicially put to death.” Immanuel Kant, Metaphysical Elements of Justice: Part I of The Metaphysics of Morals 139 (John Ladd, ed., 1999).

    Many in Texas would be good with that system of punishment, but defer to the SCOTUS restrictions on capital punishment.

  14. Juries, or at least the ones on which I’ve served, tend to formulate their view of appropriate punishment along with their beginning to gel (congeal?) around a guilty verdict, even in jurisdictions where the punishment isn’t theirs to determine or even recommend.

    I’m not sure this is bad.

    But in a capital case, execution is irreversible. Juries also, as has been mentioned, can be manipulated by the prosecutor as well as the defense, thus setting the stage for a “correct” punishment given a capital crime conviction.

    Maybe, for capital crimes with a conviction, an entirely new jury should consider de nihilo the penalty to be applied.

    That’s expensive, though, not only in dollars, but in promptness of justice.

    Eric Hines

  15. SLS:

    I might join you in taking comfort in the shared responsibility between prosecutor and jurors in death cases if I had less experience with what’s involved in getting a death-qualified jury. In my state, at least, it is unlikely to ever have a jury in a death case that is any kind of representative sample of the community, because as a practical matter jurors with reservations about the death penalty are likely to be stricken for cause, resulting in a jury that is both pro-conviction and pro-death.

    I’m not philosophically opposed to the death penalty, but from where I sit its practical application is too far removed from its theoretical justification to make it worth keeping. One small example I rarely hear discussed: some who support the death penalty favor it only for cases where there is, not merely no reasonable doubt, but no residual doubt (or some other elevated standard of proof, however phrased), but in practice death is put on the table, not just in strong cases, but in weak cases for the express purpose of getting a guilty plea by putting pressure on defense counsel to explain to the defendant that (1) no matter how thin he thinks the case may be, death is a real possibility and (2) even if the sentence isn’t death, conviction is more likely with a death-qualified jury.

    Every prosecutor isn’t like Mr. Reis. In fact, I would hazard a guess that, in the jurisdictions where death is most likely to be the sentence, few prosecutors are like Mr. Reis. I was fortunate to have spent the time I prosecuted working for an elected prosecutor who really was interested in seeing justice done, but even he was still a politician with an eye on the polls. I can’t help but see the combination of career politicians and death-qualified jurors as only a very small step up the ladder from the mob in deciding who should die.

  16. Roger,
    I think there’s a lot we agree on. I wish I had more experience to compare with yours. Until I have it, I am reluctant to make any more observations. This is too serious a subject to to come to make guesses on without experience.

  17. Gad that last sentence is horrible! This is too serious a subject to make guesses on without experience**

  18. SLS

    Don’t let me chase you away with an overstated impression of my experience. I prosecuted a few years over two decades ago.

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