12 Readable Reasons to Kill the Death Penalty
This book review may appear, at first glance, to have little to do with wealth and privilege in America. But when you consider the matter, you’ll find it has a great deal to do with those things, because the wretched characters who end up in these situations are almost invariably those whom society has left behind—impoverished, traumatized, and without education, resources, or access to good lawyers. There’s my disclaimer. Read on!
September 3, 2021 — On July 1, Attorney General Merrick Garland announced a moratorium on federal executions, interrupting, at least for the time being, a string of state-sanctioned killings. President Donald Trump had broken a nearly 20-year hiatus in putting down federal prisoners; during his last six months in office, as the New York Times reported, Trump’s Justice Department executed 13 people, including three at the bitter end of his term. Later in July, Garland announced that the Biden administration would not seek the death penalty in seven pending cases.
The vengeance of the Trump administration was but a blip in the capital punishment timeline. Executions are going out of vogue as public officials, including governors and judges, confront hard evidence that the death penalty is often wrongfully imposed—including on people later proved innocent of the crime in question by DNA evidence. Connecticut, Maryland, Nebraska, New Hampshire, and Washington have all abolished the death penalty in recent years. And although 27 states, plus the US military and the feds, still allow the ultimate punishment, only a small number of states carry it out with regularity. Over the past five years, the 87 state-level executions were clustered in 11 states, with the vast majority in just five: Alabama, Florida, Georgia, Tennessee, and Texas.
U.S. Executions, 4/4/2016 – 6/30/2021
Among those convicted of serious crimes, nonwhite defendants are substantially more likely than white ones to receive a death sentence, statistics show. Such disparities may result from racist attitudes held by police, prosecutors, judges, and jurors—or racist practices baked into the arcane processes by which different states administer justice. Death sentences result, too, from prosecutorial malfeasance and incompetent defense lawyering. Reading deeply into the ways these injustices roll out can be baffling and infuriating.
That’s not to say Marc Bookman’s A Descending Spiral: Exposing the Death Penalty in 12 Essays isn’t a good beach read. On the contrary, it is as readable as it is enlightening. Consisting of a dozen essays—some new, others published previously by outlets including Mother Jones (and edited by yours truly, which is why this review is running here and not MotherJones.com)—the collection offers an insider’s view of the machinations and fatal flaws of capital justice (and justice more broadly) as we practice it in America.
The book isn’t a solely journalistic endeavor. Bookman draws his true tales and characters from court documents and transcripts, and from his own deep knowledge and experience as a capital defense lawyer in Philadelphia. His deeply detailed stories chronicle the family lives, terrible crimes, and legal sagas of men (mostly) who never stood a chance in life—or in court, really; most endured unfathomable poverty and cruelty, trauma and/or serious mental illness. They include men like Andre Thomas, a guy so mentally disturbed that, in the years following his delusional, ritualistic killing of his wife and child, he ripped his eyes out of his head—and ate one of them. (Texas prosecutors still insisted he was a malingerer.)
Bookman uses these perverse tales to reveal broader truths, and widespread systemic dysfunction. We learn of holdout states where judges overruled unanimous jury decisions and sentenced the guilty parties to death rather than life in prison as the jury had wanted, of an unabashedly racist and anti-Semitic judge who presided over the fates of defendants from his list of hated groups, of shameless jury selection practices in capital cases, and a of white juror who voted for a Black man’s execution because “that’s what that n—– deserved.” We learn how coerced confessions are weaponized to determine a man’s fate, and of a drunkard lawyer in Georgia who singlehandedly polished off a quart of hard liquor every night of the error-prone trial that ultimately resulted in his client’s execution.
Among the themes that emerge is a continuing lack of access to decent lawyering for low-income defendants.
Among the themes that emerge is a continuing lack of access to decent lawyering for low-income capital defendants. In case after case, harried court-appointed defenders neglect to challenge sleazy prosecutorial tactics, fail in their basic due diligence, and sit silently through courtroom situations where any counselor worth a damn would object up a storm.
At least, we tell ourselves, there’s a robust appeals process in place to safeguard against miscarriages of justice at trial. And that’s true, but these essays also show how frustratingly difficult it is to reverse a bad decision in states where judges and prosecutors run for office—and win—based on their kill rates. District attorneys and state bar associations are often loath to go after prosecutors who commit misconduct, and that same professional courtesy seems to extend to miscreant trial judges. In short, once a person is condemned, no matter how circus-like the trial, higher courts can be surprisingly stingy in the granting of new trials or sentencing. And sentencing, in capital cases, is where the plug meets the socket, or the needle the vein.
The excellent final essay, “Smoke,” was a diversion for the author, who rarely writes about his own cases. “Smoke” chronicles the attempts of Bookman and his team—it takes a village—to get to the truth about the guilt or innocence of a combative client he calls Rafiq Fields. “Capital cases are not won in court—the crimes are too heinous, the victims too devastated,” Bookman writes. They “are won in investigation.” Indeed, “Smoke” is an almost cinematic detective story, replete with a bar shooting, a cast of sketchy characters, some nice plot twists, and a surprise ending. The cautionary takeaway, though, involves the ever-present temptation for police and prosecutors to clock an easy win instead of doing the painstaking shoe-leather work required to ensure justice is truly served.
Anticipating his critics, Bookman asks us to consider whether, in highlighting these dramatic cases, he might be cherry-picking? No, he concludes. These emblematic cases are likely the tip of the iceberg. Forehead-slapping stories of legal shenanigans and defense ineptitude are legion—prosecutors withholding evidence and tampering with witnesses, defenders sleeping through capital trials, missing key appeals deadlines, not bothering to fact-check damning evidentiary claims. One Philadelphia defender, Bookman writes, failed to ascertain his client’s age. Not until two years after the young man was sentenced to die did his new lawyers realize the guy was ineligible for execution—he was a juvenile when the crime was committed.
And for every injustice that comes to light, there may be countless others that never do: “The real question is not whether racist judges presiding in death penalty cases are anomalous,” Bookman writes, “but rather how many are hiding their racism from public view.”
Upon understanding how often the death penalty is misapplied in error—or on purpose—one can only imagine how screwed are those people improperly sentenced to long stretches in prison, and who lack the mandatory appeals process afforded to the condemned. One step at a time, I suppose. Suffice it to say, if Bookman’s prediction is correct, and capital punishment finally “grinds to a halt after an accumulation of wrongs,” there will be plenty of fresh opportunities out there for him and his colleagues.