Jan 07, 2008

When Defense Lawyers Want Their Clients to Get the Death Penalty

In one case I know of, the defendant wanted death rather than life. After handing down a first-degree murder conviction, the jury must decide between death and life in prison. In most cases, the defendant wants the life sentence and the lawyer works hard to achieve this result. I know of one case, however, where the defense strategy throughout the trial was to make sure the jury brought home a death sentence. You know a justice system has to be screwed up when a murderer wants the death penalty rather than life in prison. Of course, some criminals prefer to die than be locked up for the rest of their life, but this isn't common.

A death sentence takes a long time to carry out. The starting point for this discussion is that it usually takes a long time to move a convicted murderer from the courtroom to the execution chamber. Stays of over 20 years on death row are not uncommon, which means that in many states, a death sentence means the murderer still has a lot of living left to do. Death row gets the condemned prisoner a cell all by himself and removes him from the general population. The prison wants to make sure that nothing bad happens to the prisoner before he's executed. The majesty of the law is hard at work here. (Incidentally, please forgive the male gender reference. As you'll see, this discussion applies almost exclusively to male prisoners.)

A life sentence is no picnic. Unlike the death penalty, a life sentence means the convict will necessarily come in contact with other prisoners, subjecting him to the possibility of sexual assaults, AIDS, and even attempts on his life. And the convict will likely be double- or triple-celled unless he is put in "lockdown" for long stretches -- which happens more often that you would care to think. Nonetheless, almost always, a convicted murderer prefers the opportunity to live a long life, even in prison, even in solitary confinement, rather than face execution somewhere down the line.

Not so for the case I'm talking about. In this case, the defendant raped, tortured, and murdered a young girl. The evidence was overwhelming -- including a solid confession -- and an insanity plea was not viable for a number of reasons. In other words, it was clear that the jury would convict this defendant of first-degree murder. The defendant and his lawyers had to decide whether they should at least introduce evidence that would soften the jury's attitude toward him, such as the fact that the defendant was horribly abused as a child, or whether they should play along with the prosecutor's portrayal of the defendant as a monster.

The decision was a no-brainer. As it turned out, the decision by the defense team was an easy one. As most of you know, the life span for prisoners who have raped, tortured, and murdered children is short. We're talking vigilante justice to the max. When the jury came back with a death sentence, the defendant and his lawyers felt they had won the day, or, rather, a good 20 to 25 years of a not-half-bad life on death row. How do you like them apples? Of some interest, the U.S. Supreme Court will soon decide whether raping a child justifies the death penalty even though no death resulted. If the Court approves of the death penalty in such an instance, it may cut down on the number of vigilante murders, since these folks will now be put on death row instead of the general prison population.

And now for the editorializing. We really ought to follow the lead of the rest of the civilized world and do away with the death penalty in all states. In my opinion, it's flat out immoral and serves no useful purpose, an opinion that is corroborated by the many studies on the subject. Also, it is a waste of public resources. Capital murder cases are hideously expensive to try, and a 20-year stretch on death row eats up millions of dollars per prisoner. And then, of course, there is the issue of those who are wrongfully convicted. Our experience with DNA, and the fact that many innocent prisoners have been executed, should teach us that we always should allow for an opportunity to prove a convicted prisoner's innocence -- through new technology or other new evidence. The death penalty, of course, puts an end to such possibilities.

We need prison reform. Whether or not the death penalty is abolished, we desperately need prison reform so that a life sentence means life with at least a minimum amount of dignity, freedom from sexual assaults, and protection from murder as a result of an uncontrolled vigilante system of justice operating within the prison. See Rebecca Tuhus Dubrow's article in The Nation about prison reform for more on what we can do to make our prisons more humane.