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The deep shame of capital punishment in America
Even if you support the death penalty, you shouldn't support the flawed way our government enacts it
"There are noble deaths," the author writes, and "there are ignoble ones."
"There are noble deaths," the author writes, and "there are ignoble ones." (AP Photo/Pat Sullivan, File)
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ast week was a memorable one in the annals of American justice. The national Exoneration Registry announced that 87 people were exonerated last year, a new record. From Brooklyn, The New York Times reported on a wrongful conviction scandal its editors called "a tidal wave that could dwarf other exoneration clusters." In Louisiana, Jerome Morgan walked out of prison after 20 years when a state judge found his murder conviction to be marked by "deception, manipulation, and coercion" on the part of the New Orleans Police Department. And an appellate court in Texas told death row inmate Larry Swearingen that he had no right to DNA test the murder weapon used in his case.

All of these stories, the good and the bad, remind us of the arbitrary and capricious nature of our nation's justice systems. Whether you are executed or not, whether you are wrongly imprisoned or not — it doesn't just depend on the evidence against you. It depends on your race and the race of the victim, on the political predilections of your prosecutor and your judge, on the honor of police detectives, on the accuracy of the eyewitnesses testifying against you, on the skill and competency of your defense attorney, and on the mercy of the governor who makes a judgment on clemency. Oh, and it depends on which state you live in and which county in that state.

No one knows any of this better than David R. Dow, a law professor at the University of Houston Law Center who has handled hundreds of capital cases in Texas and who has written an excellent new book that helps us better understand the nature of the death penalty. Dow's Things I've Learned From Dying is actually three very personal narratives in one, all of them touching upon how we deal with death, whether it comes from a needle in an execution chamber, cancer, or anything else. "Which is better," Dow asks in his introduction, "to be able to circle the date on a calendar five years from today when your life will end? Or to get flattened by a truck crossing the street and never see it coming? Who had the easier death: Timothy McVeigh, or his victims?"

This is a book from a guy who spends an awful lot of time thinking about dying, and about what it takes to live, and how people cope in those moments when life and death intersect. The insider's view of some of his capital cases alone makes Dow's book compelling. And the lesson of these passages is clear: A person's life is always more than just the worst moments of it, a sentiment that Bryan Stevenson, another clear and eloquent voice in the nation's debate over capital punishment, has made in his speeches. Good for both of them. If there is one thing the debate over the death penalty needs, it's a better understanding of the difference between explaining why some people are moved to murder and excusing them for doing so.

I'll leave it to others to parse the metaphysical components of this work. In my view, as a legal analyst, Dow is at his best in this book, in all of his books, when he is criticizing the nature of law and justice in Texas. An eyewitness to the absurdity of the state's capital regime, where sleeping defense attorneys are no impediment to a man's fair trial rights, where judges close the courthouse doors so they don't have to hear last-minute stay requests, where mentally disabled men are executed despite the Supreme Court's prohibition against the practice, Dow is a combatant on the front lines of an endless battle wherein judges are rewarded for being outwardly hostile to defense attorneys who have the temerity to seek relief on behalf of their clients.

His testimony, if you want to call it that, is invaluable because it is essentially indisputable: The justice that Texas tolerates, that it encourages, that the federal courts countenance with their lingering silence is unlike any other justice in any other state. By calling out his colleagues of the bar and bench, by acknowledging with his blunt criticism that the law and the facts make little difference in his pending cases, Dow shows us how little Texas cares about the dismal reputation its justice systems have earned beyond its borders. If I were writing the subtitle to the book, it would be: "Just Because I'm a Capital Defense Attorney in Texas Doesn't Mean I'm Wrong."

So Dow is right, for example, when he writes: "I tell my students there's a difference between law and ideology, but the difference vanishes when the judges are ideologues."

Take it from me, too: Many judges who handle capital cases, in Texas and elsewhere, remain mere functionaries in the state's efforts to justify and defend even those capital convictions not remotely worth justifying or defending. When the Texas Court of Criminal Appeals last week denied Larry Swearingen's request to test DNA from the murder weapon, for example, the judges said there could be no testing in the absence of testing that showed there was DNA on the weapon. Dow is right to see this madness for what it is — and to say so aloud.

Just imagine how much time and money Texas would save, and how much more just its justice system would be, if instead of embracing arcane procedural barriers to evaluating the accuracy of capital convictions it focused instead upon ensuring its police and prosecutors and judges and defense attorneys and witnesses got capital trials right in the first place. This ought to be the dream of every person who cares about law and order in America. And yet, Dow's book reminds us how vast the gulf is between the dream and reality. There are noble deaths. There are ignoble ones. There are deaths that come too soon and deaths that come too late. Dow's book is a modern concurrence of the view of death that John Donne wrote about centuries ago: "Any man's death diminishes me," Donne wrote, "because I am involved in mankind."

Andrew Cohen is a contributing editor at The Atlantic, a fellow at the Brennan Center for Justice, and a legal analyst for 60 Minutes and CBS Radio News. He has covered the law and justice beat since 1997 and was the 2012 winner of the American Bar Association's Silver Gavel Award for commentary.

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