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Tuesday, January 18, 2022

If you can be executed even when you’re willing to plead guilty, the death penalty is un-American

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There are a lot of reasons why abolishing the death penalty is long overdue. It has been proven time and again that it is disproportionately meted out to people of color; a whopping 77% of people on federal death row are minorities. Any talk that the death penalty is far cheaper than locking people up for life doesn’t withstand serious analysis. In my state of North Carolina, for instance, it’s been estimated that scrapping the death penalty could have saved as much as $22 million in 2005 and 2006 alone.

Well, add another reason to the list: a fundamentally un-American corollary to the usual argument for the death penalty. Prosecutors who refuse to take the death penalty off the table for a defendant who wants to plead guilty are effectively saying that said defendant has not only forfeited his right to live, but has also forfeited his right to surrender. The term “un-American” may sound harsh. But prosecutors who refuse to remove the death penalty as an option when defendants are willing to accept life in prison are effectively undermining one of the most fundamental cornerstones of our criminal justice system—the idea that even those who are clearly guilty have rights that must be respected.

Unfortunately, it seems that Eric Holder forgot this during one of his most high-profile cases as attorney general—the trial of Dzhokhar Tsarnaev for his role in the Boston Marathon bombing. Days before jury selection, Tsarnaev let it be known that he wanted to plead guilty in return for a sentence of life without parole. However, federal prosecutors refused to get rid of the death penalty option.

In doing so, then-U.S. Attorney Carmen Ortiz and her boss, Holder, put Tsarnaev’s lawyers in an impossible position. His lawyers have acknowledged from the start that Tsarnaev took part in the bombings. But despite Tsarnaev wanting to plead guilty, his lawyers felt they could not let him do so with a death sentence still hanging over him like a sword of Damocles.

I’ve spent the past six-plus years trying to understand why Holder would seek to have Tsarnaev executed. After all, there was no dispute that Tsarnaev was guilty. He was willing to plead guilty, sparing the victims, the city of Boston, and the nation the rigamarole of a trial. The fact that Holder himself has long opposed the death penalty made this decision even more baffling.

I found one possible answer in an article from the Marshall Project about Holder and the death penalty written shortly before he handed the reins of the Justice Department to Loretta Lynch in April 2015. In it, veteran death penalty defense lawyer George Kendall suggested that Holder wanted to prove that terrorism cases belong in civilian courts. Republicans had been arguing for some time that terrorism cases ought to be tried before military tribunals, and Kendall suggested that a death sentence for Tsarnaev could prove that civilian courts can handle these cases just as well.

Kendall’s argument is valid to a point. But there was still a 500-pound gorilla in the room. Tsarnaev wasn’t insulting the intelligence of the bombing victims or the people of Boston as a whole by maintaining that he was innocent. There is something fundamentally wrong if the desire to prove terrorism cases belonged in civilian courts was so important that it trumped Tsarnaev’s right to surrender.

No cause is ever so important that basic rights must be sacrificed in order to fulfill it. This isn’t just a bleeding-heart liberal sentiment. Need proof? In November 2006, NBC’s To Catch a Predator, a series that featured men being busted for soliciting sex from minors, came to Murphy, Texas—a suburb of Dallas. Murphy is located in Collin County, which at the time was still the archetypical crimson-red Southern suburban county. In conjunction with the organization Perverted-Justice, Murphy police brought charges against 23 people ensnared in the sting.

However, in June 2007, prosecutors in Collin County announced they wouldn’t prosecute any of the cases resulting from the sting. It turned out that the police had conducted “literally no prior investigation” before making the arrests. Rather, they had simply moved in on the suspected predators after receiving a signal from the NBC crew inside the sting location. Prosecutors knew that a number of the men caught in this sting were indeed child predators. But they could not ignore that NBC, Perverted-Justice, and Murphy police had ignored a basic safeguard to ensure there is a legitimate basis for an arrest. Realizing that most, if not all, of the arrests were illegal, prosecutors had no choice but to drop all charges.

In other words, even prosecutors in what was then a deep-red, “law and order” county in a state that has long been synonymous with heavy-handed justice knew that even the worst of the worst had rights that had to be respected. If they understood this, how did Holder, whom the Heritage Foundation called the most liberal attorney general in memory, not see it?

Holder’s handling of the Tsarnaev case is even more baffling considering how much it contrasts with one of his first major acts as attorney general. Soon after taking office, Holder discovered the conviction of former Senator Ted Stevens on corruption charges was irrevocably tainted. Prosecutors not only withheld exculpatory evidence from the defense, but may have knowingly allowed their star witness to perjure himself. When Holder learned the extent of this, he felt compelled to seek dismissal of the indictment. Since Stevens hadn’t been sentenced, it had the effect of vacating his conviction.

Almost as baffling as Holder’s decision to push for Tsarnaev’s execution was the failure of his legal team to raise this on appeal. Last July, Tsarnaev’s death sentence was tossed out by a panel of the First Circuit Court of Appeals.

The appellate panel found that the judge erred when he barred Tsarnaev’s defense team from asking jurors about pretrial publicity. It also found that during the penalty phase, the judge was wrong to bar jurors from weighing the role of his older brother, Tamerlan, in two 2011 murders—which would have bolstered defense claims that Tsarnaev was under Tamerlan’s control and influence. Left unaddressed was the more fundamental problem of Tsarnaev effectively being denied a chance to plead guilty.

Last month, in response to an appeal from the Trump Justice Department, the Supreme Court announced it would take up the question of whether Tsarnaev should live or die.

As a result of Tsarnaev’s lawyers not raising the issue sooner, SCOTUS may have missed a golden opportunity to decide whether defendants have a right to plead guilty and avoid the death penalty.

I was just as baffled after Dylann Roof faced the prospect of being executed for turning Emanuel AME Zion Church in Charleston into a bloodbath. Not long after his arrest, Roof confessed to murdering nine people, and made it clear that he was willing to plead guilty to both federal and state charges in return for life in prison. However, when he was arraigned on federal charges in July 2015, his lawyers advised him to plead not guilty. They felt that they could not in good conscience allow him to plead guilty since Attorney General Lynch had yet to decide whether to seek the death penalty; 18 of the 33 federal charges against Roof potentially carried the death penalty.

The following May, Lynch decided to seek the death penalty. If possible, the manner in which Roof’s state charges were handled was even more outrageous. Two months after Roof was convicted and sentenced to death in federal court, he agreed to plead guilty to nine state counts of murder and three counts of attempted murder. He was then sentenced to life without parole.

Had Roof gone to trial on state charges, the case would have been overseen by Scarlett Wilson, the solicitor, or district attorney, for the judicial circuit that includes most of Charleston. Wilson later said that she opted to seek a plea deal in part because South Carolina had been unable to obtain the drugs for its lethal injection cocktail since its last supply expired in 2013. It simply defies belief that Wilson didn’t know this in 2015, when she bellowed that Roof had committed “the ultimate crime,” and therefore “justice from our state demands the ultimate punishment.”

Wilson also said that she was not willing to put the victims’ families through a second death penalty trial when he was already facing a death sentence at the federal level. Um, Scarlett? Roof was willing to plead guilty rather than insult the intelligence of the victims’ families and the nation at large by claiming he was innocent. Riddle me this: Were you willing to move forward with this trial just to get a pound of flesh?

If possible, the handling of the case of Nikolas Cruz, the gunman in the Stoneman Douglas High School shooting, is at least as outrageous as that of Tsarnaev. Cruz has repeatedly expressed his desire to plead guilty to all 34 counts against him—17 counts of murder and 17 counts of attempted murder—in return for life without parole. Just 24 hours after the shooting, Broward County public defender Howard Finkelstein, whose office is representing Cruz, rightly pointed out a guilty plea would allow the victims and the community to heal. He added that since there is no doubt Cruz is guilty, it makes no sense to hold a trial simply to decide whether he lives or dies.

But prosecutors aren’t willing to see reason. Longtime Broward County state’s attorney Michael Satz didn’t run for reelection in 2020, but is staying on to prosecute Cruz. He has argued that a jury, not Cruz himself, should decide his sentence. He and his successor, Harold Pryor, have refused to bend even as the pandemic has placed the trial in a holding pattern.

If this is the line Satz and Pryor are taking, one has to wonder what they would do in cases where the evidence of guilt isn’t nearly as overwhelming. I’m reminded of the egregious miscarriage of justice suffered by the Scott sisters. Mississippi prosecutors based their case almost entirely on the word of a 14-year-old boy who was told that unless he testified against Gladys and Jamie Scott, he would be sent to adult prison and raped. When I saw this, my immediate thought was that in at least 49 other states, such a travesty would be grounds for a mistrial, and possibly a full-blown acquittal. After seeing that Broward County believes allowing Cruz to plead guilty would amount to letting him choose his own punishment, I wonder if a Scott sisters-style travesty could happen there as well.

For a long time, I thought that a number of European drugmakers were overreacting by refusing to honor American orders for the essential anesthetic sodium thiopental. That drug had long been used as part of the cocktail for lethal injections, and foreign companies were unwilling to take the chance that their product would wind up in the hands of corrections departments for use in executions—even at the expense of sacrificing their entire American business. But this stance may not be that extreme if it is at all acceptable to deny defendants a chance to plead guilty and avoid the death penalty. It proves the death penalty is inherently inhumane.


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