Constitutional Vanguard: Is a DA’s Arbitrary Decision to Spare a Convicted Killer a Valid Reason to Oppose the Death Penalty?
Let’s talk about something other than abortion, shall we?
Today’s newsletter is a long disquisition (mostly free, but with a fascinating part behind the paywall) about the recurring issue of the allegedly arbitrary nature of the death penalty. The springboard for the discussion is a decision by a South Texas DA, who styles himself as a “Mexican biker lawyer covered in tattoos,” to refuse to seek an execution date for a convicted killer who stabbed someone 29 times to rob them of $1.25. The guilt of the defendant is not in question, but the arbitrary decision by the DA prompted David French and Sarah Isgur to declare the episode the latest of many reasons to oppose the death penalty in practice — because such arbitariness reveals a fundamental arbitariness that undermines the whole process. This is my response. Excerpt from the unpaid portion:
<To me, citing DA Gonzalez’s decision as support for one’s opposition to the death penalty itself, as French and Isgur do, is as silly as announcing one’s opposition to the very concept of holding jury trials for the crime of murder, by citing the fact that the OJ Simpson jury arbitrarily let a clearly guilty man off the hook. The argument in both cases is the same: a decisionmaker — who has contempt for, and is an opponent of, a process — has acted in a highly arbitrary and indefensible manner with respect to that process. Therefore, the argument goes, the decisionmaker undermines confidence in the very process in which the decisionmaker acts. Therefore, the process itself is arbitrary . . . and we should stop engaging in it!
And an excerpt from the paid portion:
Like jurors’ power of acquittal, jurors’ power to vote for life is, as a practical matter, unlimited and entirely unreviewable, while decisions to vote for death are closely scrutinized and reviewed for decades. Thus, in this context, the discretion is very wide and unconstrained at one end of the spectrum (jurors’ power to vote for life) and very narrow and constrained at the other end of the spectrum (jurors’ power to vote for death). But the very wide range of the freedom conferred at the “life” end of the spectrum means that mechanistic determinations are out of the question. And as the decisions become less mechanical and automatic, this policy completely undermines the opposite goal of achieving equal outcomes for every person who might get the death penalty.
. . . .
Yes, it is true: in such a system, arbitrary and arguably unreasonable acts of mercy might be “unfair” in the sense that some people like Ramirez unfairly benefit from them and others do not. But the fact that such discretion exists, and even the fact that it can be abused in favor of mercy, is an indication that the system in general is, if anything, skewed towards mercy. That might make individual acts of mercy seem “arbitrary,” in the way that it seems arbitrary to French and Isgur that Ramirez has thus far evaded an execution date for a horrific crime, when a similarly situated defendant, in a jurisdiction with a DA bearing fewer tattoos and other indicia of the counterculture, might already have been executed.
In short, the fact that our system of capital punishment provides wide discretion to be merciful if inconsistent, rather than harshly consistent, is an indication that the system works in the way most Americans think it should.