Shades of Grey

Recently the American Bar Association reported about the decisions facing United States Attorney General Eric Holder in two potential death penalty cases in San Francisco. The decisions have to do with whether the Department of Justice will authorize seeking death as a punishment for two alleged gang members with three murders between them.

The article compares the percentages of Holder's authorizations to those of three former Attorney Generals who served under President Bush (Holder authorized 11 percent of technically eligible prosecutions, Ashcroft 22 percent, Gonzales 19 percent, and Mukasey 13 percent).

Mr. Holder has said that making this decision is the hardest one he has had to make as the Attorney General of the United States. A murder case is not automatically a case for which a prosecutorial agency can seek the death penalty simply by virtue of the case being a first degree murder. In the 37 states as well as the military and federal government, which allow seeking the death penalty, there are some thresholds that must be passed as a legal matter before death can even be sought.

A death penalty case is really two trials. First, it's a trial on the merits (Did the defendant commit the crime? If he did was it first degree murder?). In some jurisdictions, the question of eligibility for the death penalty is answered at the trial on the merits. This means that in order for the prosecution to even ask for the death penalty, it must prove a first-degree murder as well as an aggravating factor that takes the case into the (allegedly) small group of cases where the death penalty can even be sought.

A common aggravating factor that makes a first-degree murder case into a capital case is the first-degree murder of a police officer acting in the line of duty, or a first-degree murder of a woman during a rape. In the federal system, an aggravator factor is a murder in the course of a bank robbery for example.

Assuming the prosecution is able to establish both guilt and eligibility beyond a reasonable doubt, the jury then decides whether death is the appropriate choice of punishment. At that part of the trial, the prosecution may present aggravating evidence, some of which is statutory and some of which is not.

Some examples might include prior criminal record or other violent acts that were not charged or that did not result in a conviction and victim impact evidence. Mitigation -- reasons to punish with imprisonment rather than death -- is any evidence which might tend to explain the defendant's actions, family history, mental health issues, physical health matters or the impact the defendant's execution would have on his or her loved ones.

Before any of this happens, the prosecution makes a decision -- should it seek the death penalty? Just because it technically can doesn't mean that it will or should. Many proper considerations go into this decision, such as whether the murder is especially heinous -- involving torture perhaps, or if the murder, while qualifying, is very mitigated -- such as a contract murder where the contractor (who is eligible for death in most jurisdictions that allow for the death penalty) was a battered wife who suffered horribly at the hands of her husband whom she had killed.

Other considerations include the strength of the evidence, the background of the prosecution witnesses as well as that of the defendant him or herself.

The decision to seek the death penalty has enormous consequences -- obviously to the defendant -- but to the system as a whole. The matters which must be litigated in a death penalty case are far more complex than even in a first degree murder case.

Each side has more lawyers, more experts, more investigators and spends more time preparing for the case by virtue of the fact it is two trials, and if it reaches the second trial -- the trial for the defendant's life -- it is a broad reaching inquiry. The trial judge and his or her court personnel must also spend much more time.

In other words, the costs, financial and emotional are enormous. So the prosecutor has to weigh all of this in the balance too in making his or her decision.

There are also other considerations that aren't so proper that have entered into decisions such as these. State prosecutors run for election and it is much easier to sell "tough" than "smart" or worse, compassionate. The personal view of the prosecutor has a lot to do with this too -- in some jurisdictions the prosecutor asks for death nearly 100 percent of the time they can, and in a few, nearly never.

Race and socioeconomic disparities enter into these decisions too, sometimes consciously, sometimes not. But the statistics are stark -- all other things being equal, the single most likely predictor of whether a defendant gets the death penalty is race. I remember speaking to a junior high school on Chicago's south side during a career day, and a seventh grader asked me an interesting question. "What is the first thing you want to know when you get a new case?" I said, before I even thought about it, "What color the victim is."

The sad thing was, I didn't need to explain that answer to any of those young African-American children. They already knew. And studies bear this out -- if a deceased person is white, death is a far more likely outcome all other things being equal, and if the deceased is white and the defendant is not well that is the formula for death.

So when Mr. Holder says these decision are difficult, he isn't kidding. Legal judgments and moral ones enter into it, and the choice to seek death makes it nearly impossible for a defendant to be acquitted since he will be tried in front of a jury that has already been asked about death before a single witness has been sworn, and from which everyone who opposes the death penalty has been excluded.

What such a decision asks of Mr. Holder and other well-intentioned prosecutors is something that is hard to measure. Just how "bad" is the defendant, how bad is the crime? Legal culpability is one thing, but moral culpability travels across a spectrum and is difficult to assess except perhaps at either. It is a decision that requires a level of legal and moral analysis that any thoughtful person would avoid at all costs.

I recently argued a motion to preclude the death penalty against a prosecutor who said that the state wasn't sentencing the defendant to death -- it would be the jury if they so chose -- so how (in essence) dare I suggest that the decision to seek death was his? This is a dangerous avoidance of responsibility.

Suggesting that its really not the state -- or in the Department of Justice's case the federal government -- is analogous to suggesting that BP's oil leak isn't the cause of the animals being coated with oil since they "chose" to swim in it. Mr. Holder knows precisely the decisions he is facing, and acknowledges their difficulty. Mr. Holder, the reason you struggle with such decisions is that they are too close to omnipotent, something none of us is.

© 2010 Andrea D. Lyon

Andrea D. Lyon, author of Angel of Death Row: My Life as a Death Penalty Defense Lawyer, is Clinical Professor of Law, Director of the Center for Justice in Capital Cases, and Associate Dean for Clinical Programs at DePaul University College of Law in Chicago. She began her career at the cook County Public Defender's Office, working her way up to Chief of the Homicide Task Force, a 22-lawyer unit that represents people accused of homicide. Lyon has tried more than 130 homicide cases, both within the public defender's office and elsewhere. She has defended more than 20 potential capital cases at the trial level. Of these, she has taken 19 through the penalty phase, and won them all. She lives in Flossmoor, Illinois.
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