If you are against capital punishment and you want to persuade a death penalty supporter to your point of view, do not talk about morality. That is the wrong strategy for two separate reasons. The first is that most death penalty supporters also hold their view for moral reasons; they believe in the concept of an eye for an eye, even if they do not quite understand that the rabbis living at the time of Jesus had long since made carrying out executions practically impossible.
But there is a second reason as well: High-brow philosophical discussions of capital punishment, of the kind one might find in the writings of Immanuel Kant or John Stuart Mill, have exactly nothing to do with the system of capital punishment as it actually exists in the United States.
Someone who wants to convince a death penalty supporter to change her mind is best off, therefore, focusing on the world in which we actually live. And in that world, there are two facts about the death penalty that play prominently in the debate over whether to keep it: the first is cost, the second is stories.
Marc Bookman is a long-time death penalty lawyer in Pennsylvania and the executive director of the Atlantic Center for Capital Representation. In his new book, A Descending Spiral, there is not a spreadsheet to be found. Bookman is not interested in the economics of capital punishment; he is interested in the stories. And he tells these stories in a riveting and page-turning way that will leave most readers embarrassed or in disbelief, or maybe both, that such a system can still exist in 21st century America.
Sister Helen Prejean, the world’s most well-known death penalty opponent, famously said that popular support for capital punishment is a mile wide but only an inch deep. Support for the death penalty has shallow roots because most people do not know very much, if they know anything at all, about how the system actually works. Bookman aims to change that and provide a crash course for all those Americans whose opinion favoring the death penalty rests on a hollow foundation.
Most of the 12 chapters focus on a single case that illuminates a single significant yet recurring failure of the death penalty system. There is the defendant in Florida who gets sentenced to death by the judge even though the jurors want his life to be spared. We meet a defendant in Texas so mentally ill he gouges out his own eyeballs, and a Jewish defendant who is sentenced to death by a racist and anti-Semitic judge in a Texas county who distributed a book to prosecutors telling them to make sure the jury did not contain “Jews, Negroes, Dagos, [or] Mexicans.”
In Georgia, a death-sentenced inmate was represented at trial by a lawyer who drank more vodka every day than most people drink water. We meet a man facing death in Pennsylvania who confessed to a crime he did not commit and another whose crime was to kill his sexual abuser. Bookman writes about sordid police and about jurors who casually use racist language during their deliberations to describe the men whose fates they control.
Perceptive readers will have two questions: How common are these debacles? And why don’t they get corrected during the appellate process? Bookman answers them both, clearly and dispassionately.
As for the debacles, they are routine. Not every death penalty lawyer can tell war stories with Bookman’s elegance or verve, but Bookman explains they could all tell them in some form or fashion. Bookman has mined the universe of capital cases not for the extraordinary, but for the mundane, and he has gathered these quotidian details into a volume that reveals abstract and philosophical discussions about the morality of capital punishment to be a farce. The death penalty is not a debate topic for intellectuals sitting in a sidewalk cafe; it is a remnant of lynching, an arbitrary system where racists and demagogues rig the results to disfavor the poor and the powerless and those with black or brown skin.
As for the supposed safety net of the appeals system, Bookman shows how through a combination of hostile legislation and judges who are unprincipled or indifferent, these cases fall through the cracks because the cracks have become chasms. Our system might not be as corrupt or broken as the system in Iran — nobody can know for sure because the Iranian system is a secretive black box — but it is more corrupt and broken than the typical death penalty supporter could even begin to imagine.
It is hard to predict whether Bookman’s book will change any minds. But it is easy to conclude that if it doesn’t at least shatter the faith of any death penalty supporter who reads it, that supporter’s mind was not open to begin with.
David R. Dow is the Cullen Professor at the University of Houston Law Center and a founder of the Texas Innocence Network and the Juvenile and Children’s Advocacy Project as well as an avid writer and active abolitionist.
