Constitutional Law, Crime, Death Penalty, Politics, Sentencing Law

Why We Can’t Have Nice Things: The Death Penalty Dilemma

On Tuesday, the Supreme Court released opinions in two habeas cases, McQuiggin v. Perkins and Trevino v. Thaler. The holdings reek of liberal judicial activism, however well-intentioned.

In Perkins, my least favorite of Tuesday’s cases, the Court held that a showing of “actual innocence” is sufficient to circumvent the Antiterrorism and Effective Death Penalty Act’s (AEDPA) statute of limitations. In effect, a narrow majority decided to judicially amend a validly enacted statute, creating an exception that the majority admits that the statute itself does not contain. On top of that, this particular case may have been a pretty defective vehicle for addressing the limitations question anyway. There’s a pesky matter, discussed at oral argument, about the procedural posture of the case, making it pretty dubious whether the Court should have even gotten to the merits here.

(Cases like Perkins make me want to appropriate my own version of Dan Savage’s “DTMFA” — shorthand for “Dump the Mother-F*cker Already.” Too often, it would be useful to just be able to write “DTMFA” for “DIG the Mother-F*cker Already” for cases that I wish that SCOTUS would dismiss as improvidently granted. But, alas, you probably have to be a syndicated sex columnist for the privilege of coining long-but-useful acronyms.)

Dark days for the fair application of AEDPA….

In the Ninth Circuit, there’s a different sort of darkness surrounding post-conviction review. In March, the Ninth Circuit granted the habeas petition of Debra Milke, the woman who has been on Arizona’s death row for the past twenty-two years after a jury found her guilty of murdering her four-year-old son. In the panel opinion, Chief Judge (and flower of my heart) Alex Kozinski excoriates the handling of the case below, detailing the police misconduct that taints Milke’s conviction. The appalling facts are the sort that make even strong death penalty proponents — to say nothing of wrongfully-convicted defendants — awfully grateful for the Great Writ.

We muck things up when SCOTUS tweaks AEDPA. We muck things up when we convict and sentence people to death.

This, kids, is why we can’t have nice things. By “nice things,” I mean here “swift, sure, and efficient capital punishment.”

In the absence of “nice things,” we’re left with the ungainly morass of AEDPA, on the one hand, and the possibility of moratoria on the death penalty, on the other.

Since I am conservative, no one is shocked that I don’t believe that the death penalty violates the Eighth Amendment. For the record, I also generally agree with SCOTUS jurisprudence in this area regarding minors and other borderline categories of defendants. When I start talking too much about cognitive capacity and brain development, though, my friends’ and exes’ eyes start rolling up into their heads. So, I’ll spare you that now, dear readers.

I, like most former or current Court of Appeals or SCOTUS clerks, saw firsthand the conveyor belt of essentially frivolous habeas petitions winding their way through the federal courts. I clerked in the Fifth Circuit, no less, where we saw a heap of such claims. Texas, in the Fifth, doesn’t always sentence more folks to death than any other state, but it consistently executes more folks than any other state… by a long shot.

With more irritation than moral ambivalence, I did my part in reviewing and mostly denying. I had no qualms about applying the law as it stands . . . which apparently is more than can be said for five sitting Supreme Court justices who voted with the majority in Perkins.

Standing at the habeas petition conveyor belt, though, one can lose sight of the very real, very terrible problems that do sometimes infect our criminal court proceedings, including capital cases.

According to the Innocence Project, eyewitness misidentification plays a role in 75 percent of convictions later overturned through DNA testing. False confessions or guilty pleas occur in about 25 percent of DNA exoneration cases. In about 15 percent of DNA exoneration cases, an informant testified against the defendant at trial. These dismal figures don’t even begin to account for sloppy or unvalidated forensics, corrupt or conviction-hungry law enforcement officers and prosecutors, or incompetent or ineffective defense counsel. Too many of these factors trace back to insufficient court resources, gross inequities between poor defendants and the government, and, dare I say it, pervasive racial and gender biases.

Rampant, systemic problems in the criminal courts mean that we can’t trust that things went smoothly — or even just constitutionally — below. So, what about the byzantine machinery of post-conviction habeas review?

The habeas system under AEDPA is expensive to administer. I wonder if we don’t spend considerably more money pursuing capital punishment and following through under AEDPA than we would spend if we coughed up a bit more money to ensure better criminal trials in the first place. According to the Death Penalty Information Center, the difference between a capital murder trial and a non-capital one can exceed $1 million. Only one in three capital trials results in a death sentence. Only one in 10 death sentences handed down results in an actual execution. Enormous government resources are spent not only trying capital cases but then processing step after step in the habeas process. I may think that a capital system is preferable to one where no crimes are punishable by death, ceteris paribus. But ceteris ain’t paribus here, and the money and manpower we spend to implement this system just don’t seem worth it.

When weighing the relative costs of the current habeas system, perhaps I don’t weight the value of executions as heavily as some do — especially some of my conservative brethren. Capital punishment doesn’t scratch a retributivist itch for me much more than life in prison does, even in cases where I am confident of the actual guilt of the offender. I am curious about this, as a matter of my own psychology. Like any loathsome hipster, I relish poetic value, and “an eye for an eye” surely has a certain poeticism to it. Hell, some of my favorite films are Japanese samurai flicks driven by meting out justice through bloody vengeance. Yet, for some reason, shooting up a guy with pentobarbital in a sterile room after two decades of paper-pushing doesn’t exactly feel like Lady Snowblood to me. (I don’t know. ETMFA, perhaps?)

I oppose the death penalty. I oppose it primarily on dry, penny-pinching policy grounds, not on constitutional or moral ones. I oppose it because the current habeas system costs more than it’s worth. I oppose it because we do get too much wrong at the pre-trial and trial levels. Swift, sure, efficient executions of our society’s most antisocial offenders would, indeed, be a nice thing. But I oppose the death penalty because, as things stand, we just don’t deserve nice things.

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. She has clerked on the U.S. Court of Appeals for the Fifth Circuit and worked as a researcher for multiple projects on the intersection of cognitive science and law, including Baylor College of Medicine’s Initiative on Neuroscience and the Law. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at

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