Life or Death? Who Decides?

The Harris County District Attorney’s Office has decided not to seek the death penalty in two capital murder cases in which a prior administration had previously announced it would seek death.

According to the Houston Chronicle (10/26/13; read the article here), Jorge Amezquita and Jonathan Siros will be spared from being tried for their lives because the new administration in the Harris County District Attorney’s Office has reviewed the cases and has decided to reverse the decision of former District Attorney Patricia Lykos. Instead of protracted and expensive death-penalty trials, years of appeals, and the possibility of being put to death by the State of Texas, these defendants will now face life without parole as the maximum penalty if convicted of capital murder.

But, this blog post, and the Houston Chronicle article, is not really about these two defendants and the crimes they allegedly committed. It is about the divergence of opinion of two successive prosecution administrations about whether to seek death in particular capital cases. Death penalty opponents have been quick to seize upon this story to point out that prosecutor discretion in death penalty cases is one of the issues that renders the death penalty unfair and arbitrary. And they have a point.

As a prosecutor, I tried four death penalty cases. In three of them, the jury sentenced the defendant to death. In the fourth, all but one juror voted for the death penalty and the judge declared the jury deadlocked. In that case, pursuant to Texas law, an automatic life sentence was imposed. One case has been reversed and is awaiting a new punishment trial. One defendant I put on death row has been executed. Another is waiting.

My feelings about the death penalty have always been mixed. I have always believed, and have said it many times, that any reasonable person must pause and consider carefully the propriety of the practice of the government putting a citizen to death. Before I tried my first death penalty case, I did a lot of soul-searching. The law in Texas provides for the death penalty in certain cases. The public supports the death penalty in Texas. Prosecutors are sworn to enforce the law and to do justice. Many victims demand the maximum penalty. The crimes committed in each of the cases I tried were senseless and horrific and the defendant a continuing danger. I never tried a death penalty case in which I personally had any doubt about guilt or that the death penalty was the appropriate punishment. If I had been assigned a case in which I believed the offense committed did not warrant a death penalty, or there was some doubt about guilt, I was prepared to leave prosecution rather than try such a case. I felt so strongly about not fully understanding and appreciating the gravity of what I would be asking a jury to do in a death penalty case that I attended two executions when I served as the Deputy Attorney General for Criminal Justice for Texas. My personal reaction to that experience is the subject for another post.

I am not opposed to the death penalty. Despite being in private practice for almost three years now, I still believe that there are some crimes so heinous, some defendants so violent and dangerous, that the death penalty should be an option for a jury. I have always believed, however, that the only justification for the death penalty is to protect society from a person found beyond a reasonable doubt to have committed a horrible murder and has demonstrated that he would likely do it again if given the chance. I told jurors that, as between the defendant who has taken a life or lives in an especially aggravated manner, and is likely to do so again, and a potential future victim, the choice seems pretty clear.

Having said all of that, I am keenly aware of the flaws in the death penalty process and the potential for an innocent person to be sentenced to death. In fact, no one can argue that it hasn’t happened. Everyone, prosecutors and death penalty abolitionists alike, agree that innocent persons have been sentenced to death. What is far less clear is whether an innocent person, at least in the modern era (since the death penalty was abolished by the Supreme Court in Furman v. Georgia in the early ‘70’s) has actually been executed. Many opponents of the death penalty insist that it has happened and point to the case of Cameron Todd Willingham, who was convicted, sentenced to death, and executed in Texas based largely on now-debunked junk science.

One of the major flaws in the death penalty process is illustrated by the Houston Chronicle article I linked to above. When I served as a special prosecutor at the Texas Attorney General’s Office in the early ‘90’s, I tried one of the first death penalty cases tried by the Texas Attorney General’s Office. While the Texas Attorney General has no appreciable criminal jurisdiction, many prosecutors around Texas request the Attorney General’s help in prosecuting difficult cases or cases in which a prosecutor might have a conflict. During my tenure with the Attorney General’s Office, I served as a special prosecutor in scores of jurisdictions all over Texas. What struck me then, as I considered requests to help out in death penalty cases, was the vastly different approaches to seeking death between jurisdictions, and from prosecutor to prosecutor. Some prosecutors would seek death in every eligible case. Some would not seek it at all. Some were especially thoughtful about the decision to seek death, and others were not so careful. In many smaller jurisdictions, the decision was simply a matter of economics. Death penalty prosecutions are expensive. Very expensive. I know of some prosecutors who simply had to tell the family members of murdered victims that the county could not afford to seek death.

The bottom line is that the decision to seek death was not, and still is not, as illustrated by this Houston Chronicle article about the decision made in the Harris County District Attorney’s Office, consistent from jurisdiction to jurisdiction. In many cases, it is not even consistent from prosecutor to prosecutor in the same office.

When a defendant’s fate rests on whether he committed the crime in Houston or in Austin, in a rural or urban jurisdiction, lands on the desk of a careful prosecutor or one who is waiting for his or her big chance to try a capital murder case, we really should stop and ask ourselves, as a society, if a re-examination is necessary to satisfy ourselves that the death penalty remains worth the risks associated with a flawed process populated by flawed participants. We are all human and we cannot create and implement a flaw-proof system to administer death in appropriate cases. We are going to make mistakes. The question is whether we are prepared to accept a certain margin of error in such a system.

Years ago, while serving as First Assistant District Attorney in Brazos County, I authored a paper on the decision to seek death, which you can read here. The paper was published in The Prosecutor, the news magazine of the Texas District and County Attorneys Association. I also lectured on the subject several times over the years. I have put a great deal of thought into the death penalty and I still have mixed emotions. This article will give you some insight into my thought processes as a younger prosecutor grappling with the decision to seek death.

This blog post is not intended to be my ultimate take on the death penalty, but rather to highlight a difficult, and perhaps unsolvable, element of the process of deciding who lives and who dies: prosecutor discretion. If you find the time to read the Houston Chronicle article and my article on The Decision to Seek Death, I would be grateful for your input. I have always respected the opinion of those who oppose the death penalty and remain persuadable on the issue in an honest debate.