The Book of the Century About the Death Penalty

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Capital cases are a mess because we are too human to conduct them properly -- and too arrogant to concede mistakes.

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If you want to better understand why America is slowing turning away from the death penalty, do yourself a favor and read this excerpt from Anatomy of Injustice by Raymond Bonner in the new issue of The Atlantic. The journalist, author, and Atlantic correspondent, has written a masterful book (to be released on February 22) about the application and excesses of state capital punishment regimes. It is as eloquent, important, and accessible an addition to legal scholarship as was Anthony Lewis' first masterpiece, Gideon's Trumpet, two generations ago.


It doesn't matter on which side of the death penalty gulf you reside. If you believe in capital punishment, you ought to read the book to better understand why 100 million or so of your neighbors believe the system is arbitrary and capricious and beneath the dignity of a civilized nation. And if you are opposed to capital punishment, you ought to read the book to understand exactly how and why so many politicians and prosecutors are full of crap when they profess their confidence in the accuracy and reliability of convictions in capital cases.

Anatomy of Injustice focuses upon a single case in South Carolina, in which a black man named Edward Lee Elmore was thrice tried, convicted, and sentenced to death for the murder of an elderly white woman named Dorothy Ely Edwards. She was killed in 1982, and Elmore was first tried just a few months later. And yet, incredibly, just before Thanksgiving of this year, 30 years after the murder, the 4th U.S. Circuit Court of Appeals granted Elmore the right to his fourth new trial. He has been in prison all this time, often on death row.

"Having scrutinized volumes of records of Elmore's three trials and his state [post-conviction-relief] proceedings," the sharply-divided federal appeals court ruled on November 22 in a 194-page opinion, "we recognize that there are grave questions about whether it really was Elmore who murdered Mrs. Edwards." In this sentence, we see an essential truth about the failure of capital punishment in America. It's disconcerting enough that the law fails to require the level of certainty that morality demands. What's worse is that even the lower standard goes unmet in a shocking number of capital cases.

In the introduction to his book, Bonner writes:

By and large, however, the system yields justice. As a former prosecutor and defense counsel, however, I know the system is only as good as the lawyers who administer it -- prosecutors, defense counsel, judges. If prosecutors abuse their authority, if defense lawyers are lazy or incompetent, if judges are weak or biased, the result is injustice, and in capital cases that can spell death.

Here, Bonner is channeling Supreme Court Justice William O. Douglas from his concurrence in Furman v. Georgia, the 1972 case that briefly ended America's death penalty experiment. Justice Douglas wrote:

The generality of a law inflicting capital punishment is one thing. What may be said of the validity of a law on the books and what may be done with the law in its application do, or may, lead to quite different conclusions. It would seem to be incontestable that the death penalty inflicted on one defendant is "unusual" if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices...

Forty years apart, what both men found with capital punishment in America is that the law requires a level of accuracy that mere mortals are too often unable to accomplish. To his explanation, Bonner might well add: 1) jurors, who are often insultingly quick with their capital verdicts; 2) witnesses, who are often (intentionally or not) inaccurate with their testimony; 3) the police, who either knowingly or negligently disregard facts and evidence; 4) legislators, who have skewed rules to favor finality over accuracy, and; 5) prosecutors, who way too often put local politics over proof. And don't forget the media! 

What is undeniable today, and what Bonner's book in its rich detail shows so well, is that the "play of prejudices" Justice Douglas warned about is unavoidable in many capital cases. It cannot be regulated away. It cannot be commanded by the justices in Washington. There is no federal rule of criminal procedure that governs it. Criminal justice budget shortfalls all over the country sure won't tamp it down. Too many of our capital cases are a mess -- including the Elmore case -- because we are too human to do it right in the first place, too immodest to concede our mistakes, and too cheap to fix them anyway.

Bonner identifies several books he believes were instrumental in educating him about criminal justice and the practice of the death penalty in America. One is Capital Punishment on Trial: Furman v. Georgia and the Death Penalty in Modern America by David Oshinsky. The other is The Origins of Adversary Criminal Trial by John H. Langbein, the Yale Law School professor. To this list I would certainly add The Death Penalty: An American History by Stuart Banner, published now a decade ago. 

Bonner's book is different from each of these, and I think potentially more influential, because it will seem more accessible to the general reader. Accessible not just because of Bonner's writing style but also because the narrative opens itself up to people on all sides of the debate. It does not minimize the horror of the crime. It does not disrespect the memory of the victim. It does not mock the community's interest in punishing the murderers in its midst. It's a reporter's book, not a professor's book, and it yields to a broader reach.

That's good, because the more people who read up on this topic, the more will understand the inherent paradox of today's death penalty. The law commands us to do better, but we have proven for 35 years that we cannot always do things right. And our pocketbooks and our prejudices and our pride prohibit us from fixing the system. South Carolina. North Carolina. Geogia. Ohio. Texas. Louisiana. The venues change but the problems persist. You can point to a dozen moments in Bonner's long narrative where more good faith by public officials, or at least more good will, might have made a difference. How do you legislate that into the system?    

Bonner's book comes at a crucial time in the modern history of the death penalty. It comes at a time when views are slowly hardening against the current unreliable and expensive system. It comes at a time when several states are looking to eliminate their capital regimes. It comes at a time when even the conservative Supreme Court has sent a signal that capital cases must be handled better. It's a book that surely comes too late for some death row inmates but perhaps just in time for others.


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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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