As I’ve made clear before, I’m strongly against the death penalty for ethical, moral, and philosophical reasons. And so, when I say that I’m going to tell the story of a case that shines a light on some of the biggest problems of the death penalty as applied to our criminal justice system, you will probably say to yourself “I’ve heard this before.” You then will assume that I’ll tell some sob story about a young black kid who was brought up wrong, and was then trying to make something out of his life when he did something stupid and some white guy ended up dead. And then you’ll probably assume that while the facts were somewhat questionable, an all-white jury sentenced this kid to death in a disturbingly by-the-book sort of way.
Sorry to disappoint, but this is not that story.
This is the story, instead, of Brian Nichols. Yes, he’s a black man who was convicted of murder in Georgia. But the story diverges from there. According to his wikipedia page, he had a reasonably normal middle class background. He went to college in Pennsylvania (two of them actually); got into a few minor scrapes with the law, but nothing bad. Then he moved to Atlanta and worked as a Unix programmer for Hewlett-Packard and UPS. He pulled down a six-figure salary, attended church regularly, and seemed to be a solid, respectable citizen. That is, until he broke into his ex-girlfriend’s house, tied her up, and raped her. Then, during the second trial for that crime (the first ended in mistrial) he escaped from lock-up and went on a one-man crime spree that left four people dead (a judge, a court-reporter, a police sergeant, and a federal customs agent) and several others hospitalized before he was finally captured. After being captured, he confessed to his crimes and offered to plead guilty in exchange for life-without-parole. The prosecutor, however, wanted the death penalty; and what followed was one of the most expensive trials in Georgia state history. The three year trial went through every single piece of the massive evidence against Nichols, while the public defenders fought every single piece of evidence. The jury was racially mixed, and actually included only one white male. Nichols received his fair trial, was found guilty… and was sentenced to the maximum prison sentence allowed by law because the jury failed to reach a unanimous verdict on the death penalty.
So why am I disappointed? The problem here isn’t the Nichols case itself; in my opinion, it went exactly like it should have (although the prosecutor should have accepted the plea deal and saved everyone the time and money of the trial). The problem is the political fallout.
In particular, Georgia state legislators are trying to change the law to mandate that death-penalty sentences no longer need to be unanimous. Let’s step back for a second. The Supreme Court has repeatedly ruled that the death penalty is inherently different than other penalties given under law, and ought to have special consideration. In particular, juries are required to hand out death penalty sentences, whereas in most other criminal cases it is the judges who determine sentences (within the constraints of the law, of course). Now, if Georgia did pass this law, it is unclear whether or not the Supreme Court would rule it to be Constitutional. But the Georgia politicians are arguing that the unanimity requirement is too high, because there will often be one or two people on a jury who are philosophically opposed to the death penalty. Therefore, juries ought to have the right to overrule the “unreasonable” minority and sentence people to die despite one or two dissenting voices. It’s not an unreasonable point, except for one tiny fact: their is already plenty of license given to prevent that “unreasonable” minority from serving on a capital jury in the first place.
During normal jury selection, jurors can be eliminated if they are mentally ill, or if it can be demonstrated that they have any biases that might effect their determination of guilt. In most states, each side is allowed to eliminate a certain number of people without any reason at all–as long as doing so doesn’t fundamentally alter the racial, ethnic, or gender balance of the jury. In capital murder cases, however, juries also have to be “death qualified“. The Supreme Court has repeatedly ruled that prosecutors can eliminate potential jurors, if those jurors are biased against the death penalty itself in a way that makes them predisposed to not implement it. In other words, the “problem” with the Nichols jury, if you believe that he deserved to die for his crimes, had nothing to do with the unanimity rule. Instead, the problem is that the prosecutor did a horrible job during jury selection by letting three people onto the jury who were predisposed against the death penalty.
But there is a broader problem at work here: Death Qualification is a horribly stupid idea. As should be obvious to anyone who has even a passing familiarity with statistics or sociology, people who don’t like the death penalty are more likely to be female or minority. They are more likely to be liberal and Democratic. They will also make systematically different choices of guilt or innocence in certain cases. In statistics it’s called “selecting on the dependent variable”, and it’s a big no-no. Death Qualification means that juries are significantly more white, more male, and more conservative than the population that they supposedly represent. Is it therefore any wonder that black men are more likely to be put to death than white men–because, after all, shouldn’t we expect greater leniency among jurors from similar backgrounds to the defendant?
If we’re going to have a death penalty, let’s at least try to make the system as fair as possible. And that means dumping death qualification. Of course, that means that on any jury there are likely to be at least one or two people there who object to the death penalty for ethical or moral reasons–and yeah, that might mean fewer death penalty convictions. But that’s not such a bad thing. And at that point, if you want to talk to me about reducing the unanimity requirement to, say three-fourths (9/12 jurors), I’d be much more willing to listen to those arguments.
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