6 pm, PDT
The Royko-registry: Murder
Decide the Death Penalty Question
Sergura at The
Intercept has posted a
must-read article on two death-penalty propositions Californians will vote on next Tuesday: Prop
62 takes the death
penalty off of the table entirely; Prop
66 puts post-sentencing
proceedings in death penalty cases on a fast track.
With these two mutually
exclusive propositions, the issue of how California deals with its muddled
capital punishment situation could not be placed before the voters more
clearly. The almost 800 convicted murders on California’s death rows
will be sleeping uneasily from now until next Wednesday morning.
But, as is virtually always the case with important policy issues,
California’s either-or options and the wholly-within-the-box thinking
eclipse and, ultimately, obviate discussion of more imaginative solutions
to these incredibly difficult moral questions, such as: Who should determine
whether or not a convicted murderer pays with his/her life? And how can
those decisions be made in a way that filters out bias due to the gender,
race, and ethnicity of the murderer?
Deciding whether to execute the executioner, a personal story
In 1998 I sat through my first and only murder trial. It was the trial
of Dorian Lester in Charlottesville, Virginia, a sweet, southern
city I called "home" off and on for over a period of 23 years.
By the end of Lester’s long trial I had collected over 50 pages of
scribbled notes, not because I intended writing a book about murder in a
small southern town, nor did I intend at the time to write this essay, but
because I had just taken the Virginia State Bar exam and was cocky enough
to think that maybe I would pass the thing and, hence, would someday be
called upon to actually defend someone in capital murder proceedings. But
by the end of Lester’s trial I was debating whether I should call the
bar authorities and tell them to never mind about grading my exam. I found
the judicial process of condemning a person to death to be . . . well,
both agonizing and inane. Ultimately, I went into patent law.
It was clear from the outset of Lester’s trial that the penalty phase
was going to be very intense. He was, after all, charged with capital
murder — the first person to face the death penalty in Charlottesville
in almost 20 years, which says a lot about why I spent so much time there.
The evidence against Lester was very strong. When the cops arrested
him, he and his girlfriend were on their way out of the country. He was in
possession of jewels belonging to the murdered victim, a jeweler named
George Moody, who was shot in the back of the head while he was on his
knees — executed in other words. Lester was also in possession of a
barrel that fit a Glock 9mm automatic pistol, the kind that was used to
fire the bullet into the base of Mr. Moody’s brain. Without that barrel
the forensics people would not have had a chance of connecting the fatal
bullet to the weapon, and, hence to Lester. And so, judging from the
evidence already discussed in public, there was little doubt in anybody’s
mind that by the end of this trial the jury would have to decide whether
or not Mr. Moody's executioner should be executed. The judge needed a jury
that would flip the switch, metaphorically speaking, if it came to that.
For two days the judge and the attorneys interrogated each potential
juror (or "venireman," a genderless legal term applied to those
called to jury duty) individually as to their beliefs on the death
penalty. Again and again the same hard questions were put to these good,
ordinary people of Charlottesville in order to determine which ones, if it
came to the crunch, could be counted on to carry out the most
extra-ordinary citizen’s duty of all: sentence a human being to die. As
the judge explained to one venireman who was obviously less than certain
as to where he stood on the death penalty issue, "It is no good to
get to the end of six or seven days of trial and then suddenly realize
that, hey, I really am against the death penalty. We need to know now —
right now — are you against the death penalty?" The judge was
applying the USSCt's 1968 edict from Witherspoon
v. Illinois that all jurors sitting on a capital murder case
must be willing to impose the death penalty even if they have scruples
against the death penalty generally.
Of course, the prosecution wanted a jury comprised of individuals with
a "hang ‘em high" mentality and no queasiness. The defense
wanted twelve charter members of Amnesty International or the ACLU or some
other group dogmatically opposed to the death penalty. Between these
extremes sat the judge, who wanted to be sure that each person on the jury
would weigh the all of the facts and apply the death penalty if those
facts indicated beyond a reasonable doubt that the death penalty was
demanded by the law. But from the judge’s personal point of view the problem was
this: Under Virginia law, if a jury hangs on the issue of the death
penalty (apologies for the pun), the issue defaults to the judge, who must
decide the penalty alone. The judge didn’t tell the veniremen this part.
When "beyond a reasonable doubt" is unreasonable
The words "beyond a reasonable doubt" were repeated over and
over again for two solid days like a mantra wafting up from Yogaville, the
ashram 30 miles south of the courthouse. Here is the ultimate question put
to each venireman:
"If Mr. Lester is found guilty of capital murder beyond a
reasonable doubt, and if the circumstances warrant the death penalty
beyond a reasonable doubt, will you impose the death sentence?"
Along the way to this ultimate question there were ancillary questions,
like "Have you ever discussed the death penalty with your friends or
family?" "Have you ever expressed an opinion about it?"
"Do you have any personal or religious beliefs about the death
But the judge kept coming back to: "You must tell this
Court right now: can you apply the death penalty in this case if the facts
warrant it?" There was so much emphasis on the "must" that
it rose in the air and hung above each person in turn like a naked 250
watt bulb in an otherwise dark interrogation room. But in spite of all of
the pressure to fall off the fence to one side or the other, many people
simply could not say what they would do. "I just do not know if I
could do it. I’ve never had to before." said one young woman, who
was near tears at the sudden realization of long-term emotional ramifications of the ghastly
chore that was being so rudely dropped in her lap.
I sat in the gallery totally amazed as one after another of these folks
said that, no, they had never really thought about the death penalty. They
had never discussed it. I was shocked. And I was doubly shocked, and
embarrassed, and started to squirm like the veniremen when I realized that
at the age of 50, I could not recall ever having had a discussion on the
propriety of the death penalty, either. Talk about uninformed democracy!
We are, after all, a democracy that imposes the death penalty in
federal courts and, for the most part, in state courts. We have a judicial
system in which individual citizens are called together to play a very
important role in death penalty proceedings: decision-maker. And yet most
of those potential jurors in Charlottesville, good Americans every one,
admitted that they had never really thought about capital punishment.
Ever? There in a public courtroom, called in for jury duty against their
will, forced into a public discourse of beliefs and principles that they
did not want to be a part of, these folks were caught with their pants
down in public — compelled to disclose, under oath, in public whether
they could sentence another human being to die without ever having
previously given the issue any thought.
Poppycock and the courts
But I suspect that there was within this large group of stressed and
seemingly ambivalent veniremen a sub-population who probably had fairly
firm beliefs about the death penalty in general but who were confused by
the questions put to them. Anyone who was carefully thinking through what
the judge and lawyers were asking had to be confused.
It went something like this:
"Will you impose the death penalty if you find beyond a
reasonable doubt that the defendant is guilty of capital murder and
you find beyond a reasonable doubt that the murder was particularly vile
or you find beyond a reasonable doubt that the defendant is
guilty of capital murder and you find beyond a reasonable doubt
that the defendant represents a future threat to society."
Follow? Neither did I. Neither did they.
First of all, there were only two things that could happen to Lester
should he be found guilty of capital murder: execution or life
imprisonment. Those were the two sole and, obviously, mutually exclusive
options, and the veniremen were told, not entirely truthfully, that they would have
to reach a decision as to which it would be. If they found that Lester was
guilty and that he represented a future threat to society, then execution
was mandatory, regardless of whether the murder was a "vile"
one. Likewise, if they found that the murder was sufficiently vile (As if
there is a "vileness" standard. Is any cold blooded murder
anything other than vile?) then execution was mandatory regardless of
whether or not Lester presented future threat to society.
In addition, the prospective jurors were warned that they would be
required to determine whether such vileness or future threat to society
existed beyond a reasonable doubt. How does one determine vileness beyond
a reasonable doubt? — it’s an opinion, not a fact. How does one
determine beyond a reasonable doubt what another person will or won’t do
in the future? All of us non-lawyers in the courtroom were thinking the
same thing: "Huh?" which, a decade later would be less politely
but more precisely stated as "WTF?"
The problem was that imbedded deep in these instructions was a series
of logical snags that many of these folks were having trouble with in
spite of the lawyers’ patient and patronizing attempts to explain the
standards for imposing the death penalty. (One of the prosecutors actually
asked them this: "This trial will have two phases, one for guilt and
one for punishment. Are you with me so far?")
One of the logical snags was this: There was next to no point in
killing Lester on the basis of some "future threat to society"
if "prison for life" meant that he would remain in prison until
he died. In that case, he wouldn't be a future threat to society unless he
escaped or unless one considers the prison population "society."
Consequently, the judge was actually telling the veniremen that they would
have to estimate, beyond a reasonable doubt, Lester’s chances of
escaping should he get life in prison.
On the other hand, if "prison for life" meant Lester would be
up for parole someday, then, yes, a decision would have to be made as to
whether or not he could be a future threat to society, but wouldn’t that
be up to the parole board to determine as part of the evaluation as to
whether to release him?
To me, the judge's repeated emphasis on the word
"future" implied that there was a chance that Lester would
eventually be released if sentenced to prison "for life," even
though I knew that was not so because Virginia abolished parole. But the
veniremen probably didn’t know that unless they had been studying law,
too, and neither the judge nor any of the lawyers explained to them that
in Virginia "life in prison" actually means "you’ll be
there until you die." Without resolving that issue, there was no way
to resolve the "future danger to society" issue.
These descriptions of the jury's duties were . . . well, let’s just
say "inexpedient," and the veniremen were being called upon to
sort it out on the fly in order to determine whether or not they could
sentence Lester to death. I pitied them.
All of this was unsettling — to all of us, and probably to Lester
most of all, who had not yet been tried. From where I sat, it appeared
that death penalties are applied and humans are executed in Virginia based
on complex instructions, inane standards of "vileness," and the
supposition that a jury can look into a crystal ball and determine whether
or not one who has committed capital murder will be a danger to society in
the future. This is poppycock. Any capital murder is vile, and anyone
who commits such a vile and violent crime must be presumed to be a
perpetual threat society, almost by definition, unless he/she is locked up
permanently. Or dead. There must be a better way of handing out death
Royko’s death penalty registry
Many years ago, Mike Royko, a Pulitzer-prize winning columnist
for the Chicago Tribune and a man who wrote a lot of words in support of
the death penalty, came up with an excellent out-of-the-box solution to
the problem: let the victim decide the death penalty question.
Although I have not been able to find his original article from more
than 20 years
ago, as I recall
it Royko suggested that states should maintain databases of those citizens
who want the death penalty applied to anyone who is found guilty of
murdering them. This information would be kept secret from everyone —
including the judge, jury, and the defendant — until the defendant has
been found guilty. The penalty phase of the proceedings would consist of,
essentially, looking in the death-penalty registry to see whether or not
the victim’s name is there. If the victim had registered as wanting the
death penalty applied, too bad for the convicted defendant; the decision
to execute him/her would be all but preordained and not subject to
prolonged debate or a bunch of tangled what-ifs.
On the other hand, if the
victim was not in the registry, the defendant would automatically get life
in prison. There would be no need for discussion or consideration of vileness
or future danger — if the defendant was found guilty of capital murder
but the victim was not on the Royko-registry, then no execution -- it
would be a done deal. Royko's
point was that capital murder is per se vile, and that is
sufficient reason to execute the murderer if the victim stated his/her
preference for that
outcome. If the victim had not expressed a preference for the death
penalty, then his/her family should be content that the murderer's dodging
the death penalty was what their deceased loved one wanted.
To me Royko’s idea of victim-determined sentencing sounds reasonable,
assuming sufficient attention is given to the Constitutional issues. For
instance, in order not to conflict with the 1978 USSCt case Lockett
v. Ohio, it would
probably be necessary for juries to consider mitigating factors that may
make the death penalty unsuitable in a specific case, irrespective of what
the victim had to say about it. Thus, the jury, without imposing the death
penalty itself, could represent the conscience of society by taking the
death penalty off the table if there are sufficient mitigating factors, in
which case the victim’s preference would not even be revealed. But where
a jury certifies that the death penalty would be suitable, then the
ultimate fate of the murderer would come down to his/her victim’s
preference as expressed in the registry. Alternatively, the system may
merely use the registry as a means of informing the jury of the victim’s
wishes, and the jury would then use that information in balancing the
mitigating and aggravating factors.
One of the most valuable benefits of Royko’s idea would be that by
relying on the victim’s preference, irrelevant characteristics of the
murderer like race, gender, ethnicity, etc. would be factored out of the
ultimate death penalty decision because when a person registers as wanting
the death penalty imposed, they cannot then know what race their future
killer will be. Obviously, one would not be able to register specific
preferences such as demographic or personal characteristics of the
murderer. One would not be able, for instance, to register: I want the
death penalty imposed, but only if my killer is white, female, blonde,
tattooed and predisposed to twerking in public.
Summary: Yeah, Royko had something
Basically, Royko was right, if not in the details at least in
demonstrating how to think outside of this very deep and very dark box.
Why put the decision to kill someone on the consciences of twelve
strangers who had nothing to do with the murder and who must carry their
decision with them for the rest of their lives? Let each of us make this
decision for ourselves, and let each of us carry that decision throughout
our own lives. That would be the purest form of democracy and it would
force each of us to give this capital punishment issue some serious
thought. If enough people in the country elect not to have their killer
executed, then capital punishment will become a thing of the past by
virtue of hundreds of millions of individual decisions, not by virtue of
the contorted political process of drafting legislation or the contorted
judicial process of passing down vacillating
and often contradictory judicial fiats.
Royko gave us just the stub of a potentially game-changing idea. A lot
of details would have to be worked out, like what the default position is.
IOW would the registry register those who want the death sentence applied
or those who don’t? Who would speak for those who have no legal capacity
because of age or mental infirmity? Would parents or guardians be able to
register in behalf of their wards? Given that young children are more
likely to be murdered by their own parents than by anyone else, should
parents be the ones determining their children's position on the death
And given that the Royko-registry would greatly expedite the
determination of whether the death penalty should be imposed, perhaps
there should be a statutory minimum post-conviction appeal period before
the sentence can be carried out; you know, just to insure appeals are
heard and the defense team has time to investigate the possibility of
prosecutorial misconduct or other common causes of wrongful convictions.
Or perhaps an actual registry maintained by the state wouldn’t be
necessary. States could, for instance, pass laws stating that the death
penalty is off the table unless the victim had a clause in his/her will
saying the death penalty should be applied. The state could provide
official, ad hoc wills limited to just that proviso. That way if a
person wishes to change his/her wishes all they would need to do would be
to burn the will, or execute a new one or a codicil.
To my mind one of the greatest ironies of our time is that as forensic
technology becomes more and more powerful and accurate at identifying actual murderers,
and as the odds against making tragic mistakes rise steeply, the death penalty
should be viewed as less and less controversial, and yet the opposite is
happening. For whatever reason, part and parcel of the "human
condition" is that vile perps do horrible things to good and innocent
people. It seems that those victims, even if they are dead, dismembered,
and long decayed, should have some input when it comes to determining what
price must be paid once the perp is convicted.
In bringing this piece to a close, let me attempt to bow
out like Mike Royko might have.
Should such a Royko-registry system ever be instituted in whatever form, I
can tell you right now that I would be the first to sign up. I would also
begin wearing a sandwich-board saying: "I’m on the Royko-registry.
Murder me, Bucko, and you are burnt toast." People who are against
capital punishment can wear their own sign saying they're not on the
registry. And good luck to them.
Punishment in Context
— some very useful resources and discussions on the death penalty
Capital Punishment Project — from the lawyers who are on the endless
treadmill of death penalty cases.
Innocence Project —
when convictions go terribly wrong.
Dept. of Corrections —
Dorian Lester is listed as prisoner #1139965 and is serving a life
sentence at the Augusta Correctional Center.
Incredibly, the execution of George Moody was not deemed by the jury
to be "vile."
Wanna' comment? Have
a go on