Shortly after taking office as San Francisco’s District Attorney in 2004, Kamala Harris very publicly declined to pursue the death penalty for a career criminal who killed a police officer with an assault weapon. 

Having run a campaign based on her opposition to the death penalty, this was not surprising but making that announcement before the officer was even buried wasn’t the most politically astute move. Kamala spent a lot of time after that trying to repair the damage done to her relationship with local law enforcement.

Several years later Kamala was sworn in as California’s Attorney General after promising voters that she would uphold the state’s laws — which included the death penalty — and she successfully appealed a federal ruling in 2014 that had found the state’s death penalty statute unconstitutional. So what’s going on? Do we have a fundamental problem with how the death penalty is applied in this country or is Kamala Harris just an opportunistic charlatan? I say yes to the first question and as for the second, well, I’m not going to argue with you.

Criminal law is like any other government program in terms of priority. Depending on the mood of the public we, as a society, may from time to time decide to seek harsher — or less stringent — penalties for infractions. We may also shift our focus from punishment to rehabilitation now and again. A good politician has to keep his or her finger on the public mood in order to keep a job. 

And how do we elect criminal prosecutors? We go for the ones who are “tough on crime.” This system is focused on results only and instances of prosecutorial misconduct are only exposed after the fact and when they are the punishment is usually light. Take the case of Michael Morton in Round Rock, for example. This poor guy was found guilty of killing his wife and served 25 years of a life sentence before Ken Anderson, the prosecutor, agreed to allow for new DNA testing to be done and finally released other evidence which, if shared with the defense at the time of the trial, would have exonerated the defendant. Anderson was found guilty of prosecutorial misconduct and got 10 days in jail. 

On the other side of the coin we have people like James and Miriam Ferguson who, as the governors of Texas back in the day, routinely sold pardons and stays of execution to convicted criminals. The Texas Board of Paroles and Pardons was set up for the sole purpose of fighting that kind of corruption.

 The death penalty is the harshest punishment that we can mete out. 

There is no “instant replay” if we get it wrong — and we may very well have gotten it wrong in the Texas cases of Cameron Willingham, Claude Jones and Carlos DeLuna ,among others. The Willingham case was covered in a 2009 New Yorker article titled “Trial by Fire” which is still available for reading online. A documentary film and a full-length movie were based on this story.

Another good read on the death penalty is “Texas Death Row” which is a collection of statistics on death row inmates put together by Bill Crawford. For each offender the editor details personal data, the crime committed, last meal and last words. He also states what the offender’s occupation was before the crime was committed. 

Here’s the interesting thing — you see a lot of jobs like “cook” and “sheet metal fabricator.” You don’t see careers like “insurance broker” or “software executive” represented very well in Huntsville. It seems like working-class people bear the brunt of this system.

Don’t get me wrong. If you can convince me that a killer committed the crime with a preponderance of physical evidence and that he did it with malice aforethought, then I have no problem with the death penalty. 

However, given that the decision to apply the death penalty is subject to the vagaries of shifting public moods and simple politics, I think it’s a good idea to examine the whole system.

More than anything else, the fact that those who have the least financial ability to defend themselves by hiring a good lawyer seem to be those who suffer the harshest consequences in sentencing — not only in murder cases but in every other form of criminal offense — should give us pause. 

The Equal Protections clause of the 14th Amendment should come into play in this regard. Ultimately for a justice system to be observed and respected it should first and foremost be fair.

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