Deadly Justice – Part 3

In the last 2 posts – Part 1 & Part 2, I strongly advocated the case for retaining the death penalty, provided certain criteria were met. What are the harsh realities of capital punishment? Its not my intention to sweep inconvenient truths under the carpet, especially when they are explosive in nature.

Let’s swallow the slimiest toad – everything else will seem simpler by contrast. Exactly whom do we kill when we impose the Death Penalty? Distressingly enough, the poor have the odds tilted against them, yet again. For, defendants that can afford better attorneys are seldom executed.

This is what US Supreme Court Justice Ruth Bader Ginsburg has to say on the subject:

People who are well represented at trial do not get the death penalty. I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial.

In a free country, every individual has the inalienable right for legal representation in a trial. If defendants can’t afford a lawyer on their own, the court appoints one on their behalf. Such attorneys are called “Legal Aid Lawyers” & they are paid – admittedly not big bucks – by the state.

In addition to this, flourishing law firms offer free legal counseling for the economically disadvantaged strata. These are called Pro bono publico cases – literally, cases taken up for the betterment of the society. Bar Associations in the US & UK have encouraged lawyers to participate in Pro bono work, to do their part for the society. Some have even published minimum recommended Pro bono hours for lawyers.

Unfortunately, all this sounds better on paper than in reality. Sadly & unsurprisingly, once the numbers are tallied, most law firms fall abysmally short of even the minimum recommended Pro bono hours. When the rubber meets the road – many defendants, especially the poorest of the poor, are woefully under-represented in courts of law.

How does this impact Capital Punishment?

When an attorney wants the court to overturn a conviction or a death sentence, the usual procedure in most countries is a Writ of Habeas Corpus. This is the law by which a detainee can seek relief from unlawful detention. In Death Penalty cases, more often than not, its the lawyer that files the writ. But lawyers appointed by the court to handle the writs of death row inmates routinely bungle appeals.

Justin Fuller, a death row inmate was convicted of robbery & shooting, that resulted in the death of a man. The court appointed Toby Wilkinson to handle Fuller’s appeals. The writ filed by Wilkinson was full of errors. Which isn’t surprising, since Wilkinson copied several portions from a prior writ that he filed 2 years earlier for another inmate, Henry Dunn. He got the name of the co-defendant & the trial judge wrong. He even got the central issue – the evidence – in Fuller’s case wrong. He had blindly copied those sections from Dunn’s writ.

Fuller was executed on August 24, 2006. Wilkinson’s writ was so bad, that his client did not stand a chance.

Quality of counsel is THAT important. It is an important predictor on whose appeals have a better chance with the bench or the appeals court.

What about racial discrimination? After all, human beings interpret the law. Pretending that there’s no racial divide in who gets the capital punishment, will take us nowhere. A statistical study conducted by Law Professor David Baldus concluded that African American defendants are 4 times more likely to get the death penalty, than Caucasians, for similar offenses. The results of this study were disputed by those advocating the Death Penalty, including yours sincerely. But to be fair, how can we sweep aside the fact that 74% of those who got the death penalty between 1995 & 2000 were minorities?

Why is the law so skewed? Another study conducted by Professor Jeffrey Pokorak found the smoking gun. 98% of the Chief District Attorneys are White. These are the key decision makers on when to seek the death penalty. I shudder to think how the Death Penalty is applied in India. What would we find, if our courts were faster, instead of moving at a snail’s pace? What would be the demographics of those swinging on the hang-man’s noose? Would a striking pattern leap to the eye?

Now, do you want to know who doesn’t get the death penalty?

In the year 1924, Richard Loeb & his friend Nathan Leopold, both scions of wealthy families, were busy planning a perfect murder. Murder to them, was an intellectual exercise. Loeb particularly, was fascinated with crime. Leopold held the philosophical belief that legal obligations did not apply to Supermen – as in, those intelligent like him & his friend.

They decided to kidnap a child of affluent parents & seek ransom. One evening at about 5 PM, Bobby Franks, the son of an acquaintance, was walking home from school. Leopold & Loeb lured Bobby to their car, under the guise of talking about tennis rackets. They killed Bobby with a chisel, drove to a marshland, stripped the child & poured acid all over the body to make identification difficult. They systematically stuffed the dead body into a culvert. Upon returning home, they burned Bobby’s clothes.

They then called the Franks over the phone & told them that their boy had been kidnapped, but safe. The family had to pay $10,000 as ransom, to be delivered at a certain drugstore. Before the Franks could proceed further, the police called them. A laborer had seen a leg poking out of a culvert & they wondered if it could be the body of Bobby Franks.

How did the law catch up with Leopold & Loeb? Here are some sordid details – A pair of horn-rimmed glasses belonging to Leopold was found on the body. Their ransom note matched a type-writer in Leopold’s law school. Their alibi – that they were picking up girls on the day of the murder – fell apart. Leopold & Loeb confessed their crime.

But they had a formidable weapon in their arsenal – top-notch defense attorney Clarence Darrow. He built a complex case of Psychology, Nature (how his defendants had no control over how they were made) & their Extreme Youth. He eloquently painted a bleak picture of the endless, soul crushing life in prison his young charges faced. When Darrow finished his summation, the judge & the spectators were moved to tears.

Leopold & Loeb didn’t get the Death Penalty. Macabre crime, damning evidence & the icing on the cake, confessions. Its the same law, but a great lawyer can make a big difference – literally – between life & death.

Summing Up

Its no wonder that to many kind-hearted gentle people, the law seems arbitrary. But I have a question for these people: Does it matter terribly that the rich wriggle out of the death penalty? Shouldn’t it matter more to us, that those with mitigating circumstances get better legal assistance & thus avoid the noose, the injection or the electric chair?

We don’t have to dismantle the death penalty because – the path leading up to it – has short-comings. That seems like a non-sequitur to me. We can eradicate something only if we poke enough holes in it. Collectively, we need to figure out how to plug the gaps in providing legal aid, so that the sentencing process becomes more equitable & less arbitrary. Perhaps lawyers that routinely spew out shoddy writs & ruin the appeals process can be disqualified by discerning judges.

I see a growing trend to scuttle the difficult.

Too many “normal” people use drugs? Think many reckless, irresponsible people are detained at foreign ports of entry because they had drugs on them? Make drugs legal, it is eating up too much time from the law & order machinery. Let them focus on “more serious” crime.

What I think about drugs is tangential to this thread, but I think the reasoning listed above is simply the product of poor logic & hazy thinking. Legalizing drugs should solely be based on its effects, determined scientifically & empirically. I submit that we should apply the same standards to Capital Punishment.

As usual, I’ve run out of space. I don’t have enough space to cover the 8th amendment, so let me adjourn that to the next post.


  1. Quote

    Nice post Priya. As for the legalization of drugs i think we ought to do it. At least marijuana that has medical benefits so that it can be clinically prescribed for people suffering from extreme amounts of pain, say like myself. Blind prohibition of drugs is something i’ve always been unhappy about.

  2. Quote

    Dilip – Thanks for your comment.

    I think we need to distinguish between recreational VS medical use of marijuana. I don’t believe in legalizing the recreational use of drugs. Medical use for pain alleviation is understandable & justifiable.

  3. Quote
    Sukumar (subscribed) said January 31, 2009, 3:59 pm:

    Fantastic post Priya. You have brought out the sordid facts behind the death penalty. Yes we cannot throw the baby with the bath water and eliminate death penalty. At the same time, we need to seriously reexamine how justice is being served for the poor and the minorities.

  4. Quote

    Sukumar – Thanks for your comment.

    I agree with you. We can’t pretend that there are no problems in the implementation of capital punishment. While it would be precipitate to call the justice system broken, I agree it needs some rethinking.

  5. Quote

    Very insightful with appropriate and well researched case studies. The Richard Loeb-Nathan Leopold acquittal is really shocking. I am sure if we go into developing countries, the facts will be even more scary. We are not in a perfect world in fact far away from it.

  6. Quote

    Vamsi – Thanks for your comment.

    Leopold & Loeb were not acquitted, they got a life sentence. They just didn’t get the death penalty. And yes, in developing nations, justice would be in a more precarious position.

  7. Quote

    Great analysis and well written. You are right that money and legal representation would change his/her fate rather than the degree of crime committed. I’m little concern that your summing up analogy to compare legalize drugs with capital punishment because the former is nuisance, adults should know from wrong to right, we can completely eliminate drugs from this world if we channel money and resource correctly and i can argue that why we need marijuana as painkiller, we have so many painkillers in market, doctor can prescribe if we need so but capital punishment is cruel and human right violation, it is matter of life and death.

  8. Quote

    Subba – Thanks for your comment.

    I doubt if right-minded people would object to the use of Marijuana to alleviate extreme pain. Please see my response to Dilip above. Recreational use of drugs is what people generally talk about, when they outline their stance on drugs.

    You have misunderstood my “Summing Up”. I haven’t equated “Doing/Trafficking Drugs” with “Murder & Death Penalty”. If I had done that, you have cause for concern. What I have said is, the approach in dealing with anything complex seems to be similar. If the process is imperfect or time-consuming, we think the end it advocates should be abolished. That is flawed logic. That’s the point I made.

  9. Quote

    I do agree with you that money plays a major role in getting a better defendant and change the perception completely.

    There is a always a preconceived notion and a small bias toward one’s religion and race, but i dont think it makes a significant difference in the judgement unless the judge is a religious extremist or a racist.
    The issue of Afro – Americans is totally different, they are people in the lowers ranks of the American society doing most of the low paid jobs and constitute mainly workers in the downtown areas of major cities. The education level is also very low and they are economically downtrodden. Considering all this the crime rate will be definitely higher among them and as you had mentioned money plays an important role in their easy conviction.

    Even if minorities are really affected, what provisions can be done in Law. Reservation ? Or they can be convicted only by their own minority judges ? Maybe their own Law ?

    Such actions can only weaken the hands of Law.

  10. Quote


    1. If drugs were to be banned, the first two major drug’s that is to be banned would be cigarettes and alcohol. Both of them have chaotic withdrawal symptoms. Marijuana for your kind information does not have withdrawal symptoms. There is no scientific study to prove someone dying of weed.

    2. The reason why alcohol and tobacco exist is because the local governments license/produce them in the first place whereas they cannot produce marijuana that easily in all countries. Climatic conditions and farming expertise is required to cultivate it extensively with profit like it is done in Mexico. Not every government can make profits out of drug produce.

    3. Thirdly we are only discussing medical use of marijuana. If medicine is used as a drug (which also happens now with cialis, valium, viagra etc.,) then it is not a drug problem. It is a law and order problem that needs to be rectified. I see no reason why ppl should rot in pain despite having access to a cheap and effective pain killer and relaxing agent like marijuana that can be legally prescribed in a rational manner.

    I’m sorry im taking the discussion in a wrong direction but i think i will write more on this and perhaps link here so that we can discuss.

  11. Quote


    Well analysed post. After reading it, i felt that there is something wrong in the fundamentals of the current justice system. It is not based on truths, but based on the arguing skill of the lawyers of accused/defendants.
    How can we call it as justice system?

  12. Quote

    Senthil – Thanks for your comment.

    I was smiling when I read this observation: “It is not based on truths, but based on the arguing skill of the lawyers of accused/defendants”.

    While that is somewhat true, it applies to every area where people form opinions & act on them. All we can do is to ensure that perjury – lying about the case – doesn’t happen.

    When we interview candidates for a job, we select those that can present their skills well. Someone that’s not articulate may not stand a good chance. When a model or an actor lands a project, it could also be because of his/her agent’s networking skills – and not only because of the ability of the model/actor.

    Forget the ability of the lawyers. How the defendants look may impact the sentence, especially if there’s a jury system. But, that’s life. Its not intrinsically fair. Or, we can put it another way. Presentation is an important skill.

  13. Quote

    Rajesh – Thanks for your comment.

    What is the quantum of difference made by the defendant’s race, religion etc? Bigotry in different countries is at different levels. We can’t assume that the bias would be small. To see how bad it was, please see the movie “To Kill a Mocking Bird”, if you haven’t seen it so far.

    In countries where the crime rate among minorities is high, it reinforces the stereotype that people from that minority are not law abiding. Such mental models make things very difficult for members of that minority that are law abiding & decent.

    A more recent example is the cloud of doubt & paranoia over all people of Arab descent.

    As you say, minorities being judged by someone from their in group – can’t be good for the well-being of the country. It will only anger the majority.

  14. Quote

    Dilip – Here is my rebuttal to you. Let’s not discuss the effect of drugs in this post anymore.

    Drugs are not banned based on withdrawal symptoms. Then, coffee or Methadone given to stop drug abuse may top the list. Scientific condemnation of drugs is based on the long term impact on the body. Emerging studies show how drugs re-wire the brain & stunt the nerves. Plus, those who smoke Marijuana have an increased chance of getting lung cancer.

    The effects of alcohol & tobacco cannot be compared with the effects of drugs. The level of impairment in judgment & abilities is way more serious.

    Marijuana is a straw-man for drugs. Why not talk about Opium & Cocaine? They yield ginormous profits, don’t they? If all govts look for are ease of growing & making profits, most countries would be growing them. And yet, only rogue states grow them.

    And Subba is arguing your point. He says Marijuana can be used for pain alleviation in extreme cases. You have misunderstood him.

    Again, this is not a post about drugs. I request readers to refrain from discussing tangential points in detail.

  15. Quote

    /** All we can do is to ensure that perjury – lying about the case – doesn’t happen. **/

    Priya.. how do we ensure? Till now it continues to happen..

    Do you feel, there is no better system than the current one?

    Also, there is no accountability of the judges over his judgement..

    Do you have any comparison of pre-british indian justice system with the current one? I read about panchayat system, and how trials were conducted in public, by council of persons, either acknowledged by local people or by the kings..

  16. Quote

    Senthil – As I mentioned in my comment, no human system is perfect. Things become better only over a period of time.

    About the accounts of the pre-British Panchayat systems that you read: If you read a similar account on present day justice systems, it might look even more impressive. That’s like imagining the glories of a Software Application after reading the Business Requirements. The proof of how well the application was built can only be seen when it is System, Integration & Beta tested or better still, after Go-live.

    Organizations like the ACLU or Amnesty International that disagree with modern day justice systems function as watch-dog groups. They publish reams of data about various legal cases around the world. Before I hasten to sing the praises of older systems, I’ll need to see unambiguous data collected by people that did not have an interest in continuing the said system. Failing which, we have to conclude that there’s scant data to support that they (the older systems) were better.

    I have nothing against the old & no unfair bias towards the new. I just think that, much of our disillusionment about modern systems is because, we can see plainly when they don’t work. We can’t reject them simply because of their transparency. Likewise, we can’t elevate something because we can’t see how often they failed to deliver results.

  17. Quote

    Excellent post Priya. I am in agreement with you that money and good lawyers play a huge rule in the accused being awarded the death penalty (does good lawyers translate to unscrupulous lawyers who rather than defending the truth would defend their client even though he is obviously in the wrong? I dont know)
    About racial discrimination i was not aware of how horrendous it was till i read to kill a mockingbird an year back,one of my favorite books. I was even more horrified to learn that it is a true story where the author’s father had defended 2 black men who were convicted and hanged.
    Sometimes i cant help but wonder we would be much better without the law and its loopholes and the writs written by half baked morons.
    Waiting for the next part!! 🙂

  18. Quote

    Revs – Thanks for your comment.

    I don’t think good lawyers are unscrupulous. Their job is to get their clients a fair hearing, not to ensure that justice is served. The latter is the job of the judge. We should never confuse the 2. Clarence Darrow made the most of what he had – his clients’ age & inexperience in life.

    If a lawyer has qualms about a case because a defendant has committed a crime, s/he shouldn’t take up the case. Taking it up & refusing to argue on the client’s behalf is a breach of ethics & can get the lawyer disbarred.

    Without the law? Things would be a million times worse than it is & we’ll be back in the jungle, swinging from the trees. Loopholes will develop in any system over time. We just have to revise it as we go along. Nothing stands the test of time & progress indefinitely.

  19. Quote

    I am not denying the fact there is bias towards minority and they are victimized in lot of instances. Maybe a minorities welfare department ( Government involved agencies ) outside the judiciary can help them get proper justice. The idea i am trying to put forward is any attempts to influence the law to balance or compensate for being in “minority” will invoke more trouble and is not proper justice.

    Thanks for suggesting the film, its atleast 50 years old and i wonder if the same can happen Today in the same magnitude.

  20. Quote

    Rajesh – Yes, its extremely difficult to balance the interests of the minorities without irritating the majority. Perhaps the focus can be on providing quality counsel to the needy. While that leaves racism untouched, we’ll at least help a larger swathe of the population.

    Yes, “To Kill a Mocking Bird” is very old. May I suggest “Rendition”? Its < 2 years old. Civilization is a veneer. If the right amount of pressure is applied, it cracks wide open, revealing baser instincts. Depending on the time & place, our meaner selves manifest themselves differently. "To Kill a Mocking Bird" & "Rendition" are movies made in a developed nation, which had the moral courage to look at itself critically. Any attempt to portray the negatives in a developing nation like India, is berated. The film-maker is branded as a stooge of the West. The sad thing is, developing nations are still in a very bad shape, when it comes to the treatment of minorities (I use the term minorities broadly here, to also include those that live in the fringes) or the poor. A nation without introspection can't correct its course.

  21. Quote
    pk.karthik said February 2, 2009, 11:23 pm:

    Nice Write up and good research Priya.

    I agree that rich wriggle it out ..But will suspending lawyers abe affecting ..What about judges?Dont they need to take a judgment call based on the overall situation and not just lawyer’s argument?So a judge who cried after hearing’s Darrow arguments should nt be a judge your expected to remove you emotions ….so you are .breaking the foremost unwritten rule of judgment..So in my opnion the judge/jury as as guilty as the accussed….

    Now i lots of talk on minorities being punished…now in Kill a mocking bird if the situation was reversed…i.e. Boo Radley was accused of rape and Tom Robinson actaully kills Ewell to say Jem and Finch then what would the end be.. how would sheriff react to it…and in case of Rape how would have judge reacted ? would he have given Boo the capital punishment..I dont know…but

    My conclsuion is that judges should react the way the sheriff reacts in book .They should take into account facts ..but they should also consider the situations..before pronoucing some one guilty..if they dont do it they should be punished..

  22. Quote

    Karthik – Thanks for your comment.

    I suggested suspending lawyers that write bad writs or botch the defense or the appeals process. This will hopefully instill enough fear in legal aid lawyers, so hopefully they won’t turn in sloppy work. In fact, the state of Texas tried it, but couldn’t enact it.

    We can find fault with Judge Caverly, who presided over the case, only if we think there was a miscarriage of justice. While he shouldn’t have worn his heart on his sleeve, he still upheld the law & sentenced the killers to life in prison. Darrow convinced him that the youth of his clients was a mitigating factor.

    But, in a sense, I agree with you that he was wrong. It isn’t just impropriety, its even the appearance of impropriety that judges should avoid.

  23. Quote


    Nice post.

    In any situation where subjective opinion counts even an iota and arguments can be swayed on emotion and not data, there are prone to be mistakes. OJ is yet another example.

    What you would need is checks and balances. I believe, the jury system in US is a good example. The judge does hand out the judgment/punishment, but that is based on the recommendation of the jury. One would hope that with a jury constituting 12 peers, there would be significant back and forth on the evidence and argument presented and the judgment in most cases would be correct. What you have done is decentralized the process. Judge does not wield the sole authority; however he acts as a guide for the judicial process. Trust is placed on the collective intelligence of the jury to make the right decision. And even here, the jury is chosen by the lawyers on both sides so that they do not have a reason to complain later.

    And in some high profile cases, the trial is held at a different location than the scene of the crime to enable formation of an unbiased jury. And the jury can also be sequestered to prevent prejudice from seeping in.

    I believe there is reasonable checks and balances in the US judicial system. Even with this, the jury could be tampered, the constitution of the jury could be ill formed or the judge could override the jury’s decision and call for a mistrial etc.

    Of course, even with all this, the rich and the ones who can afford the savvy lawyers do get away with murder. Case in point – OJ, Robert Blake etc.


  24. Quote

    Ganesh – Thanks for your comment.

    Yes, arguments should be as objective as possible. Even cases run solely on objective data are prone to mistakes, since the evidence could be misinterpreted, among many other reasons. But when emotions are added to the mix, justice can’t be served. As Karthik mentioned, judges can’t afford to be swayed by sentiments or emotions.

    I have mixed feelings about the jury system. Yes, it acts as a counter-balance to the judge. In the best case scenario, the collective intelligence of the jury is brought out. And in the worst case, their collective ignorance.

    I think the jury system makes the law more subjective. A bunch of lay people, with no training on the law, deciding the merits of the case by facts – that’s a tall order. They can be swayed by their prejudices, public opinion, moral indignation etc. I don’t think they can be trusted to understand the intricacies of scientific, forensic evidence either.

  25. Quote


    Collective ignorance of the jury!! Nicely put.

    About jurors needing to understand the law, I do not think that is necessarily a pre-requisite. They will be guided by a good judge. They do not need to have some amount of intelligence to understand the evidence presented and make an informed decision.

    They do not have to understand the intricacies of scientific, forensic evidence either. In fact, I do not think most of the judges be an expert (or understand the *intricacies*) in forensic science either and that again is not a pre-requisite to be a judge. They need to understand the law and be able to uphold it.

  26. Quote

    Ganesh – The law is all about details, exceptions, intricacies & fine hair-splitting. I have reasonable doubt on how well the jury can distinguish between right & wrong, on nuanced issues. If we think they can, that means we don’t think a legal training is needed to render a verdict. I have a problem accepting that.

    I do believe judges have a decent understanding of the scientific & forensic evidence presented at trials. For one, they know what kind of evidence is admissible & what isn’t; They read about it, get sufficient exposure in many trials, know prior cases that used it – the works. While they are not experts themselves, their grasp of such matters can’t be compared with the awareness levels of lay-people (from where the jury is picked).

    All considered, in complex cases, I think using a jury makes the judgment more subjective. They lack the ability to be objective enough. For what is considered objective enough in the eyes of the law, is the ability to apply the statutes to the case. How can a jury be objective enough, if they don’t understand the nitty-gritty of the law? Only an expert can untangle such cases.

    Perhaps the system works well in simpler cases. And as a counter-balance to the power of the judiciary.

  27. Quote


    Another subject (jury) where we can agree to disagree. I do believe that in most cases (even the complex ones), collective intelligence of the jury works out well under guidance from the judge. The judge can advice jury what is admissible and what is not.

    Interesting post and discussion. Hoping to see the next part.


  28. Quote

    Ganesh – Fair enough, let’s agree to disagree.

    I’m working on the next part, hope to publish it this week.

  29. Quote

    Enjoyed reading Parts 1, 2 & 3. There are loopholes in the legal system- the wealthy have a better chance of getting away from justice being served..- these gaps need to be addressed..

    But, I have seen a small case where there was one wealthy person (A) -and one poor person (B) were involved in a brush with law. (A) has to spend $$ on a lawyer to prove his innocence- while (B) went ahead with legal aid – (B) harassed (A) because he had nothing much to lose by fighting the case- he was simply dragging it in the hope of geting the better of (A). In ordinary situations where both would have had to pay their lawyers – they would have come to a settlement faster. Since the stakes were higher for the wealthy person (he was spending money- while (B) was not), he had to settle in the end for something lesser than what he rightfully deserved.

    Quoting you- “But to be fair, how can we sweep aside the fact that 74% of those who got the death penalty between 1995 & 2000 were minorities?” – over 70% of those arrested are minorities (I might be wrong- my number is from the movie ‘CRASH’).

    I feel that the only criteria in favor of death penalty is – if it is a enough deterrent for future crime. If we are able to prove this through research- then capital punishment is for the common/collective good.

  30. Quote

    I think your argument could be right in cases of civil disputes, political disputes and vehicle accidents where money is the motive.

    But death penality in most democratic nations involves some henious crime. Also court appointed lawyers (most of time times) may not have the incentive to spend lot of their billing time unless it is a prestigious case/ high profile case for the firm (which brings in more future business).

    Do you agree with this?

Leave a Comment



Formatting Your Comment

The following XHTML tags are available for use:

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

URLs are automatically converted to hyperlinks.