The Death Penalty — Dying a Slow Death?




MARC BOOKMAN IS a prominent death penalty attorney and a terrific writer. We graduated a year apart from Lower Merion High School in suburban Philadelphia (Kobe Bryant’s alma mater), but met decades later in London in 2010, brought together by the death penalty. London was a fundraising trip to support abolition of the death penalty; American donors tend to shun the issue. 

Our group stayed in a small hotel in Bloomsbury. I found Marc in the pint-sized lobby, just off the plane and hunched over his phone, clearly absorbed in one of the usual crises arising from his Philadelphia death penalty practice. He gave a powerful first impression. Here was a man 1,000 percent dedicated to his calling, smart as hell, self-effacing, and dead serious. It wasn’t long before I also found a big heart underneath that gruff, no-nonsense demeanor, as well as a wicked sense of humor. 

Our first stop was Marc’s lecture to a class of British law students. The subject: The necessity of examining “inculpating” evidence with utmost care. Marc showed a few seconds of convenience store security camera footage with his client pointing a gun. After reviewing this snippet of tape 150 to 200 times, he’d decided to send it to an expert to slow down and enhance the footage. There he found what he sought; his client was brandishing the gun in self-defense and was therefore not the original aggressor in the crime. In a death-penalty-eligible case, this can mean the difference between life and death. The lesson was stunning, but I was equally engaged by how Marc held the class in thrall: pacing in front of the screen; speaking in clipped, succinct sentences that made his points crystal clear. It was easy to imagine him in front of a jury, crushing a prosecutor who had the bad luck of coming up against him. 

The death penalty is the worst part of America’s broken criminal “justice” system. It is applied unevenly; outlawed in some states, legal but in disuse in others, and eagerly applied in others. Marc’s home state of Pennsylvania has one of the highest death rows in the country (142), has had 10 people on the row exonerated, and hasn’t had an involuntary execution in nearly 60 years. On the other hand, if you commit murder in neighboring New Jersey, you can’t be charged with the death penalty. Following years of strategic organizing, New Jersey abolished the death penalty in 2007.

Racism poisons each step of the process from arrest to charging (75 percent of death penalty cases involve white victims, while whites are only 50 percent of murder victims), from trial to conviction to post-conviction appeals to execution. The death penalty singles out poor people, people who can’t afford good lawyers, people with histories of appalling childhood abuse, and people with mental illness. It is infected with unscrupulous, lying prosecutors and grossly underpaid, incompetent defense attorneys. Innocent people are sentenced to death, languish in prison for decades, and yes, are executed. There is no “humane” way to execute people, as a spate of botched lethal injections has unfortunately made clear.

America is a singular outlier among developed and almost all less developed nations in allowing state-sponsored killings. We still have a federal death penalty, infrequently used, but not by former President Trump, who oversaw the execution of an astonishing 13 people in his last six months in office. 

Marc Bookman has been fighting the death penalty for 30 years. He has brilliantly defended death-penalty-eligible defendants, expertly deployed the media to shine a spotlight on corrupt practices in the Pennsylvania judiciary, insisted that capital defenders’ rates be raised to improve the quality of representation, and co-founded the Atlantic Center for Capital Representation that not only trains lawyers around Pennsylvania and neighboring states, but also advises on death penalty cases around the country.

At the time I met Marc, there was some hope that the Supreme Court (with Justice Kennedy’s vote) would declare the death penalty unconstitutional under the Eighth Amendment. In 2015, Justice Breyer, joined by Justice Ginsburg, wrote a lengthy and detailed dissent in Glossip v. Gross that laid out the rationale for the death penalty’s unconstitutionality. Under the current Court, however, such a decision seems unlikely. But due to a confluence of states repealing the death penalty, juries becoming educated about its rank unfairness, the inability of states to purchase lethal injection drugs due to a ban on selling them to prisons systems by pharmaceutical makers, and campaigns to oust overly zealous prosecutors from office, death sentences and executions have dropped dramatically in recent years.

Bookman’s riveting new collection of essays, A Descending Spiral, highlights everything a reader needs to know about why the death penalty must be abolished. Each essay reads like an exciting crime procedural, breathtakingly suspenseful, with facts that defy imagination. The bad news is that Marc is recounting true stories from contemporary America, not relaying medieval justice practices.

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MARTHA ANNE TOLL: You’re a terrific writer who is frequently published. What made you decide on law school?

MARC BOOKMAN: I struggled in deciding whether to get a law degree or a master’s degree in English. I always knew I wanted to be a writer, and I gave serious consideration to getting an MFA. Ultimately, I decided to go to law school because I thought I could be a lawyer who writes, but I couldn’t be a writer who practices law. And looking back, I clearly made the right decision. I had a fear of being an irrelevant writer, so the pull of doing good work as a lawyer was strong. There aren’t too many people who can accurately predict their career path when young, but I’m guessing I might have said public defender if asked before I went to law school. I was never going to be a big firm lawyer, and was unlikely to defend the tobacco industry as well.

How did you get into death penalty work?

I was asked to take over a post-conviction petition. I should have said no, because I didn’t really know what I was doing, but this was 1992 and there was literally no one in Pennsylvania handling these cases competently. To skip ahead a few years, that case ended well, and by then I was deeply involved in capital work. But that story is just the mechanism that got me involved. The more interesting question is why I got into death penalty work. There are a lot of reasons, some obvious and some less so. The moral imperative is clear. I have always wanted to be the best public defender I could be and practice at the highest level. The Defender Association of Philadelphia wasn’t handling homicides when I started there, and the court-appointed lawyers handling those cases were doing a terrible job. A great reporter named Rick Tulsky wrote a series of articles in the Philadelphia Inquirer that shamed the city into letting the Defender office handle 20 percent of the homicide cases. So, in 1993 (just after I was finished with that post-conviction petition), I started doing capital work for good.

I’ll never forget the first death penalty defense conference I ever went to — it was the NAACP Legal Defense Fund’s annual conference, known as “Airlie” because it was held at the Airlie conference center in Virginia. I’d been a defender for 10 years, and I thought I was a pretty good one. But that conference blew me away. The depth of intellect and talent there left me wondering how in the world I hadn’t known these people before. I became firmly committed to the understanding that I had a lot to learn. Those four days left me determined to be a part of that incredible community in the future.

What advice would you have for lawyers who want to get into this work?

For years I advised young people not to get into this work, not because it isn’t fantastically rewarding and worthwhile, but because I foolishly thought it would be ending. (I’m still quite confident it will end, but at this point, it looks like it will be a state-by-state battle, which will take longer.) Only recently have I begun encouraging folks to consider capital punishment work. I always give the same advice — if the work is right for you, there is nothing better, nothing more challenging, nothing more humanizing, nothing more difficult. But I give a caveat as well — there is a world of great and important public interest work out there, and if for whatever reason (stress, hours, burnout, other things) the work is not for you, don’t force yourself to stay in it, because you’re not doing yourself or your client any favors.

What changes have you seen in death penalty charging and sentencing practices (generally, for a lay audience) since you began.

Notwithstanding the recent execution spree the Trump administration went on (13 executions in the last six months of his single term), capital punishment is, for lack of a better phrase, dying a slow death. Virginia, a state that has executed more people in its history than any other, is waiting for the governor’s signature to end the death penalty there! Twenty years ago, such a result would have been unthinkable. Death sentences and executions are at all-time lows, and polls indicate that most people prefer the punishment of life in prison over the death penalty. It’s pretty clear that politicians who once saw a big benefit from advocating for capital punishment are getting a very different reception these days. Having said that, there are big exceptions … which leads me to your next question.

Why is Pennsylvania so high up on the numbers for death row and juvenile life without parole?

There are a confluence of factors that have led Pennsylvania to its disastrous last place in criminal justice. For starters, we’re the only state that gives no money to the counties for their criminal justice systems — this leaves every county fending for itself and cutting financial corners whenever possible. Second, we were the first state to institute mandatory life without parole sentences for felony murder, which means you could get a life sentence for driving a getaway car or being a lookout or going in on a robbery, even if you never thought a killing would result. Combine this with a badly trained, badly resourced, badly funded court-appointed bar, and a hyper-aggressive group of District Attorneys, and you’ve got a recipe for disaster. And there’s one other thing — Pennsylvania has never taken the death penalty seriously. With a very large death row, we’ve only had three executions, all of which occurred in the 1990s and all of whom gave up their appeals. Because there’s a myth that we’re never going to start executing people the way Texas does, there’s very little attention paid by anyone — the courts, the county commissioners, the prosecutors — to making sure the process is done correctly. The death penalty is expensive, way more expensive than life sentences, and Pennsylvania simply doesn’t want to pay for it. Thus, we have a revolving door of convictions and reversals that would make any serious reformer’s head spin.

What writing is next for you?

I’m almost always working on a criminal justice essay about something, and I’ve been fiddling with the idea of writing short stories again. But there’s no project waiting for me. I’m taking suggestions.

We’d love to hear more about the book’s publication process.

The New Press and I came together thanks to my good friend Steve Bright, the founder of the Southern Center for Human Rights. Steve is a legendary figure in the death penalty world, he knows the New Press, and he put the imprimatur on my essays. I don’t think it would have happened without him. I’ve never been a “professional” writer — by that I mean I’ve always wanted to publish every word I ever wrote (J. D. Salinger once said, through his alias Buddy Glass, that he never wrote a word without instantly envisioning it in 11-point type), but I’ve never been in the publishing world. Never wrote anything on assignment, never had an agent, etc. I just wrote whatever it was (short story or essay) and then sent it around until someone took it. So, if it wasn’t for the New Press, I imagine I’d be sending it around trying to get someone to read it!

How did you choose these essays for the book, and why this order?

My editor, zakia henderson-brown, and I spent a lot of time trying to configure the book into a coherent theme. Some of the essays are previously published (though I updated them) and some haven’t been published before. We thought about all sorts of criminal justice themes and settled on the death penalty, which left some of my favorite essays out. But I’m happy we did, because the book holds together. No particular wisdom to share about the order of the essays — the only one that had to go where it went is the last one, the only personal essay in the book, which pretty much sums up everything I know about death penalty defense. The fact that it’s not longer might reveal how much I still don’t know.

What advice for policy-makers do you have if the death penalty is abolished?

I love the optimism of that question. Policy-makers should spend time with inmates who have served long sentences already. What they would learn is that a shockingly large number of them don’t need to be there. I’m not Pollyanna-ish about this — I understand that many people believe in a punishment aspect to sentencing as well as a rehabilitation aspect, and that therefore the fact that someone has grown and matured does not necessarily end the inquiry. But we have to correct the balance, i.e., that the punishment doesn’t have to be as long, and the rehabilitation may have taken place very naturally as a result of normal maturation.

And there’s a dirty little secret that I’ll tell your legion of readers — the injustice of life without parole is almost as great as the death penalty, but with one huge difference. In Pennsylvania, a good lawyer will eventually look at your case if you’re on death row. If something profoundly wrong happened in the trial, at least it will see the light of day. That doesn’t mean the courts will do something, but at least it will show up in a pleading somewhere. But Pennsylvania has thousands of lifers, and many of them have never had a good lawyer come within a mile of their case. They are languishing in prison. Clarence Darrow said 100 years ago that we will know we have a fair criminal justice system when we spend the same amount for the defense as the prosecution. I would tell policy members to take the defense function seriously, making sure that excellent lawyers handle our most serious cases.

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Martha Anne Toll’s debut novel, Three Muses, won the Petrichor Prize for Finely Crafted Fiction and is forthcoming from Regal House Publishing in fall 2022. For 26 years, she served as the founding executive director of the Butler Family Fund, deeply engaged in the death penalty, and in supporting other social justice issues.

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Banner image: “Lethal injection table (11501354666)” by Ken Piorkowski is licensed under CC BY-SA 2.0. Image has been cropped.

 

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