Death is Different: What defenders of capital punishment get wrong

Last week, in a reactionary op-ed littered with Trump-inspired flourish, Sacramento District Attorney Anne Marie Schubert ramped up her personal, public, and political crusade for Proposition 66 in California (and its dubious promise of quick, yet somehow still accurate, state-sanctioned killings).

Schubert was responding to my column published at the end of last month, “California Voters can tip the balance in death penalty debate,” or as Schubert assailed it, “Stephen Cooper’s latest rant against the death penalty in California.” Following her dismissive, Trump-style personal attack, Schubert’s response immediately devolves into Trumpish narcissism (“Proposition 66 was conceived by some of the brightest legal minds in California”), followed by the trumpeting of a controversial and misleading poll concerning Californians alleged support for the death penalty.

Schubert’s op-ed extols Proposition 66 – which promises to speed executions in California, though not hardly as much as advertised – given Schubert’s remarkable concession that: “The initiative does not impose a rigid deadline that must be met in every case. Courts are allowed to go longer in extraordinary cases.”

{mosads}Schubert badly needs to brush up on Supreme Court case law because, as The New York Timesobserved fourteen years ago: “The Supreme Court has long professed the principle that ‘death is different,’ that in order to deprive someone of his life, the state must be punctilious about providing him every procedural protection.” Just one eloquent example of this is Reid v. Covert, 354 U.S. 1, 45-46 (1957) (on rehearing) (Frankfurter, J., concurring) (“The taking of life is irrevocable. It is in capital cases especially that the balance of conflicting interests must be weighed most heavily in favor of the procedural safeguards of the Bill of Rights.”).

What Schubert troublingly fails to grasp, despite touting her background having prosecuted death penalty cases, is that each and every death penalty case is “extraordinary.” In ignorance of this well-established principle, Schubert cheer leads for the continued arbitrary, inhumane, racist, financially unsound, unjust, state-sanctioned killing by California (of usually its poorest, most mentally ill, most vulnerable, most abused, and worst-represented citizens).

For the most part, with the exception of in a swath of states (like Georgia, Florida, or Alabama), the overwhelming majority of judges, thank God, rightly believe, and act all of the time, in accordance with Supreme Court precedent – that each and every death penalty case is extraordinary. They do so because of the irrevocable, God-like sanction involved – one that human beings, particularly state governments with a penchant for messing small things up, like fixing potholes – should never be allowed to engage in (except in war, and then, only when assisting the federal government in self-defense with the sober understanding that, “war is hell”).

Accordingly, because of the “extraordinariness” that is inherent in capital punishment (and the law as established by the Supreme Court of the United States), what Schubert stubbornly eschews admitting to California voters is that, if Proposition 66 were to pass, this whole five-year death penalty appeal business we keep hearing about is like that blob of orange “hair” atop The Donald’s head: as fake as all get-out.  

Cooper is a former D.C. public defender who worked as an assistant federal public defender in Alabama between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, California.

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