Concerning official misconduct

Harold Bashman calls our attention to a truly astonishing piece of prosecutorial misconduct: a prosecutor in the sentencing phase of a capital case made a big play with the fact that the defendant was homosexual. The defense objected, the judge overruled the objection, the prosecutor kept going with the argument, the defendant was sentenced to death, his lawyer (the same lawyer he’d had at trial) never raised the issue on appeal, his other state-level appeals were rejected, and now the Tenth Circuit has rejected his federal habeas corpus petition. He is scheduled to die tomorrow.

Having read both sets of appeals courts decisions, I reach the following conclusions:

1. The defendant, a cold-blooded multiple killer, will truly not be missed from this crowded planet, despite his subsequent remorse. He’s just about the poster child for capital punishment.

2. The “Anti-Terrorism and Effective Death Penalty Act of 1996” forces federal appeals judges to go through endless contortions to affirm capital sentences generated by fairly appalling processes.

3. The prosecutor in this case, and even more the trial judge, are a disgrace to their respective professions. The appeals court (before going on to assure us that it all don’t make no never-mind) dryly comments, “There does not appear to be any legitimate justification for these remarks. They are improper.”

What truly fries me, as in all such cases, is the virtual certainty that the neither the prosecutor nor the judge will face any professional discipline, or even any career discomfort, due to their egregious misconduct when a man’s life was at stake.

I have a lot of sympathy with the critics of letting obviously guilty defendants off to “punish” misconduct by the police or prosecutors. They reasonably ask, “Why not punish the official malefactors?” But then those same folks take exactly no action toward punishing said malefactors, any more than Janet Reno or Louis Freeh did with the FBI officials responsible for the Waco catastrophe.

The same argument was heard with respect to the thousand or so extra votes Bush got in Florida when a county clerk helped the local Republican party doctor some defective absentee ballot applications, which was a felony under Florida law. “Why disenfranchise the poor innocent voters? If the clerk committed a crime, she can be punished for it.” But of course she wasn’t, and no one intended that she should be or thought that she would be. That argument was merely what it always is: an excuse for looking the other way when a result you like is procured by illegal means.

What ever happened to “personal responsibility”?

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: