Is a DA's Arbitrary Decision to Spare a Convicted Killer a Valid Reason to Oppose the Death Penalty?

In which I take issue with David French and Sarah Isgur on whether this particular brand of "arbitrariness" is a good reason to throw out the baby with the bathwater

Above: “Mexican biker lawyer” and district attorney Mark Gonzalez takes to Facebook Live to explain why he wants to vacate the execution date of an admitted brutal killer

[Note: yes, it’s another newsletter with a free section and a paid section. This was necessary because this email took a long time to compose, and the divided format is due to the length and depth of the arguments. Like last time, the free section is long and comprehensive and stands on its own. But the extra stuff for the paid subscribers is worth a look if the topic interests you. I think it’s a unique take on a common argument about the death penalty.]

On a recent Advisory Opinions podcast, the excellent legal podcast hosted by Sarah Isgur and David French of The Dispatch, the hosts chose a curious way to make an argument about the allegedly arbitrary nature of the death penalty. In this newsletter, I will challenge the mindset behind these comments — not to pick on Isgur and French, whom I like, but because commentary like theirs is fairly common, and emblematic of a point of view that I think is mistaken.

Let’s start with the controversy that began the chain of events leading to the hosts’ comments. The saga began with a man who murdered a convenience store clerk in Texas in 2004, stabbing the victim 29 times. He was sentenced to death, and at his execution he wanted a pastor to lay hands on him in the execution chamber. The case went to the Supreme Court, after which the local district attorney started having second thoughts about pursuing the execution at all:

When a judge in South Texas signed an order this past week setting an execution date of Oct. 5 for John Henry Ramirez, it seemed like the end of the road.

Mr. Ramirez was convicted in 2008 for the murder of a convenience store worker, a crime he has acknowledged committing. He was sentenced to death and appealed his case to the Supreme Court — not to stop his execution, but to prepare for it. He asked to have his Baptist pastor pray out loud and lay hands on him in the execution chamber, a request that brought his case national notoriety. Last month, the court ruled in his favor, clearing the path for his execution to proceed as long as the state of Texas complied with his request.

But in a surprise turn of events on Thursday, District Attorney Mark Gonzalez of Nueces County filed a motion withdrawing the death warrant for Mr. Ramirez, citing his “firm belief that the death penalty is unethical and should not be imposed on Mr. Ramirez or any other person.” His own office had requested the execution date just days earlier, but Mr. Gonzalez, a Democrat, wrote in his motion that an employee in his office had done so without consulting him.

In a broadcast from his office on Facebook Live on Thursday afternoon, Mr. Gonzalez, whose district includes Corpus Christi, where the crime occurred, explained his decision.

“For a while now, I’ve said that I don’t believe in the death penalty,” he said. “My office is not going to seek the death penalty anymore.” He said he would be a hypocrite if he advanced Mr. Ramirez’s execution even as he instructs his office not to pursue the death penalty in new cases. Mr. Gonzalez and his office did not respond to requests for comment.

Isgur and French leveled some justified criticism at this decision. Isgur noted that this same DA had presided over three previous attempts to set an execution date. She called the manner in which the DA announced his decision — on a Facebook Live broadcast rather than speaking to his own troops ahead of time — “immature” and “attention-seeking.” “What a waste of judicial resources,” said Isgur, noting that if the DA was going to take this action, he could have done so long before the case went all the way to the United States Supreme Court. French agreed, and the two noted that the DA in question styles himself as a “Mexican biker lawyer covered in tattoos” and had joined a biker gang before becoming DA. The fellow is thirsty for the applause of the lefty part of the public. This is not a way to conduct such serious business.

Here, Isgur and French make valid points. But, based on their contempt for how the DA handled this decision, they concluded that this was another reason to oppose the death penalty itself. And that argument, I find to be quite the head-scratcher.

Their argument is that the DA’s decision, which was admittedly arbitrary, somehow shows that the death penalty itself is arbitrary. Because of this arbitrariness, they argue, we should oppose the death penalty in practice. French said that the episode “highlights the issues I have with the death penalty system in the United States of America,” explaining that one of the things he doesn’t like about the death penalty is that too often, “so much depends on [the issue of] who’s your DA?” He concluded, “man, think of the arbitrariness of this, Sarah.” Isgur agreed that it was incredibly arbitrary, saying, “I’m not opposed to the death penalty in theory but I am in practice. This is the most arbitrary thing that I have seen.” French agreed: “our justice should not depend upon whether a DA had a come-to-Jesus moment about the death penalty. That’s just so unbelievably arbitrary.”

It is arbitrary. But, the logical conclusion is not to oppose the death penalty itself, but to conclude that elected district attorneys ought not behave the way DA Gonzalez has behaved. This newsletter is devoted to making that case.

My argument here will proceed in three parts, the first two of which are for public consumption, while the final (and arguably most interesting) point is reserved for the elite paying subscribers. I’ll start by listing the issues, one by one, in the style of the McLaughlin Report (hi, older readers!): ISSUE ONE! ISSUE TWO! Etc.

Issue one: what kind of arbitrariness are we talking about?

Issue two: what kind of sense does it make to allow opponents of the death penalty to create the very harms of which they complain?

Issue three: maybe the arbitrariness of which the hosts complain is actually a strength of the way we apply the death penalty in this country . . . if you view the matter in a realistic manner.

What Kind of Arbitariness Are We Talking About?

Some readers may recoil at my acceptance of the fact that the death penalty is, to some degree, arbitrary. If you’re admitting that any aspect of the death penalty is arbitrary (I hear you saying) then how can you support it? After all, for many people, the idea that the death penalty is arbitrary seems a persuasive argument against it, because its arbitrariness raises in their minds the concern that the innocent will be executed. A reasonable person can ask: “if the death penalty is arbitrary, how can you support it knowing that innocent people might be put to death? Isn’t an admittedly arbitrary system, on its face, one that we cannot trust for such decisions?”

There is indeed a valid concern that a certain sort of arbitrariness can lead to the execution of innocents. So I want to begin the discussion by pointing out that I do care about this issue — but I also want to point out: that’s not actually what French and Isgur are talking about.

The risk of putting innocent people to death is a genuine concern and ought to be addressed. My solution to the problem is beyond the scope of this newsletter, but I’ll give you the short version: the answer is to tighten up rules to prevent innocent people from being executed. In short, I believe we should not put people to death if there is the slightest reasonable possibility that they are innocent. My solution is to place a heavy emphasis on the concept of lingering doubt — a factor that is already to be considered by the jury in mitigation — and to tell juries that if they have any lingering doubt about a defendant’s guilt, they should choose life.

But I also want to emphasize that this concern does not apply to everyone on Death Row, by a longshot. For example, Ramirez, the defendant who is the subject of this newsletter, is one of those people who is absolutely, unquestionably guilty. And his crimes were heinous. The Times doesn’t really want to talk to you about the facts of the case, but I do. Here is a brief account of the facts from the Texas Tribune:

Ramirez’s victim, Pablo Castro, was working the night shift at the Times Market convenience store on July 19, 2004, when Ramirez and an accomplice approached him with a knife. Ramirez stabbed him 29 times, searched his pockets and made off with $1.25. Castro died immediately, leaving behind 9 children and 14 grandchildren. Ramirez escaped to Mexico and eluded capture until 2008, when he was arrested near the border.

Justice Thomas, in his dissent from the Supreme Court decision regarding the pastor, gives a fuller and more vivid account of the facts. You should read it, because it matters. (I omit distracting citations from this account.)

On the night of July 19, 2004, John Henry Ramirez, Christina Chavez, and Angela Rodriguez ran out of drug money. Wanting more, they drove through Corpus Christi, Texas, in search of victims to rob. Pablo Castro, a father of nine, was working the night shift at the Times Market convenience store, as he had for years. With midnight approaching, he and another employee prepared to close up. Castro collected the trash and went outside to put it in the dumpster.

Ramirez and his confederates found Castro in the convenience store’s parking lot. Wielding a serrated knife, Ramirez slashed and stabbed Castro 29 times. Castro suffered eight wounds on his forearm and hands as he struggled to defend himself. He suffered many more wounds to the head, neck, shoulders, and back. After Castro fell to the ground, the attackers rifled through his pockets, collected $1.25, and drove away.

Two employees at a nearby store witnessed the attack. When they reached Castro, he was still conscious. He had suffered a deep gash across his throat and was spitting up blood. Castro eventually lost consciousness and, by the time first responders arrived, he had stopped breathing. He died in the parking lot.

Having netted only $1.25 from Castro, Ramirez and the others pursued new targets. Within minutes of murdering Castro, they found April Metting waiting in the drive-through of a Whataburger, with her 2-year-old son in the back seat. While Chavez distracted Metting, Ramirez crept up to the driver’s side window, grabbed Metting by the back of her neck, and held the now blood-stained serrated knife to her throat. Metting implored the assailants not to harm her in front of her child. Ramirez ordered: “‘Shut up, bitch.’” Metting surrendered her purse, and Ramirez let her go. The assailants again fled in their van.

They next targeted Ruby Pena Hinojosa, who was sitting in the drive-through line of a different Whataburger. As before, one of the women distracted Hinojosa while Ramirez approached her driver-side window to put the knife to her neck. But Hinojosa was able to dodge the knife, roll up the window, and back her car away from the assailants, who then departed in their van.

Not long after, responding officers spotted the van and pulled it over. When the officers exited their patrol cruiser, the van sped off. The police pursued, only to lose sight of it. Ramirez, Rodriguez, and Chavez then abandoned the van in an overgrown lot and continued on foot. Police soon found and arrested Rodriguez and Chavez, but they did not find Ramirez. He fled to Mexico and hid there for over three years before law enforcement apprehended him near the U.S.-Mexican border.

Even the New York Times concedes of Ramirez: “His guilt is not in question; Mr. Ramirez [himself] has called his [own] crime a ‘heinous murder.’” And the same is true of many people on Death Row, though certainly not all. For many, their guilt is beyond any rational dispute.

So yes: the problem of innocents is a genuine issue. But that problem is distinct from the risk that French and Isgur are talking about, which is, instead, the question of the equitable treatment of the truly guilty. The problem is this: among a pool of undoubted murderers who all arguably deserve death, some might receive life, and some death. The risk that Isgur and French discuss in their recent episode, in other words, is the risk of unequal outcomes for people who arguably deserve the same outcome. That risk is analytically distinct from the risk of putting innocents to death.

In the extended entry, for paid subscribers, I will explain why this particular risk is an unpersuasive argument against the death penalty. In fact, properly understood, it is arguably an argument in favor of our current system of capital punishment. That sounds like a bold claim, but I have a basis for my argument, as you will see (if you are a paid subscriber, that is!).

Opponents of the Death Penalty Creating Their Own Harm

The second issue to discuss is the notion of death penalty opponents complaining about harms that they themselves cause.

To me, citing DA Gonzalez’s decision as support for one’s opposition to the death penalty itself, as French and Isgur do, is as silly as announcing one’s opposition to the very concept of holding jury trials for the crime of murder, by citing the fact that the OJ Simpson jury arbitrarily let a clearly guilty man off the hook. The argument in both cases is the same: a decisionmaker — who has contempt for, and is an opponent of, a process — has acted in a highly arbitrary and indefensible manner with respect to that process. Therefore, the argument goes, the decisionmaker undermines confidence in the very process in which the decisionmaker acts. Therefore, the process itself is arbitrary . . . and we should stop engaging in it!

What?!

This description fits the Simpson jury to a “T.” Despite Isgur’s having once argued that the Simpson jury did the right thing for the right reasons, the Simpson jury was clearly hostile to the very concept of a black man being tried for murder, just as DA Gonzalez is hostile to the death penalty today. What is the difference between Isgur and French’s position and a rejection of the concept of murder trials based on the Simpson verdict? After all, if a jury can be that “arbitrary,” despite all of the evidence there was against Simpson, then murder trials are fundamentally flawed and we ought not conduct them! Does that argument make sense? Why should the jury’s unusual hostility towards a process render that process arbitrary by its very nature??

I find it curious to argue that a process or a punishment should be rejected because an opponent of that process or punishment made an unreasonable decision to reject the process or punishment. Such a rejection of the punishment or process does not render “arbitrary” the use of that process, or imposition of that punishment.

And this argument could be applied in any context, to any process or punishment, not just the death penalty. After all, the country has seen a host of Soros-funded district attorneys who have made decisions to forego, not just the death penalty, but all kinds of processes, enhancements, and punishments. If we decide that any given DA’s refusal to employ a process, punishment, or enhancement renders “arbitrary” another DA’s decision to use that process, punishment, or enhancement, then defense attorneys in DA garb in a leftist jurisdiction can theoretically undermine the legitimacy of any action by any DA anywhere.

For example: if a DA in Los Angeles County says he is never going to prosecute any juvenile as an adult, does that make it “arbitrary” for a DA in West Texas to prosecute a 17-year-old mass murderer as an adult? If a DA in San Francisco decides that petty theft or resisting arrest should no longer be prosecuted, does that make it “arbitrary” for a DA in Idaho to charge people with these crimes? The very idea strikes me as . . . unpersuasive, to put it mildly. It actually strikes me as nutty, if I am to be perfectly frank.

This form of argumentation — that we should reject the death penalty because of obstructive behavior by its opponents — reminds me of another tactic often used by death penalty opponents: neverending delay, followed by complaints about that very delay.

Specifically, opponents of the death penalty often bring endless frivolous appeals on behalf of Death Row inmates, requiring courts to spend decades evaluating and rejecting the appeals. Then, the death penalty opponents argue that the length of time the defendant has spent on Death Row constitutes cruel and unusual punishment (?!). Again, the fact that many defendants spend decades on Death Row is a function of their own endless appeals, generally pursued by activist lawyers who oppose the death penalty in all cases. Such an obvious case of self-imposed “harm” should be laughed out of court — and yet such arguments have been accepted as valid and persuasive by Supreme Court justices like Stephen Breyer and John Paul Stevens. Me, I am on team Clarence Thomas, who said: “It is incongruous to arm capital defendants with an arsenal of ‘constitutional’ claims with which they may delay their executions, and simultaneously to complain when executions are invariably delayed.”

And, it is incongruous to allow local district attorneys to exercise an arbitrary discretion not to seek a lawfully authorized penalty because they oppose the penalty, and simultaneously to complain that the application of the punishment is uneven and therefore arbitrary.

This brings us to a discussion of trade-offs, and the reason I say that the arbitrariness complained of by Isgur and French is actually a feature, and not a bug. For this discussion, take a stroll with me into the paid section. Try a seven-day trial if you like.