Joshua B. Hoe interviews Marc Bookman about his book A Descending Spiral: Exposing the Death Penalty in 12 Essays
Full Episode
My Guest: Marc Bookman
Marc Bookman is the executive director for the Atlantic Center for Capital Representation, a nonprofit that provides services for those facing possible execution. Before that he spent many years in the Homicide Unit of the Defender Association of Philadelphia.
He is also the author of the new book A Descending Spiral: Exposing the Death Penalty in 12 Essays
Watch the Interview on YouTube
You can watch episode 117 now on YouTube.
Notes from Episode 117 Marc Bookman
The books Marc suggested were:
Shot in the Heart by Mikal Gilmore
The Executioner’s Song by Norman Mailer
and
Closing Arguments: Clarence Darrow on Religion, Law, and Society
Full Transcript
Joshua B. Hoe
Hello and welcome to Episode 117 of the DecarcerationNation podcast, a podcast about radically reimagining America’s criminal justice system.
I’m Josh Hoe, and among other things, I’m formerly incarcerated; a freelance writer; a criminal justice reform advocate; a policy analyst; and the author of the book Writing Your Own Best Story: Addiction and Living Hope.
Today’s episode is my interview with Marc Bookman about his book A Descending Spiral: Exposing the Death Penalty in 12 Essays. Marc Bookman is the Executive Director for the Atlantic Center for Capital Representation, a nonprofit that provides services for those facing possible execution. Before that he spent many years in the homicide unit at the Defender Association in Philadelphia. He is also the author of a new book, A Descending Spiral: Exposing the Death Penalty in 12 Essays. Welcome to the DecarcerationNation podcast, Marc Bookman.
Marc Bookman
Thanks for having me, Josh, really appreciate it.
Josh Hoe
Oh, my pleasure. I always ask the same first question, how did you get from wherever you started in life, to where you were defending people facing death sentences, and ultimately writing a book taking on the death penalty.
Marc Bookman
So you know, I’ve listened to your podcast, which is terrific. And so I knew that that was the first question. And even being prepared with knowing that that’s the first question, I don’t feel like I have a remarkable answer. You know, I grew up in an upper-middle-class, suburban town. My father was a CPA, my brother was a CPA, my mom was a homemaker. I can’t actually put my finger on anything that would have led me to this destination, other than the fact that it’s always struck me as just about the most important thing I can do. And, you know, I was always interested in writing, I spent a lot of time writing, I used to publish short stories non prolifically for years. And then I started writing what I would consider creative nonfiction. And at the same time, I was a public defender for 28 years. And as a public defender, I was extremely ambitious, but in sort of a weird way; I never wanted to be anything other than a public defender, but I always wanted to do the most serious cases, the cases where the most was at risk. So, you know, kind of logically, these two things came together for me. That’s my origin story.
Josh Hoe
That makes me wonder, doing the most important cases where the most is at stake. And being in a system where public defenders don’t have the same resources, don’t have the same system investigators, don’t have the same situation. How were you able to survive that for so long? And what would you say – I know there’s a justice thing that keeps driving you, but there’s also got to be a lot of stress and a lot of tension; what’s kept you doing it for so long?
Marc Bookman
There is huge stress and tension, but it’s not exactly what you think. The Philadelphia Defender Association – I mean, there are many public defender offices that really struggle and are not handling these cases correctly. The Philadelphia Defender Association is not one of them. So when we started taking these cases in 1993, we made a very clear decision that if we were going to handle them, we were going to handle them correctly. And so we applied the ABA guidelines right from the start to lawyers on every case, a mitigation specialist, a fact investigator, someone who was familiar with mental health, we were pretty well-funded. And so the stress was always in the work, but never in the resources. And I’ll go on to say that if your listeners take a look – the Yale Law Journal cannibalized a study by the RAND Corporation, what the RAND Corporation did was they looked at at at cases handled in Philadelphia, from 1994 to 2005, from the public defender’s office, and court-appointed lawyers because the public defender was handling one out of every five cases randomly. And what that study found is that if you were lucky enough to have a public defender in Philadelphia, and you were facing homicide charges, you were – I want to make sure I get this right – 61% less likely to be convicted of first-degree murder, 19% more likely to be acquitted and overall, your sentence was 24% lower, if you had a public defender. So it really kind of blew up the presumption that the lawyer doesn’t matter, that study showed that the lawyer matters a lot more than the lawyer should matter. So you know that I’m a proud ex-member of the Philadelphia Defender Association. And I guess I should also point out, I’m on their board right now. So we handled them correctly from the beginning.
Josh Hoe
But my question was about how you deal with the stress and tension. And I still want to answer that question, because I think a lot of people who are public defenders and watch this would love to hear what you have to say.
Yeah, I was hoping to get past that one, Josh.
Josh Hoe
Are you saying you haven’t gotten past the stress and tension?
Marc Bookman
So you know, there’s no getting around the stress and the tension. And, you know, if you’re not feeling stress and tension, you’re not in the moment, and you’re not paying attention, as they would say. So, if you’ve assembled a strong team, and you’ve got the best case you can get, then you have to live with that stress. There’s nothing that’s ever going to make you say, Well, my client’s life is at stake, but I’m not going to feel stress. That’s an impossibility. You have to live with the consequences, and you hope your client lives with the consequences as well. And I mean, that, you know, in a kind of a pun-like way; the stress is brutal. And frankly, I’ve always said that one of the biggest problems with the death penalty is we, the Royal We, the public, we should not be in a position of making these decisions. That when you’re trying to decide between life and death for another person, that’s a decision that a human being simply shouldn’t make. So that you know that the stress that I feel, the stress that I hope jurors feel, or judges or ideally prosecutors, it would occur to them that this is a decision nobody should be making. It’s just as simple as that. And there are many reasons to oppose the death penalty, but that’s one of them. What business do we have making this decision?
Josh Hoe
And recently, the Department of Justice put a moratorium on the use of the Federal death penalty. But there was also some talk almost at the same time from the Biden DOJ about preserving the death penalty in the case of one of the Boston bombers, [and] coming after the tragedy of what happened in the last two years of the Trump administration, rushing to get 13 executions done. In regards to the use of the Federal death penalty, do you have feelings about where we’re at right now?
Marc Bookman
Yeah, you know, so federally, I think the Biden Administration is finding its footing. Let’s leave the federal situation aside for just a minute. I mean, though, the lesson that is clearly learned, and you’ve pointed it out in your question, is that another administration can come along and wreak complete havoc like the Trump administration did. I mean, they put every due process consideration aside; they trampled on people’s rights to achieve a goal of these 13 executions in seven months, something absolutely unheard of federally, historically. That same lesson needs to be learned everywhere else. Like for instance, in Pennsylvania, we’ve had a Governor who instituted a moratorium, Governor Wolf, his second term is up soon, and we’re gonna have another governor, and that Governor is going to make some life and death decisions. So where we are nationally, the trends are clearly in favor of moving past capital punishment. Death sentences are down. Executions are down. Moratoriums are up. The death penalty doesn’t have the cachet that it used to have. So you know, I’m cautiously optimistic, but that doesn’t mean that we’re not going to see two steps forward and one step back, for lack of a better word. And we’re going to continue to see that until we get to the end of the road. And the Trump administration brought that one home in a kind of powerful and horrifying way.
Josh Hoe
Let’s turn to the book. The book has an interesting structure. What prompted you to utilize, what I guess I would call, an episodic format in the way that you wrote it.
Marc Bookman
So, you know, I started writing these essays under one real theory: that the public, if they knew the truth about these issues, would not be in favor of the death penalty. So first of all, let me just say the public is not nearly as in favor of the death penalty as we think the polls show; the public is less enamored of the punishment than it used to be. And, frankly, when we ask the correct question, which is after someone is convicted of first-degree murder, which do you prefer: life with parole, life without parole, or the death penalty, we see a clear majority that favor the two life alternatives to death. So I want to start with the idea that the public is already less enamored of this punishment than many of our politicians think. Having said that, when I write these essays, I think I am particularly well-suited to telling the truth, and the truth involves an understanding of death penalty law, and an ability to write in a way that communicates it without a bunch of footnotes, and legal cites. So, I started writing these essays, because I thought the public wasn’t getting the true story. When you write about a lawyer that’s drinking a quart of vodka a night or prosecutors that are hiding evidence, a lot of times that comes out in dribs and drabs, and it doesn’t come out in the context of a human story. So I started writing these essays, to inform the public as best I could. At some point, I had enough of these essays, and I had written enough essays that weren’t published so that I thought that it made a compelling story, kind of a cover the waterfront type of story, where I had essays about prosecutorial misconduct, ineffective lawyers, and racist judges. I tried to pick different topics in each of these essays; I try not to write the same essay topic more than once. And so you’re right, it’s a little episodic. But I think if you look at the essays carefully, you’d see that each one of them covers a different topic. There is an overlap at some point because when you see prosecutorial misconduct, you’re often going to see, you know, ineffective lawyering as well; one leads to the other oftentimes.
Josh Hoe
I don’t want to literally go through every step of the way, [but] I think we could talk about some of the major themes, and then you can unpack some of it. One of the major problems raised in the book is the problem of judges. There are states, for instance, where a judge can apply a death sentence, even after a jury has decided the defendant should get life in prison. Can you talk a little bit more about that problem?
Marc Bookman
Yeah, that’s pretty remarkable. I was just talking about how the public I think is not well informed of some of these issues. The first essay points out that a man named Buford White received a 12-nothing vote for life from his jury. And there were very, very good reasons for that. White was – although the crime itself was horrific – White was pretty clearly not involved. I mean, he was involved to the extent of a robbery, but not to the extent of a murder, and he wanted no part of it after that was done, and the jury heard this. And so they voted 12 nothing for life. But in Florida at the time, that didn’t stop the judge, a legendarily bad judge, from simply saying, I don’t care what the jury did. And he was executed shortly after that, a couple of years after that. So I think the public doesn’t know that we still have situations where judges can overrule jury verdicts. Alabama had – I think there’s two dozen people where a jury vote would have been for life, either one juror or a number of jurors voted for life, and in most states, you require unanimity. So Alabama had a number of cases where the judge overruled the jury. The Supreme Court has had an opportunity to rectify that several times, but they’ve chosen not to do it. So I doubt that the public knows that in some states, the jurors might vote one way but a judge can still override it. It’s remarkable.
Josh Hoe
So one of the areas in which this can become problematic – and you said before that maybe the public is less pro-death penalty than it would appear – but we also have, in theory, a problem of elected, as opposed to appointed, judges. Does this add to the problem? Or is that not a big part of it?
Marc Bookman
It sure does. I think the Equal Justice Initiative (EJI) in Alabama did a study where they found that elected judges were more likely to be pro-death penalty, for lack of a better word, during election season when they were running for election. I said that it definitely doesn’t have the same cachet it used to have, [but] certainly in some states it does. Alabama, I think it’s fair to say, would be one of those states. In Pennsylvania, we had a Justice of the Supreme Court, probably more than one, but one comes immediately to mind. And I wrote about him, where he campaigned on being the former District Attorney of Philadelphia and putting 45 people on death row. So he actually ran for office and won a spot on the Pennsylvania Supreme Court by advertising his pro-death penalty in a bona fides. So yes, it makes a huge difference when we’re electing judges, who at least think that they can they can make some hay politically, by being pro-death penalty. It’s a big problem.
Josh Hoe
And another problem that it seems like we face is some regional tendencies; it seems like in particular, it’s very bad to be a person of color charged with a death-eligible sentence in the south. Is that fair?
Marc Bookman
I would say that’s more than fair. And I wouldn’t limit it to the south. If the book has one overriding theme, it’s the persistence of racism in the death penalty. You see it all over the place, racist lawyers, racist jurors, racist judges. And I think a lot of people, myself included, would suggest that the death penalty itself is kind of an outgrowth of lynching; when lynching went “out of style”, the death penalty arose. So race discrimination is all over the death penalty. And it’s not just the race of the defendant, it’s also the race of the victim, which is a big issue. Study after study shows that you are more likely to get a death verdict if you kill a white person than a person of color. And of course, that’s not how the system is designed. And so race just permeates every aspect of capital punishment.
Josh Hoe
When I talk about the death penalty, I usually say a brief set of arguments. The first one is that there are innocent people that get put on death row and some theoretically [are] executed. There’s that it’s massively racially disparate, and I’ve never seen any studies that dispute that. They all seem to reinforce that. And there’s also obviously a lot of moral arguments; we’ve made some of those before. It permeates the entire book and the entire system, how the death penalty is applied in massively disparate ways. And there’s kind of a systemic indifference to it, in a lot of ways, all the way to the top. Do you have any theories about how – one of the things we said at the very beginning of this discussion is that the public might be turning back against the death penalty – why do you think we have the persistence of this, despite what you think are some changing public mores?
Marc Bookman
Let me say one thing before I get specifically to that, which is that the reason that I think the death penalty is declining is because of knowledge. In other words, in the late 60s and early 70s, the public was against the death penalty in the same way. It seemed like the wrong thing to do, but the public didn’t know about certain things. So when the Supreme Court took the death penalty away, the public immediately responded by saying, We want the death penalty, don’t take this away from us. Now we have the same feelings against the death penalty, but we know a lot more. So what prompted this was your question about that, when you started out by talking about innocent people convicted and the race discrimination and so forth. We know more now than we knew in the late 60s and early 70s. We know about prosecutorial misconduct, we know about DNA. So we know about innocent people coming close to execution, and in my opinion, and in many other people’s opinions, being executed. So we’re much more knowledgeable. And that means that our views towards the death penalty are now getting much more support, our views against capital punishment are getting much more support. So the question you asked is, why is it still there? Basically, why is it so difficult to eradicate? And I think to some extent, it’s like turning around the Titanic; there’s a certain inertia to the system, there are still victims who have been, in my opinion, misled by prosecutors who – I don’t want to speak for victims, because every victim reacts differently – but I think that for many victims, closure proved to be a myth, with reversals, with reversal after reversal, and the length of time that it takes between verdict and execution, the retrials and the resentencing we see, and the ongoing litigation – I think, for many victims, closure has been a myth. At the same time, there is this inertia, that a verdict has been rendered, and courts are hesitant to reverse those rulings, even when they’re faced with pretty compelling evidence. Like a couple of the essays in this book, a lawyer that drinks a quart of vodka at night, a juror that says, I’m imposing death, because of the color of that defendant’s skin – and I’m not using the words that he used. So you know, there is this hesitancy in a number of courts to reverse what they perceive as a public policy. Steve Bright, one of the great icons in my world, one of the founders of the Southern Center for Human Rights, he said, and I love to quote him on this, that the last place the Civil Rights Movement has reached is the courtroom. So I just think we’re incredibly slow to read the tea leaves, and that the public is getting this idea. And I think a lot of politicians are getting this idea, at least the reform prosecutors that we’re seeing elected in big cities are starting to get the idea. And the courtroom is the last place to get it. And so that’s my explanation; they’re just slow off the mark. I think they’re going to get it. But it’s a work in progress.
Josh Hoe
Another of the problem areas that we talked about – you’ve brought it up a couple times already – is the idea of defense attorneys who either don’t seem to care very much, don’t have experience, are struggling with addiction, or entirely out of their depth. But it seems so normalized, and yet so brutal that some people by sheer bad luck, get bad representation when their own life is on the line. Can you kind of add some color to it? Can you explain a little bit more about this problem?
Marc Bookman
That’s a great question. We see over and over again, that effective lawyering virtually ends the death penalty. I told you about the Defender Association; from 1993 to today, the Defender Association has not taken a single death verdict. And I think I attribute that not to the fact that the defender lawyers are the greatest lawyers in the world. I don’t attribute it to that; I attribute it to the fact that they’re effective. So by the same token, Virginia, a state that executed more people than any other state, historically, they brought in regional capital trial lawyers, and those lawyers were well-trained, well-resourced, and because of that, they were effective. And over the course of 10 or 11 or 12 years, they basically ended the death penalty in Virginia. There wasn’t a single death verdict in Virginia. And because there wasn’t a single death verdict, the legislature said what are we throwing all this money away for? There’s no point. And they ended the death penalty in Virginia, in my opinion sheerly because of effective lawyering. So flip the coin, when you see lawyers appointed over and over – and I make this point in the book – when you see bad lawyers appointed over and over, that’s a system that is racist in its bottom line, that the people that are subject to this awful lawyering, the establishment does not care about those people. So a real system of justice would have an independent board that appointed lawyers and made sure they were qualified, not lawyers that drank a quart of vodka at night; not lawyers that make racist jokes in the lawyers’ labs. And I’m using examples right out of the book. So, a real system of justice, [would] make sure that we don’t appoint those lawyers. But when you see those lawyers appointed over and over again, and in Philadelphia, there was a hardcore group of 25-30, court-appointed lawyers getting appointed over and over and over again, generating death sentence after death sentence. That’s a system that doesn’t care about justice.
Josh Hoe
What about the flip side of that? I’ve known a few people who used to be death penalty prosecutors, and I think I would put my feeling about where they come from is kind of a very macabre kind of groupthink. You’ve obviously been opposing these folks for a long time, so what’s your take on that?
Marc Bookman
So, you know, it’s interesting, when I get asked to debate the death penalty, I always say the same thing. I say you’re not going to find somebody to get on the other side. You know, the people that are still supporting this punishment after everything we know, DNA exonerations and prosecutorial misconduct, all the stuff we’ve been talking about -it’s very hard to find people that are defending that system. So there are three kinds of prosecutors; one are the true believers, they just think an eye for an eye is fair, and you’re not going to penetrate them. There are other prosecutors who are just kind of, give me the file, tell me what to do, I’m going to do it, and we’ll let the jury decide. And then there’s a third kind of prosecutor who has – when you’ve done this work, as long as I have, you see clients change, they change from very young guys who have oftentimes done some horrible things, and as they mature, and as they kind of age out of violence, they’re also aging into a mature worldview, people that really have done enough time and should be released. And there are 1000s of these guys. By the same token, you often see that in prosecutors; they do the work long enough, they are not zealous like they used to be. They realize that they come to a realization, maybe this isn’t the best solution; life without parole or life with parole is a better answer. I don’t have I don’t have a concrete answer for every prosecutor. But I’ve certainly run into a number of them that feel badly about the way they were as younger prosecutors and they’ve aged out, they’ve matured, and they’ve come to see the light. Frankly, I don’t want to be too cliched about it, but that’s how I see it.
Josh Hoe
I think one of the biggest problems of the ones that I noted, outside of the systemic problems like racism, is appellate courts. At one point of the book, you quote a court decision suggesting whoever represents the accused has a far greater obligation than just standing around with a law license in his or her pocket. But for veil on appeal, the condemned also has to show that if his lawyer hasn’t done such a bad job, I’m sorry, I lost the end of the quote there. But the point being that there should be an equal consideration, in my mind, for people at the appellate level as at the trial level and at any other level, if life is on the line, but that doesn’t seem to be the way it works out. Can you talk a little bit more about that?
Marc Bookman
We have been – We, the Royal We, the public – has been misled for years and decades about this kind of revolving door of justice, that every little technicality is letting murderers run out on the streets. It is the most deceptive media campaign ever conducted. The truth is that the law has very carefully been designed so that the technicalities really screw the defendant – pardon my language – but that’s the reality. So in the mid-90s, we passed a law called – I want to make sure I get this straight – the Anti-Terrorism and Effective Death Penalty Act, we refer to it as AEDPA. And that’s really what you’re getting at with your question, which is that when decisions get made early in the process with bad lawyers – we’ve already talked about those decisions – they’re like getting etched in stone. They’re like coming from Mount Sinai. And you can’t under the anti-terrorism and effective death penalty act, you can’t disrupt those findings. So they get special deference. So what happens is, bad lawyers, handle the case early on, and then they handle the case on the first appeal. And then once that appeal comes down, that bad finding gets harder and harder to overturn, because of the laws that we’ve set up. So you know, while the public thinks everybody’s getting out based on technicalities, [it’s] actually exactly the opposite. There’s a horrifying story in the book, it’s not a standalone essay, it’s just a reference, where a new case had come down and the lawyers called the court, the Justice Center, and they said, Look, we’re going to be there in a few minutes. We’re having a problem with our printer. The head judge in Texas said sorry, the court is closing at five o’clock. Sure enough, those lawyers got there late. Their client got executed. A client then two days later, with the same exact issue, he lived because of that issue. So this judge said, we’re closing the courthouse at five and the client got executed; talk about your technicalities. You know, it’s horrifying. And the law supports this. And that judge who closed that courtroom years ago, she’s still a judge in Texas, she’s still a very important judge in Texas. So these technicalities are not setting anybody free.
Josh Hoe
Yeah, when Somil Trivedi and I talk every year about the Supreme Court on the podcast, we’ve been talking about it as kind of this weird fetish of finality; that even the Supreme Court seems to care much less if justice is done than they do about decisions being final. There are clear examples of where people have had injustice done to them in the service of finality, which is very strange, especially when you’re talking about death when the penalty is literally death. A couple of terms ago, you had Gorsuch and Kavanaugh waxing poetic about how much of an annoyance all of this is when they were talking about the cases about people wanting to use a different cocktail than the one that . . . it’s just amazing to me that this happens. Why at this top-level where, do justice or the heavens fall level of the courts, why is there this almost unbelievably cruel indifference happening?
Marc Bookman
Let me give the most obvious answer first, which is that elections matter. I mean, let’s not make any bones about it. Anybody that still thinks that the United States Supreme Court is getting its answer out of law books, hasn’t been paying attention forever, frankly, but certainly, you see evidence of this all over the place. The plain fact is we’ve elected a string of very conservative justices; we’ve elected them, we had an election, and then they got appointed through very, very partisan lines. So you start with that as a presumption. I think that to some extent, the law is a cover for people; if you want to do justice, you’re going to find a way to do justice. I mean, Justice Sotomayor regularly dissents on these issues, I mean, her writing is compelling in the extreme. But if you want to do justice, there’s a way to do it. And if you want to, if you want to exercise finality, and you want to see closure, and you want to uphold death verdicts, there’s a way to do that. And so, the law provides cover for these justices to do that. I don’t have any other way to put it. You know, I was talking the other day with some lawyers about victim impact evidence. Victim impact evidence is you put the victims on the stand in a penalty phase, and they get to talk about their loss. And the reason that wasn’t allowed for 100 years, was because it emphasized the race of the victim. And, as we’ve seen in study after study, the race of the victim shouldn’t matter but does matter, in terms of who gets a death sentence. So for 100 years, we didn’t want that evidence. And then in 1987, there was an opinion that said, We don’t want that evidence; in 1989 there’s an opinion that says, We don’t want that evidence; in 1991, that evidence is suddenly acceptable. And what was the change between 87, 89, and 91? Clarence Thomas got elected to the Supreme Court of the United States; the law didn’t change. The law books, the analysis didn’t change, and the cases didn’t change. The constitution of the United States Supreme Court changed. And that’s the reality. It’s who’s on the court.
Josh Hoe
Another part that’s pretty powerful in the book is discussing how often mental illness plays into this. It almost seems like many judges look at claims of mental illness as a ploy. And in one of the most disturbing stories in the book, there’s a person named Andre Thomas, who, you know, by any stretch of the imagination would have to be considered mentally ill, but kept getting denied relief. Given what happened in that case, and in others, is it even possible for anyone to be deemed mentally unfit to be put to death anymore?
Marc Bookman
So first, let me give you a tiny drop of good news before we get to all the bad news that is inherent in your question. The good news is that Ohio just recently passed a law barring the execution of the severely mentally ill. So Ohio was not generally seen as a big front runner in these issues. So, that’s terrific. But you’re so right, that first, you know, the people that, that that get through, you know, the safety net of the death penalty, oftentimes, I’m using safety net as maybe it’s a bad metaphor, but if you if you’ve got good lawyers, there are ways to avoid the death penalty oftentimes, and one way that we see, that is problematic is severely mentally ill people that can’t process information correctly. Now, Andre Thomas’s case is different than that. So I’ll get to that in a minute. But we routinely see severely mentally ill people where the court refuses to recognize their severe mental illness, and they end up with death sentences because they’re just not able to process the information that’s necessary for them to avoid it. Andre Thomas, on the other hand, is a profoundly mentally ill person. And I think his lawyers did a pretty ineffective job initially, of showing that severe mental illness, there was a ton of it in the end, of course, you know, the essay just lays it out in extreme detail. But Andre Thomas is profoundly mentally ill and the fact that he not only – let me just say this – not only was he found to be competent, the district attorney said after he removed his eye, that that was an impulsive act. A couple of years later, hopefully, your listeners are sitting down, he removed the second eye and then ate it. I mean, we’re talking about he’s now blind. We’re talking about a profoundly mentally ill person. Not only has the Court upheld his death verdict, but on another issue which we’ll get to in a second I think, he’s headed to the United States Supreme Court on a separate issue. And the Fifth Circuit, the circuit, the court in Texas, upheld his conviction and his sentence, knowing how severely mentally ill he was. He’s still facing execution. And his case is going to the United States Supreme Court this fall. The issue it’s going on to the court on ….
Josh Hoe
You’re on a roll, let’s go.
Marc Bookman
The issue that he’s actually going to the Supreme Court on, is that Andre Thomas is an African American man, he killed his white wife and two mixed-race children. Amazingly, three jurors answered a questionnaire saying they were against interracial marriage. And the defense attorney, the defense attorneys, didn’t ask two of them any questions at all. The third one, they asked some rudimentary questions. And these three jurors who are against interracial marriage sat in judgment on Andre Thomas’s case and posted that verdict. So not only is the Thomas case significant for the most profound mental illness, but also for what I think is shocking race discrimination, so shocking that the dissent in that Fifth Circuit case had to cite Loving versus Virginia, that’s a 50 or 60-year-old United States Supreme Court case that condemned miscegenation laws. Who would think that in this day and age, you’d still have to point out Loving versus Virginia? But there you have it, in a dissent in the Fifth Circuit. So, remarkable.
Josh Hoe
I would say there’s a little bit of a mixed view of what times we’re in right now. I think there are certainly – let’s be fair – there’s a lot of backsliding, on a lot of stuff going on right now.
Marc Bookman
Yes, you’re right. Look, people are willing to say, you know, amazing things. I mean, you go to these focus groups like you say today, and you can’t believe what some people are saying, as if there’s no problem at all with what they’re saying. So you’re right about that. But we have to at least hope that the justice system is, you know, a little bit more concerned with that sort of blatant racism, then maybe, you know, some 30% of the population, it’s we have to hope for that anyway.
Josh Hoe
I think a particularly cynical defender of the death penalty might read your book, and go through the checklist of things you bring up and say, okay, we can fix that, we can fix that, we can fix that, we can fix that. Okay, and now the death penalty is okay. I don’t think that’s the argument you’re making. So I figure I should at least present that as something that you could respond to?
Marc Bookman
Yeah, I think that’s a fair analysis. There are a lot of things that can get fixed here. We’re not going to suddenly change the public from being what I think is fundamentally a racist society to non-racist. I don’t think we’re going to fix some things. But a pro-death penalty person would be right in saying we can – what Bookman just said, let’s have a neutral group of well-trained, well-resourced lawyers; let’s make sure that we’re really scrutinizing our jurors; we’re not going to elect judges, we’re going to appoint them, and be very, very careful about the process. We’re gonna have open files so that the prosecutor can’t hide any evidence, all those things could happen. And for those things to happen, we’re gonna have to spend a huge amount of money. So this is one thing that I didn’t mention in that Yale Law Journal article, when I talked about the Defender representation and how advantageous it was if you got one of those lawyers. The RAND Corporation also found that during that 11-year period, if you had a Defender, if the Defenders had represented everybody, the public would have saved over $200 million in excess incarceration costs. So I’m on the podcast Decarceration Nation. We would have saved, with that 24% lower sentence, we would have saved the public more than $200 million dollars. So if we make a decision that the death penalty is the most important public policy we can possibly have, contrary to deterrence and arbitrary-ness and racism, we want the death penalty more than any other thing, it’s going to cost a huge amount of money that could go to schools, or roads, or even well-funded policing. So I can’t imagine, moral issues aside, race aside, accidents aside, I can’t believe that we’re going to make a decision that the number one issue we want to focus on is having the death penalty, not better schools, or better roads, addressing climate change. So I think that that’s fair. If we want to spend that inordinate amount of money, we can fix a lot of the aspects of the death penalty not all, but a lot of them. I can’t believe as a public policy, we would make that decision.
Josh Hoe
46:09
Yes. So I wish I had the kind of listenership that a Joe Rogan has or something like that. Let’s pretend for a second that I did.
Marc Bookman
On the other hand, you’re probably well-vaccinated, and we don’t have that battle anymore.
Josh Hoe
I am vaccinated and I’m ready to take the booster as soon as they want to give it to me, I have no problem with it. So pretending for a second, we had that worldwide reach. Part of this is a public policy question. And part of this is a problem, a question of how the public reacts. We’ve talked about that a bunch of times, you know, but right now, we have a bunch of people who are still about to get executed in the status quo. And the typical way that the public goes about dealing with that right now is there’s a campaign, there’s a bunch of people who push around a bunch of memes, a bunch of people sign petitions, a bunch of people show up in protest, and unfortunately, the people still end up getting killed. So do you have any theories on how we can combine the lessons of the book, getting to more people, getting to the right people, and moving governors to stop executing people? You’ve been watching this for a long time, I’m certainly not denigrating any of the organizing work anyone’s done. It’s just I think, for all of us, very frustrating that we haven’t been able to stop more executions than we have, although a lot of executions have not happened, as you mentioned before; they’ve been going down.
Marc Bookman
When I was younger, I was much more naive; the death penalty seemed so clearly inappropriate to me, that I just, I couldn’t believe the public wouldn’t come to the same conclusion quickly. And I had these delusions, for lack of a better word, at a time when the death penalty was very, very popular. I’m not that naive anymore. But I will say this, all signs are pointing in the right direction. The first order of business is that we have to recognize, again, the Royal We, we have to recognize that we’re no longer in the minority. We’re in the majority, and we have to start acting like it. You see reform prosecutors getting elected across the country. I want to say again when a Gallup poll gets asked about whether you’re in favor of the death penalty, it’s about 55% right now; that’s the wrong question. When we ask what penalty would you prefer for someone who’s been convicted of first-degree murder, and you list the alternatives, the death penalty is no longer a majority position. So we’re now in the majority, and we have to stop acting like martyrs and start acting like majoritarians. Having said that, we just got rid of the death penalty in Virginia, the most execution-prone state in the country. Utah, the blood atonement state, is now strongly considering getting rid of the death penalty. Six leading prosecutors came forward in Utah and said let’s get rid of it. So we’re making headway across the country, and it’s a combination of things. It is organizing, but it’s also knowledge, and again, this is why I wrote the book. I think we are so much more knowledgeable now, and when you read these essays or you know other books that talk about it – I know you had Maurice Chammah on at some point – If you read these books, then you get it, you draw a certain conclusion. And that conclusion is, we know more now than we ever used to know. And you’re seeing it steadily. We’ve got Governors, it’s not happening tomorrow. But I’m old enough to know that this kind of change is not going to happen tomorrow. But it’s going to happen sooner than we think. Because we’re heading downhill now and downhill in a good way. You know, it’s like the running back running downhill in a football game. We’ve got momentum on our side. The public doesn’t love it anymore. The prosecutors are starting to get over it. Governors are imposing moratoriums. So you know, your premise is, I think, that we’re not making headway and my opinion is, we’re making more headway than it seems. And you know, it’s incremental, but it’s steady. If we can win Utah, and we can win Virginia and Ohio, we’re making big headway.
Josh Hoe
This year, I’m asking people if there are any criminal justice-related books that they might recommend to others. Do you have any favorites?
Marc Bookman
Talking about Utah, this is not a new book. It’s a book by Michael Gilmore, the brother of Gary Gilmore, the first person executed in the modern era in Utah. He wrote a book called Shot in the Heart. Michael Gilmore is a Rolling Stone writer. He’s an actual writer, and Gary was his brother. Shot in the Heart is a terrific book about the death penalty in Utah. And speaking of Gary Gilmore’s execution, Norman Mailer, this is just coming off the top of my head, I can’t think of the name of the book now, Norman Mailer wrote a book about Gary Gilmore as well. I think the best writing about the death penalty is the closing argument by Clarence Darrow, in the Leopold and Loeb case. It’s lengthy. I think he spoke for two days. An amazing, lengthy closing argument, two days, 12 hours I think he spoke. And so the Arguments of Clarence Darrow is a book and a boy if you read that closing argument, and you come away saying, I think the death penalty is a great idea, you’re impenetrable. You know, you can’t be reached. So I would suggest Shot in the Heart and the closing arguments of Clarence Darrow. I know neither of those is a new book. You know, as I said, I was listening to Maurice’s podcast, and he recommended another terrific book. Among the Lowest of the Dead, a book about the history of the death penalty in Florida. That’s a great book as well.
Josh Hoe
I always ask the same last question. What did I mess up? What question should I have asked, but did not?
Marc Bookman
Josh, I actually feel like you were on a roll. I really thought that you touched on everything. I think that we didn’t talk about the moral aspects of the death penalty. And, I don’t know if you want me to . . .
Josh Hoe
Go ahead.
Marc Bookman
Yeah, the moral aspect of the death penalty is … when I was just starting out, I had no fundamental ideas about DNA exonerations or prosecutorial misconduct. I just had a sense that it was wrong. And so I like to tell the story about “The Lion King” as kind of an allegory about the death penalty. People that remember the Lion King – which I’ve watched with my kids a million times – Scar is the heinous criminal in the story and he kills Mufasa, who is the benevolent leader of the lion pride, and then he compounds the horrible crime. It’s a horrible crime, he intentionally kills Mufasa and he does it to promote himself to the head of the tribe and then he compounds it by blaming Simba, Mufasa’s son, and so it’s really an awful crime. Simba grows up to be an adult lion. He’s always thought he was responsible for his father’s death. He learns that he wasn’t and he confronts Scar in, you know, a lion-like trial and he ends up winning that trial. They rumble around in the dust, and Simba ends up on top of Scar and Scar says, What are you going to do now Simba? Are you going to kill me? And I remember stopping the tape for my six-year-old and I said, What do you think Simba should say? And my six-year-old said, well, it’s not nice to kill people, even if they’re mean. And of course, Simba doesn’t do that. Simba bans Scar from the community, a kind of life punishment. And I like to imagine, imagine if Simba said, Yes, Scar, I’m going to kill you, I’m going to strap you down. I’m going to buckle your hands. And then I’m going to inject you with poison until you’re dead. What would the parents and the kids do watching that movie? They would go running out of the theater, screaming in horror, that Simba would do that because a good person doesn’t do that. And that’s the message Clarence Darrow makes as well, that we should not be acting like a heinous murderer acts. We’re better than that. And so, you know, from a moral point of view, when someone says, show them the same mercy that they showed the victim? That’s an absurd phrasing of the question because we should not be acting like heinous murderers. And that’s what the death penalty is. That’s why I called the book A Descending Spiral, quoting Martin Luther King, and I don’t want to blow it. So I’m going to read it exactly: “The ultimate weakness of violence is that it is a descending spiral, begetting the very thing it seeks to destroy”. You know, that’s what the death penalty is all about. So thank you for that opportunity.
Josh Hoe
I’ve always just said, it’s sort of a short form of that, that being for the death penalty says more about us than it says about them. And you know, so I couldn’t appreciate that story anymore. Is there anywhere, in particular, you would like for people to find your book? Or is there a website or anything that you’d like to…
Marc Bookman
I wouldn’t want to enter that political issue, but they can go to the New Press, the New Press is a nonprofit, progressive publisher, and I’m very, very proud to be published by the New Press, and they can go there, and they can Google “A Descending Spiral” and New Press, and they’ll find the book.
Josh Hoe
Great, and thanks again for doing this. It’s really been great to talk to you and to get to know you a little bit. And best of luck with the book.
Marc Bookman
I appreciate it.
Josh Hoe
And now, my take.
On October 26, I’ll be hosting a webinar featuring criminologist and economist John Pfaff. We will be discussing the increase in homicides, domestic violence, and other violent crime across the country, in context, and addressing many of the claims made as to the causes of this spike in violence. While the 2022 elections are fast approaching, we are soon to be inundated by scaremongering in the media and in political ads, and now is the best and probably most important time to separate fact from fiction. I will include a registration link in the notes for the podcast, but I think this will be a critical toolbox for all of the people who are interested in reform of our criminal legal system but have been overwhelmed by all the tough on crime talking points and relentless messaging from aggressive press outlets, police, police unions, and prosecutors associations. I hope you will join us for what I believe will be a very informative hour-long discussion.
As always, you can find the show notes and/or leave us a comment at DecarcerationNation.com.
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Special thanks to Andrew Stein who does the podcast editing and post-production for me; to Ann Espo, who’s helping out with transcript editing and graphics for our website and Twitter; and to Alex Mayo, who helps with our website.
Thanks also to my employer, Safe & Just Michigan, for helping to support the DecarcerationNation podcast.
Thanks so much for listening; see you next time!
Decarceration Nation is a podcast about radically re-imagining America’s criminal justice system. If you enjoy the podcast we hope you will subscribe and leave a rating or review on iTunes. We will try to answer all honest questions or comments that are left on this site. We hope fans will help support Decarceration Nation by supporting us from Patreon.
