Does the death penalty pose moral dilemmas that force us to commit uncritically to the preservation of life, irrespective of broader intellectual and practical implications? In a passionate and engaging lecture titled ‘Thirty Years on Death Row: When Reality Confronts Critical Theory’, Bernard Harcourt explored this and other complex questions, inviting us to reflect on the ethical choices we, as researchers, lawyers, and ultimately human beings, are forced to face when the life of another individual is at stake.
As a critical theorist, Harcourt has dedicated significant thoughts and efforts to highlighting how liberal values contribute to reinforce traditional social hierarchies and power structures. At the same time, as a death penalty defence lawyer, he has unwittingly reinforced the same values he has tried to deconstruct through his scholarship. This contradiction, as Harcourt acknowledges in a deep self-reflection on his role as a researcher and a defence lawyer, poses significant questions about the possibility of reconciling an intellectual critique of the universality of human rights with a professional activity dedicated to safeguarding due process, equality before the law, and other constitutional rights.
Alongside his academic commitments, Harcourt has dedicated almost 30 years to the defence of death row prisoners in Montgomery, Alabama. His decision to leave a prestigious clerkship at the U.S. District Court for the Southern District of New York and move to Alabama came as he faced a difficult family loss: the death of his father. This personal tragedy prompted him to reflect on the incommensurability of life and to feel the moral necessity of defending the lives of the disadvantaged that our criminal justice systems traditionally penalise.
During the Roger Hood lecture, Harcourt investigated the nature and implications of this moral necessity, starting from the discussion of the case of Doyle Hamm, a man detained on death row at Donaldson Correctional Facility, in Bessemer, Alabama. Doyle was convicted and sentenced to death in 1987 for a robbery and murder that resulted in the death of Patrick Cunningham, the night clerk of the motel where the robbery took place. Two accomplices testified against Doyle, and stated that, while they had helped him in the robbery, he was the one who had pulled the trigger. While there was insufficient evidence to support the accomplices’ statements, the jury believed their testimony and sentenced Doyle to the electric chair.
Doyle’s case is a typical example of inadequate legal representation, a widespread problem that affects many indigent defendants charged with capital crimes in Alabama and other death prone jurisdictions. In the penalty phase of the trial that led to Doyle’s capital sentence, the defence lawyer presented his mitigating evidence in only nineteen minutes. He called no mental health experts and presented no medical or educational records. His evidence was limited to the testimony of two witnesses: Doyle’s sister, who provided very little information and stated that the brother had no educational problems, and Deputy Sheriff Johnson who only said that Doyle had been cooperative during his arrest and detention. The same day, after a long lunch break, the jury issued a death verdict by a majority of 11-1: in Alabama the law does not require a unanimous decision to sentence a defendant to death. The jury never heard any mitigating evidence about Doyle’s past and, after just four hours of trial, were ready to decide that his life was not worth sparing.
After having taken up the case in 1991, Harcourt started investigating Doyle’s past to paste together the life that was never presented to the jury. By tracking down witnesses close to Doyle and his family, and collecting hundreds of pages of medical and educational records from his birth in 1957, Harcourt discovered that Doyle had been raised in a very poor family in Alabama, by a tough grandfather and and even tougher father. His father, Major Edward Hamm, suffered from a debilitating alcohol addiction, used to beat his eight sons, and was repeatedly arrested for disorderly conduct, intoxication, and assault. He used to tell his sons: ‘if you don’t steal you’re not a Hamm’. Unsurprisingly, all eight boys got into trouble and served time in the Plantation Penitentiaries of Mississippi and Alabama.
Doyle suffered from mental health problems and learning disabilities throughout his life. The school records showed that in fifth grade he read at a first grade level and dropped out of school. As a child, he suffered a traumatic head injury and abused a variety of drugs, initially glue and gas, and later on all sorts of hard drugs. He suffered from repeated seizures and was eventually diagnosed with epilepsy. The medical expert hired by Harcourt diagnosed Doyle with lateral brain damage and borderline mental retardation. According to his examination, he suffered from neuropsychological impairment, brain damage, as well as other deficits with a significant impact on daily functioning. Doyle’s mental health and difficult upbringing was key to explain his impaired judgment and assess his criminal responsibility, and yet none of this crucial information ever reached the jurors’ ears.
Following the state habeas corpus hearing held in 1999, in which Harcourt presented all the mitigating evidence he and his assistants had collected, the Head Prosecutor for the State of Alabama drafted an eighty-nine page document challenging all their evidence and the legal foundations of their claims. The prosecutor styled the legal brief as a proposed memorandum opinion, and the state judge signed the proposed opinion without a single modification, without even striking the word ‘propose’.
Harcourt and his team have challenged this opinion in every possible federal court. However, all federal courts deferred to the state court decision, citing the United States AEDPA deference rule, which directs subsequent federal courts to defer to the state court on facts of law. Only once, in 2014, a judge on the Eleventh Circuit of the U.S. Court of Appeals challenged this decision. ‘It bothers the heck out of me,’ the judge said when discussing the case in court with his colleagues. ‘I don’t believe for a second that that judge went through eighty-nine pages in a day and then filed that as his own, as if he had gone through everything—went through his notes, the transcript, the exhibit[s], and the like,’ he said. ‘It just can’t be done!’ (Gonnerman 2016). Unfortunately, the judge’s comment had no practical consequences: the judges called the opinion a procedural shortcut that had no bearing on the merits of the appeal of the case. Doyle’s death sentence was confirmed.
At present, Doyle is still on death row and suffers from a malignant cancer that has spread throughout his body. There are only two possibilities before him: natural death or execution, which could paradoxically turn into a form of euthanasia that frees Doyle from the pain of his disease.
As a critical theorist, Harcourt has never made the death penalty the focus of his scholarship. He never felt he could reflect on it from the safe position of the intellectual: prompted by a pressing need to help the marginalized, he always felt the urge to engage with it, to contribute with his lawyering to the protection of the lives of the less fortunate. Yet, Harcourt recognizes that his activity as a lawyer might have indirectly contributed to legitimize the American capital punishment system. As Carol and Jordan Steiker argue in ‘Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment’ (1995), the litigation and regulation aimed at addressing the failures and contradictions of capital punishment since the mid-1970s might have legitimized the system rather than undermining it. With its long stream of rules and procedures, the law has indirectly contributed to humanize capital punishment in the eyes of the public, without substantially addressing the daily violations that the system regularly performs. Could it be that lawyers’ attempt to defend defendants’ rights and freedoms might contribute to the survival and preservation of the very system they are trying to defeat?
Harcourt admits that this is a real possibility, and yet he never gave up his work with Doyle. He felt that Doyle needed him and that at the same time he needed Doyle, perhaps to fulfil his human need to give a part of himself to somebody else. Perhaps the reason for this humanitarian urge lies in what Kant called the inviolability of life, Harcourt argues. Perhaps confronted with the necessity to save a life we have no choice but to defend due process and constitutional rights. Maybe, when facing the possibility of death we are confronted with something bigger than ourselves that urges us to make an ethical choice without asking whether this single action will have positive or negative implications for the system as a whole. Perhaps saving that one, single, life is all that matters in this specific instance, more than whether it will bring a substantial benefit to the cause of the marginalized as a broader social category. If you have the privilege and power to defend the rights of those in need, is it possible or desirable to refrain from doing it simply because it might reinforce the system as a whole?
Jennifer Gonnerman, ‘The Long Defense of the Alabama Death-Row Prisoner Doyle Lee Hamm’, The New Yorker, 13 September 2016, available here.
Carol S. Steiker and Jordan M. Steiker (1995), ‘Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment’, Harvard Law Review, 109(2), 355-438.