Tuesday, January 24, 2017


On January 10, 2017, a jury in Charleston, South Carolina sentenced twenty-two year old Dylann Storm Roof to death for shooting nine people in an African-American church. At his sentencing hearing, Mr. Roof represented himself, rejecting the efforts of lawyers appointed for him to present mitigating evidence on his behalf. In his closing argument, Mr. Roof said that it would not do any good for him to ask the jurors to give him a life sentence.

Mr. Roof was undeniably guilty, and quickly confessed. During the guilt phase of his trial (a trial involving the death penalty has separate phases concerning guilt and punishment), his lawyers referred to him as “abnormal,” “delusional,” and “suicidal.” Evidence was presented that his crime was motivated by hostility and fear of African-Americans.

Mr. Roof’s victims had varying opinions about what should happen to him. Some of them said they forgave him and asked that he be spared. Others thought the death sentence was appropriate, since Mr. Roof had killed others without justification. The Rev. Sharon Risher, daughter of one of the victims, expressed a poignant ambivalence. She was quoted in the New York Times: “I don’t believe in the death penalty, but I’m my mother’s child and with everything that’s happened sometimes I want him to die. . . . It’s like, you know what, this fool continues to just be evil. I’m just glad that they didn’t leave that decision to me.”

At the end of the guilt phase of his trial, Mr. Roof fired his lawyers and elected to proceed as his own counsel. The U.S. Supreme Court has held that the right to counsel enshrined in the Sixth Amendment to the Constitution includes the right to waive counsel, provided that the defendant is found competent to proceed and is informed of the disadvantages of representing himself. Mr. Roof’s lawyers argued that he was not competent, but the judge found otherwise and allowed the waiver of counsel. Mr. Roof then elected not to present evidence at the sentencing hearing.

Police officers sometimes speak of “suicide by cop,” a description of a situation where a person places himself in a position where officers will be forced to kill him. Mr. Roof’s actions could be described as “suicide by jury.” Since it is not possible, under our laws, for a defendant to agree to a death sentence without the action of a jury, Mr. Roof tried to make it easy for the jury to give him what he apparently wants—to be executed.

But by placing jurors in the position of having to carry out Mr. Roof’s will, we do them injury. The policeman who kill suspects who are committing “suicide by cop” do not emerge unscathed. As one expert puts it, “Officers involved in SBC incidents often feel a sense of powerlessness and manipulation, and this is typically reported to be an especially stressful and demoralizing form of shooting trauma.” Not surprisingly, jurors in capital trials also suffer emotionally, and those who impose death sentences suffer greater PTSD symptoms than those who impose life sentences.

If Mr. Roof doesn’t want to live, why should we care if he is executed? The answer, in my view, is that the justice system is the conscience of the community. Just as the victims, while entitled to express their opinion, cannot determine the sentence, so the defendant should not do so either. Both of them are too close to the issue to be appropriately objective and appropriately merciful. And if we are a nation of laws, we must make certain that even in horrible cases, we do not disregard our most fundamental principles, including the principal that human life is valuable.

Thursday, January 5, 2017


Most people who enter the criminal justice system are guilty. And that is how it should be; our law enforcement system would not be worth much if it only arrested guilty people half the time, and the remainder of arrestees were innocent. When I was in law school, one of my professors opined that only half of the people who enter the criminal justice system were guilty of anything. I thought that was a low estimate of the number of innocent people in the justice system then, and still do. It is true that the advent of DNA testing revealed that there are more innocent people convicted than was previously thought. Conviction of the innocent is a serious problem. But so is oppression of the guilty. The question is, who are those guilty people, and how should we treat them?

I’ve learned a lot about who they are from dealing with them for almost 40 years of legal practice. The main thing I’ve learned is that most of the time, there but for the grace of God go I. They are just people. It is easy to think that someone who has killed another person, or robbed a bank, or burglarized a home, or sold drugs, or snatched a purse, must be a different species from me. But she is not. She is just someone who made a wrong choice or a mistake. He likes hot chocolate in the winter and swimming in the summer. He looks out the window of his cell and enjoys watching the farmer let out his cows. My clients worry about their families, their loved ones, even about me. “Drive safe!” they say as I leave the prison—and they mean it!

Prisons these days do little to rehabilitate those who inhabit them. But the one gift they can give is unstructured time, which can allow those who are so inclined to rehabilitate themselves through prayer, study, and consideration of those they have hurt. Given the lack of foundation many of them experienced in early life, that happens more often than I, at least, would expect.

So, why should we protect the guilty? Here are some important reasons.

1. If we want to enforce moral and legal imperatives, we should abide by them.

2. We are all guilty and all members of the human family.

3. If we take shortcuts to convict the guilty, we run the risk of convicting the innocent.

4. If the guilty feel they have been treated with fairness and compassion, they are more likely to be rehabilitated.

In future posts, I will examine each of these principles individually. But for the present, it is sufficient to say that the criminal justice system exists, and should function, to protect the guilty as well as the innocent.