Avoiding Reversible Error in Closing Argument: What Prosecutors Can Learn from 2016

For a prosecutor, there are few things more disappointing than hearing the words “not guilty.” Close competition is leaving the courtroom with a guilty verdict in hand, only to learn some time later that you royally messed things up and the appellate court has overturned the conviction. To err is human, to forgive . . . not the specialty of appellate judges.

Not all blame for reversible error lies with the prosecution, of course. But prosecutors have a vested interest in ensuring their convictions withstand an appeal. As a prosecutor who recently experienced the dejection of a vacated conviction (erroneous jury instruction), I’ve committed myself in 2017 to learn from the mistakes of 2016—both my own and others’. To start, here are 7 ways in which closing argument got prosecutors into trouble in 2016. Examples 2 through 5 can be easy mistakes to make, especially after a high-intensity trial schedule involving little sleep. In all cases but the last, the improper closing argument contributed to reversal of the conviction (in Examples 1 through 4 the improper closing argument was the sole grounds for reversal).

(I don’t know any of the prosecutors who participated in the cited cases, and this is not intended as a criticism of their competence and integrity. I’ve made enough mistakes that I’m in a better position to critique than to criticize.)

  1. Arousing Racial Animosity

Among the most notable instances of improper closing argument last year came in the penalty phase of a capital trial. The Fourth Circuit found that the prosecution suffused the trial of a black defendant with “racially coded references to a degree that made a fair proceeding impossible.” See Bennett v. Stirling, 842 F.3d 319 (4th Cir. 2016). “The most egregious appeals to racial prejudice” came in closing argument, when the prosecutor compared the defendant to “King Kong on a bad day.” (King Kong is a classic of cinema, but many critics regard it as a veiled cautionary tale about interracial romance.) The prosecutor also deployed a “slew of derogatory terms,” labeling the defendant “a ‘caveman,’ a ‘mountain man,’ a ‘monster,’ a ‘big old tiger,’ and ‘[t]he beast of burden.’” These remarks, the court found, were “unmistakably calculated to inflame racial fears and apprehensions on the part of the [all-white] jury.” Taken in context, the prosecutor’s argument “mined a vein of historical prejudice against African-Americans, who have been appallingly disparaged as primates or members of a subhuman species in some lesser state of evolution.”

Most prosecutors don’t need this reminder to steer clear of anything that even has the whiff of racial undertones.

  1. Misstating a Central Point of Law

The law is complex, and thus it’s easy for attorneys to misstate unintentionally a point of law or two in closing argument. Errors of this sort are commonly deemed harmless and do not warrant reversal. However, when the prosecution’s error touches upon a point of law central to a disputed issue, it may substantially prejudice the defendant’s right to a fair trial and necessitate a do-over.

That’s what occurred in United States v. Williams, 836 F.3d 1 (D.C. Cir. 2016), which addressed the murder conviction of an Air Force airman, who, while stationed in Germany, was a leader of a gang known as the “Brothers of Struggle.” All initiates to the gang had to endure a ritual beating. In this case the initiate died from blunt force trauma, and Williams, who partook in beating to death the decedent, was charged with second-degree murder. The initiate had consented to the ritual, but consent is not a defense to murder. The victim’s consent, however, was relevant to whether Williams had the requisite state of mind for murder (as opposed to involuntary manslaughter). That is, the victim’s “‘continued, and enthusiastic, statements that he wanted the initiation to continue’ [] suggested that Williams was not conscious of an extreme risk that [the victim] might die or be seriously injured.” The prosecution erroneously argued that the jury could not consider consent at all—not even with regard to Williams’s intent. The appellate court acknowledged that the prosecution’s problematic statement amounted only to “a small portion of closing argument.” But that was all it took to undo a murder conviction.

  1. Vouching for the Credibility of Your Witnesses (And Your Own Integrity)

A prosecutor’s personal opinion of the strength of evidence holds no weight. Therefore, a prosecutor cannot make personal assurances of a witness’s veracity (e.g., “I believe the government’s witnesses are telling the truth.”). That mistake proved costly in United States v. Smith, 814 F.3d 268 (5th Cir. 2016). The prosecutor asserted his personal opinion of witness veracity on several occasions. The prosecutor then compounded the error by improperly vouching for the government’s own integrity (“What incentive is there for us to come in and try a person if he’s not the person that did the offense?”).

  1. Misdescribing the Presumption of Innocence

“The presumption of innocence that you came into this trial with no longer exists at this point,” argued the prosecutor in State v. Lawrence, _P.3d_, 2016 WL 7441872 (Mont. 2016). The prosecutor apparently was intending to convey that the evidence presented by the state removed any reasonable doubt that the defendant had committed the crime. However, what the prosecutor actually said is legally unsound. As one Colorado court explained it:

The presumption remains in place unless and until a jury returns a guilty verdict, terminating only if the jury concludes that the prosecution has proved beyond a reasonable doubt that the defendant is guilty of the charge against him or her . . . .

Thus, as a jury evaluates the evidence against a defendant, it must continue to presume him or her innocent until it concludes that the evidence proves the defendant guilty beyond a reasonable doubt.

The Lawrence court concluded that the prosecutor’s comments had the “potential effect of removing the presumption of innocence from the defendant.”

  1. Shifting the Burden of Proof

In State v. Moodie, an unpublished case from the Minnesota Court of Appeals (2016WL596275), police found the defendant facedown and intoxicated in the woods near a vacant car that was parked in an intersection. On trial for DUI, the defendant asserted that she hadn’t had a drink until after the car broke down and her friend went to get help. It was then that she supposedly uncorked the booze. Police didn’t find an empty bottle and so the prosecutor argued: “You’ve got no evidence of a bottle. Certainly, if she’s presenting to you now that hey, I drove and then I drank, there is no evidence of that. . . . There is no reasonable doubt that this defendant did not commit this offense. To put it another way, this defendant committed the offense. It’s proof beyond a reasonable doubt. There is no other proof.”

It’s proper for a prosecutor to comment on the lack of evidence supporting a defense theory, but improper to remark on the defendant’s failure to present evidence. (It can be a fine distinction.) The court held that that the “the prosecutor’s comments imply that Moodie had some burden to produce evidence to prove her version of events, particularly the last challenged comment that ‘[t]here is no other proof.’ [T]he prosecutor plainly erred in improperly shifting the burden of proof onto the defendant.”

  1. Trying Something Novel

Part of the fun of closing argument is finding fresh and engaging ways to present your case to the jury. And in that regard prosecutors have wide latitude. As one court put it, “It is well-established that a prosecutor may use wit, satire, invective and imaginative illustration in arguing the State’s case and may present an analysis of the evidence in summation with vigor and zeal.” If, in plumbing your creative reserves you devise a technique you’ve never seen another trial lawyer use, first read People v. Mpulamaska, 48 N.E.3d 853 (Ill. App. Ct. 2016). The prosecutor in a sex-assault trial took the witness chair during closing to comment on the victim’s courage and credibility. The court could only locate one other instance where a prosecutor had taken the witness seat during closing—a 9th Circuit case where the prosecutor delivered a soliloquy in the voice of the deceased victim. Neither court looked favorably upon the theatrics.

  1. Acting Unprofessionally

State v. Robinson, 134 A.3d 828 (Me. 2016), is not about a prosecutor’s misconduct during his own closing, but during defense counsel’s. Testimony from a neutral observer at a post-trial hearing indicated that the prosecutor had attempted to communicate with the jury during the defense counsel’s closing argument. How? In response to defense counsel’s rhetorical questions, the prosecutor repeatedly mouthed to the jury, “He did it.” (The prosecutor denied the allegation.) The prosecutor also closed his eyes, put his head back, and feigned sleep during defense counsel’s closing argument. The prosecutor admitted he did this to annoy defense counsel. The prosecutor’s conduct didn’t undermine the conviction, but it may have undermined his reputation within the bar.

Mickelson v. County of Ramsey: Booking fees and due process

On a note somewhat related to Nelson v. Colorado comes Mickelson v. County of Ramsey, a case challenging the constitutionality of Ramsey County, Minnesota’s policy of charging arrestees a $25 fee upon booking them into jail. In an installment of his Sidebar column earlier this week, the Times’ Adam Liptak tied the case, which is pending petition before the Supreme Court, to a “national trend to extract fees and fines from people who find themselves enmeshed in the criminal justice system.” In the wake of “The Great Recession,” some states and municipalities began charging inmates for their jail and prison stays to offset budget deficits.

Against the backdrop of “pay to stay” practices, petitioners Erik Mickelson and Corey Statham, formerly detained at a Ramsey County jail, sued the county for confiscating their pocket money upon booking. The county returned their money, less the $25 booking fee, in the form of a debit card. This is all kosher under Minnesota state law. What about per the Constitution? Before the state deprives you of life, liberty, or property, due process is owed. The petitioners claim that they didn’t receive adequate process (i.e., a hearing adjudicating guilt) before the county deprived them of property.

The Eighth Circuit disagreed (823 F.3d 918). A unanimous panel held that while the booking fee scheme implicated a property interest ($25 is a significant amount of cash for some), by balancing the competing private and public interests at stake, as well as the risk of wrongly depriving an innocent person of property, the court determined that the process given by the county was no less than the process due the arrestees. In so holding, the judges generally gave their approval to controversial “pay to stay” policies:

[W]e agree with the [Sixth Circuit’s] conclusion that the county’s interest in collecting the fees at booking is substantial. Collecting the fee from those required to pay under the statute allows the county to manage the costs of serving and policing the community and “further[s] offender accountability. “ Courts routinely recognize this interest when approving the collection of jail-related fees. In Slade [v. Hampton Roads Reg’l Jail, 407 F.3d 243, 253 (4th Cir. 2005)], for example, the Fourth Circuit upheld a jail’s practice of automatically charging pretrial detainees one dollar per day in part because the jail had a “legitimate interest to defray the costs of a prisoner’s keep and a legitimate interest in the collection of the fee.” The Fifth Circuit recognized a similar interest in Broussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 2003). There, the court upheld against a due process challenge a Louisiana statutory scheme that required inmates to pay a fee as a prerequisite to release on bail because the policy furthered “the government’s interest in conserving scarce resources” and in “maintaining cost-effective procedures.”

The way that petitioners have framed the question to the Supreme Court—“Whether due process allows governments to confiscate money from innocent people on the basis of an arrest and then force those people to prove they are entitled to have their money returned”—suggests a focus on the risk of an erroneous deprivation. To ensure that it does not levy the fee against persons jailed undeservedly, the county refunds the booking fee in three circumstances: (1) if the arrestee isn’t charged with a crime, (2) if charges are dismissed, or (3) if the arrestee is acquitted of all charges at trial. (Of the petitioners, Mickelson pleaded guilty, while charges against Statham were dismissed. Thus, only Statham qualified for a refund.) To facilitate the refund process, the sheriff’s department must give inmates a “Booking Fee Refund Form” upon their release. Once there is a dismissal, acquittal, or a formal decision not to pursue charges, the arrestee may submit the form and the county is then required to mail the refund within 30 days of receiving the form. This post-deprivation process, the court found, protects inmates who are innocent. So does the pre-deprivation requirement that the Fourth Amendment requires probable cause for an arrest.

In Markadonatos v. Village of Woodbridge, 760 F.3d 545 (7th Cir. 2014), the en banc Seventh Circuit took up a constitutional challenge to another booking fee, but managed to avoid the constitutional issue. Judge Frank Easterbrook argued in a concurrence that the due process clause permitted the collection of a jail booking fee so long as probable cause justified the arrest:

Probable cause justifies substantial burdens. Someone arrested on probable cause can be taken to the stationhouse, booked, and held pending bail, even if the offense is punishable only by a fine. A person taken into custody can be held as long as 48 hours before seeing a magistrate. Probable cause, reflected in a grand jury’s indictment, justifies holding a defendant in custody pending trial. Probable cause also can justify the seizure of the suspect’s assets pending forfeiture, a step that may make it impossible for the suspect to hire his preferred lawyer and might lead to a conviction, when a better defense could have produced an acquittal.

All of these losses vastly exceed a $30 fee. If probable cause justifies months in jail and an inferior lawyer, what sense could it make to say that a $30 fee is constitutionally excessive? True, someone arrested on probable cause does not get the $30 back if he prevails at trial—but neither does he get back the value of time spent in jail or the value of the difference between a top-notch lawyer and the average quality provided under the Criminal Justice Act. It won’t suffice to say, as [the] dissent does, that probable cause isn’t enough to justify permanent deprivations of property. It does justify deprivations of liberty; why is property more sacrosanct?

The Eighth Circuit did not say whether probable cause for an arrest in itself was sufficient process, but pointed out a critical difference between the respective policies of Ramsey County the Village of Woodbridge:

[The Village of Woodbridge] provided no post-deprivation remedy through which arrestees could receive a refund. Instead, “[t]he deprivations occurred at the time of arrest, immediately and finally,” and the system “allowed no room for dispute or review of any kind.” The policy thus imposed a permanent deprivation based solely “on the unreviewable decision of one police officer.” Significantly, the appellant in Markadonatos suggested that the city’s collection policy would pass constitutional muster if the city afforded a post-deprivation procedure “by which those who are wrongfully arrested, never charged, or are found not guilty may obtain a refund.” Such a system is present in the case before us.

If the Court does accept Mickelson it could use the opportunity to clarify for municipalities exactly what safeguards they must put in place if they want their fee scheme to comply with the Constitution: Is the requirement that an arrest must be supported by probable cause constitutionally adequate process to deprive the arrestee of $25 upon booking? Is some post-deprivation process, such as the refund form that Ramsey County employs, also required? Or, does Ramsey County’s policy not go far enough, and must the pre-deprivation process amount to a finding of guilty in court?

For some court watchers, though, Mickelson is part of the broader controversy over “pay to stay” policies. Liptak writes in his Sidebar that the opposition to such policies consists of an “unusual coalition of civil rights organizations, criminal defense lawyers and conservative and libertarian groups.” Billing people for the time they spend incarcerated seems shortsighted to me. “Pay to stay” might pull the criminal justice system through some tight budget years, but it also risks sucking poor people into a cycle of debt that will translate to a future strain on public resources. Nonetheless, I haven’t read anything to convince me of their illegitimacy. The criminal justice system is a public good, and while the public is expected to finance common goods through taxes, it’s accepted that those who use certain public goods also make direct contributions.

Nelson v. Colorado: The due process right to a refund?

You do something you would never do: You have too much to drink and get behind the wheel. Next thing you know you’re arrested on suspicion of DUI. Because if you are convicted you will lose your job, you reject the prosecutor’s plea offer and demand a jury trial. The jury convicts you. It’s your first DUI, so you’re sentenced to probation with some alcohol classes and community service, no jail. And you have a sizeable tab. Not to mention your lawyer’s fees and the cost of the classes, in Colorado you’d owe the following: (1) 21.00 in court costs, (2) a 5.00 court security fee, (3) a 5.00 E-discovery fee, (4) a 2.50 genetic testing surcharge, (4) 20.00 for the Brain Injury Fund, (5) 33.00 for the Victim Compensation Fund, (6) 90.00 for the Law Enforcement Assistance Fund, (6) a 100.00 persistent drunk driving surcharge, (7) a 300.00 fine, (8) 222.00 for the Victim Assistance Fund, and finally (9) a 5.00 rural youth alcohol abuse surcharge. Having learned that Uber is much cheaper than a DUI, you quickly pay your dues.

Then a surprise: You win your appeal and are awarded a new trial. But because a key witness is now unavailable to testify for the state, the DA is unable to prosecute and the judge dismisses the case. No more probation, no more classes, no more conscripted volunteerism. You would also like a refund of all the fines, surcharges, and other fees you shelled out to the state coffers. But on that count, you’re out of luck, at least in Colorado.

When the Supreme Court resumes its docket in January, it will hear oral arguments in Nelson v. Colorado, which asks whether the Constitution’s due process clause requires Colorado to refund amounts paid pursuant to a criminal conviction that is later invalidated.

The Petitioners, two individuals whose felony convictions were overturned on appeal, and who were denied refunds, say it does. Their primary argument is that Colorado law, by denying such refunds, contravenes the presumption of innocence, which the Court has found an essential component of due process in criminal proceedings.

To understand the Petitioners’ argument, it is necessary to understand the basics of Colorado’s Exoneration Act. Responding to high-profile exonerations of convicted murderers, Colorado and other states passed laws that compensate innocent persons for the time they spent behind bars. (For a good story on the subject of compensating exonerees, see the New Yorker Annals of Justice piece “The Price of a Life”). To recover under the Exoneration Act, a defendant must file a civil action and prove, by clear and convincing evidence, that he is “actually innocent” of the crime. The Act was not intended to compensate defendants like the Petitioners, whose convictions were overturned because of a procedural or legal error, without evidence of a colorable claim of innocence. If a defendant can prove his innocence, he receives $70,000 for each year he was incarcerated (an additional $50,000 for each year incarcerated under a death sentence), and $25,000 for each year served on parole, probation, or as a registered sex offender after a period of incarceration. Important to this case, the exoneree also receives a refund of all monetary penalties.

The Petitioners argue that the Exoneration Act, at least with respect to its provisions governing refunds of monetary penalties, unconstitutionally flips the presumption of innocence. The argument’s appeal (I was sold for a few minutes) is superficial. The Exoneration Act only allows convicted felons who have served all or part of a sentence of incarceration to prove their innocence and receive a refund. Persons convicted of misdemeanors and of felonies where the sentence is something other than prison (e.g., probation)—in other words, a significant majority of people who pass through the criminal justice system—don’t have recourse to the Exoneration Act. Because the Exoneration Act doesn’t apply to this class of defendants, even armed with proof of their actual innocence they’re out of luck when it comes to getting their money back. If most defendants don’t have the ability under Colorado law to receive a refund by proving their innocence, then Colorado law doesn’t flip the presumption of innocence. There is simply no remedy for the perceived wrong (in legalese we say you’re “SOL”). Respondents compellingly argue that any such remedy would have to sound in substantive due process, and the Supreme Court’s jurisprudence on substantive due process just about closes the door on any claim that defendants have a substantive due process right to a refund.

Furthermore, it’s not clear why the presumption of innocence applies here. Black’s Law Dictionary defines the “presumption of innocence” as the “fundamental principle that a person may not be convicted of a crime unless the government proves guilt beyond a reasonable doubt, without any burden placed on the accused to prove innocence.” Courts have only recognized the presumption’s pride of place in criminal proceedings. No one is suggesting that Petitioners were tried and convicted without the benefit of the presumption of innocence. (If they had been, it would be an outrage that no one would be willing to defend.) Petitioners’ brief fails to justify why the presumption of innocence should also govern in a civil proceeding.

If the Respondents prevail before the Supremes, it may be because the implications of the Petitioners’ position are arguably far-reaching. A key sentence of the Respondent’s brief states that “Petitioners do not explain why the Constitution grants them compensation only for monetary payments they made pursuant to their convictions, while ignoring their loss of liberty during their time of incarceration.” Expect this question to be put to the Petitioners at oral argument: If the Court accepts that due process requires compensation for monetary payments, why doesn’t it also require compensation for the loss of liberty?

I have no doubt that Colorado should provide refunds of monetary penalties (with the exception of restitution) when a defendant’s conviction is overturned. Colorado’s law certainly feels unfair. But whether the Constitution requires Colorado to do so is an altogether different question, and not one the Petitioners’ brief answers satisfactorily.

The Dual Sovereignty Doctrine Reconsidered

The Fifth Amendment’s double jeopardy clause bars successive prosecutions of a person for the same offense.  An exception to the double jeopardy prohibition known as the dual sovereignty doctrine allows successive prosecutions for a single act that violates the laws of different sovereigns. In effect, the federal government may prosecute a person after his conviction or acquittal on criminal charges in state court, and vice-versa. Likewise, different states can prosecute a person for the same conduct. A pending petition for cert is asking the Supreme Court to reassess the doctrine’s place in double jeopardy jurisprudence.

The case is Walker v. Texas (not to be confused with Walker v. Texas Division, Sons of Confederate Veterans, a First Amendment speech case from 2015), and one indication the Court may take the case is a concurring opinion from last term’s Puerto Rico v. Sanchez Valle. In that case, the Court held that Puerto Rico is not a sovereign distinct from the federal government for purposes of the dual sovereignty doctrine. Justice Ginsburg, joined by Justice Thomas, added a short concurrence calling for “fresh examination” of the dual sovereignty doctrine. When two justices who are ideological opponents urge their colleagues to reconsider an important question of constitutional law, it’s worth paying attention. (Cf. Breyer’s concurrence re: constitutionality of the death penalty.)

There is also reason to think the Court will pass on Walker. The dual sovereignty doctrine is long-established—in dicta it dates back to the middle of the nineteenth century, in square holding to the 1922 case United States v. Lanza. It isn’t the subject of a circuit split or dissension in lower courts. As recently as 2013, the Court denied cert presenting the same question as Walker (Roach v. Missouri). And the doctrine has been reaffirmed and extended numerous times since Lanza despite persistent criticism from scholars and judges.

In support of “fresh examination,” two other ideological opponents, the Constitutional Accountability Center (progressive) and the Cato Institute (libertarian), have jointly submitted an amicus brief. The brief makes several arguments for reconsideration:

  • The Framers designed our federalist system to enhance liberty, and they viewed the prohibition on double jeopardy as a fundamental protection against government overreach. In the name of federalism, which is intended to enhance liberty, the dual sovereignty doctrine has the perverse effect of constricting liberty.
  • The Framers intended the clause to preserve the common-law protection against successive prosecutions for a single offense, even when brought by different sovereigns. The concerns that lie behind the double jeopardy prohibition—multiple prosecutions for a single offense increase the chance an innocent person will be convicted, and they subject the accused to an unjust amount of humiliation and anxiety—do not depend on whether the same or a different sovereign brings the successive prosecutions.
  • Since the Court adopted this doctrine, the criminal law and its enforcement have changed in significant ways. For one, the U.S. criminal code is more expansive, giving the federal government more opportunities to bring successive prosecutions. Federal-state cooperation in law enforcement has risen in recent years, increasing the likelihood of successive prosecutions.
  • The dual sovereignty doctrine made more sense at the time it entered the canon. At the time, states were not bound by the Constitution’s double jeopardy clause. “[I]f a state could prosecute an individual as many times as it wanted for the same offense . . . it was not a stretch to think that the federal government could prosecute him after he had been prosecuted by the state.” In 1969 the Court accepted that the Fourteenth Amendment had incorporated the double jeopardy prohibition against the states. This development has undermined an underpinning of the dual sovereignty doctrine.

The dual sovereignty doctrine has always made sense to me. If, for example, the federal government and a state proscribe the possession of a firearm by a convicted felon, a felon who possesses a firearm is violating two laws, and both the federal government and the state should have the right to make him answer for each violation. It may be a poor use of resources to prosecute the offender in both forums, but that is a matter of prosecutorial discretion. As Justice Holmes wrote of the doctrine, it “is too plain to need more than statement.”

That’s been my thinking on the issue. Granted, if successive federal-state prosecutions were routine, rather than a rarity, I’d be more concerned. But I’m also susceptible to the originalist arguments made in the brief of the Constitutional Accountability Center and Cato Institute, and the brief rightly points out that the constitutional landscape has undergone a sea change since the last time the Court seriously considered the validity of the dual sovereignty doctrine.

For a succinct but thorough argument that the doctrine merits a second look, see Second Circuit Judge Guido Calabresi’s concurrence in United States v. All Assets of G.P.S. Automotive Corp. (under the heading “Rethinking the Dual Sovereignty Doctrine”).

Breyer’s Death Penalty Crusade Continues

Justice Breyer’s 2015 dissent in Glossip v. Gross, which argued that the imposition of the death penalty likely violates the Eighth Amendment’s prohibition on cruel and unusual punishments, ranks among the boldest opinions of a justice in recent years. Indeed, it’s one of the rare Supreme Court opinions that you can purchase in book form. Yesterday morning saw Breyer again tiptoe out onto the abolitionist limb with a dissent from a denial of certiorari in the death penalty case Sireci v. Florida. His dissent, which focuses on the four-decade delay between Henry Sireci’s capital conviction and his scheduled execution, begins with this evocative description of Sireci’s everlasting purgatory on the green mile:

When he was first sentenced to death, the Berlin Wall stood firmly in place. Saigon had just fallen. Few Americans knew of the personal computer or the Internet. And over half of all Americans now alive had not yet been born.

This isn’t the first time Breyer has voiced concern about excessive delays in executions. In 1999, he dissented from denials of cert in two cases where the petitioners had been sentenced to death two decades earlier, writing that “[i]t is difficult to deny the suffering inherent in a prolonged wait for execution.”

In 2011, Breyer dissented from the denial of a stay of execution on grounds that the Court should consider the petitioner’s claim that the delay in his sentence (33 years) violated the Eighth Amendment. There was, Breyer said, “little doubt about the cruelty of so long a period of incarceration under a sentence of death.”

One might say that the solution to this is to reform the post-conviction process that causes such interminable delays. But in his Glossip dissent, where Breyer revisited the “cruelty” of excessive delay, he resisted this solution because “delays have helped make application of the death penalty more reliable.” And this, he wrote, “creates a dilemma: A death penalty system that seeks procedural fairness and reliability brings with it delays that severely aggravate the cruelty of capital punishment and significantly undermine the rationale for imposing a sentence of death in the first place.”

Breyer’s crusade to abolish the death penalty may be noble, but in Sireci it’s not persuasive. Living for decades under the inevitability of an approaching death is not a cheery prospect, but it is a prospect that is inherent to the human condition. And many believe it a boon to live a longer life, even if the remainder of that life is spent in confinement. In law school, I interned with a group of death penalty lawyers. In their eyes, every year the post-conviction process delays a client’s execution is a tiny win, even if the client eventually loses his legal claims. If an inmate is plagued by the delay to the point of psychological duress, he retains the power to expedite sentence by forgoing further layers of judicial review. (Timothy McVeigh forwent his appeals.) If the inmate rather chooses to avail himself of the appeals process, delay is the natural consequence (again, a consequence that many would deem a benefit).

The deficiency of Breyer’s reasoning is reflected in the court of public opinion. A Gallup poll from October 2014 asked capital punishment opponents why they disfavored death as a punishment for persons convicted of murder. Forty percent responded that it was wrong to take a life. Seventeen percent of respondents worried about the execution of innocent persons. You will not find uneasiness over delays from litigation among the other answers.

Who does Breyer have to convince, though? It’s doubtful that whomever Donald Trump picks to fill Justice Scalia’s seat will be sympathetic to his position. And Justice Ginsburg was the only other justice to join his dissent in Glossip. He doesn’t have the votes to abolish the death penalty, and there’s no sign that he will anytime soon. For now, Breyer can pursue his crusade on his own terms, bad arguments and all.