of an Execution
David R. Dow
Twelve: 274 pp., $24.99
You support the death penalty -- almost two-thirds of the country did, in a 20096 Gallup Poll. You may consider it retributive justice or perhaps a deterrent. You do not find racial disparities or irregularities in its application overly troubling. You believe most attorneys and judges act dispassionately and in accord with the dictates of law and the Constitution.
Still, there is the Texas problem.
Of the 1,194 executions in this country since 1976, Texas alone has carried out 449. A state in which 7.8% of Americans reside accounts for 38% of our state-sanctioned killing, in other words. A report by the Criminal Justice Project of the NAACP pointed out last year that, of the cases singled out for the death penalty, 78% involved white victims. A 2009 survey, cited by the Death Penalty Information Center, showed that 88% of former and current presidents of the country’s top academic criminological societies believe that capital punishment is not an effective deterrent to murder. There have been 139 death-row exonerations since 1973 based on evidence of innocence.
Ignore all that, and still the Texas situation begs an accounting.
David R. Dow is an attorney and law professor in Texas who has defended death-row clients since the late 1980s. He will not bore you with such statistics in his book “The Autobiography of an Execution.” Instead, he will transfix you with what he has to say and raise a host of other questions.
“I know death-penalty lawyers who are at the movies when their clients get executed,” Dow observes early in this memoir. “I know one who found out on Thursday that his client had been executed on Monday. He’d been scuba diving in Aruba. I understand that. It’s possible to care without seeming to. It’s also possible to care too much. You can think of yourself as the last person between your client and the lethal injection, or you can see your client as the person who put himself on the rail to that inevitability. One is healthier than the other.”
At the center of his account is a death-row client whom Dow is unable to save, as telegraphed by the book’s title. That he and his client ran out of time would be a more precise way to put it, as most of Dow’s efforts only buy time as he and his co-workers at the nonprofit Texas Defender Service file appeals they hope will bring permanent respite from death row. This case, confounding but unexceptional in many respects, does have an aspect that made it particularly harrowing: The attorney became convinced of his client’s innocence. (In an afterword, Dow says that of the 100-plus death-row inmates he has represented, seven, including the individual at the center of “The Autobiography of an Execution,” appear to him to have been innocent.)
In his relatively spare, direct but distinctly literary style, Dow catalogs his state of mind and quickly sketches the character of many co-workers, death-row prisoners, prison guards and others on the professional side. The casework presents nearly relentless pressure and ambiguity until calls come in from a court clerk 20 minutes before doom. “I am always hopeful. Nothing ever works out, but I always think that it’s going to. How else could you keep doing this work?” he asks. He watches the executions of clients who ask him to.
Dow alternates scenes of frenetic legal maneuvering and visits to prison with vignettes of his home life with his wife, Katya, and their precocious, self-declared vegetarian son, Lincoln. (He’s 6.) It is not unusual for him to miss a family event while trying to keep someone from death’s door. Dow, who enjoys his habitual cigar and a slug of bourbon, is self-critical here and there, mostly wondering whether he has been too severe in his tough-love approach to Lincoln. Katya and Lincoln, for their part, seem to take it all in stride.
The litany of legal ills recounted by Dow is chilling, making the system appear more of a lottery than anything else, as what could be remedial venues go lacking. He contends that the relevant federal appellate court has been of little help because of (unnamed) judges who are “unprincipled and hostile to the rule of law” and “look for ways to uphold death sentences even where constitutional violations are egregious.” The Supreme Court justices “are so inundated with cases that they don’t have time to be sticklers for principle, even when they are so inclined.”
There is a major journalistic question posed by “The Autobiography of an Execution,” highlighted by Dow in an author’s note at the front of the book (The publisher was sensitive enough to have an appendix to the book address it as well): Issues of lawyer-client confidentiality survive the client’s death. Without permission -- many of the people represented are dead and cannot give it -- Dow cannot divulge details of their lives. His solution was to write the book he did, changing names and occasionally genders, ages, racial identity, procedural court actions and more. “I have not altered the facts of the crimes nor of my relationships with my clients,” he states, and “the basic chronology of events is accurate.”
As a result, much will hang on how heavily Dow is trusted. The potentially innocent man executed here is called Henry Quaker, and he was convicted of killing his wife and two children; an insurance policy he held helped throw suspicion on him. One of Dow’s clients, a woman named Frances Newton, was executed in 2005 for killing her husband and two children and had held an insurance policy on them. Is one a transfiguration of the other, or a partial model?
Dow’s voice throughout is one of modulated anger: He seethes within boundaries. His book feels authentic and heartfelt as situations and conversations vary and is eminently quotable. At many points Dow describes the legal theory under which an appeal is to be made by his team, hoping a judge or panel of judges buy it. Mostly they do not. But what becomes clear is that when we kill under the law, we kill according to theory.
Winslow is a former literary and executive editor of the Nation.