An essay I’ve been working on for a while now, I think it’s finally ready to share. It’s a long read, I know. TLDR: the death penalty corrupts our role at every turn and maybe we should refuse to participate.
The Sixth Amendment promises every criminal defendant the right to a speedy and public trial, an impartial jury, notice of the charges, the opportunity to confront witnesses, and the effective assistance of counsel. These guarantees are not aspirational; they are structural. They define what a criminal trial is. The death penalty does not merely threaten to punish unjustly. It operates from the moment charges are filed to systematically undermine constitutional guarantees, not only of the eighth and fourteenth amendments, but of the fifth and sixth amendments as well. The result is a constitutional paradox: the state reserves its most severe punishment for proceedings that are least capable of producing a reliable verdict.
The argument here does not rest on the philosophical merits of capital punishment which are dubious to boot, nor on the well-documented risk of executing the innocent, nor on its disproportionate application to select demographic groups, nor on its illegitimate historical roots, nor on the empirical failure of deterrence, nor on the illegitimacy of retribution as a justification for punishment, nor on the well-established economic waste of taxpayer resources inherent in pursuing the death penalty. These are serious concerns, and they have been litigated extensively and incompletely resolved.
The present argument is narrower and, perhaps for that reason, more damning: the death penalty does not merely carry the risk of an unjust outcome; it structurally deforms the proceeding that is supposed to produce a just outcome in the first place.
I. The Contamination Begins at Charging
The constitutional damage does not begin at voir dire. It begins when a prosecutor decides to seek the death penalty, a decision that occurs before charges are filed and often before an arrest is made. At that moment, the prosecutorial function expands beyond its ordinary scope. In California and in most capital jurisdictions an elected district attorney authorizes the filing of capital charges. This is not an ordinary charging decision made by the assigned prosecutor applying the facts to the law. It is an institutional commitment loaded with political consequence, made by people who will not try the case, who do not know the evidence as well as the trial prosecutor, and who have substantial external incentive to appear decisive and uncompromising.
The consequences of that institutional commitment are immediate and pervasive. A defendant who might otherwise receive a preliminary plea offer receives none, or receives one so distant from the likely trial outcome as to be functionally coercive. A prosecutor who might privately assess the case as strong on manslaughter but weak on murder is constrained by the goal already manifested. Rather than adjust the charges to fit the gap between the authorized charge and the likely provable charge, that gap becomes a lever.
II. Plea Bargaining Under Structural Coercion
In ordinary criminal practice, coercive plea offers are recognized as a constitutional problem. The voluntariness of a guilty plea depends at least in theory on the defendant’s ability to make a rational, informed choice. A plea entered under conditions of extreme compulsion is not truly voluntary; it is capitulation.
Capital cases make this problem explicit and then proceed while ignoring it. If there is a settlement offer in a capital case, that offer is usually life imprisonment without the possibility of parole (LWOP). In California, where the moratorium on executions has been in effect since 2019 and where the average time between sentencing and execution has historically exceeded two decades, LWOP and a death sentence are as a practical matter functionally equivalent. The defendant will die in prison either way. And yet the existence of the death designation produces a nearly irresistible pressure to accept LWOP, a pressure felt not only by defendants but by defense counsel who are supposed to be the rational check on that pressure. Defense attorneys expressly reinforce to one another that LWOP is an unequivocal win; it is the prescribed goal and should be celebrated, not for the attorney’s own glory but for the client’s sake: “you’ve saved his life.”
This is the most revealing feature of the structural corruption: capital defense attorneys, who have nothing personally at stake, who are trained to evaluate risk dispassionately and well-experienced in doing so, and who understand that California is not likely to execute their client, nonetheless feel compelled to recommend acceptance of an LWOP plea offer when death is on the table. If the designation is coercive to their lawyers, then it is categorically overwhelming to the defendants. A plea entered under these conditions cannot be described as voluntary in any meaningful sense; it is a rational response to an irrational threat. The system that requires voluntariness has constructed and embraced a mechanism for eliminating it.
III. The Two-Counsel Problem
Capital defendants are entitled to two attorneys: one attorney handles the guilt phase and usually the more experienced attorney handles the penalty phase. This arrangement is well-intentioned. The theory is that penalty-phase counsel, who focuses on mitigation, personal history, and the circumstances that might spare the defendant’s life, can approach the jury as a “clean slate,” without the baggage of having just presented the guilt phase to the jury unsuccessfully.
In practice, this structure creates a tension that neither attorney can remove. Penalty-phase counsel’s effectiveness depends on disclosing to the prosecution, and ultimately to the jury, precisely the information that guilt-phase counsel has been protecting: the client’s mental health history, the childhood trauma, the substance abuse, the prior bad acts, and everything else that constitutes the full human experience. The mitigation letter to the prosecutor, the life-history investigation, the expert evaluations, all of it requires the defense to lower the walls it would usually erect for the guilt phase of trial. But those walls are at the heart of attorney-client confidentiality, which enables and encourages the client to be honest with their lawyer in order to get good advice from their lawyer.
The result of that tension is a kind of structured incoherence. The guilt-phase attorney argues that the client is presumed innocent, that the state has not proved its case, and that the jury should not speculate about the defendant’s character or history. The penalty-phase attorney, whose effectiveness depends on precisely the opposite, cannot do her job without implicitly reversing the structure that her colleague just worked to erect. The client who has been protected from disclosure in the guilt phase must meet disclosure in the penalty phase; and the jury, having heard the mitigation, is invited to reconsider what it thought it already knew. The two-attorney requirement, designed to protect the defendant, ends up creating a structural conflict that compromises both phases.
IV. The Disclosure Paradox Before Conviction
The problem is not limited to the relationship between the two defense attorneys. It begins with the mitigation letter, a practice so entrenched in capital defense that it is treated as standard procedure rather than the constitutional anomaly it is.
In any other case, defense counsel does not write to the prosecutor before trial to explain their defense strategy. They do not ordinarily point out the prosecution’s weaknesses, nor their backup strategy regarding sentencing. They do not expose the client’s personal history, nor present the prosecutor with information that the prosecutor can then use against the client at sentencing. That would be a profound violation of the adversarial structure that the Sixth Amendment provides. Yet counsel routinely does exactly this in a capital case, and counsel does so before conviction, even before trial, because the alternative is to risk the capital designation to persist through trial and into penalty, with all of the attendant distortions that follow.
The mitigation letter is, in effect, a penalty-phase submission filed before the guilt phase has even begun. It discloses information about the defendant that the defendant has a constitutional right to withhold. It does so under compulsion: not legal compulsion, but the compulsion imposed by the enormous gravity of the prospect of execution. The voluntariness fiction that sustains the practice is indistinguishable from the voluntariness fiction that sustains the coerced plea. Both are products of the same structural pressure, and neither is voluntary in any sense that the Constitution should recognize.
Lewis Carroll’s Queen of Hearts had a similar system: “sentence first, verdict afterwards.” Capital practice has adopted this literary absurdity as a matter of professional custom.
V. The Death-Focused Jury
The Sixth Amendment guarantees trial by an impartial jury. In a capital case, that guarantee is compromised before a single prospective juror is selected, and it is compromised not only by the state but by the defense.
In an ordinary criminal trial, defense counsel uses voir dire to identify and remove jurors who cannot follow the rules of law that protect us all: the presumption of innocence, the burden and standard of proof, the proper treatment of circumstantial evidence, the requirement that the case be decided on its own merits. These are not minor procedural refinements; they are the conditions under which a fair guilt determination is possible. Capital voir dire does not have room for these inquiries, not because the rules cease to apply but because the guilt phase of the trial is not the main event.
Defense counsel in a capital case must probe the jury’s capacity for mercy and compassion, identify the “killers,” and remove them. The questions that dominate capital voir dire concern the penalty: whether a juror could vote for death under any circumstances, whether a juror could consider mitigation, whether a juror could weigh a life sentence against an execution and apply the law to either outcome. These are penalty-phase questions. They are being asked of people who have not heard a word of evidence on guilt and who are being told unconvincingly that the defendant is presumed to be innocent of the charges. The defense attorney who spends voir dire exploring a juror’s capacity for compassion in sentencing, rather than her capacity to weigh the standard of proof, has already communicated something to that juror: conviction is expected, the real question is what follows, and even the defendant’s attorney has already accepted this framing.
This is the functional equivalent of vouching, and it is more corrosive than the prosecutorial variety. A prosecutor is prohibited from expressing a personal belief in the defendant’s guilt. It would be inappropriate and unjust for any juror to defer to that authority and abandon their independent judgment. The prohibition exists to protect the presumption of innocence from being assailed by professional endorsement. In a capital voir dire, defense counsel does not say that they believe their client is guilty; counsel demonstrates that belief by devoting all or nearly all of jury selection to the question of what should happen after the verdict that everyone in the room already anticipates. The message is delivered not in argument but in conduct, and it is delivered by the one participant the jury might otherwise expect to champion the defendant’s innocence.
After all of this, there is also Witherspoon v. Illinois, which provides constitutional authorization for excluding jurors who say they cannot impose the death penalty regardless of the evidence. On a contentious, often deeply-felt political issue, an entire point of view is excluded from the “representative cross section of the community” that comprises the jury. The resulting death-qualified jury correlates with conviction-proneness, with skepticism toward mitigation, and with demographic characteristics that favor the prosecution. Witherspoon therefore puts a judicial imprimatur on a selection process that had already abandoned the presumption of innocence before the first challenge was exercised. It is not the cause of the problem; it is the law’s formal ratification of it.
VI. The Sixth Amendment’s Broken Promise
The Sixth Amendment is premised on a model of adversarial justice in which the state bears the full burden of proof, the defendant is protected from disclosure until the state meets that burden, and the fact-finder decides guilt on the basis of evidence rather than character or consequence. The death penalty, as administered, corrodes and even reverses each of these premises before the trial begins.
A defendant who faces capital charges has already, in many cases, been the subject of prosecutorial disclosures that no non-capital defendant would entertain. The jury that will decide guilt has been pre-screened for its capacity to vote for death. The defense attorneys are structurally at cross-purposes. The plea that resolves the case before trial was entered under conditions that would be recognized as coercive in any other context.
These distortions are not bugs in the administration of the death penalty. They are features of a system that assigns such significance to the ultimate sanction. Every procedural protection bends to it. The promises of the Sixth Amendment cannot be kept, when the entire system that has already decided the question of guilt before the trial begins.
The death penalty does not just risk killing the innocent. It structurally prevents the proceeding that is supposed to determine innocence from functioning as it must. Every distortion catalogued above requires the participation of defense counsel to sustain it. The mitigation letter is written by a defense attorney. The penalty-focused voir dire is conducted by a defense attorney. The LWOP plea is recommended by a defense attorney. The clean-slate co-counsel is planned by a defense attorney. At each stage, a member of a profession ostensibly committed to the adversarial paradigm abandons it and instead embraces a beggar’s motif. The system does not merely tolerate this participation; it causes it; it depends on it.
Meanwhile, we tell ourselves that a capital trial without engaged, diligent defense counsel would be recognized as the show trial it is. We justify the outcome by pointing to the presence of defense counsel. Their involvement is what makes the outcome look like justice. Their inextricably corrupted defense appears to legitimize the very thing they are there to defend against.
The medical profession understood this problem and resolved it with a principle rather than a statute. Since almost two and a half millennia ago, physicians have sworn the familiar Hippocratic oath to “first, do no harm.” As a result, they have refused as a matter of professional ethics to participate in executions, to select or provide lethal drugs, to supervise their administration, or to certify death for purposes of resuming a botched procedure. The result has been entirely predictable: states cannot reliably obtain the drugs they seek, because the supply chain depends on manufacturers and distributors who answer to a profession that has declined complicity. Withholding professional legitimacy has destabilized the machinery.
Defense attorneys have not adopted a comparable principle, and the death penalty has not suffered a comparable crisis of legitimacy. Perhaps it should. If counsel collectively refused to participate in the structural charade, refused to write mitigation letters before conviction, refused to conduct voir dire organized around the penalty phase, refused to lend the appearance of adversarial fairness to a proceeding that forecloses it, the system would be forced to confront what it actually is. Defense counsel can quite literally insist that they will “do no harm,” and that they will not donate their hard-earned reputation to legitimize the death penalty.
For defense counsel in a capital case, the harm is not only to the client; it is to the institution of the trial itself. A profession serious about that injunction to do no harm might conclude that the most faithful thing it could do is refuse to be used as the instrument of the charade’s legitimization. Without such a refusal, every skilled and conscientious capital defense attorney is and will remain in some measure the death penalty’s most supportive prop.
Edit: short context at the top