In 1982, a Pennsylvania jury sentenced a man to die shortly after convicting him for murdering a Philadelphia police officer. Yet, as a federal appeals court determined years later, this sentence violated the Constitution. The trial judge gave the jury a confusing form and confusing jury instructions which could be read to effectively require a sentence of death unless every single member of the jury agreed that mitigating factors were present justifying a life sentence. Thus, even if nearly every member of a jury agreed that the death penalty was not warranted, these confusing instructions could have led to a death sentence if only one juror supported it.
As a matter of law, the appeals court’s decision to overturn this death sentence was not controversial. Two of the judges who reached this decision were Reagan appointees, and they followed a Supreme Court decision which warned that the possibility that a single juror could “require the jury to impose the death penalty, is one we dare not risk.” But the politics of this case were particularly fraught. The death row inmate at issue in the case was Mumia Abu-Jamal, a radio journalist and co-founder of Philadelphia’s Black Panther Party whose name will be familiar to anyone who’s followed American leftist politics over the last decade. Moreover, Abu-Jamal was not simply convicted of murder, he was convicted of murdering a police officer.
And now, those politics threaten the career of one of America’s leading civil rights attorneys.
President Obama’s nominee to lead the Justice Department’s Civil Rights Division is Debo Adegbile, a former acting head of the NAACP Legal Defense Fund (“LDF”) and an expert on voting rights who twice appeared before the Supreme Court in efforts to save the Voting Rights Act. During his time at LDF, Adegbile also was one of several lawyers that urged the courts to toss out Abu-Jamal’s unconstitutional death sentence — prompting this response from the Fraternal Order of Police:
Under this nominee’s leadership, the Legal Defense Fund (LDF) of the National Association for the Advancement of Colored People volunteered their services to represent Wesley Cook, better known to the world as Mumia Abu-Jamal — our country’s most notorious cop-killer. There is no disputing that Philadelphia Police Officer Daniel Faulkner was murdered by this thug. His just sentence – death – was undone by your nominee and others like him who turned the justice system on its head with unfounded and unproven allegations of racism.
It is easy to understand why a law enforcement organization might react this way to the court’s decision. Police do a dangerous job. And, while, in reality, there is little evidence that the death penalty deters people from committing future crimes, rank-and-file police officers may feel safer knowing that the threat of society’s ultimate sanction hangs over anyone who harms them.
But the issue facing the courts was not whether Abu-Jamal is a “thug.” Or if his death sentence was “just.” Or even whether Abu-Jamal was guilty of the crime he was convicted of committing. The issue was whether Pennsylvania complied with the Constitution when it sentenced Abu-Jamal. The implicit message of the Fraternal Order of Police’s criticism of Adegbile is that the Constitution can be suspended when it comes into contact with particularly reviled individuals. But that is not how our Constitution works. It provides that no state may “deprive any person of life, liberty, or property, without due process of law.” “Any person” includes thugs, murderers and even “notorious cop killers.”
Senate Republicans are latching onto this attack against President Obama’s nominee. Sen. Chuck Grassley (R-IA), the top Republican on the Judiciary Committee, referred to the Fraternal Order of Police letter as a source of “concern” during Adegbile’s confirmation hearing. Sens. Pat Toomey (R-PA) and John Cornyn (R-TX) both attacked Adegbile’s work in the Abu-Jamal case. Every single Republican on the Judiciary Committee voted against allowing Adegbile’s nomination to advance to the full Senate.
Because Democrats still control the Senate, and because Adegbile can now be confirmed by a simple majority vote, these objections are unlikely to derail Adegbile’s nomination. But the campaign against Adegbile also sends a very clear message to ambitious lawyers who hope that they might be up for a Senate-confirmed job someday: if you take a principled stand against the death penalty, or even if you object to a state’s unconstitutional sentencing practices, then you are limiting your career options. Adegbile would be unconfirmable in a differently constituted Senate.
In the long run, this will lead to fewer attorneys willing to take on these kinds of cases — and more sentences being upheld for reasons that have nothing to do with the law. Whatever else Mumia Abu-Jamal may be, he is also a man who was sentenced to die in violation of the Constitution. That should not happen in a nation that treasures the rule of law.