Justice In America Episode 24: Death Penalty

On this episode of Justice in America, Josie and her guest co-host, Darnell Moore, focus on the death penalty. Capital punishment remains one of the cruelest aspects of America’s criminal legal system. In America, over 2500 people are currently on death row. Last year, 19 people were executed. Josie and Darnell explore the history of the death penalty, including the short period in the 1970s where it was deemed unconstitutional, and examine its current use in America today.

Joining them is guest State Attorney Aramis Ayala of the Ninth Judicial Circuit Court of Florida. State Attorney Ayala was the first black woman elected prosecutor in the state, and in 2016 made a decision to not seek the death penalty. She’ll talk to Josie and Darnell about why she made that decision, and the pushback that she received after choosing not to seek the death penalty as prosecutor.

Aramis Ayala’s Book Recommendations: The Rich Get Richer and the Poor Get Prison by Jeffrey Reiman and Paul Leighton and Justice Blind?: Ideals and Realities of American Criminal Justice by Matthew B. Robinson.

Additional Resources:

A great article from The Intercept on Aramis Ayala’s decision not to seek the death penalty can be found here.

The Death Penalty Information Center provides a ton of information about death row trends, the people currently on death row, and looks closely at the geography of where death row is still used.

The Equal Justice Initiative has been on the front lines of this issue, representing clients on death row and advocating for the end of capital punishment. You can learn more about them here.

The Fair Punishment Project’s report on death penalty prosecutors and outlier counties can be found here.

Here’s a recent New York Times article on the death penalty in America.

Justice in America is available on Apple Podcasts, Soundcloud, Sticher, GooglePlay Music, Spotify, and LibSyn RSS. You can also check us out on Facebook and Twitter.

Our email is justiceinamerica@theappeal.org

Transcript

[Music]

[Begin Clip]

Aramis Ayala: So while the Supreme Court ruled and the case that I had against the death penalty that I had to look at at a case by case basis, in my opinion it wasn’t a case by case basis; it was the case of death penalty. It is a tragic, ineffective, destructive system that has been destroying lives, eating up budgets, and it’s not doing anything but giving us this badge that we carry as if we had some great authority to play God.

[End Clip]

Josie Duffy Rice: Hi, I’m Josie Duffy Rice.

Darnell Moore: And I’m Darnell Moore.

Josie: And this is Justice in America. Each show we discuss a topic in the American criminal justice system and we try to explain what it is and how it works. Thank you so much everyone for joining us today. 

Darnell: You can find us on Twitter @Justice_Podcast we’re also on Facebook at Justice in America and subscribe and rate us on Apple Podcasts. We would love to hear from you. 

Josie: We’re so excited to have Darnell Moore back with us for this episode. He joined us at the beginning of the season. Darnell is just such an incredible person and guide in my life and has really been such an influence on the way I think about the criminal justice system and I’m just thrilled he’s here and joining us.

Darnell: Really glad to be here. 

Josie: So we opened the show with a clip from our guest, Aramis Ayala, who’s a State Attorney for the Ninth Judicial Circuit Court of Florida. State Attorney is what they call prosecutors in Florida. State Attorney Ayala was the first black woman elected to this position and after her election in 2016 she made this very brave decision to not seek the death penalty, which she announced publicly and she faced an enormous amount of pushback. She’ll talk to us about why she made that decision, and what it’s been like having to deal with some of the pushback that she’s received from choosing not to seek the death penalty as prosecutor.

Darnell: Today’s subject is the death penalty. But first we’re going to talk about the word of the day: deterrence. Deterrence is a major part of criminal law. Basically, you have to punish people harshly because if you don’t, that person will do it again, or someone else will commit the same crime because they will think that they won’t be punished. This is truly the basis of so many criminal sentences, statutes, and processes of the system. It’s a big part of the logic behind the 1994 Crime Bill, behind the drug war, behind every bad criminal justice policy for miles and it’s also widely, widely misguided.

Josie: I mean, surely the idea of deterrence isn’t entirely illogical. You know, I’m a parent, I recognize that if my son is behaving in a way that is hurtful or disrespectful, consequences may be appropriate and then part of the reason for consequences is so he understands not to do it again, right? To be clear, my son does not understand that because he is two and has no concept of deterrence whatsoever, but in theory and maybe in a few years, but the concept of deterrence within criminal law, makes so many assumptions that are just not reflective of reality at all.

Darnell: First of all, it assumes that people have an enormous amount of knowledge they simply may not possess, like, if you sell drugs, , do you know exactly what the crime is under your state’s criminal code? Do you actually know what the risks are? Do you know how much time you’re facing? Do you know, if the legislature has made changes to that law lately? You probably don’t.

Josie: Right. I’m a lawyer and I don’t even know that right? Like the criminal code is dense and very complicated and it’s not as if everybody who commits a crime is going into that decision with a full knowledge of what the laws say. But even beyond that, it assumes that what the law says actually what ends up happening to people convicted of crimes. In a lot of places over 95 percent of cases end in a plea deal. So they’re pleaing to a lower charge anyway, the sentence Person A may be serving for one crime maybe totally different than Person B is serving for the exact same crime depending on the deal they got or the evidence that existed and so even if people did have all that information, it’s kind of irrelevant, because it doesn’t actually apply to what happens to people who are convicted of crimes.

Darnell: And it also assumes that people are making decisions of their own freewill and not because of external factors. Often someone has committed a crime, out of desperation, not necessarily out of rationality. If rent is due, for example, or they can’t feed their kids or they have addiction issues or mental health concerns, this idea of rational deterrence isn’t really applicable

Josie: And it also assumes that people have an accurate and rational understanding of the likelihood of them being caught and punished. There’s this idea that people can really assess what’s going to happen to them when they make the decision, like you said, to sell drugs or maybe steal someone’s bag or whatever crime it may be, people generally don’t think they’re going to get caught. That’s why they do it. Nobody really has an objective understanding of what’s probably going to happen to them if they make such a decision.

Darnell: Right. Great, that was our word of the day: deterrence. Let’s get back to the main topic, which is the death penalty.

Josie: Yes, it is kind of surprising that we haven’t done an episode on the death penalty up until now, given just how big of a part it tends to play in the conversation about the criminal justice system. Everybody knows about the death penalty and I would even argue it can take up almost a disproportionate amount of conversation given the current landscape of the death penalty right now, which we’ll get to just in a second, but first, let’s lay out a little bit of context.

Darnell: So there are about 53 countries that have the death penalty. In other words, countries where the government has a right to kill people as a form of punishment. That’s about a quarter of the world’s countries and America is one of them. We should point out that while only a quarter of the countries still have the death penalty, that list also includes places like India, China, Russia, and other pretty big countries, so a disproportionately high number of the world’s people, 60 percent, live in a place where capital punishment is legal and practiced. Now, some of those places haven’t executed anyone in a long time. Russia, for example, hasn’t executed anyone in 20 years, at least technically, legally, they haven’t. But anyway, you get the point.

Josie: Here in America, capital punishment has basically always existed, except for this very short period in the 1970s, which we’ll talk about later in the episode, but for the most part, we’ve always had the death penalty in America. And the founders who were heavily influenced, of course, by how the English did things, really thought about the death penalty a lot during the founding of America. So in 1779, Thomas Jefferson, of all people, spent an extremely long amount of time writing a bill that would have basically brought the death penalty in line with where it exists today. We’re talking about the same Thomas Jefferson who owned hundreds of slaves, was obviously not what I would describe as a humanitarian, that Thomas Jefferson wrote this very long, very densely annotated legislation, which called for the death penalty only for murder and treason.

Darnell: He thought most of the crimes should be punishable by hard labor alone, unless of course the accused was an enslaved person who was obviously already serving hard labor. In those cases Jefferson called for slaves in America to be basically deported to be slaved elsewhere, mainly the West Indies or Africa. There’s something particularly absurd about deporting black enslaved people back to Africa to be enslaved. But that’s also like typical Jefferson.

Josie: Exactly, feels very on brand. And in the end, his bill failed in the house by one vote. So instead, depending on the state, you could be put to death for any number of things. And so here’s a list of just a few things that you could be put to death for in the late 1700s, early 1800s, depending on what state you lived in.

Darnell: Adultery.

Josie: Quote, “man stealing” and that is the exact language they used

Darnell: Idolatry.

Josie: Witchcraft.

Darnell: Horse stealing.

Josie: Blasphemy.

Darnell: Quote, “cursing or smiting your parents” end quote. I think I would have been put to death. 

Josie: Yeah, we’d all be dead. And then this is not a joke, there was a provision that said you could be put to death for, quote, “being a stubborn or rebellious son” but only if you were over 16.

Darnell: I clearly would have been dead. Stubborn rebellious son, I also would have been a stubborn and rebellious enslaved person going off on other people.

Josie: (Laughing) Yeah. So it’s also worth noting the ways that people were killed were horribly gruesome. I mean, anytime anybody gets executed, it’s gruesome, don’t get me wrong, but this was sort of next level.

Darnell: Two people convicted of treason were sentenced to die by first being hung, then being cut down before they died, then a number of things so graphic, we probably shouldn’t even say them here and then ultimately being beheaded and quartered. Important to note that unsurprisingly, it was drastically easier to be sentenced to death if you were an enslaved person, right? In Virginia enslaved people could be executed for sixty six crimes, sixty six, while white people could only be executed for four, let that sit. (Pause.) Okay, then there were capital crimes that were only crimes if a black person did it to a white person.

Josie: Right. So fast forward to Reconstruction. During Reconstruction, executions dropped significantly for white and black people, although more significantly for white people. And then after Reconstruction up until the 1960s or so, the death penalty really looked different depending on what state you were in.

Darnell: Southern states, unsurprisingly, still deeply embraced the death penalty, especially for black people. 75 percent of people executed in that time period were black but the rest of the country seemed to be scaling back capital punishment. Northern states slowly started executing fewer and fewer people and in some parts of the country they tried to get rid of the death penalty entirely. In a 20 year period between 1897 and 1917, ten states in the West and Midwest abolished the death penalty altogether, but it didn’t last. By 1930, eight of them had reinstated it.

Josie: So two quick things about the death penalty in America that we want to mention before we move on. First, as Darnell just pointed out, it’s deeply geographically dependent. It’s always been that way. So the determination of whether a defendant spends life in prison or is executed, varies not just from state to state, but literally from county to county and we’ll talk more about that near the end.

Darnell: And the second thing is more of a clarification about what we mean when we talk about race and the death penalty. Black people being sentenced to death in a courtroom is separate than a lynching of black people. Those are two distinct things, at least for the purposes of conversation. Lynching is extrajudicial mob violence basically, that means occurring outside of the sort of context and hands of the law, people are becoming the law, while the cases we’re discussing were part of a legal process, at least in theory.

Josie: Yeah, it is an important point because when we think about black people being executed, especially in the early 1900s, late 1800s, like my immediate thought is lynchings right? And again, for the purposes of conversation, that line is important. But in reality, the line between lynchings and state sanctioned executions of black people are actually pretty blurred. For one black people sentenced to death certainly weren’t getting fair trials or real due process, they weren’t facing a race blind jury and so it would be a mistake to think that just because it was done in a courtroom, it was done justly because that’s clearly not the case.

Darnell: Amen. And on the other side, in a lot of ways, lynchings were state sanctioned. They weren’t just carried out by civilian mobs, public officials and law enforcement often allowed and encouraged lynchings, refusing to stop the murders or hold the murderers responsible. And I also think it’s important for us to note that some folk who participated in the mob violence themselves were public officials and law enforcement.

Josie: Right, exactly. Okay, so now we’ve covered up until the 1970s and we’re getting into the more modern era of capital punishment. And we want to go back to something we mentioned earlier about this big case that happened in the 1970s in this very short period of time where the death penalty was actually outlawed in America.

Darnell: It all starts in Georgia in 1967. This black man named William Furman was robbing a house that another man, a white guy named William Micke, lived in with his family. Micke heard the noises and went to investigate and found Furman breaking in.

Josie: Now it’s not totally clear whether Furman shot Micke intentionally or he tripped and his gun went off or what? But in the end, William Micke was dead and William Furman was arrested and charged with murder. His trial lasted one day and in 1968, he was sentenced to death.

Darnell: This is the same year Nixon is elected, by the way, and Georgia is still very racist. Nixon, the Republican candidate, actually didn’t win Georgia in that election. Instead, voters in Georgia and four other states supported George Wallace, the governor of Alabama, who basically promised to keep segregation forever. So, you know, that’s where Georgia was at the time Furman was sentenced to be killed. So you get it that this is Georgia. This is the context of Georgia at the time and it’s the place where Furmin got sentenced to be killed.

Josie: Right. So he appeals this case and in 1972, the case goes to the Supreme Court and the Court hears Furman’s case on the same day that they hear two other cases that deal with basically the same thing. In those cases black men had been convicted of rape and sentenced to death. And basically, the lawyers in these cases argued to the Supreme Court that the death penalty violated the Constitution’s Eighth Amendment, because it is cruel and unusual punishment, and it violated their client’s constitutional right to due process. So here’s a clip of the oral argument from one of the concurrent cases Jackson versus Georgia, where Jack Goldberg, the attorney for the man convicted of rape is talking about the racial bias of the death penalty. Keep in mind that this is from 1972 so the audio quality is not great.

[Begin Clip]

Jack Goldberg: It is visited upon black people in the South overwhelmingly. There have been 455 executions for rape since statistics have been kept, and of the 455 men put to death, 405 have been black. At the moment, there are 73 men on death row awaiting execution for the crime of rape. Of the 73, 64 are black, one of them Mexican, one is an Indian and the race of three is not known to us. That means that historically since figures are kept, at the present time, the execution rate for the crime of rape runs approximately at the rate of 90 percent black defendants put to death or being held on death row to be put to death.

[End Clip]

Josie: And here he is talking about Georgia specifically.

[Begin Clip]

Jack Goldberg: In cases where a black man raped a white woman 38 percent of the defendants were sentenced to death, in a case where any other racial combination was involved one half of one percent of the defendants were sentenced to death.

[End Clip]

Darnell: If you couldn’t hear Mr. Goldberg, what he is basically saying is that 90 percent of people who are executed or on death row for rape are black. In Georgia 38 percent of black men convicted of raping white women were sentenced to death. For any other, quote, “racial combination” to quote Goldberg only one half of one percent were sentenced to die for rape. In the end, the court narrowly agrees five to four that the death penalty is cruel and unusual punishment. The issue though, is that they didn’t agree on why it was cruel and unusual. You know how most Supreme Court cases have the majority opinion and the dissenting one, all nine justices wrote separate opinions this time. All nine. Even the five in the majority didn’t exactly agree with each other.

Josie: Two justices, Thurgood Marshall and Justice Brennan, thought that the death penalty was inherently cruel and unusual. And his concurrence, Justice Brennan wrote this deeply moving quote that I think about a lot. He said, quote, “The true significance of these punishments is that they treat members of the human race as non humans, as objects to be toyed and discarded. They’re thus inconsistent with the fundamental premise of the clause, that even the vilest criminal remains a human being possessed of common human dignity.” Meanwhile, three other justices, also in the majority, thought that the death penalty is cruel and unusual simply because of the way it was applied, it was too arbitrary, it was too capricious, and let’s be real, it was too racist. There is basically no rhyme or reason, or at least no legitimate rhyme or reason why black people got the death penalty so disproportionately, especially when they were accused of harming white people.

Darnell: This was a huge decision back then. I mean, this is almost 50 years ago now, which is actually kind of crazy, right? And basically, everyone was shocked that the court had decided this and two major immediate things came out of it. First, every person on death row suddenly had their sentence commuted to life without parole. One of those people was actually Charles Manson. He died in prison a few years ago. The other thing was that because of this ruling, rape was never again a crime that could result in the death penalty. That was a big deal and that has never changed. But overall, the Furman decision was very controversial. A poll taking after the court’s decision showed that support for the death penalty actually went up. And when California put the death penalty on the ballot later that same year it passed with almost 70 percent of the vote. I mean, I’m in California right now. I’m in California. And so that kind of sucks.

Josie: I know what’s the deal with y’all, man? Don’t worry about it, I live in Georgia, we’ll always out do you, don’t you worry. So, it might not be surprising to learn that in the end, the ban on the death penalty didn’t last very long at all. Four years later, in a case called Gregg v. Georgia, the Supreme Court upheld a death sentence in Georgia and then four other sentences from four other states. All of these states had changed their death penalty statutes to comply with the Furman decision and since the process in these states was supposedly much less arbitrary than before, the court decided that the death penalty no longer violated the Constitution. So it came back and it came back pretty much with a vengeance.

Darnell: That was 1976. So what happens after that? Well, in the 1980s, we really start to see the prison population grow significantly, sentences start to get longer, laws start to get harsher, the drug war starts ramping up and unsurprisingly death sentences suddenly begin to get more common too. This is where the tough on crime was dogma. Reagan believes strongly in a death penalty and pushed to expand it to more crimes, in fact, the only presidential candidate in the eighties and nineties, who was strongly against the death penalty, in that era was Dukakis, whose reputation as, quote, “soft on crime” hurt him strongly in the election. That’s the election with the whole Willie Horton thing.

Josie: Right. And then in the 1990s death sentences start ramping up even more. It peaked in 1996 when 315 people were sentenced to death. That’s almost one a day. It’s a remarkable number of people. There were a few years where states like Florida, North Carolina, Texas, California, were sentencing a few people a month to death on average. In 1996, Newt Gingrich — that guy — the then House Speaker introduced the Drug Importer Death Penalty Act. According to The New York Times, he said, quote, “The first time we execute 27 or 30 or 35 people at one time, and they go around Colombia and France and Thailand and Mexico, and they say ‘Hi, would you like to carry some drugs into the U.S.?’, the price of carrying drugs will have gone up dramatically. I have made the decision that I love our children enough that we will kill you if you do this.”

Darnell: Wow.

Josie: It’s remarkable.

Darnell: Remarkable is an understatement. 

Josie: Yeah.

Darnell: And that may sound like a very extreme statement, but this rhetoric didn’t only come from Republicans. Here’s Joe Biden in 1991 bragging about how tough his crime bill is.

[Begin Clip]

Joe Biden: The Biden Crime Bill is before us, calls for the death penalty for 51 offenses. A wag in the newspaper recently wrote that something to the effect that Biden has made it a death penalty offense for everything but jaywalking. The President’s bill calls for the death penalty on 46 offenses. The difference is negligible.

[End Clip]

Darnell: Among the terrible bills passed by both parties in the 1990s was one called the Anti-Terrorism and Effective Death Penalty Act of 1996. This law shamefully passed very easily.

Josie: Yeah, and it’s a really complicated law. I remember I took a capital punishment class in law school and we had to draw diagrams to figure out exactly how the appeals process worked for death penalty cases, it’s very complicated. But basically, it made it much harder for people on death row to appeal their sentences effectively, even if a mistake had been made in a lower court. So that meant people who hadn’t really gotten a fair trial, and were going to be executed, now had a much steeper hill to climb to have their sentence overturned. And that law resulted in about a 40 percent reduction in overturned death penalty cases, which meant that many more people have been put to death in cases where the courts made serious errors.

Darnell: Then we get to the 2000s. The good news is that death sentences began to go down but executions actually went up. All of the people that had been sentenced in decades prior were now being actually executed. But eventually, executions began to go down too. Over the past 10 years sentences and executions have dropped significantly.

Josie: Remember how we said that 315 people were sentenced to death in 1996? In 2019, the number of death sentences was basically a tenth of that: 34. Now 34 death sentences is still pretty high, that’s a lot of people being executed, but it’s dropped so drastically since the high of twenty years ago and executions have also dropped significantly. In 1999, our government executed 98 people in one year, and that was the peak: 98. In 2019, that number dropped to 22. Again, I’d argue that is still too many, but it’s certainly a reduction in what we were seeing a few years ago.

Darnell: And what’s more, last year, New Hampshire became the twenty first state to abolish the death penalty. Four other states currently have a moratorium on the death penalty basically meaning no one can be executed while the moratorium exists. One of those states is California, my state for now, which is notable because it currently has the largest death row in the country, almost 750 people are awaiting execution. Overall, 32 states have no death row or haven’t carried out an execution in over a decade.

Josie: So this gets back to a really important point we made earlier about geography. Basically, if you are convicted of murder, whether you live or die depends almost entirely on where you live. A few years ago, the Fear of Punishment Project released a report that found that 99.5 percent of all prosecutors did not impose the death penalty. Only .5 percent of counties had any death sentences. One of those counties where there are a fair amount of death sentences is Los Angeles County, where the DA is actually up for election this year. And it’s just kind of wild to think that if you are two counties over and the exact same crime happens you live, but if you happen to live within the county line of Los Angeles, there’s a much more significant chance that you will be executed. It just reinforces how almost random the entire process of the death penalty actually is. The 34 people that were sentenced to death in 2019 are not necessarily the people who committed the most heinous crimes or deserved it the most by some standard, it’s really just a combination of factors, the most major is where you live.

Darnell: Still, despite the fact that the death penalty is barely used anymore, it still has traditionally been quite popular. For years, more people supported the death penalty then didn’t. In 2014, for example, 50 percent supported it while 45 percent preferred life without parole. But recently that’s changed significantly. In 2019, 60 percent of people polled did not support the death penalty, only 36 percent did.

Josie: Yeah. That’s a 15 percent difference in just five years. It’s pretty remarkable. To discuss this some more we will be joined by state attorney Aramis Ayala of the Ninth Judicial Circuit Court of Florida. State Attorney Ayala was elected in 2016 and soon after she came into office, she announced that she would not be seeking the death penalty during her time as State Attorney. She got an enormous amount of pushback for that. She’s gonna talk to us about her experience and what she faced in Florida. State Attorney Ayala will be with us in just a moment. Stay tuned.

[Music]

Josie: So State Attorney Ayala, thank you so much for joining us today. We’re so grateful to be in conversation with you. 

Aramis Ayala: Thank you. It’s good to be here. 

Josie: You were elected in 2016 and I remember your election really well because it was such a major victory and a moment of this progressive prosecutor kind of shift. And even before your election, I remember you were getting criticism for being a more progressive prosecutor or someone who thought about criminal justice reform. And I remember in particular that local media made this big story out of the fact that your husband was justice involved. Can you talk to us a little bit about the time leading up to the election and what you had to face?

Aramis Ayala: Oh, absolutely. You know, the campaign was an interesting process because I had always, both as a public defender and a state attorney, saw justice from a different lens. So the way that I spoke about people had an edge of humanity on it that I didn’t realize was unique but I realized in retrospect that it was so a lot of my conversation was about community involvement, was recognizing that no matter what people are getting out of incarceration, so at some point, we have to treat them like dignified human beings because we teach people how to treat people. And during my campaign, there were several shootings of unarmed black men, and some may even have been armed in their vehicles, but were not an apparent threat, so during my campaign, I spoke about those both on social media and at campaign events. The angle that I came from was very different than what most people were usually talking about reaching higher conviction rates, you know, thinking that we can arrest and prosecute our way out of our mass carceration problems.

Josie: Right.

Darnell: State Sttorney soon into your tenure as DA, you faced one of the toughest decisions any prosecutor has to face, you had to decide whether or not to seek death penalty. Talk to us a bit about the background on the case and particularly how this became an issue.

Aramis Ayala: Okay, so I took office January 3 of 2017 and at that time, the death penalty in Florida had been stricken down twice as unconstitutional by both the United States Supreme Court and the Florida Supreme Court under the Hurst case. So when I took office, and the entire time that I campaigned, there was no death penalty process in the state of Florida. So it wasn’t even an issue while I was campaigning. It wasn’t an issue when I took office. But what happened on the first Friday of me taking office, we had a meeting which was my first one for the Florida Prosecuting Attorneys Association, and during that conference call, I just remember this entire conversation of how we were going to make this work, how we were going to make it come in line. And I just remember thinking to myself, at no point is anyone going to question ‘Is this what we should be doing?’ at no point is going to want to say, ‘Is this a good idea?’ questioning the efficacy of it, questioning all the other issues and it concerned me.

Josie:  Can you talk a little bit about the Hurst case just so that our listeners have background? 

Aramis Ayala: Absolutely. So Hurst was a death penalty case and ultimately, to make it as simple as possible, the first ruling talked about the judge having too much control and making the ultimate decision of a death sentence when it should really be up to the jury to make certain particular findings. That was what was turned over by the United States Supreme Court in the first Hurst case, but they did mention the issue of it not being a unanimous verdict, which Florida is one of the few states that didn’t at the time require a death verdict to be unanimous. So in that, our Florida Supreme Court was concerned about that, and our legislature got together and they created a super majority in that finding and when it went back to the Florida Supreme Court, they said, ‘No, we need a unanimous’ and ultimately, they changed the law after those two rulings.

Josie: So just to make sure I understand, what you’re saying is that it used to be in Florida that you could not have a unanimous jury, someone could vote against death, but someone could still be put to death, your defendant can still be put to death and even if a jury voted against death, even if enough people voted against death, the judge could still override that ruling and say, ‘I think we should put this guy to death anyway.’

Aramis Ayala: Well, that remains still. The problem was that the judge was making factual findings. 

Josie: Oh okay.

Aramis Ayala: What ends up happening is that when you have the criminal court process, the judge is supposed to make rulings and findings of the law and allow the jury to make findings of fact, so when the jury wasn’t making particular findings of fact, regarding mitigators and aggravators as it relates to the death sentence, the judge was making those findings, in the United States Supreme Court said, that there were certain interests that the jury should have and the decisions that they should be making and the scheme that we had was not appropriate and it did not give the jury an opportunity to weigh in on some factual aspects of the death sentence.

Darnell: So this case was quite controversial. (Laughs.) And despite the criticism that came, the media buzz, we know that many DAs choose every year not to pursue the death penalty. Why do you think this particular case, this decision, was so controversial?

Aramis Ayala: You know what’s so interesting is every single time I hear the word controversial, I quiver, and I quiver because the word controversial is really only used in certain situations when it’s referring to certain kinds of people. And I always am curious why that is so because while death penalty may be controversial, the reality is we’re not talking about the uncontroversial facts upon which I made my decision. I talked about the money. I talked about the lack of deterrent. I talked about it not being a public safety issue. I talked about the Post Traumatic Stress Disorder associated with those who carry it out. I talked about the racial disparities. All of the truths that are uncontroverted, that are not in question, that doesn’t seem to be the conversation, we want to talk about the ultimate decision as being controversial and when you make a decision that is based upon uncontroverted facts, why are we labeling it controversial? I think that I made a well informed decision, which is what prosecutors are supposed to do. We are not police officers on the street who have to make quick decisions for public safety. We have the opportunity to look back and actually respond versus reacting. I did that, I have enough experience, I have been both a prosecutor and a public defender, I was a legal analyst, a law school professor, I did the research. I looked at the realities of it. I didn’t just arrive here. The state attorney is one political position that you actually have to be qualified for. So a lot of times when we’re talking about this, I need people to understand that a lot of thought went into this, and I removed my emotions but when I hear the criticisms as if I was being emotional, but if you look at the response that I get, that’s what is full of emotion.

Josie: Yeah, I would love to hear you talk a little bit about the logic you used in choosing not to go after the death penalty in this case and I remember very well, you presenting the evidence, and like you said, it was completely clear, not arguable, all incontrovertible. And so could you tell our listeners a little bit about what went into you making this case? Like what were the points that led you to this conclusion?

Aramis Ayala: Absolutely. So when I started this process, I believe that as professionals, we don’t act until there’s reason to act. It’s not that we act until someone gives us a reason not to act. So for me it wasn’t about, let’s seek death penalty until we don’t have a reason, I thought the exact opposite. I need to have a reason for seeking death penalty. So the first thing that I wanted to think about is, is it a deterrent? So I, ironically, post Juris Doctorate, I went back and received my master’s degree in criminal justice and I started thinking about thesis, I started thinking about the research and I particularly honed in on the concept of deterrent. So I was looking at peer review articles, looking at some of the more recent studies and research and everything that I found is that there is absolutely no evidence that consistently establishes any deterrent impact of the death penalty. So I moved on, and I’m like, well, I get it. So for talking about punishment, it’s not a deterrent. It doesn’t assist with public safety. It definitely is emotional and there’s a retribution aspect of it. But even if you look at an incapacitation, number one, it wasn’t a deterrent. I looked at the lack of closure, I had to sit down with families and discuss this process and when I took office because of the Hurst decision, it reversed the death sentences for more than 400 cases in the state of Florida, where more than two dozen of those were in my office greeting me when I started here. So I had to reach out to families and let them know that a death sentence that had been handed down in 1976, 1982, 1988 was no longer effective. And we’re now in 2017, where no one is getting closure. And one of the promises that I made to the people when I sought office was that I would make evidence based decisions, I would be well informed, and it would be data driven. So when I looked at it, and I realized that these cases are not closing, and people are not only going through this process for decades, they’re also funding it because the funding of it is by taxpayers. So then that opened up the door for conversations about the financial aspect of it and when I looked at it, the American Bar Association, they inquired and did a huge study on death penalty, and particularly in Florida. We spend $50 million a year on the death penalty, yet we have people who aren’t getting the mental health treatment they need, victims aren’t getting the proper representation they need, you have a revolving door from victim to defendant, like there are a lot of things that we can be investing in, in our resources. And I thought that it was wise to consider the amount of money. So you’re looking at the no deterrent, you’re looking at the lack of closure, you’re looking at the money that we are spending and of course, because in the situation in case I had, the defendant was black, the victim was black and the prosecutor is black. So that didn’t appear to have a racial impact, but I’m never going to deny the issue of racial disparities as it relates to the use of the death penalty. So that was another part of it that while I didn’t use that in part of my public statement, because I didn’t want to have those being considered as reasons in this particular case, but when we’re talking about death penalty, you cannot erase the reality that race and death penalty are connected. So you start looking back at the historical impact of death penalty, the lynching and all the things that we used to do, I come to the table as diversity, no one in the world should think that I’m going to have the same mindset of all those who were before me. I understand that the predominant person who has been in this position had been white males and in my office, that’s all that’s been in here, but across the country, I represent 1 percent. So in the reality, I had issue with the conversations of me being celebrated as having a diverse face, but being criticized for having diverse thoughts.

Darnell: So, I just want you to know that I’m over here like lifting up all the praise hands as you’re talking.

Aramis Ayala: (Laughs)

Josie: (Laughing.)

Darnell: I’m like, it is Monday. I think we’re recording on a Monday, it feels very much a Sunday. But you just bring up, so many things you just said it’s just so right on. But you are one of the few black women elected to positions nationwide. Talk a bit about this experience, you are occupying a space, a position that is rare and talk a bit about your experience. How does that feel, with both the criticism being levied at you, but also the opportunity to create change within the communities in which you’re working?

Aramis Ayala: I want to focus on the opportunity first, because that’s what I really see it as, for so long, the definition of justice has been set by those who dominate this position who don’t look like diversity. And because of that, every time people talk about justice, they’re mimicking this lack of diversity definition of justice. So for me, I see it as an opportunity to redefine justice in ways that help produce more safety based upon more insight, more opportunities, and for everyone to understand that tomorrow has a better day, and that we cannot prosecute our way out of this mass incarceration. So when I think about that opportunity, to define justice in new ways, I understand that it can and does and has come with a lot of criticism but I also understand that every single day that we’re redefining it matters and one day, we will look back and understand that we’ve been able to diversify the concept of justice to being much beyond convictions and seeing how many black males we can lock up.

Josie: So let’s go back a little and kind of set a timeline and allow people to kind of picture what was going on. So this is 2017, a few weeks into tenure, and you announced you’re not going to seek the death penalty in this case or in any future cases. And you laid out the reasons that you just said, the one that sticks with me always is I remember you talking about this will take years, even if this person ever was actually executed that would take years, tons of appeals, it would be putting these families through so much in a way that people don’t ever even consider when they think about the death penalty. So you lay out your reasons, you lay out this whole background and then there’s a response that was pretty aggressive and I like what you said earlier, very emotion based. Can you talk a little bit about the response you got?

Aramis Ayala: Oh, I never shy away from that because when we’re honest with it, there’s a hint of misogyny and racism in that response. The language that was used, a level of respect that was just absent from the interaction, I just believe as a professional, under no circumstances do you make public statements without at least reaching out and having a conversation. So that was the beginning of something that I thought was very problematic. The other part that I take very, very, very serious issue with is a public statement from the highest office deciding that I am not going to seek justice. Right there you had this idea that someone can monopolize what justice means, even though they never sat in this seat. They never practiced criminal law in a Florida courtroom, to now tell me that I am not properly defining justice. Let me give you a little short timeline. So I took office January 3, had the meeting with the FPAA, Florida Prosecuting Attorney Association, on Friday, I went home for the weekend, my family was in town, celebrated, and on the way to work on Monday, I see lights and sirens where I knew something happened. Ultimately I get to the office and I found out that there were two officers who were in critical conditions, one I personally knew and had been gunned down by a homicide fugitive who had just the month before killed his pregnant girlfriend, and the other officer was injured in the traffic that was basically trying to control the scene after he shot the lieutenant. So I am now dealing with a very serious situation that quite candidly, and I’m very honest about this, when I was at the hospital, because I left the office, went to the hospital, I initially thought — death penalty — because it’s a prosecutorial culture that I had to stand up and say, but why? You know, we have this idea that the reward for getting higher in office and doing more prosecution is the authority to kill someone. That is not a reward. That is a responsibility that can never be taken lightly. So when I backed up and I said, well, should we be doing this? I started doing the research. So I went from January and February, really digging in trying to seek counsel, trying to seek research and really determine what would be the ultimate result. In March, they passed a new, unanimous statute and shortly thereafter, I compiled all of my research and the basis of my decision, and on March 16, 2017, I publicly announced that I would not be seeking death penalty in that case or any other case. Immediately thereafter, I came upstairs, and I was in the conference room just taking a breather when I was notified that the governor was on television, making statements about my decision on the death penalty, and that I took very serious and I wanted to respond back, I mean, despite our level of integrity and professionalism, we all have emotions and have an initial thought, where we don’t wear suits and aren’t dignified, how I wanted to respond. But I always had to remember so instead of responding because I was getting media requests to respond, I reached out to the governor, and he refused to have a conversation initially. And when he finally did get on the phone, his only question was, ‘Are you going to recuse yourself?’ To which I said no. And after that, there was no more conversation. And so I had to deal with that, then the question of me being suspended, then the constant attempted humiliation of removing cases from me. So then ultimately, I sued. Shortly thereafter, the legislature took $1.3 million from my budget and 21 positions as an attempt to penalize me and then we finished the litigation. The Supreme Court in a majority ruled against me and indicated that I did not have the discretion to make that decision. I respected their decision and it is really, I say this all the time, my hope that at some point the law will align with justice, because in this case, I do not believe it did.

Darnell: Can we, I just want to offer space to, I think in so many instances, we don’t have a chance to sort of sit with the emotional impact of this, right? There’s a way that we can talk theoretically, there’s a way that we can talk about sort of the objective nature of decisions like this, but I just want to ask you, what’s going on in your heart? What’s happening in your mind? What are you feeling when all of this is happening? Right? So I think there’s a way we want also for you to, to be humanized in a moment like this, and to talk about the emotional affective impact on you.

Aramis Ayala: You know, I think that the reality is in order to survive, that’s normally just not a place you open up. So I’m willing to go there, but I want it to be very clear that when people come after you in that type of way, you have to remain guarded and very rational about how you approach things. So there are safe spaces where you can acknowledge your feelings, process them, and then you get back up and you maintain your dignity, your professionalism and your rational thought because at the end of the day, emotions never win. At the end of the day, it is always rational thought. So while I did have emotions that I was able to share with those closest to me, I’m absolutely offended, flashbacks to the ways that people who fought for me to be here were treated, you know, the misogynistic tone of identifying me as defiant, the speaking to me as if you have ever done my job, but because of something about you, that you are now able to tell me how to do my job, the level of disrespect was appalling and highly offensive. But at the end of the day, like I never had room to give that any attention because the truth is, I can’t win, and I can’t survive in an emotional state. What I did was rational. And if I ever open up the door to the emotional side of that, that is when I began to deteriorate and lose hold of the rational decision making process. So yes, I did have emotional offense. Are you trying to embarrass me? That type of tone, like the nerve of you, like, don’t try me, all of that wanted to come out. I’m serious, you know, you add the eye roll, the neck roll, all the stuff that goes along with it. But at the end of the day, that is the privilege that I don’t have. I don’t have room to express emotions because otherwise I will be the image of the angry black woman, I will be the image of ‘She just can’t control her emotions,’ which is what they do to women because women don’t have freedom to have emotions, you know, so all of the rest of it, that the typical person who has held this position, they have room to feel and respond, I am perpetuating stereotypes if I do that, and I have to be mindful, so it’s just another burden that is carried the higher you go in office. 

Josie: Right. One of the things that as an onlooker, this was just such an unbelievable thing to watch in part because, tons of DAs, and Darnell said this earlier, are not choosing to seek the death penalty every year, right? And prosecutorial discretion is a major part of your job, right? You’re constantly exercising prosecutorial discretion and even the FPAA, right? The Prosecuting and Attorney’s Association was coming out calling for less discretion in response to this case.

Aramis Ayala: Absolutely,

Josie: For people who don’t know a lot about what that discretion is and don’t sort of see how outrageous it was that it was being taken from you, can you talk about what that discretion means and how it’s normally used and why it was so hypocritical in this instance to take it from you?

Aramis Ayala: Absolutely. You know, prosecutorial discretion is the cornerstone of the work that we do, even me sitting here on the highest floor of my office, I still have to give some level of discretion to the attorneys who work in the office. Now I have to balance that against consistency within the office, but at the end of the day, it is what we do. We have to have room to make decisions. The legislature has their arm of government where they create the law. We are both quasi judicial, quasi executive. And it is our responsibilities as state attorneys to not just follow the law and be robots, but to carry out and pursue justice, which means that in every situation, we have to make certain that the facts as applied to the law, and I’m not talking about just facts that have been given to us in a police report, but the factual circumstances surrounding our communities and all the other things that we know when you align those things together, what is the best outcome, so that is why discretion is necessary because we are trying to get to a just outcome. So while the Supreme Court ruled in the case that I had against the death penalty that I had to look at a case by case basis, in my opinion, it wasn’t a case by case basis, it was the case of death penalty, and not the case of individuals. The case of death penalty, it is a tragic, ineffective, destructive system that has been destroying lives, eating up budgets, and it’s not doing anything but giving us this badge that we carry as if we had some great authority to play god.

Josie: Right.

Darnell: And, you know, so we’ve talked a bit about the sort of rarity of the role that you’re occupying, have you seen backlash, criticism happening to other prosecutors in the same way that you’re experiencing?

Aramis Ayala: Oh, absolutely. I mean, we all talk about it. We all have a pretty tight relationship. It started with Marilyn Mosby being sued. I know Stephanie Morales had some issues earlier, she’s in Portsmouth, Virginia, the Commonwealth there. You look at Kim Foxx and her making a decision in Chicago in the Jussie Smollett case. You look at Rachael Rollins and making some decisions up in Boston. It is a trend and I’ve said it over and over again, that prosecutorial discretion, historically, if you look at all of the peer review articles, if you look at the studies of discretion, all of the conversation was it being unfettered, and prosecutors having too much room to do whatever they want to do. Now you’re in this situation where you have the face of prosecution has changed and now that the face of prosecution has changed, the criticism of discretion now was challenged as well.

Josie: And that criticism is coming from I mean, I’m thinking about Kim Foxx with the Jussie Smollett thing and FOP and, you know, where is that a lot of this criticism coming from?

Aramis Ayala: Well, I mean, all of us have received some very race based comments, some misogynistic comments, I mean, I’ve received death threats, you know, Kim has, Marilyn has. I received a noose in my office. I was in the middle of some federal litigation on whether or not a public official had a right to say that I should be hung from a tree. These are all things that have just been part of what we have to deal with while we are trying to pursue justice.

Josie: What’s funny about this situation, is that I just saw this week a recent report noted that despite all of this hoopla over your decision, and despite the fact that these potential death penalty cases were given to another prosecutor, and despite all of this kind of hand wringing, performative hand wringing, over the death penalty, the outcome has basically been the same. Can you talk a little bit about that?

Aramis Ayala: Absolutely. So of many of the cases that were transferred away from me for resentencing purposes under Hurst were converted by the other state attorney to life sentences, and then each time they have attempted to get a death sentence out of most of them, juries have declined to issue a death sentence and the only one that a jury did not decline, the judge still hasn’t ruled on it and it has been pending since 2017.

Josie: So in other words this is just basically a lot of people making it sound as if this is a constant issue when in reality, the death penalty is not the main thing or the biggest issue in a prosecutor’s career?

Aramis Ayala: Absolutely not. I mean, when we looked at it, and I pulled the numbers when they took the million dollars from our budget, but literally, death penalty is less than .01 percent of the cases that we process, so for it to then equate to millions of dollars out of our office, that was obviously just an attack and a response to me and my decision.

Darnell: State Attorney, our final question is about what you imagine or hope your legacy will be?

Aramis Ayala: If I think about legacy it goes back to what I talked about redefining justice in ways that means something bigger than me, redefining justice in ways that makes it work for everyone, that identifies victims as how they really look, a system that is truly fair to people, me as someone who fought for what was truly right and was outspoken in the face of all types of attacks and response, I would never back down away from truth. Truth, justice and humanity. If I could live and die for anything, it would be those things. 

Josie: Oh man, that’s beautiful.

Darnell: You just took me to good church on Monday.

(Laughing)

Josie: We’re so grateful. I honestly have to say and I can’t imagine really having to fight that fight every day. You’ve done it just so beautifully and so admirably and we are really grateful you took the time to be on the show.

Darnell: Thank you so much. 

Aramis Ayala: Okay, thank you all so much. I appreciate it.

[Music]

Josie: Thank you so much again to our guest, State Attorney Ayala. Such a great conversation. Thank you for all the work that’s being done in Florida. For show notes and to learn about more resources that you can read on this issue please visit theappeal.org and don’t forget to check out State Attorney Ayala’s book bonus as well.

Darnell: And thanks for listening to Justice in America. I’m Darnell Moore. 

Josie: I’m Josie Duffy Rice. 

Darnell: You can find us on Twitter @Justice_Podcast, like our Facebook page at Justice in America and subscribe and rate us on Apple Podcasts.

Josie: Justice in America is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Research assistance provided by Nawal Arjini. Location recordings by Talia Blake and Phoebe Unter. The studio recordings were at Beat Street NYC and the engineer was Bobb Barito. Thanks so much everyone for listening and we’ll catch you next time.

[Music]

State Attorney Aramis Ayala Book Recommendations:

Josie: Hi, I’m Josie Duffy Rice. And this is the Justice in America book bonus.  State Attorney Aramis Ayala. She’s the head prosecutor for the Ninth  Judicial Circuit Court of Florida, which covers Orlando in the surrounding areas. And she’s the first black State Attorney in the history of Florida. Thank you so much State Attorney Ayala for joining us.

State Attorney Ayala: Not a problem. Glad to do it. 

Josie: Can you tell us any books that you’ve read in the past or are currently reading that have influenced your view on criminal justice or have changed the way you think about the system? 

State Attorney Ayala: So, I love reading. I’ve obviously read Just Mercy: A Story of Justice and Redemption (by Bryan Stevenson). You know, I’ve read the Groveland four, Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of a New America is what it’s actually called by Gilbert King. Those are books that I have read, but they are first hand accounts, you know, they’re really amazing. They’re raw, they’re factual. And The New Jim Crow: Mass Incarceration in the Age of Colorblindness, that’s where Michelle Alexander goes into this fair balance of looking at, you know, scholarship, as well as the actual factual philosophical notes. I prefer to strike that balance. I never stopped reading the American Bar Association, all of their journals, their task force, their resolutions. Even when I started with the whole pursuit of exploring factual information as it relates to the death penalty, I looked a lot at their research and their task force, their information, the lack of deterrent, all of that. So I really enjoy articles, but I do enjoy books like you know, those that I’ve named. What I will say is that mid career, I decided to go back and get my masters in criminal justice. This is post bachelor’s and post JD and two books that I keep on my bookshelf at all time are The Rich Get Richer and the Poor Get Prison (Jeffrey Reiman and Paul Leighton). And that is the book that keeps me grounded. I also look at Justice Blind?: Ideals and Realities of American Criminal Justice (by Matthew B. Robinson), and it has a question mark after the title. And those are foundational that always keep us rooted in what the truth of our system really is and what the endgame for some really is if we’re not conscious and mindful and more intentional about not ending up in prison if we are poor.

Josie: Oh, this is so so great. Thank you so much. And thank you so much for joining us on justice in America. 

State Attorney Ayala: No problem.