What About Prosecutorial Discretion?

On Tuesday, the Tennessee Death Penalty Study Committee met for several hours, hearing from Tennessee prosecutors about how they decide when to seek the death penalty in a particular case. The Executive Director of the TN District Attorneys’ Conference, Wally Kirby, testified that the guidelines upon which prosecutors currently rely in seeking the death penalty are the 15 aggravators listed in the statute. At least one of of these aggravators must be present in order for the death penalty to be sought in a particular case. Kirby contended that prosecutorial discretion actually allows the DA not to seek the death penalty in a given case, even when aggravators are met. Other factors which come into play in the decision making process of the DA are: the likelihood of a conviction, the particular community standards, and the desires of the victim’s family. However, in making his point, Kirby reiterated again and again that DA’s are human and can differ on their opinions concerning which cases merit death and which don’t. In fact, he stated that one could put 20 DA’s in a room and 10 of those attorneys may want to seek death on a particular case while the other 10 do not.

The committee also heard from Davidson County District Attorney General Torry Johnson about his office’s creation and utilization of a list of guidelines in making a decision to seek the death penalty. One of the policies that Johnson’s office employs is an open file discovery process in which the defense attorney can see the DA’s files on the case prior to trial, allowing for everyone to be on equal footing, which cuts down on appeals later. Attorney Richard McGee, representing the State Post-Conviction Office, noted his own experience of the process as a defense attorney and how fair Johnson’s system is. The question continually raised by committee members is why such guidelines could not be implemented across Tennessee. Though Johnson noted his system has worked well, he was concerned with statutorily applying his guidelines to all DA’s offices in Tennessee with the possible litigation that could ensue.

What became clear to me during the meeting and was named by committee member Charlie Strobel of Murder Victims’ Families for Human Rights, is that from the very start, the system relies on individuals with particular histories, personalities, biases, and community pressures to decide whether or not to seek death in a particular case. Such a system is unfair and arbitrary from the outset. The DA’s are correct when they state that no matter what procedures are put into place, there will always be some measure of discretion by individual DA’S.

Of course, I still believe that a set of consistent guidelines for all DA’S offices would and should be utilized in Tennessee to make the system more fair and consistent than it is now, but even with such measures in place, arbitrariness and unfairness will still exist. Without meaning to, the DA’s made the case for why the death penalty can never truly be fair. In the end, the only real way to ensure that the death penalty is not arbitrary and unfair is to abolish it.

Read more about the committee meeting here.

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