Fighting an Oncoming Train

What it’s like for death row defense attorneys who fail to save their clients.

The lethal injection chamber at San Quentin State Prison.

Wally Skalij/Los Angeles Times via Getty Images

This commentary was published in partnership with the Marshall Project, a nonprofit newsroom covering the U.S. criminal justice system.

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In some human endeavors it may be reasonable to expect a correlation between effort and achievement, but not in capital defense, especially when you’re defending people who have already been sentenced to death. Talent and dedication don’t much change those odds.

“It’s a tremendous feeling of helplessness,” one attorney told me. “I’m doing everything right, I’m doing my job, I’m doing my job really well, and my client is still getting executed.”

As a clinical mental health counselor and researcher specializing in the emotional impact of the death penalty, I have spoken with dozens of family members of homicide victims and family members of executed persons throughout the United States, and I’ve seen that the executed criminal is not the only person affected by an execution. The circle of people profoundly affected is larger than most realize.

When I conducted in-­depth interviews for my book, Fighting for Their Lives, with 20 experienced capital defense attorneys who had lost at least one and often several clients, for instance, I learned that these stakeholders are affected in some very particular ways—and that in most cases, they hadn’t talked to anyone about this before.

More than one attorney told me that having a client on death row is like seeing someone tied to the tracks as a train is approaching. The defender’s job is to try to untie the knots in time to prevent the collision, and he or she is attempting this rescue under the most difficult conditions.

The task is at once urgent and protracted—months or even years of low-grade anxiety punctuated by sudden crises and intense deadlines—so that death penalty lawyers are like some kind of a cross between emergency responders and end-stage oncologists. The difference is that they are fighting for lives many people don’t consider worth saving.

And, while others might have a stake in the life of an individual facing execution, the defense attorneys are the ones who are supposed to have the tools to stop that execution. It’s a legal responsibility that ends up feeling personal; the clients’ lives are in their hands. Attorneys I interviewed told me that even if they might long for relief from the rising panic that fills the weeks and months before a client’s execution date, taking time to do or even think about anything else can feel irresponsible.

Then come the last visits or phone calls, during which they have to admit that they’ve run out of options.

One defender I interviewed recalled her struggle to explain to her client with intellectual disabilities that she had not been able to save him after all. Another attorney could not keep from choking up as he told me the story of a client offering him reassurance just moments before the guards came to escort him to the execution chamber: “It’s OK, you did your best,” the client said.

Feeling that they hold their clients’ lives in their hands, maintaining a tenuous balance between hope and despair, it’s hard for lawyers not to experience the executions as failures, even if they can talk themselves out of that conclusion intellectually.

“No matter how much you tell yourself that you’ve done everything you could do, your job was to save his life, and you didn’t,” one attorney said, remembering how he collapsed into sobs one morning after losing three clients in three weeks.

Another attorney offered an analogy: “You put yourself between your client and the execution. And so when you fail, what that means is that [the state has] walked over you and gotten your client in the chamber.”

After an execution, attorneys have to pick themselves up, sometimes with little time before work on the next case must begin. There’s anger and exhaustion, of course, and, as one put it, “an abiding sadness that never goes away.” Repeated exposure to the inner workings of the death penalty leaves them numb but also raw and shakier sometimes than anyone might realize.

They surprise themselves by panicking when they see an execution scene in a movie or breaking unprompted into tears when they have a few moments alone in the car. Sometimes they feel unable to be around other people. They worry about what their work might be doing to their health or to their relationships with their families.

None of this leaves much time for self-reflection or belief that anything good would come of publicly revealing the personal impact of the work. Capital defenders would be the first to declare that they are not at the center of any death penalty story and can’t claim the greatest suffering, and their focus is quite rightly on their clients rather than on themselves.

Defense attorneys are not at the center of the death penalty story, but the penalty’s impact on these unique stakeholders is significant. It demands that we take seriously the wide-ranging implications of each execution.

Impact on defense attorneys matters, just as it matters that executions have long-term consequences for the emotional health of the family of the executed person, or the prison guards, or the clergy. Consideration of the death penalty requires consideration of all the people it ultimately harms.