Books: ​“Arbitrary Death” Reveals a Prosecutor’s Evolution on Capital Punishment

Rick Unklesbay served as a pros­e­cu­tor in the Pima County Attorney’s Office in Arizona for near­ly four decades, pros­e­cut­ing more than 100 homi­cides, includ­ing six­teen in which death sen­tences were imposed. He put Don Miller on death row and, in November 2000, watched as Arizona put Miller to death. In Arbitrary Death: A Prosecutor’s Perspective on the Death Penalty, Unklesbay tells the sto­ry of nine of those death-penal­ty cas­es and how the arbi­trary nature of the U.S. jus­tice sys­tem has changed his mind about the death penal­ty. ​“Who lives and who dies,” he writes, ​“is a deci­sion that becomes the arbi­trary appli­ca­tion of con­vo­lut­ed statutes and con­flict­ing and incon­sis­tent court deci­sions.” He has con­clud­ed that the sys­tem can­not fix these prob­lems and that ​“the effort to elim­i­nate arbi­trari­ness in cap­i­tal cas­es, while pre­serv­ing fair­ness is … plain­ly doomed.” As a result, he has come to believe that ​“the ran­dom­ness inher­ent in cap­i­tal pun­ish­ment should lead us to rid it from our statutes.” 

Unklesbay’s book explores how a cap­i­tal pros­e­cu­tor in what had been one of the nation’s most aggres­sive death-penal­ty juris­dic­tions now finds life in prison a bet­ter sen­tenc­ing option than the death penal­ty. In an inter­view with Arizona Public Media, he said, ​“see­ing how these cas­es pro­ceed, it strikes me that if peo­ple real­ly knew what the sys­tem was about they would say: ​‘We don’t need this. We have an alter­na­tive of natural life.’ ” 

Each chap­ter in Arbitrary Death focus­es on a cap­i­tal case that Unklesbay tried dur­ing his time as a homi­cide pros­e­cu­tor. It includes some cas­es that result­ed in death sen­tences and oth­ers that he believed should have, but for var­i­ous rea­sons did not. ​“Despite the effort, expense, and time that goes into pros­e­cut­ing and defend­ing these cas­es, the ulti­mate deci­sion as to whether such a mur­der­er lives or dies is … depen­dent upon the ​‘vagaries of the crim­i­nal jus­tice sys­tem’” — vagaries that caused him to ques­tion the pur­pose and fair­ness of the death penalty.

By the end of the book, Unklesbay has addressed some of the oth­er prob­lems asso­ci­at­ed with the death penal­ty, includ­ing its exor­bi­tant costs, its long his­to­ry of racial dis­par­i­ties, and the fact that our jus­tice sys­tem is not per­fect. He sug­gests, ​“The ques­tion one must answer then is, if our sys­tem allows for wrong­ful con­vic­tions, are we will­ing to con­tin­ue to exe­cute con­vict­ed mur­der­ers?” In his very last sec­tion, apt­ly titled ​“Final Words” he explains the pro­ce­dures that go into an exe­cu­tion. The process that can some­times take over thir­ty years ends the same way that it start­ed, with death. However, he says that it is ​“anti­cli­mac­tic” because “[t]he exe­cu­tion has not brought back the vic­tim of course and, with few excep­tions, has not brought any­one any satisfaction.”

Rob Warden, a co-founder of the Center on Wrongful Convictions at Northwestern University Pritzker School of Law and now co-direc­tor of Injustice Watch, calls Arbitrary Death a ​“com­pelling” book ​“that ought to be required read­ing by every pros­e­cu­tor, every attor­ney gen­er­al, every gov­er­nor, and every leg­is­la­tor” in those states that still autho­rize cap­i­tal pun­ish­ment. In assess­ing his own work, Unklesbay writes, ​“I doubt that oppo­nents of the death penal­ty will find any sur­pris­es here and will feel as though I’ve only scratched the sur­face of the prob­lems asso­ci­at­ed with cap­i­tal pun­ish­ment. Some ardent sup­port­ers will no doubt feel I have betrayed them by writ­ing that we should rid our­selves of a pun­ish­ment we sim­ply don’t need. Still oth­ers will think me a hyp­ocrite for express­ing these views while still pros­e­cut­ing these cas­es. They are prob­a­bly all correct.”