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June, 2017



Forty-Five Years Since Furman: What Has Changed?

I received an email this morning from Witness to Innocence, the nation’s only organization dedicated to empowering exonerated death row survivors to be the most effective voice in the struggle to end the death penalty in the United States.  The email reminded me that today marks 45 years since the U.S. Supreme Court determined that the death penalty was unconstitutional in Furman v. Georgia.

The email shared excerpts from Justice Thurgood Marshall concurrence in the decision to strike down the death penalty. Reading his words, I again realized that all the realities of  the death penalty system that became the basis to declare it unconstitutional are just as real in today’s death penalty. I have shared Justice Marshall’s words here:

“I believe that the following facts would serve to convince even the most hesitant of citizens to condemn death as a sanction: capital punishment is imposed discriminatorily against certain identifiable classes of people; there is evidence that innocent people have been executed before their innocence can be proved; and the death penalty wreaks havoc with our entire criminal justice system…

It is the poor, and the members of minority groups who are least able to voice their complaints against capital punishment. Their impotence leaves them victims of a sanction that the wealthier, better-represented, just-as-guilty person can escape. So long as the capital sanction is used only against the forlorn, easily forgotten members of society, legislators are content to maintain the status quo, because change would draw attention to the problem and concern might develop. Ignorance is perpetuated and apathy soon becomes its mate, and we have today’s situation…

Just as Americans know little about who is executed and why, they are unaware of the potential dangers of executing an innocent man. Our ‘beyond a reasonable doubt’ burden of proof in criminal cases is intended to protect the innocent, but we know it is not fool-proof. Various studies have shown that people whose innocence is later convincingly established are convicted and sentenced to death.  

Proving one’s innocence after a jury finding of guilt is almost impossible. While reviewing courts are willing to entertain all kinds of collateral attacks where a sentence of death is involved, they very rarely dispute the jury’s interpretation of the evidence. This is, perhaps, as it should be. But, if an innocent man has been found guilty, he must then depend on the good faith of the prosecutor’s office to help him establish his innocence. There is evidence, however, that prosecutors do not welcome the idea of having convictions, which they labored hard to secure, overturned, and that their cooperation is highly unlikely.   

No matter how careful courts are, the possibility of perjured testimony, mistaken honest testimony, and human error remain all too real. We have no way of judging how many innocent persons have been executed but we can be certain that there were some. Whether there were many is an open question made difficult by the loss of those who were most knowledgeable about the crime for which they were convicted. Surely there will be more as long as capital punishment remains part of our penal law…

At a time in our history when the streets of the Nation’s cities inspire fear and despair, rather than pride and hope, it is difficult to maintain objectivity and concern for our fellow citizens. But, the measure of a country’s greatness is its ability to retain compassion in time of crisis…

In striking down capital punishment, this Court does not malign our system of government. On the contrary, it pays homage to it. Only in a free society could right triumph in difficult times, and could civilization record its magnificent advancement. In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute. We achieve ‘a major milestone in the long road up from barbarism’ and join the approximately 70 other jurisdictions in the world which celebrate their regard for civilization and humanity by shunning capital punishment.”

 

Image from The Buffalo News

An Ounce of Prevention

I am a preventative kind of person. Some may say that is just code for “control freak” or “anal retentive.” Maybe it is. Whatever you call it, that’s me. I wash my hands dutifully before every meal, get my flu shot, floss, wear sunscreen…you get the point. I am a firm believer that whatever takes me out in the end is going to really have to try.

Maybe my preventative streak is why, when I read a recent article by my colleague Shari Silberstein about our nation’s approach to violence, I was immediately intrigued. Reflecting on Arkansas’ recent executions, Shari wonders what the results might be if we approached violence as a public health issue as much as a public safety issue.

I have always believed that we as a society are much more comfortable with reaction than prevention. In fact, execution is all about reaction once a violent crime has occurred. And too often, rather than doing the hard work of trying to determine the factors that led someone to commit such a crime, we dismiss such an analysis as making excuses for the perpetrator, choosing instead to focus all our energy and resources on how to punish him.

To be clear though, Shari points out that violent crime is, in fact, inexcusable. The damage is done and cannot be undone. Lives have been taken and families devastated. There is never an excuse for such behavior, but there are often indicators that such behavior is possible or maybe even likely.  And if identified, these indicators can serve as a an alarm system, signaling for us to intervene.

What if we did tackle violence like the measles or the flu? Recognizing, as Shari writes, that, “violence spreads. Public health experts who have long studied violence and its causes believe that violence can become much more rare. Rather than the failing of individual bad people, violence behaves just like other diseases that can either spread when treated ineffectively, or be systematically contained if treated properly.”

We already know evidence suggests that exposure to violence and trauma, especially during the early years of a child’s brain development, impacts future behavior. Children who endure such trauma, who also may have the added experiences of chronic poverty and racism, are at greater risk for developing mental and physical health problems, financial instability, and involvement with the justice system over their lifetimes. This is not news.

My parents were both public school teachers before they retired. They taught in public schools in a small West Tennessee town with many children impacted by just such trauma and other risk factors. Most of the teachers in the school system knew pretty quickly when a kid was in trouble. There were children that my parents even took a special interest in to mentor and nurture outside of the classroom because they knew how tenuous these children’s lives were. Still there is only so much a teacher with 25 other children in a classroom can do.  There is only so much a social worker with a huge caseload can do.

We spend roughly $3 million to pursue the death penalty per person once he has committed a murder. $3 million. What if we spent those dollars on a child when we determined that he or she was a victim of violence and trauma? What if we did a full assessment of what that child really needed to heal and grow into a healthy adult and then gave it to her? Imagine the impact. Maybe then we could keep violence from spreading and lives would be saved, including the future murder victim and the future murderer.

Something to think about.

Read Shari’s article here.