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Tennessee’s Death Penalty Roller Coaster Makes Us All Sick

I am not a fan of roller coasters. As a kid, I tried to be. But after a few instances of losing my lunch, I decided they just weren’t my thing. And though I get that some folks find the amusement park versions to be thrilling, real life roller coasters tend to make us all a bit nauseous. The death penalty system is one of those real life roller coasters that the state of Tennessee is trying to ride again. So far, it is has been rough going. I can’t say that I am surprised.

In January of this year, Tennessee set an August 9th execution date for Billy Ray Irick after nearly ten years with no executions in the state. Mr. Irick committed a heinous crime, the rape and murder of a a little girl, Paula Dyer.  Mr. Irick is also a man who has had significant mental health issues since childhood, issues that were present at the time of the crime and about which his jury was never given accurate information. He has been on Tennessee’s death row for over 30 years.

Roughly a month after the state set Mr. Irick’s execution date, the Tennessee Attorney General (AG) then requested that the Tennessee Supreme Court set eight more execution dates before June 1st. What? Tennessee has executed only six people since 1960, and the AG wants eight executions in three months. Such a move is unprecedented in the modern era of the death penalty in our state.

Arkansas tried it though. The state attempted to execute eight men in 10 days last spring with swift condemnation coming from many corners. When all was said and done, Arkansas executed four of those men, doing so against the express wishes of the drug manufacturer whose product was used in the executions and while disregarding the very real concerns of the state’s corrections community about the detrimental mental health impact these executions could have on those ask to carry them out.

Then, in another twist, just a few days ago, the Tennessee Supreme Court denied the request of Tennessee’s AG to set these eight dates before June 1. But the Court did set two more execution dates, an Oct. 11 date for Edmond Zagorski and a Dec. 6 date for David Miller.  Anyone else feeling queasy?

All of these nine men have been in prison for decades, serving life sentences while waiting for death sentences to be carried out. The victims’ families have been trapped in capital litigation for the same amount of time, and though a few dates are now set, there is no guarantee that these executions will happen. And, if they do, will they give families the experience of justice that they were promised so long ago?

Taxpayers are still on the hook for propping up this colossal waste of tax dollars while those with opioid addiction and mental health issues in Tennessee may not be able to access treatment because our state doesn’t have enough resources to treat all who need it. And though none of us wants to believe that any of the 60 people sitting on Tennessee’s death row right now are actually innocent, the research says that some of them are.

Paul House was wrongfully convicted, spending nearly 23 years on Tennessee’s death row before his release. The petition that Paul has created asks Governor Haslam not to resume executions because what happened to him can and does happen to others. In fact, three other men also spent decades on Tennessee’s death row before their wrongful convictions were addressed. They were finally released after years of legal wrangling and despite the state’s best efforts to keep them there.

This real life roller coaster that is the death penalty is fraught with problems and always will be. It takes us on a terrifying ride that does nothing to make our communities safer and wastes resources that could be used to prevent violent crime. It is not fairly applied and too often only exposes victims’ families to more trauma as they wait for a sentence that may never be carried out.

It’s time. Let’s shut this thing down. The setting of these execution dates in Tennessee is increasingly out of step with the national trends away from the death penalty. Death sentencing and executions are at historic lows, and public support for the death penalty has dipped to levels not seen in 40 years. And, we have alternatives, like a life sentence (51 years before parole eligibility) and life without the possibility of parole, that are cheaper and don’t risk executing innocent people. Let’s promote a policy that supports victims’ families and offers them tools for healing. Let’s get smarter in using our resources to address the root causes of the violence in our communities so that we can prevent these horrible crimes from happening in the first place. Stop this ride that is making us all sick. End the death penalty in Tennessee.

 

 

Tennessee Must Not Resume Executions

Nearly 10 years have passed with no executions in Tennessee. With the ongoing controversy and legal challenges surrounding lethal injection, executions have been sporadically on-again, off-again for the last decade.  And even with an execution date now set, there is reason to believe that Billy Ray Irick, the man who is set to die on August 9, 2018, may not be mentally competent for the execution to occur. His case has wound through the courts for over 30 years, and still no legal finality.

The crime for which Mr. Irick was sentenced to death was heinous. He was convicted and sentenced to death in 1986 for the rape and murder of 7-year-old Paul Dyer of Knoxville, for whom he was babysitting. Her family has obviously suffered unspeakable pain, and three decades of court dates and media stories forcing them to relive the trauma of their daughter’s death over and over again, have no doubt taken a toll. Even now, with this execution date on the calendar, nothing is sure.

Mr. Irick’s court appointed trial attorneys did little to investigate his long history of abuse and mental health issues and did not interview any of Paula’s step-family, with whom Mr. Irick was living just weeks before the murder. In 1999, when new attorneys appealed the case in federal court, an investigator finally spoke with Paula’s family who described Mr Irick as a man clearly in the throes of psychosis.

According to a recent article in the Nashville Scene, “In a brief filed in 2010, Irick’s attorneys argued that he ‘was experiencing a psychotic episode with hallucinations and/or delusions and that he has no memory of the offenses themselves or his role in them.’ Further, they contended that Irick did not, and could not, ‘have a rational understanding of his pending execution because he has no memory of the offenses, does not believe that he committed them, and has the emotional and social functioning of a child.’”  So, it stands to reason that Mr. Irick’s competency has been and will continue to be an issue in this case.

Beyond Mr. Irick, there are still 60 people awaiting execution on Tennessee’s death row, some who have been there as long as he has. Tennessee has executed six people since 1960 and occasionally sentences someone to death, though death sentencing in Tennessee is becoming more rare, as it is nationwide, with new death sentences in this country recently reaching a 40-year low.

Too often who ends up getting the death penalty in Tennessee has more to do with the defense you can afford, the color of your skin, the county in which you live, or your mental health status, than with the crime itself. Obviously such arbitrary factors should not determine whether you live or die in Tennessee, but too often, they do.

Add to these issues the real risk of executing an innocent person. Tennessee has executed six people since 1960 and released four others because we got it wrong…and those cases took decades to figure out. How many other innocent people are on death row right now? The system we have simply isn’t capable of ensuring that we get it right 100% of the time.

Given this reality, Tennessee death row exoneree Paul House has authored a petition asking that Governor Haslam not allow executions to resume in Tennessee, for Billy Ray Irick or for anyone else. Mr. House spent 22 years on death row before DNA evidence finally led to his release, and he knows better than anyone how real the risk of executing an innocent person is. With alternative sentencing like life and life without parole already available in Tennessee, pursuing executions is just not worth the risk.

Please sign and share this petition widely to demonstrate to Governor Haslam that as the nation moves away from executions, Tennessee should not move toward them. The risk is simply to great.

(Photo of Joyce and Paul House by Edward Tse)

 

 

Death Penalty Information Center’s Year End Report Shows Your Support Is Critical to the Death Penalty’s Decline

For another year, executions and death sentences remained historically low while public support for the death penalty dipped to its lowest level in 45 years. These findings from the Death Penalty Information Center’s (DPIC) recently released year end report also include that eight states carried out 23 executions, half the number of seven years ago, and the second lowest total since 1991. Only 2016’s numbers were lower with just 20 executions. Fourteen states and the federal government will likely impose 39 new death sentences by year’s end, the second lowest annual total since the U.S. Supreme Court declared the death penalty unconstitutional in 1972.

DPIC Director Robert Dunham notes that, “Across the political spectrum, more people are coming to the view that there are better ways to keep us safe than executing a handful of offenders selected from a random death-penalty lottery. There will be times when numbers fluctuate – particularly following historic highs or lows – but the steady long-term decline in the death penalty since the 1990s suggests that in most of the country, the death penalty is becoming obsolete.”

Your support of TADP’s work in Tennessee is contributing to this changing view of the death penalty. TADP is educating Tennesseans from Memphis to Kingsport about the many reasons that the death penalty system cannot be trusted. From systemic problems with racial discrimination and lack of access to effective representation to the system’s exorbitant financial cost to taxpayers and emotional cost to victims’ families to the ongoing risk of wrongful conviction, the state’s death penalty system is broken beyond repair.

The DPIC report highlights the continued risk of executing the innocent as one of the key factors behind the public’s decrease in support for the death penalty. According to the Gallup poll, public support for the death penalty dropped by five percent in 2017, and Republicans registered a 10-percentage point drop since last year. This year’s 55 percent support marks the lowest level since 1972, just before the U.S. Supreme Court ruled the nation’s death penalty laws unconstitutional.

With your support of TADP, we will keep this trend moving in the right direction. Every dollar you invest allows us to get out this message of a broken system to more Tennesseans and to give them the tools to educate others, including lawmakers, about why our state can do better.

Please consider an investment in TADP and in the work to end the death penalty in our state.

Happy Holidays from all of us at TADP!

Read the DPIC report here.

 

The Time is Now to End the Death Penalty

The state of Ohio tried to execute Alva Campbell on Nov. 15. They failed to do so.

Mr. Campbell committed a heinous crime in 1997, murdering 18-year-old Charles Dials during a carjacking. Twenty years later, the 69-year-old Campbell has many serious illnesses, including lung cancer, COPD, and respiratory failure. He has had prostate cancer and a hip replacement. He needs daily oxygen treatments, uses a walker, and also has a colostomy bag.  These health issues were news to no one.  The officials overseeing the attempted execution even propped Mr. Campbell up on a pillow so he could breathe more easily as they tried to kill him.  After many unsuccessful attempts to find a vein to begin the lethal injection process, the process was stopped. His new execution date has been set for June 5, 2019, that is if he lives that long. But the problems with the nation’s execution protocols, as disturbing as they are, are only the tip of the iceberg in terms of the death penalty system’s ongoing problems.

The U.S. Supreme Court (SCOTUS) has the opportunity to finally end this failed experiment of the death penalty. Forty-five years ago, SCOTUS temporarily struck down the death penalty in Furman v. Georgia. Now the court could decide to consider the case of Arizona death row inmate Abel Daniel Hidalgo, who is challenging the constitutionality of our nation’s death penalty because it continues to be as arbitrarily applied as it was in 1972.

Laurence H. Tribe, the Carl M. Loeb University Professor and professor of Constitutional Law at Harvard University, recently submitted an op-ed to The Washington Post outlining his belief that the time has come for the court to act, writing, “After more than 40 years of experimenting with capital punishment, it is time to recognize that we have found no way to narrow the death penalty so that it applies only to the “worst of the worst.” It also remains prone to terrible errors and unacceptable arbitrariness. The Hidalgo case exemplifies the problems with our current capital punishment regimes, problems that several Supreme Court justices have expressed interest in addressing. It also presents these constitutional problems cleanly, without the procedural obstacles that sometimes dissuade  justices from hearing important constitutional cases. Instead of continuing, in the words of Justice Harry A. Blackmun, to “tinker with the machinery of death,” the court should hold the death penalty unconstitutional nationwide.”

Tinkering with the machinery of death is what this nation has been doing since 1972. From start to finish, the death penalty system is broken. It is time to end it.

Picture and additional article

 

 

 

 

 

 

 

 

 

 

 

 

 

The Tale of Two Condemned

On October 12th, Texas executed a condemned man. The day before, Arkansas set one free.

Robert Pruett was sentenced to 99 years for a 1995 murder under Texas’ infamous “law of parties.” This controversial law states that anyone who “solicits, encourages, directs, aids, or attempts to aid” a person who commits a crime is equally liable no matter how small a role he or she plays in that crime. In 1995, a man with a long prison record stabbed his neighbor to death outside his home. Mr. Pruett was present at the murder. The killer was Mr. Pruett’s father. Pruett himself was only 15 at the time.

While in prison at age 20, Mr. Pruett was accused of killing Correctional Officer Daniel Nagle and sentenced to death. He maintained his  innocence until his execution last week. His conviction relied largely on the testimony of other inmates, who allegedly made deals in exchange for their testimony. There was no physical evidence connecting Pruett to the murder. When the murder weapon was tested for forensic evidence, the test was inconclusive.

The day before Pruett’s execution, Texas’ neighbor Arkansas (a state which executed four men in 10 days this spring) quietly released Rickey Dale Newman from the state’s death row. Mr. Newman is now the 160th exonerated death row inmate in this country since 1973, spending nearly 17 years in custody for the 2001 murder of a transient woman in a “hobo park” on the outskirts of Van Buren, Arkansas.

Newman had a severe mental illness at the time of the crime. A former Marine with major depression, chronic posttraumatic stress disorder from childhood abuse, and an IQ in the intellectually disabled range, he was homeless when Marie Cholette was murdered. He was convicted and sentenced to death in June 2002 after a one-day trial in which the court permitted him to represent himself.

There was no physical evidence linking him to the murder. A prosecution expert falsely testified that a hair found on Newman’s clothing belong to Ms. Cholette. Mr. Newman also told the jury that he was guilty and should be executed. He went on to drop all his appeals. Just four days before he was scheduled to die in 2005, he allowed his federal public defenders to seek a stay of execution in order to test DNA evidence on the blanket in which the victim was found as well as the hair that was used to convict him. The DNA didn’t match. The attorneys also discovered that the prosecutors withheld crucial evidence from the murder scene that contradicted Mr. Newman’s account. A later federal court hearing uncovered that the state mental health doctor had made errors in the administration and scoring of the tests given to Mr. Newman pretrial to determine his mental competency.

Christian author and activist Shane Claiborne tweeted, “As Robert Pruett was being executed in Texas, Rickey Newman was being exonerated in Arkansas. It is a reminder that for every 9 executions, there’s been 1 exoneration. That’s not a good record. Can you imagine if 1 out of every 10 airplanes crashed?”

It defies logic that we as a society find these kind of statistics acceptable when an individual’s life is on the line. With alternative sentences available, why do we keep taking these risks when we know how flawed the system is?

How many of these cases do we have to read about before we decide the number is too high?  1 out of 10. Enough already.

Picture of Rickey Dale Newman from the Arkansas Times

Race and the Death Penalty: A Reflection

Equal Justice Initiative (EJI) Founder and Capital Defense Attorney Bryan Stevenson appeared on CBS News last week following the recent events in Charlottesville. He addressed the long and pernicious history of white supremacy in our nation and the continued resistance of too many white Americans to name that history. He reminds listeners we first must be willing to speak and reckon with the truth of this history and its impact on our present if we ever hope to move toward reconciliation as a country. The events in Charlottesville are an “in our face” reminder of the warped ideology of white supremacy and how that ideology manifests itself, not only in the terrifying spectacle of angry white people with torches marching through the streets and running over protestors, but also in the very heart of our criminal justice system and the death penalty.

Marcellus Williams is a black man in Missouri whose execution is scheduled for today, August 22. He was convicted and sentenced to death in 2001 by a nearly all-white jury in the highly publicized stabbing death of a former St. Louis Post-Dispatch reporter Felicia Gayle. After having previously been granted a stay of execution in 2015 to permit DNA testing in his case, the Missouri Supreme Court on August 15 denied Mr. Williams a new stay of execution, despite recently obtained results of that testing that support his innocence claim.

Mr. Williams and his attorneys have presented scientific evidence that excludes his DNA from that found on the murder weapon and have filed a motion in the state court to stay his scheduled August 22 execution. Reports by two DNA experts support his petition that the DNA evidence on the knife does not match Williams or Gayle, but comes from an unknown third person. The petition states that the “physical evidence collected from the crime scene”—which includes fingernail scrapings from the victim, who had been stabbed more than 40 times—“did not match and could not be linked to” Williams.” His lawyer plans to seek review in the U.S. Supreme Court stating, “It certainly would give most reasonable people pause to say, ‘Should you be executing somebody when you’ve got reasonable evidence suggesting another man did it?'”

Mr. Williams had also previously raised a claim alleging that St. Louis County prosecutors had a practice of striking black prospective jurors, including six of the seven African Americans it had the opportunity to empanel in his case. A Missouri Supreme Court Justice noted in another St. Louis County capital case “a fairly repetitive pattern” in which St. Louis County “has a substantial African-American community” yet there are “still all white juries and that’s not mathematically probable.” This issue was presented to the U.S. Supreme Court in Herbert Smulls’s death-penalty case in 2014, but the Court declined to review the issue, and Smulls was executed.

In May 2016, the U.S. Supreme Court overturned the conviction and sentence of Georgia death row inmate, Timothy Foster, based on the racial bias in the jury selection process for his trial. In the jury selection process, the prosecution struck all of the potential African American jurors from the jury, a practice which is unconstitutional but hard to prove. After seating an all-white jury in the case, the prosecution urged them to sentence Foster to death to “deter other people out there in the projects.” The jury obliged and gave Foster the death sentence. In 2006, the Southern Center for Human Rights obtained the prosecution’s notes from jury selection in Foster’s 1987 trial. The notes eliminated any doubt that the strikes were based on race.

A 2010 review of the jury selection process in eight Southern states (including Tennessee) by EJI found evidence of racial discrimination in jury selection in every one of those states; a 2012 North Carolina study found eligible black jurors struck at twice the rate of whites; and a 2003 Louisiana study found it was three times the rate.

And there is the case of Duane Buck in Texas. The U.S Supreme court recently determined that Buck’s trial lawyers were ineffective when they introduced testimony from a psychologist suggesting that he was more likely to be dangerous — and thus more deserving of a death sentence — because he is black.

Then we have McCleskey vs. Kemp, decided on April 22, 1987, a case widely regarded as the last broad constitutional challenge to the death penalty. Warren McCleskey, a black man, was sentenced to death in Georgia for murdering a white police officer, Frank Schlatt. A highly regarded study by professor David Baldus revealed that death sentences in the state were significantly more likely in white-victim murder cases than in comparable black-victim murders. These racial effects were especially pronounced in cases like McCleskey’s, where the defendant was black and the victim white.

Such sentencing disparity continues with overwhelming evidence that those who are convicted or murdering someone who is white are far more likely to receive the death penalty than those who are convicted of killing people of color. Nationally, over 75% of the murder victims in cases resulting in an execution were white, even though nationally only 50% of murder victims generally are white. A study conducted on capital sentencing in Tennessee from 1981-2000 found that defendants with white victims were 3.15 times more likely to receive the death penalty than defendants with black victims (ABA’s Tennessee Death Penalty Assessment Report, 2007).

In a 5-4 ruling, the justices dismissed the constitutional significance of the documented racial disparities. Justice Lewis Powell’s majority opinion reasoned that McCleskey had not proven that the prosecutor or jury in his own case had been influenced by race. Though he did make the assumption that the Baldus study findings were accurate, Justice Powell still concluded that even if the results appeared unfair, that did not mean McCleskey’s sentence was disproportionate to the crime in violation of the Constitution. Justice Powell conceded that “[a]pparent disparities in sentencing are an inevitable part of our criminal justice system.”

Written over the doors of the U.S. Supreme Court building are the words “Equal Justice Under the Law,” reminding everyone who enters there the standard to which we hold our highest court. And still, Warren McCleskey was executed because racial bias is “inevitable” and apparently acceptable. Except it is not. The work for racial truth-telling and healing in our nation will take painful conversations, listening, commitment, and action and that will take years to accomplish. Those on death row don’t have that kind of time. With the overhwhelming evidence of racial bias infecting the death penalty system today, it must end now. There is no other way forward.

Watch Bryan Stevenson here.

Sign the Petition to Spare Marcellus Williams.

 

 

 

Consistent Inconsistency: Sentencing Defendants with Severe Mental Illness

On July 7, Virginia executed William Morva for the 2006 murders of hospital security guard Derrick McFarland and sheriff’s deputy Cpl. Eric Sutphin after Morva escaped from custody. Morva’s execution came hours after Virginia’s Democratic governor Terry McCauliffe announced he would not grant clemency despite pressure from mental health advocates, state lawmakers, and attorneys who said Morva’s crimes were the result of serious mental illness, though the jury never heard about its severity.

Meanwhile, the state of Texas continues to try to kill Scott Panetti, institutionalized at least a dozen times because of his severe mental illness, who murdered his estranged in-laws in 1992. Panetti was allowed to represent himself at trial, wearing a purple bandana around his neck, a cowboy hat, and suspenders. He tried to call the Pope, Jesus Christ, and John F. Kennedy to the witness stand. His case continues to be litigated, with the 5th Circuit Court of Appeals recently determining that Panetti must receive paid legal counsel, assistance from mental health experts that can help him build his case, and a full hearing to determine whether he is competent to be executed.

In other cases, juries are choosing not to give the death penalty to such defendants, though prosecutors are still asking for it. On July 26, in Jackson County, Mississippi, a judge sentenced Scotty Lakeith Street, who had a long history of chronic paranoid schizophrenia, to life without possibility of parole after the jury could not reach a unanimous sentencing verdict in his capital trial. He was convicted of murdering retired special education teacher Frankie Fairley, stabbing her 37 times. His attorneys presented evidence from family members, caregivers, and mental health experts of his lifelong history of “erratic” behavior, which two psychiatrists called “chronic and severe” mental illness. Witnesses described Street’s bizarre behavior, including putting plastic bags on his head “to keep his brain from leaking out,” swallowing nails, painting his body, and running naked in public.

A 2014 poll found that Americans oppose the death penalty for people with mental illness by more than a 2-1 margin. That has been reflected in a number of high-profile jury verdicts in the last few years in cases involving those with severe mental illness like James Holmes, who killed twelve people in an Aurora, Colorado movie theater, and Joseph McEnroe, who murdered six members of his girlfriend’s family near Seattle.

TADP believes the best solution to these inconsistent results is to repeal the death penalty so that no juror is put in the position of determining who lives and who dies. Short of that, excluding those with severe mental illness from the death penalty is a common sense way to address at least some of the inconsistency plaguing the current system. Such a reform would also save the state millions of dollars that could then be used to treat these individuals before a murder occurs while also sparing victims’ families decades of litigation that will certainly accompany the death sentence.

It makes no sense to continue to accept such inconsistent sentencing. Something needs to change. The Tennessee Alliance for the Severe Mental Illness Exclusion (TASMIE) wants to make that change by advocating for the exclusion of those with the most severe mental illnesses from the death penalty. Though this exclusion falls short of what we need in Tennessee, the total repeal of the death penalty, it at least protects very sick people from execution, saves money, and give victims’ families some measure of legal finality as soon as the trial is over.

 

Photo of William Morva

 

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. 

 

Hard to Understand: The Execution of Ledell Lee

I can’t stop thinking about Ledell Lee.

Since his execution last Thursday in Arkansas, the state executed two other individuals on Monday back-to-back, a first for any state since 2000. Eight men were slated to die in Arkansas over 10 days, beginning the day after Easter. A few have gotten reprieves, though perhaps only temporary. Three others are now dead. There are still victims’ families who are waiting, enduring this legal morass that is the death penalty system. Corrections officers’ who have been through three executions in six days will be asked to carry out others, even with all the risk associated with the use of the problematic drugs. It is reported that Marcel Williams’s execution did not go off as planned on Monday as he gasped and arched his back before finally getting still.

What is hardest for me to get my head around though is the complete breakdown of the legal process for Mr. Lee.  Mr. Lee received a death sentence over twenty years ago for the murder of Debra Reese. It is unimaginable what her family has been through during the past two decades. But all those years in court mean little if the defendant’s attorneys didn’t do their jobs. Mr. Lee received inadequate and ineffective representation at every stage of his case.

His trial lawyers failed to conduct a thorough investigation into his background for the mitigation phase of his trial, not even speaking to many of his siblings. And, they didn’t bother to talk to his mother about testifying. Instead of  a mitigation specialist, trial counsel hired a former police officer with no training or mental health background to investigate the case.

Then there is the performance of his post-conviction attorney. According to a Fair Punishment Project report:

Lee’s first state post-conviction attorney had substance abuse problems that left him “impaired to the point of unavailability on one or more days of the Rule 37 hearing.”[120] The Arkansas Supreme Court noted several examples of his lawyer’s “troubling behavior,” including “being unable to locate the witness room;” “repeatedly being unable to understand questions posed by the trial court or objections raised by the prosecution;” “not being familiar with his own witnesses;” and “rambling incoherently, repeatedly interjecting ‘blah, blah, blah,’ into his statements.”[121] Unsurprisingly, Ledell lost his state-post conviction petition. Eventually, the Arkansas Supreme Court recognized that Lee received grossly inadequate representation and withdrew its opinion, giving him new counsel.[122]

These new counsel were not much better, missing an important filing deadline. At one point, they were referred by the Arkansas Supreme Court  to the Committee on Professional Conduct.

The Arkansas court finally appointed the Arkansas Federal Defender to represent Mr. Lee. That office tried to litigate a claim that Mr. Lee was intellectually disabled. The state argued that he had procedurally defaulted this claim by not bringing it up earlier, and before the issue could be litigated, the federal defender was removed from the case due to a conflict.

And if this wasn’t enough, as his execution approached, the Innocence Project volunteered to test untested DNA evidence in Mr. Lee’s case at no cost to the state. Mr. Lee had proclaimed his innocence for 24 years, since his arrest. The state refused.

After his execution, the Innocence Project issued a statement saying, “Ledell Lee proclaimed his innocence from the day of his arrest until the night of his execution twenty-four years later. During that time, hundreds of innocent people have been freed from our nation’s prisons and death rows by DNA evidence. It is hard to understand how the same government that uses DNA to prosecute crimes every day could execute Mr. Lee without allowing him a simple DNA test.”

Hard to understand indeed.

 

 

(Picture: Benjamin Krain/The Arkansas Democrat-Gazette via AP, File)