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A crucial period for activists fighting the death penalty
"What we do matters"

December 6, 2002 | Page 8

THE STRUGGLE against the death penalty has entered a crucial time. In Illinois, Gov. George Ryan, who halted executions three years ago, has said he is considering a blanket commutation of all death sentences in the state before he leaves office in January. Meanwhile, in Maryland, Gov.-elect Robert Ehrlich says he will lift that state's half-year-old moratorium as soon as he takes office.

STEPHEN BRIGHT is the director of the Southern Center for Human Rights and a well-known capital defense attorney and author. MARLENE MARTIN is the national director of the Campaign to End the Death Penalty. During the Campaign's convention in Chicago in November, Bright and Martin talked to Socialist Worker's ERIC RUDER about the state of the struggle.

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COULD YOU describe the general picture facing abolitionists today?

Stephen: A few years ago, before Bush reached his prominence and some of the innocence cases came to light, one of our real worries was that what was happening in Texas was going to happen everywhere. We worried that they were just going to be executing people, and nobody was going to be paying any attention.

There has been now a lot of attention to these issues--fairness, innocence, race, quality of legal representation. Of course, what that has produced is a counter-assault on the other side. There's going to have to be a struggle.

You can't underestimate how much what's happened here in Illinois has contributed to the growing debate in the U.S. And Bush running for president also contributed a huge amount, because it did result in a lot of scrutiny about the death penalty in Texas. Unfortunately, the press never asked many questions about it, nor did they press him about it.

They kept asking him who's the emperor of some remote country that nobody ever heard of to try to embarrass him, but what they should have done is ask him to name the last five people he executed in Texas. And he wouldn't have been able to name one. That would have been more relevant because that's his job. If you're president of the U.S., you have a State Department to tell you who's the emperor of this or that country. But if you're governor of Texas, you're supposed to review these cases.

One of the things I've always noticed about the death penalty is how you can overwhelm all the facts by highlighting the grieving and suffering and loss of the victim's family and the terrible nature of the crime. The system probably works most poorly when it's dealing with outrageous facts and things that anybody of normal sensibilities would be upset about.

That's what went on here in Illinois with the clemency hearings--the effort to not deal with the question of quality of counsel or the reliability of informants or any other issue. Instead, the prosecutors simply say that here are people who suffered a lot, and we've got to kill a bunch of people to somehow try to make them feel better.

But of course, the death penalty is only imposed in about 1 percent of murder cases, so most people who have lost a loved one, even in the most horrific kind of crime, are not going to have that death "avenged" by the death penalty. That's the myth that's going on here. We're supposed to give the victim's family "closure," but 90 percent of all cases are resolved with plea bargains, and a lot of prosecutors don't even seek the death penalty to begin with.

So the relative handful of people who end up getting the death penalty are usually there because they're in a district where you've got some hard-nosed prosecutor who's got some political motivation, terrible defense lawyering, interracial crime or some factor like that. That's why some cases are death cases, and the overwhelming majority of cases are not death cases.

Marlene: George Bush and U.S. Attorney General John Ashcroft are committed to the death penalty and want to see its use accelerated. They're fanatical about it. They're trying to resurrect the death penalty, and the question is how much has it been tarnished.

When the state of Illinois tried to execute Anthony Porter and he came within 48 hours of being executed, only to be later found innocent, it ripped the veil off the death penalty in a way that's not going to be easy to cover up. So today, we're working in a difficult climate, but our struggle also has forward motion.

It's national news that the death penalty system has put at least 102 innocent people on death row--that's the number of people who have been released. How many innocent people have already been put to death? We know it's happened, but it's almost impossible to say how many, because it's nearly impossible to pursue this question once people have been executed. No official ever wants to acknowledge that they executed an innocent person.

So it won't be easy to cover this over--even with issues like the D.C. sniper case. Pro-death penalty forces may win some ground with this case, but the questions have gone deeper than that. They may also have won ground with the clemency hearings in Illinois on whether George Ryan should grant a blanket commutation to all of Illinois' 160 or so death row prisoners. Victims' family members came to the forefront and said, "My family member was murdered. How could you commute the killer's death sentence?" It's brought the emotional issues to the forefront.

Everyone here in Illinois is now trying to figure out how to increase the pressure on Ryan to commute these death sentences. If that happens, it will be a huge step forward for our movement--by wiping out all those death sentences and by sending a shock wave across the country, like the initial moratorium declaration did. It will touch off a fresh round of national debate and questioning.

But what's key about whether our movement experiences a setback or whether we continue to see new legal and political challenges to the death penalty will be the amount of struggle we can organize. That's why what we do matters so much.

It could have been the case that Gov. Ryan only heard from the prosecutors and other death penalty supporters. It might have been that Ryan only heard from victims' family members, who unfortunately have been lied to by prosecutors who tell them that the death penalty is "necessary" to give them "closure."

If Ryan only heard those voices, the picture would be different than it is right now. The atmosphere is again shifting back in our direction, because there are organizations and groups of individuals to show the other side.

About 650 lawyers signed onto a statement calling on Ryan to issue the blanket commutation. Murder Victims' Families for Reconciliation is having a big event in mid-December. The Center on Wrongful Convictions is bringing together all the exonerated death row prisoners December 15 to say that this is the real face of the death penalty. And I think that the Campaign to End the Death Penalty made a very important contribution as well.

It's very important how you fight. You can't take a defensive position--that calls for life without the possibility of parole as an alternative to execution, for example. We have nothing to be ashamed of. We need to go on the offensive. We need to say that the death penalty is no solution to the pain and anguish of these family members.

I think that the Campaign to End the Death Penalty has been critical in putting out that message. Other groups thought that during the clemency hearings, maybe we should just be quiet. But that's when we held a press conference with Omar Saunders and Larry Ollins--two members of the Roscetti Four, four young Black men who spent 15 years behind bars for a murder they didn't commit. They weren't given death sentences because they were juveniles, but they would be likely dead today if they had. That press conference was all over the news, and it was a great event. We have to take on the issue, even as prosecutors are busing the family members of victims to the hearings.

And don't forget that there are other innocent people on death row. In Illinois, everybody admits that 13 people have been wrongfully sent to death row. But there's absolutely no reason to think that those were the only 13 cases of innocent men sentenced to death in Illinois.

The Campaign knows and works with some of the innocent men who are still on death row in Illinois. Estimates are that as many as 10 percent of death row prisoners are wrongfully incarcerated. That's a huge number of people. And I would suspect that the percentage is probably larger--just given the unfairness of the system, the shoddy representation that capital defendants receive, and the number of corrupt prosecutors who see capital convictions as stepping stones in their career.

Another critical area is the moratorium in Maryland. We don't know how that's gong to play out. Now there's a Republican governor in Maryland who says that he's committed to the death penalty, no matter what the study commissioned to look at the racism of Maryland's death row says. It's pretty bold of this Republican governor to say that he doesn't care what the study shows. But a blanket commutation in Illinois won't make it so easy for him to continue saying this.

WHERE IS the death penalty most vulnerable from a legal standpoint?

Stephen: I think the issue of quality of counsel--because the system can't "work" without people being better represented. And to provide quality representation for people would be enormously expensive. The fact of the matter is that people are not willing to pay the price. Georgia, Alabama, Mississippi, Texas--they're never going to have an adequate indigent defense system. New York doesn't have an adequate indigent defense system, and neither do Pennsylvania and Illinois.

So the question is if we're not willing to spend the money as a society to provide people with quality representation, then it seems to me that what you have to say is that we're going to make mistakes.

And my view about it is that we shouldn't have the death penalty because of the irrevocability of it. With regard to other sentences, we should always have an escape hatch. There should always be an opportunity to go back. The criminal justice and the courts are obsessed with finality--we've got to get it over with, the jury's done, you have your appeal, the statute of limitations, and you can't appeal any more.

I've never understood that, because if you're denying somebody their freedom, and some information comes out that shows that person is innocent, then the value of finality is of no moment. Now justice becomes the important thing.

Of course, the other thing--from a practical law enforcement standpoint--is that if you have the wrong person in prison, it means that the right person is out in society.

AT THE federal level, the Bush administration managed to carry out the first execution in decades, but at the same time, two federal judges have ruled the federal death penalty unconstitutional. What's your assessment of this?

Stephen: There are going to be more federal death penalties in the short run because of Attorney General John Ashcroft. He's been overruling local prosecutors on whether to plea bargain cases. He's fanatical on the death penalty.

Before, I think the federal death penalty was symbolic. There are only 20 people on federal death row. It was political for politicians to show how tough they were on crime right before the election. The disparities in the federal death penalty are greater than they are in a lot of states in terms of racism and other issues.

One thing about the death penalty is that the more scrutiny it gets, the worse it looks. And the one group that you would have thought might have been able to get it right is the federal government. Unlike the states where prosecutors don't have their decisions to seek the death penalty reviewed by anyone, in the federal system every case goes to the attorney general of the United States.

You would think there would be some uniformity there. And yet you've got just as great geographical disparities, greater racial disparities. The one thing the Feds have done right is to provide people with good legal representation, and the result of that is that they don't very often get death sentence convictions. A lot of federal cases go to trial, and some get acquitted, some get life sentences, a lot of cases plead out, and few get the death penalty.

HOW DO you think the death penalty will finally be abolished? By court cases or state-by-state moratoriums, or in some other way entirely?

Stephen: I don't think anybody knows for sure. I don't have much doubt that we'll get there. I don't know when or exactly how.

My working theory for the time being is that I think a lot of people--including a lot of proponents of the death penalty, a lot of prosecutors, judges--consistently feel that it's not working, and that it's not worth the time and trouble. I would expect that what may happen is that we go back to what we saw in the 1950s and '60s--a gradual decline in the use of the death penalty.

Last year, Georgia--which usually sentences 15 to 20 to death--only sentenced four people to death. That's pretty remarkable. If that could be sustained over enough time, where you're only putting two or three people on the row, at some time, somebody's going to shrug their shoulders and say what's the point?

States like Connecticut have almost nobody on death row--seven people. Colorado, three. At some point, it just doesn't make any sense to go to all this trouble for only three cases. What's worrisome are the states like Texas, Alabama and Pennsylvania, where the numbers are just out of control.

I think the death penalty can be kind of like the Berlin Wall. It may not be quite as dramatic, but one day it sort of crumbles. It ceases to be used, and it gets to a tipping point where society says, okay, we're not going to have it anymore.

Marlene: In 1972, we won a ban on executions in this country imposed by the U.S. Supreme Court. And we also saw a decrease in the number of executions in the late 1960s. Why did we win this ban in 1972? Why that time?

I think it could be in much the same way this time. There wasn't a massive struggle focused simply on the issue of the death penalty. But there was a huge civil rights movement that had highlighted questions of fairness and equality, of racial oppression and justice.

The movement didn't just take up eating at this or that restaurant or drinking out of this or that water fountain, but it took up the question of education, the criminal justice system and who gets incarcerated. This raised the question of the death penalty.

In a totally different context in which the statement wasn't true, Ronald Reagan said that a rising tide lifts all boats. In the case of the 1972 ban on executions, this was true. There was a broad questioning across society about fairness, equality, justice and racism, and the Supreme Court decision on the death penalty was a product of that.

That's why today, it's important for anti-death penalty activists to not be "isolationist" in our fight, but to understand the political context and climate in which we're fighting. When Bush, Ashcroft and the rest of the administration have their policies challenged--whether it be their warmongering against Iraq or their illegal detentions of Muslims and Arabs after September 11--this creates a more progressive climate in this country. And that will help in our struggle against the death penalty.

People who are asking why bombs are being lobbed at Iraq can be politicized and can begin asking about why we condemn a certain section of the U.S. population--poor and Black--to death.

For more information on the Campaign to End the Death Penalty, see on the Web.

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