National Radio Project

MAKING CONTACT

Transcript: #36-00 Race, Class and the U.S. Death Penalty
September 6, 2000

Program description, guest contact information and audio files at http://www.radioproject.org/archive/2000/0036.html

Phillip Babich: This week on Making Contact....

Stephen Bright: The United States incarcerates a larger part of its population than any other country in the world. We are using the death penalty now more than almost any other country. Four countries account for 80 percent of the executions. The United States is one of those four.

Brian Henninger: Does vengeance equate justice? I think that ultimately if we took a careful look at it we would say no.

Phillip Babich: Since 1976, the United States has executed more than 650 people. Recent cases of innocent people being released from death row have drawn mainstream media attention. On this program, the National Radio Project's Prison Desk takes a look at the death penalty. I'm Phillip Babich, your host this week on Making Contact, an international radio program seeking to create connections between people, vital ideas and important information. In the United States, the death row population has risen to about 3,500 prisoners. Between January 2000 and August 2000, 60 people were executed in various states, half of them in Texas. Methods of execution include lethal injection and the gas chamber.

A Gallup Poll from June 2000 shows that although a majority of Americans favor the death penalty, the extent of support has been gradually decreasing and is now at 66 percent, its lowest level since 1981.

Recent studies and media reports have examined death row cases where prisoners have been found innocent after re-examination of evidence or where guilt -- "beyond a reasonable doubt" -- was still in question at the time of execution. As a result, many people have begun to take a critical look at how the justice system operates. Most critics point to the lack of quality legal representation in death row cases as a major problem. Stephen Bright is with the Southern Center for Human Rights.

Stephen Bright: Well, the biggest problem that a poor person accused of any crime faces is quality of lawyer. And many poor people are represented by court-appointed lawyers that are paid only token amounts of money. There are three basic systems, but the two predominant systems in the South are either to pay lawyers a small amount for representing somebody (for example, in Virginia the limit is $800 for representing someone in a serious felony case), or what a lot of counties do is contract out the work, where one lawyer does all the indigent representation for a flat amount. And then is still free to do as much private practice as that lawyer wants to do. Both of these systems are horrible in terms of the quality of representation.

Phillip Babich: Bright adds that unequal representation is commonplace and that most people facing the death penalty do not get quality legal advocacy to ensure fairness.

Stephen Bright: One can make a lot of money today, practicing law, but not practicing criminal law. And unfortunately the cases where the stakes are the highest, where liberty and life itself are at stake, are the most demanding and yet least paying things in the legal profession. And most lawyers are out--unfortunately they're like everybody else, I suppose--to make a lot of money. And you just don't make much money handling court-appointed cases. So what happens is people tend to get very short shrift. Cases tend to be handled without the necessary investigation. That's why we've seen so many innocent people convicted without the proper investigation for sentencing. Which is why you will see someone sentenced to death, when you'll see many other cases just like that in which the death penalty is not imposed. So, mistakes are made, cases are not well investigated, expert witnesses are not presented, lawyers don't devote the time necessary because there's just simply not the resources to do it.

Phillip Babich: Brian Stephenson, director of the Equal Justice Initiative in Montgomery, Alabama, also believes that unfairness permeates the legal system, especially in the Southeastern United States. Stephenson explains how the system works to the disadvantage of poor people and people of color in states like Alabama, where there is no public defender system.

Brian Stephenson: At the initial trial, the state is obligated to provide a person who is too poor to retain a lawyer, a lawyer. What most states have done, to meet the Sixth Amendment obligation for counsel, is to create public defender systems, professional organizations that specialize in criminal defense work and who provide representation to indigent defendants. Alabama has never created that kind of system. And so here, for both capital and non-capital criminal defendants, poor people are appointed private lawyers from the community, who may or may not be criminal defense lawyers. Our capital system provides you a lawyer at the trial. You're also provided a lawyer on what's known as the "direct appeal," which is the initial appeal to the state appellate court. Those lawyers, however, are private attorneys who may or may not be criminal defense practitioners. After someone has been sentenced to death at the trial level, and their case is affirmed by the state appellate court, the constitutional right to counsel--which is the federal right to counsel--expires. And so, while a lot of states have created state-funded agencies to provide representation to death row prisoners for continuing appeals, Alabama has not done that.

Phillip Babich: Even though the system Stephenson describes may technically meets constitutional requirements, the right to a public defender or other representation does not guarantee a fair trial. Stephen Bright adds that one's chances of getting sentenced to death for murder often depend largely on the attorney a person is appointed.

Stephen Bright: In Houston alone there have been three death penalty trials, at which the lawyer for the accused slept through the trial. And I'm not talking about a lawyer who just closed his eyes. I mean, I am talking about where the evidence was that the lawyer actually snored during the trial. And all three of those, remarkably, the judge presiding allowed the case to go on to verdict and ultimately the death sentence. One of those judges, Doug Schaefer, when asked by a journalist for the Houston Chronicle how he could preside over a case where the defense lawyer was sleeping, said, "The Constitution guarantees you a right to a lawyer, but it doesn't guarantee you that the lawyer has to be awake."

Phillip Babich: According to Bright and others, these cases are only the most pronounced examples of what is a pervasive problem. In a system where more public resources go to prosecutors than to defense attorneys, most people facing the death penalty receive mediocre representation. Bright also describes how groups like the Southern Center for Human Rights use legal advocacy to address some of the most glaring injustices in Georgia and elsewhere in the South.

Stephen Bright: So one of the other things that we do at our center is advocate the establishment of public defender programs, capital trial programs...because we've seen, in other states, like Colorado and New York, that this works. That if you set up an office with lawyers who are dedicated to doing this work, and that's all they do, and they learn the law, and they specialize in this area of representation, they will provide people with very good legal representation. But if you just appoint any lawyer, it's sort of the equivalent that if there was a small town in which someone had an aneurysm, and you said, "Well, there are no brain surgeons in this town, but we'll just have the chiropractor do the brain surgery." I mean, you never do that in the medical profession, but that's exactly what we do in the legal profession. We say, "Well, there's no lawyer who specializes in capital representation. Well, just anybody who's got a bar card, anybody who's a member of the bar, can handle this case." It's preposterous.

Phillip Babich: 38 states in the U.S. have the death penalty. Despite commonly held beliefs, many recent studies show that enforcing the death penalty is more costly financially than life imprisonment, and the death penalty has never been shown to act as a deterrent. Many death penalty states actually have higher murder rates than neighboring states that do not. According to Amnesty International, more than 108 nations around the world have abolished the death penalty, while the United States remains one of only a handful of countries that has resisted this trend. States such as Alabama and Oklahoma will execute prisoners as young as 16 as a matter of policy, a facet of the U.S. death penalty system that raises serious concerns for human rights activists. Brian Henninger of the National Coalition to End the Death Penalty, works to raise awareness of this issue, and gives details of the case of Shareef Cousin, a young African American man in Louisiana.

Brian Henninger: Shareef was a 16-year old at the time of the crime that he was charged with. An African American boy, he was charged with a crime that happened in the French Quarter of New Orleans. Now there was a videotape that existed of Shareef playing basketball in a midnight basketball league that was designed to keep young people off the streets and out of trouble. A videotape of him playing basketball with a clock on the wall that showed that he was at this basketball game at the time that the crime was committed. And yet at trial they were able to keep that videotape out of trial, and Shareef was ultimately sentenced to death. He spent three years on death row for a crime that he allegedly committed at 16, and then ultimately on a technicality was able to get a retrial. At that retrial, we were able to make sure that we exposed all the facts that had been withheld by the prosecution, and ultimately got Shareef off of death row. Now Shareef was.there have been eight juvenile offenders sentenced to death in Louisiana since way back in the slave days. All of them have been African Americans. Shareef was the first one to have been sentenced to death and not to have been executed. So you have the race factor there. You have gross, gross prosecutorial misconduct in that case where they withheld exculpatory evidence. And you've got the juvenile death penalty that comes into play, the fact that we sentence a 16-year old kid for something that he didn't do. When he was trying to do the right thing in the midnight basketball league staying off of the streets.

Phillip Babich: Another advocate working to raise awareness of youth and the death penalty is Trisha Kendall of the Moratorium Now Campaign. She believes that a focus on the U.S. human rights record can be a catalyst in the movement to end the death penalty.

Trisha Kendall: I think that as far as the U.S. is concerned, it's probably the most glaring human rights abuse that the international community can see, that we still execute people under the age of 18 in this country. And so the human rights record is really tainted in the eyes of the rest of the world.

Phillip Babich: Kendall also says that racism permeates the criminal justice system, from policing to prisons.

Trisha Kendall: Well, I think racism is at the core of the entire criminal justice system. I think that the death penalty is certainly the epitome of that, and I think that we've seen it for years in this country. I mean this country's history...I don't think we can separate racism from the criminal justice system as it exists today.

Phillip Babich: During his many years as an attorney and activist, Brian Stephenson has struggled against racism in the South by working to secure fair trials and treatment for young African American defendants. He says statistics show that the race of the victim has more to do with whether one is sentenced to death than many other factors.

Brian Stephenson: It's a fairly familiar story. Between 1930 and 1972, 87 percent of the people executed for the crime of rape in America were black men convicted of raping white women. 100 percent of the people executed for that offence, were executed involving victims who were white. So the death penalty has a long history of being applied in what appears to be a racially discriminatory manner. The Supreme Court, in 1972, in the Furman v. Georgia case, struck down the death penalty in part because these racial disparities were so obvious. In the last 25 years, the modern death penalty has in statute and in case decision expressly said that race bias is unconstitutional, but has done virtually nothing to create any protections for racial minorities. And so we see the same kind of disparities in sentencing and in executions today that we saw 80 years ago.

Phillip Babich: Pat Clark, of the American Friends Service Committee in Philadelphia, has organized against the death penalty for many years. Her work in Alabama advocating for death row prisoners gave her first hand experience with how pervasive and widespread racism can be when it comes to deciding who gets the death penalty and who does not.

Pat Clark: I think what's painful to me is looking at who comprises death row in this country, and realizing so many of the people who are on death row are people of color, and who are there because they killed someone who is white. And that that's who we really care about, are the victims who are white.

Stephen Bright: The criminal justice system is the part of our society that's been the least effected by the civil rights movement.

Phillip Babich: Stephen Bright explains the impact of this history on the current death penalty system.

Stephen Bright: Overwhelmingly the judges are white, even more overwhelmingly the prosecutors are white. If you look at top prosecutors, that is, the district attorney, all across this country, 99 percent white, overwhelmingly men. Those are the people making decisions. The two most important decisions in every death penalty case: Do we seek the death penalty, and then, do we plea bargain the case?

Phillip Babich: You are listening to Making Contact, a production of the National Radio Project. If you want more information about this program, we'll be giving out our toll free number at the end of this broadcast.

Phillip Babich: Much of the energy behind the resurgent campaign to abolish the death penalty in the United States comes from religious groups. Emphasizing themes such as healing, forgiveness, and transformation, many of these faith traditions have placed new emphasis on the moral problems of capital punishment. Making Contact's Nate Binzen has more.

Voice reading, American Indian music in background: ....Steven J. Wells, Steven Wood, Annette Selick, Patricia Moore, Annette Edwards, Linda Slavick, Young Elk Darryl Rich....

Nate Binzen: On March 15, 2000, Darryl Young Elk Rich, a Cherokee Indian, was executed at San Quentin prison in California. Young Elk was sentenced to death in 1981 for murdering three women and one 11 year old girl. Lenny Foster is director of the Navajo Nations Corrections Project in Window Rock, Arizona. Foster sought to fulfill Young Elk's wishes for last rites in the form of the traditional Native American sweat lodge ceremony.

Lenny Foster: It's a real purification and cleansing. You're allowed to make amends through the prayers and seek blessings for all those prayers that you make, including, in his case, it was making amends for the victims, and the wrongs he had done. And this is perhaps one of the most successful therapy and rehabilitations for Native Americans who are incarcerated in state and federal facilities. And we were hoping he would be allowed every opportunity to make amends and pray and seek to pass over to the other side.

Nate Binzen: Foster had administered a last rites sweat lodge for another death row inmate, Derek Gurlaw, a Pima Indian in Arizona, and had hope that he could do the same for Young Elk.

Lenny Foster: We had that ceremony without any incident, and that should have demonstrated to prison officials across the country that this type of request could be honored without any security concern. Yet the warden, Jean Woodruff, of San Quentin, denied the last rite request and use of a sweat lodge based on security concerns. She stated that Young Elk would escape using the sweat lodge to tunnel out, and also that the tools, specifically the shovel, would be used as a weapon, and also that he would pick up hot stones and use them to club the correctional officials. And of course all those claims are absurd. The sweat lodge is one of the most sacred ceremonies that Indian people have. And to use it in such a manner that would bring dishonor and desecration is unheard of.

Nate Binzen: In California, many other religious groups rallied around the case of the confessed killer, Darryl Young Elk Rich. Alan Senauke is director of the Buddhist Peace Fellowship in Berkeley, California. Senauke participated in a vigil at San Quentin on the night of Young Elk's death. He says the death penalty system perpetuates violence and crowds out healthier outcomes.

Alan Senauke: What I believe is that anybody can change. And that that kind of change is possible over long years in prison with a Buddhist practice or any kind of faith practice is truly transformative. It's not a surface thing. What's to be gained by them, by the process of transformation that involves acknowledging the harm that they've done. You know, an attempt to acknowledge the price that other people have paid for their wrongs. If that process is a hopeful one, then there's a chance of that person living a life in peace. Perhaps in confinement but also perhaps in peace. And that, the way that they live, also affects the lives of people around them. So they can be a model, they can affect the prisoners, they can affect guards, they can affect the whole system. You know, maybe just in small ways, but in a humanizing way, so that, regardless of what's been done, we recognize that person as a human being. Perhaps a flawed one, but valuable nonetheless.

Nate Binzen: Senauke believes that life imprisonment could be an opportunity for inmates to transform themselves, one part of the moral argument against the death penalty, that many major religious of North America share. Religious organizations have come out strongly against the death penalty, and although their moral arguments vary, their conclusions are quite similar. Pat Clark is the National Criminal Justice representative for the American Friends Service Committee. She agrees that time behind bars is often a time of religious discovery by those who have come to regret their crimes.

Pat Clark: I work for the American Friends Service Committee, which is an organization that's based on Quaker beliefs and philosophy. And one of the main philosophies or values that the Quakers have is that there is god in everyone. And I think one of the things that's great about working for an organization like the American Friends Service Committee is that they realize that you should not be judged by the last or worst thing that you've done. And I'm very deeply spiritual, and I believe that everyone has the potential for transformation and redemption. And that means even someone who's done something horrible. Now do people need to be held accountable for what they've done? Absolutely. Not only for the victim and family members but for their own sake. People need to make the transition and need to be transformed. But, you know, you lose that opportunity if you put someone to death.

Nate Binzen: Sheila McCanta is Parish Resource for Social Justice for the Catholic Diocese of Oakland, California. McCanta explains the Christian roots of opposition to capital punishment.

Sheila McCanta: As Catholics, we believe in the teachings of Jesus Christ. And Jesus Christ was counter-cultural in that he taught reconciliation, forgiveness, mercy, and love your enemies. And those were some of the radical teachings of Jesus, so that's the first basis for our beliefs. We believe in the human dignity of each and every individual, from the moment of conception until natural death. And we believe that god gives life, it is the gift of god, and therefore only god should be able to take life away.

Nate Binzen: Yet the concern that religions have shown for the fate of killers may be of little consolation to the families and loved ones of murder victims. It can even deepen their feelings of hurt and anger. Proponents justify the death penalty as an opportunity for closure for the families of murder victims. Yet Pat Clark, who herself lost an uncle and a cousin to murder, says that this line of reasoning, while politically useful, doesn't really serve the needs of suffering families of victims.

Pat Clark: Well, part of what Murder Victim's Families for Reconciliation is doing is not even necessarily looking at bringing perpetrators and victim's family members together. Where possible, we do that. But part of it is to really emphasize that murder victim's family members don't want politicians or prosecutors using them to try to impose the sentence of death. And so a lot of our work is trying to get politicians and prosecutors to understand that the death penalty does not take care of our concerns and our needs. So, and then the other part of it is taking a look at what kinds of things victim's family members do need in order to have closure or healing. And that doesn't mean that, you know, everybody wants to sit down and talk to the person who perpetrated the crime against their loved one, or everyone wants to necessarily forgive. But it is a matter of, you know, people basically saying that the death penalty is not the thing that's going to take us to the place where we can be functional human beings again.

Nate Binzen: While feelings of vengeance are common, many religious teachers insist that it is wrong to act on these feelings. Pat Clark says that she learned from her grandmother that compassion is a deeper spiritual response than vengeance.

Pat Clark: When I was quite young, my uncle was murdered, and then six months later, my first cousin was murdered. And my grandmother's response was that we individually should not seek vengeance. Being a very spiritual person, her feeling was that god would take care of it all. But she was, you know, a very compassionate person. When I say compassionate I mean someone who really understands what the word means and actually lived a life where she exuded compassion. And she never was one who sought vengeance or sought to create additional harm or tragedy.

Nate Binzen: For Making Contact, I'm Nate Binzen.

Phillip Babich: Opposition to the death penalty comes from a variety of sectors of society. Many of the beliefs driving religious opposition are echoed among activists, policy makers and concerned citizens. Brian Henninger of the National Campaign to Abolish the Death Penalty believes most people, when presented with the facts, would oppose the death penalty.

Brian Henninger: Respecting human life does not mean that you taken human life away as a punishment. Respecting human life means that you do anything and everything you can to prevent the loss of it. And even when it is lost, you don't compound the evil by simply adding another one on to it. The simplest way of putting it is it's vengeance pure and simple. People don't want to say that because it makes them sound vengeful. But if you look at it honestly and frankly, then that's basically what it boils down to. And is that. does vengeance equate justice? I think if ultimately we took a careful look at it we would say no.

Phillip Babich: Despite increased media attention and activists like Henninger working against the death penalty, many controversial cases continue to plague the court and prison system in the U.S. In states such as Texas, where people are regularly executed without legal representation for appeals, questions of innocence play a key role.

A movement to abolish the death penalty in the United States is gaining momentum, particularly around the case of award-winning journalist Mumia Abu-Jamal. An African American who has long been on death row, Abu-Jamal was convicted of killing a police officer in Philadelphia and sentenced to death in 1982, but maintains his innocence.

Building on the momentum of cases such as this, the movement to abolish the death penalty has grown dramatically in recent years. Trisha Kendall explains the role that the Moratorium Now Campaign is playing in that growing movement.

Trisha Kendall: The Moratorium movement is all encompassing, and we do find all different people who are a part of the Moratorium movement really come from all different angles and aspects of their take on the death penalty. And certainly the resolution campaign that we've begun to build, and we're celebrating right now that 1,000 groups have come on board to endorse a moratorium on executions. I don't think there's a day that goes by that the death penalty is not discussed in some arena and the press. And I think that that's a development--a very exciting development. The Moratorium Now campaign has a goal of reaching 2,000 resolutions, and we encouraged anybody to take a resolution to their local group, church, faith community, co-op. There are 26 local governments, including many cities and some counties across the country that have passes resolutions. People are wanting to speak out on the issue, and the Moratorium movement is a way for many people to do that.

Phillip Babich: Stephen Bright says that with many different forms of advocacy and awareness-raising, anti-death penalty forces are bound to make headway.

Stephen Bright: Our advocacy is certainly not limited to the courtroom. We think we need to be in court, because that's where a lot of these problems are. We know a lot about what's happening because we represent, for example, Judy Haney, in Alabama, whose lawyer during her trial was so drunk that they had to stop the trial for a day. And sober him up, and the next day produced both lawyer and client from the county jail. We wouldn't know about that, if we had not taken her case later. I wouldn't know about the five cases where lawyers referred to their clients with a racial slur at some point, on the record in the trials. If we didn't have those cases...those are all cases we've had. But we also feel like part of our role is to bear witness to what we see, to make sure that people outside the legal community know what's going on. So that the American people can make informed decisions about whether this is really the course we want to follow--this course of an extremely punitive, vengeful system.

Phillip Babich: That's it for this edition of Making Contact: A look at the death penalty in the United States. This has been a production of the National Radio Project's Prison Desk. Thanks for listening. And special thanks this week to Orla Rapple and Laura Rainville for production assistance. And to Robert Frazier and Jade Padget-Seakins for recorded portions.

Laura Livoti is our managing director; Peggy Law, executive director; associate producer, Stephanie Welch; senior advisor, Norman Solomon; national producer, David Barsamian; women's desk coordinator, Lisa Rudman; prison desk coordinator, Eli Rosenblatt; production assistant, Shereen Meraji; archivist, Din Abdullah; and I'm your host and managing producer, Phillip Babich.

If you want more information about the subject of this week's program, call the National Radio Project, at 800-529-5736. Call that same phone number for tapes and transcripts. That's 800-529-5736. Making Contact is an independent production. We're committed to providing a forum for voices and opinions not often heard in the mass media. If you have suggestions for future programs, we'd like to hear from you. Our theme music is by the Charlie Hunter Trio. 'Bye for now.