Death Penalty

The Dallas Morning News reported yesterday that prosecutors in Dallas, Texas have decided to take a second look at convictions in which DNA evidence CANNOT exclusively prove guilt or innocence.  This is a welcome extension to a decision a year ago by Dallas District Attorney Craig Watkins and The Innocence Project of Texas to review convictions in the state amid a wave of DNA exonerations.

An expansion of this review is certainly good news.  DNA is an important, and relatively new, tool that can often prove guilt or innocence in one single test and The Innocence Project has done great work expaning the use of DNA testing when it is available.  But, there are many cases in which DNA does not exist - or, if it does, cannot prove guilt.  The increased availability of DNA testing has proven what some have been arguing, unsuccessfully, for quite some time - that wrongful convictions happen, and that they happen way too often.  So with this information, we must also assume that there are many cases of wrongful convictions out there that cannot be proven by DNA testing or in which DNA testing does not exist.  We owe it to these men and women to not only change the laws and procedures that allowed them to be wrongfully incarcerated, but to take a step back and review their cases as well.

According to The Innocence Project of Texas, 31 individuals in Texas alone have been exonerated by DNA testing, and several more on other grounds - more than any other state in the U.S.  Nationally, 216 individuals have been exonerated thanks to DNA testing - some of whom also faced the death penalty! 

These numbers show us that we must take a serious look back at cases where DNA doesn't necessarily provide a quick answer.  Cases such as Troy Anthony Davis in Georgia prove that the system does not always work, and we have to find ways to correct mistakes that will inevitably occur.  Can we as a nation morally accept this incredible injustice?  Yes, most who are convicted are in fact guilty and should be in prison, but if 1 in 500 is incarcerated for a crime that they did not commit, then that is 1 too many!

~ Jessie Cohn, AIUSA-DPAC

Amnesty International's Annual General Meeting (AGM) will be held this week-end (April 25-28th, 2008) in Washington, DC.

It will be the occasion for activists from all over the world to gather, share their vision of a fairer world and above all go on seeking solutions together. The meeting will feature talented speakers (such as AIUSA Secretary General Irene Khan) who will share their experiences and speak out against human rights violations.

The AGM this year will feature not one, not two, but THREE exciting Death Penalty events!

On Friday the 25^th, campaign team staff will lead a workshop titled "messages that connect with death penalty supporters" (from 2:00 to 3:30 pm).  This workshop will challenge activists to move beyond their comfort zone and engage in more emotionally-charged arguments waged by our traditional opposition.

Immediately following the workshop (from 3:45 to 5:00 pm), a screening of the film "At the Death House door" will be followed by a panel discussion with specialists: the two filmmakers Peter Gilbert and Steve James, former Texas prison chaplain Rev. Carroll Pickett (who is featured in the film), and former Texas prosecutor Sam Millsap. Death Penalty Abolition Campaign Director Sue Gunawardena-Vaughn will moderate.

Saturday's panel session, titled "Preaching beyond the choir: engaging ‘unusual suspects' in the Death Penalty Debate" will focus on new campaigning strategies to help activists reach out to new constituencies. Panelists, including moderator Virginia Sloan, President of the Constitution Project, Laura Porter, Director of Organizing at Equal Justice USA, Ronald Hampton, Executive Director of National Black Police Association, and Sam Millsap, former Texas District Attorney, participants will build on their knowledge of death penalty issues while developing communication, messaging and organizing skills to put to use in their respective states.

For a detailed program click here.

We're looking forward to seeing you!

Mathilde

DPAC intern

In my previous post on the Baze v. Rees decision, I noted that Justice Alito, in a separate concurring opinion, raised the question of doctor participation in executions, and argued that an alternative to a current execution protocol can't be considered "feasible" or "readily available" if that alternative requires "participation - either in carrying out the execution or in training those who carry out the execution - by persons whose professional ethics rules or traditions impede their participation."

So, according to Alito, you can't argue that participation of medical professionals would reduce the risk of pain, because they can't participate due to their ethical commitments. 

But this argument is questionable at best, given that health professionals do participate in executions, including in Kentucky.

As Justice Roberts describes the Kentucky protocol in the plurality opinion, "[a] physician is present to assist in any effort to revive the prisoner in the event of a last-minute stay of execution."  Yet, AMA Guidelines cited by Justice Alito, which prohibit physician participation, state that "[p]hysician participation in an execution includes ... attending or observing an execution as a physician."  That's precisely what doctors are asked to do in Kentucky, so, clearly, a doctor would be in violation of these AMA Guidelines if he did as the Kentucky protocol requires.

In addition, as is repeatedly mentioned in the Supreme Court's Baze opinions, Emergency Medical Technicians (EMTs) are an integral part of the execution process in Kentucky, inserting the IV catheters that deliver the poisonous drugs into the prisoner's veins.  Yet, again, as Justice Alito himself notes, citing the NAEMT position statement, "[t]he National Association of Emergency Medical Technicians (NAEMT) holds that ‘[p]articipation in capital punishment is inconsistent with the ethical precepts and goals of the [Emergency Medical Services] profession.'" 

So, two health professionals must violate their ethical commitments for Kentucky's lethal injection protocol to be implemented.  Does this make the Kentucky protocol, which the Supreme Court just upheld, somehow not "feasible" or not "readily available", as Justice Alito suggests? 

Beyond this question is the larger dilemma: if they participate in executions, health professionals violate their ethics; but if they don't, executions with a greater risk of severe pain are likely to be allowed.  It is shameful to put the practitioners of one of our most important and respected professions in such an impossible situation, and another example of how the death penalty degrades everything it touches.

Brian

DPAC

The Supreme Court heard oral arguments yesterday in the case of Kennedy v. Louisiana regarding the constitutionality of imposing the death penalty for the rape of a child, when no murder has taken place.  It has been 44 years since the last execution in the U.S. for rape or any other crime except murder.

The need for justice and healing for the victims of such horrific crimes is great, but is punishment by death really the solution?  Multiple editorials, in the New York Times, Washington Post, Los Angeles Times and Denver Post, all agree that the death penalty for child rape would be wrong and excessive.

Whether for or against the death penalty generally, we must all ask whether this is in fact in the best interest of children...

According to a friend-of-the-court brief filed by a coalition of social workers and groups that work on behalf of victims of sexual assault, the answer is no. 

First, imposing the death penalty for child rape will reduce the likelihood that abuse will be reported and stopped, thus increasing the amount of abuse the victim suffers as well as the number of children who each abuser can victimize. Second, by equalizing the penalties for child rape and murder, Louisiana's statute encourages abusers to kill their victims. Finally, when a case does go to trial under Louisiana's law, the trauma caused by the extensive trial process itself and the prolonged notoriety the case will generate will be even more severe and long-lasting.

It has been over 30 years since the Supreme Court considered imposing the death penalty in nonmurder cases.  In last case, Coker v. Georgia, the Court ruled 7-2 that the death penalty was a "grossly disproportionate" punishment for the crime of rape of an adult (although the "adult" in this case was only 16 years old).  Is there a now national consensus (i.e. "evolving standard of decency") that the death penalty is in fact appropriate when the rape involves a child?  Let's take a look ...

In Coker, the court based their decision in part on the fact that Georgia was the only state that allowed the death penalty for adult rape.  Right now, Louisiana is one of only 5 states that permit the death penalty for the rape of a child - and only 2 people, out of almost 3400, are on death row for such a crime.  Both are in Louisiana. 

While demanding the harshest sentence for heinous crimes against children may make sense politically, or even seem like the right thing to do in the interests of justice, it is not what child victims actually need.

Today, the Supreme Court, in the case of Baze v. Rees, ruled 7-2 that lethal injection is constitutional, in Kentucky and elsewhere, as long as there is no "substantial risk of severe pain", and as long as there is no alternative procedure which is "feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain." (The opinion is available here.)

What this means in practice, outside of Kentucky, is way less than clear.  It is a fractured 97-page ruling featuring 7 separate opinions which debate not only lethal injection but the death penalty itself.  Only two other justices joined Chief Justice Roberts in his plurality opinion.  Three other justices, who concurred with the result, argued in separate opinions that this decision will not end the debate. 

In his concurring opinion, Justice Stevens writes: "The question whether a similar three drug protocol may be used in other States remains open, and may well be answered differently in a future case on the basis of a more complete record."

And in their concurring opinion, Justices Thomas and Scalia worry that the plurality's opinion "casts constitutional doubt on long-accepted methods of execution."  They go on to warn that:

... today's decision is sure to engender more litigation. At what point does a risk become "substantial"? Which alternative procedures are "feasible" and "readily implemented"? When is a reduction in risk "significant"? What penological justifications are "legitimate"? Such are the questions the lower courts will have to grapple with in the wake of today's decision. Needless to say, we have left the States with nothing resembling a bright-line rule.

Justice Alito, in his concurrence defending the plurality, argues back that this won't happen if the decision is "properly understood."  He also addressed the issue of health professional participation in executions, arguing that:

... a suggested modification of a lethal injection protocol cannot be regarded as "feasible" or "readily" available if the modification would require participation - either in carrying out the execution or in training those who carry out the execution - by persons whose professional ethics rules or traditions impede their participation.

In other words, according to Justice Alito, a lethal injection protocol is constitutional unless there is a "substantial risk" of pain that can be readily reduced by an alternative that doesn't involve health professionals.

Then there is the second part of Justice Stevens' concurrence, where he argues against the constitutionality of the death penalty itself; another concurrence, by Scalia and Thomas, responds to Stevens' arguments about the death penalty without really talking about lethal injection at all.

Here is Amnesty International's statement that this "preoccupation with lethal injection" is a "distraction from myriad problems currently plaguing the death penalty system."

Brian

DPAC