Death Penalty Fight Refocuses After 9/11

In the weeks following the 9-11 attacks, many Americans began embracing spirituality as a method of coping with unfathomable fear and hurt. At the same time, however, cries for retribution were heard. The religious fervor, it seemed, was of the eye-for-an-eye variety, rather than "forgive thy enemies."

A shift in the political climate paralleled society's demand for justice, by any means necessary. Just when opponents of capital punishment were beginning to make headway in the fight for a moratorium on, and eventually, abolition of the death penalty, the wheels of justice began to spin backwards.

U.S. lawmakers pushed the Patriot Act through legislative channels with previously unheard speed, despite the bill's questionable violations of civil liberties and human rights. As the U.S. government geared up for trying and executing terrorists, nations around the world denounced the U.S.'s byzantine death penalty policies. France and Spain both balked at extraditing terrorist suspects to the U.S. because they could face capital punishment (France had previously done the same in the case of James Charles Kopp, charged with the murder of Amherst, New York abortion provider Barnett Slepian). Even Cuba, long a target of U.S. criticism for its repressive treatment of political prisoners, set a de facto moratorium on executions. (In 1999, Cuba reportedly executed at least 21 prisoners, 14 less than then-Governor George W. Bush oversaw in Texas that same year.)

The notion that the U.S. may be on a different page from its "first world" allies on capital punishment made news as President Bush traveled to Europe last year, even as a media frenzy regarding the Timothy McVeigh execution raged at home. Bush was met by protesters both on the streets and in the upper-levels of government.

A June 13, 2001 New York Times editorial underscored the European view of U.S. policy: "While viewed primarily in this country as a criminal justice issue, capital punishment is deemed a human rights matter in other democracies. The fact that Timothy McVeigh was executed the same week that Mr. Bush arrived in Europe amplified this divide. For many Europeans, talk of shared trans-Atlantic values rings hollow so long as America carries out executions."

"The rest of the civilized world is decisively turning away from the death penalty," says David Kaczynski, Executive Director of New Yorkers Against the Death Penalty. "Even Milosevic in the Hague and those responsible for the genocidal murder of a million people in Rwanda will not face execution for their unimaginable crimes. There is a growing world consensus that we must rise above the murderers and hold ourselves to a higher standard, else we run the risk of cheapening life and turning justice into ritual vengeance. The way we punish such murderers says less about them than it says about us."

In a changed world, foreign criticism of the death penalty continues as the U.S., in turn, justifies its war against the Taliban based on that regime's human rights record. Gawain Charlton-Perrin, in her article "Are You Ready to Dance on Osama's Grave?" (Salon.com, 12/14/01), points out the hypocrisy of the United States waging a war in the name of both revenge and of human rights.

"Consider the fact that we are one of the few Western democracies that has yet to abolish the death penalty," she writes. "Ours is a country in which quite a few citizens celebrate the execution of convicted criminals -- not just with quiet satisfaction, but with parties held outside prison walls as the condemned receives a lethal injection. It is perfectly acceptable, apparently, for Americans to be happy and relieved on these occasions."

Abe Bonowitz, director of Citizens United for Alternatives to the Death Penalty (CUADP), is careful not to compare the U.S. legal system with that of the Taliban. "The Taliban apparently had some very strict rules of evidence and trial. Their problem was just that everything was punishable by death! What it boils down to is the fact that we here in the U.S. have a similarity with the Taliban-we use the death penalty."

Kaczynski, like many of us, ponders the relationship between our democratic beliefs and the need for justice. How does an activist against government-sponsored killing deal with the scourge of terrorism?

"Obviously, it's crucial that Bin Laden be stopped. But death sentences imposed through secret military tribunals will neither help us stop Bin Laden nor will they greatly honor the values of liberty and justice on which our nation was founded," Kaczynski explains. "It's easy to see that repressive governments around the world will only take our example and run with it. It would be another tragic mistake if this arbitrary and hasty version of justice translated into a disregard for individual liberties and due process on the home front."

"I think we need to take a sober look at what made our country unique in history -- a nation of laws not men, the first nation to recognize the dignity of the individual against the power invested in the state," he continues. "With the death penalty, the state claims authority over the life principle itself. The concept of due process in the legal system is interwoven with our recognition of the dignity of the individual and the transcendental value that we place on human life. Messing with those values is an attack on democracy itself."

Despite inviting such unfortunate comparisons with repressive regimes, a Reuters article published weeks after 9-11, posited that the "September 11 Effect" would lead to an increase in death penalty support among the American public.

"Some of the criticism of the death penalty has been mitigated by the Sept. 11 attacks against the World Trade Center and the Pentagon, according to capital punishment advocates. They say people who have previously been untouched by violence and crime are more apt to understand the reasons capital punishment has a place in the United States. 'Americans experienced a fleeting glance of how it feels to be a victim of violent crime,' said Dianne Clements, spokeswoman for Houston-based Justice for All, which supports the death penalty. 'Most Americans believe that those responsible for these terror attacks should receive a death penalty, if they are ever brought into a court of law. (The attacks) created in America an invisible bond of horrific crime, punishment, and justice.'"

Before the "September 11 Effect" took hold, the U.S. was at a crossroads in terms of the death penalty. A Gallup Poll showed public support at roughly 66 percent -- the lowest point in nearly 20 years. The number of executions had gone down in both 2000 and 2001. Across the country, some government agencies and legal organizations were demanding moratoriums, a trend started by Illinois' Republican Governor George Ryan in 1999.

In June 2001, amidst a call for a stay of the execution of Juan Raul Garza, Ashcroft concluded that after a review of 950 cases, there was no evidence to support death penalty critics' claims of racial bias. This despite an autumn 2000 report issued by former Attorney General Janet Reno that "found 75 percent of cases where federal prosecutors had submitted their intention to seek a death sentence to the Justice department for review, the defendant was a minority member, and in nearly half an African-American."

Ashcroft denied a request for a stay of Garza's execution, which cited the need for further study on capital punishment's racial bias, saying, "In areas where large scale organized drug trafficking is largely carried out by gangs whose membership is drawn from minority groups, the active federal role in investigating and prosecuting these crimes results in a high proportion of minority defendants in federal cases, including a high proportion of minority defendants in potential capital cases arising from the lethal violence associated with the drug trade."

Did 9-11 put a halt to the progress made in the fight against the death penalty and play into the hands of Ashcroft's Justice Department?

"Absolutely not," says Bonowitz. "In fact, just last week the city commission in Tallahassee, Florida made that city the first municipality in Florida to call for a moratorium on executions. We just had the 24th innocent person released off our death row. People are waking up to this issue, and I think, people are more apt to pay attention to political matters in the wake of September 11. September 11 was a wake-up call."

In 2000, the City of Buffalo Common Council passed a death penalty moratorium resolution by a vote of eight to five. The resolution, inspired by a meeting between local activist Chuck Culhane and a Common Council member, is credited with influencing the Buffalo News' switch to an official anti-death penalty position.

According to Kaczynski, problems with the death penalty "haven't disappeared or completely escaped scrutiny."

"Since September 11, the Tennessee Supreme Court, in a strongly worded decision, banned execution of the mentally retarded; the Governor of North Carolina, in a last minute exercise of conscience, commuted the death sentence of a man whose conviction was obtained on circumstantial evidence; and a death row inmate in Florida was exonerated by DNA evidence after 17 years in prison. The momentum of concern about the death penalty is directly tied to deep and systematic problems with the death penalty, and those problems persist."

With momentum seemingly building despite the events of September 11, death penalty opponents are also using a new tactic to make executions more difficult for governments to perform. Since lethal injection -- widely considered the most "humane" and "painless" of executions methods -- depends on potassium chloride, death penalty opponents have begun targeting the pharmaceutical companies and drug distributors that provide the product to prisons.

"Drug companies are in the business of making drugs for health and well-being, not to kill people," says Steve Hawkins, Executive Director of the Washington, DC-based National Coalition to Abolish the Death Penalty, in a recent Mother Jones article ("Undercutting Executions" by Justine Sharrock, December 28, 2001). "If a department of corrections wants to be in the business of killing people, let it be expensive, and let it be difficult."

The tactic is part of a larger plan, aimed at complicating the business of executions for government and placing blood on the hands of the medical community. As illustrated in Greg Mitchell and Robert Jay Lifton's book Who Owns Death: Capital Punishment, the American Conscience, and the End of Executions (just published in paperback), doctors who tend to the condemned and recently executed are often the most conflicted participants in the capital punishment machine, eschewing their Hippocratic Oath to save human life.

"This is not going to be the one key in ending the death penalty," Jeff Garis, executive director of Pennsylvania Abolitionists Against the Death Penalty tells Sharrock. "It is part of a larger overall strategy that is going to take multiple tactics and campaigns."

Anti-execution activists have also entered into a somewhat tenuous alliance with some from the religious right, including conservative Pat Robertson, who said, "a moratorium [on executions] would indeed be very appropriate." (Forum on religion and capital punishment held at the College of William and Mary in Williamsburg, Virginia). Indeed, the Catholic Church has for some time opposed the death penalty-in official statements, if not always in action -- but a majority of what is often dubbed the "religious right" (to which George W. Bush and John Ashcroft both belong) have failed to view the death penalty as an anti-Christian practice.

(Last year, however, the New York State Catholic Conference named a pro-capital punishment legislator as the recipient of its annual public policy award. The citation has prompted a number of Catholics and Death Penalty Abolitionists to speak out against the Church, which has taken a public stance against capital punishment.)

Another key link in the death penalty opposition chain is the victims' reconciliation movement, a group of murder victims' families and loved ones committed to breaking the cycle of violence.

"The victims' reconciliation segment of the abolitionist movement is very important in buoying the push toward a moratorium," Ronald Tabak, an anti-death penalty lawyer from New York City, told this writer last year, "This segment of the movement helps, in a very credible way, to undermine the idea that if one really cares about the victims or their survivors, one must inevitably support the death penalty. The fact is, as the Robert Lee Willie case (Robert Lee Willie, featured in Sister Helen Prejean's book, is the model for the Sean Penn character in the film Dead Man Walking) illustrates, that even when someone is executed, that does not bring back one's loved one and does not really bring meaningful closure. Moreover, what about the victims' survivors in the vast majority of murder cases in which there never will be an execution? We should focus on how to best help all murder victims' survivors deal with their losses."

A continuing struggle for death penalty activists is refuting the popular notion that the death penalty deters violent crime. According to writer Bruce Shapiro, who recently co-authored Legal Lynching with Jesse Jackson, Sr. and Jesse Jackson, Jr., law enforcement officials accept evidence that there is no deterrent effect from the death penalty.

"The academic journal Crime and Delinquency last year examined more than a decade of executions in George W. Bush's Texas, and found 'no evidence of a deterrent effect,'" Shapiro wrote ("Deadly Lies", Salon.com 10/20/2000). "Other research has reached the same conclusion, most notably a 1997 study of crime in over 500 counties nationwide. A 1995 poll by Hart Research Associates found that just one percent of police chiefs believe the death penalty significantly reduces the number of homicides. Even one of the country's most conservative, pro-death-penalty judges, Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit, has acknowledged that little evidence backs up the deterrence argument."

Also at issue is the accuracy of death penalty sentencing. A 2000 Columbia University study showed that "more than seven of every 10 death penalty cases filed between 1973 and 1995 were reversed because of errors made by judges, juries and prosecutors."

Just this week, the Columbia researchers updated the two-year-old report that poked gaping holes in the accuracy of death penalty sentencing. The update -- which the professors say is not intended as a moral barometer, but as a legal study -- reveals that the death penalty is often applied due to political pressure. The researchers also concluded that there is a direct correlation between the volume of death penalty convictions and the staggering amount of reversals due to legal error.

"It puts you at very high risk of having high error rates," Columbia law professor James Liebman told CNN.com. "It also puts you at high risk of sentencing people to death who will later turn out to be innocent."

The professors recommend that the death penalty be applied less often, thus decreasing room for error. "(The) time is ripe to fix the death penalty, or if it can't be fixed, to end it," the study concludes.

For years, capital punishment's staunchest opponents have tried to debunk the notion that executions deter violent crime, are cost effective, and satisfy society's need for retribution. With an ever-increasing amount of tools in their arsenal -- from clergy and victims families to the hypocrisy of the pharmaceutical industry -- the movements seems to be making ground.

The key to stopping executions, says Kaczynski, is educating the public.

"We've seen that the death penalty is often played by opportunistic politicians for political advantage, not because it's wise public policy, but because it allows them to accuse another group of politicians of being soft on crime," he says. "This strategy can continue to work only if the public remains uninformed. So there's a lot of work to be done to keep the issue front and center in public view."

The events of September 11 -- an event so duplicitous that it demonstrated the U.S.'s disastrous foreign policy errors while still managing to "unite" the nation -- may have added new stumbling blocks to moratorium, and eventual abolition, to the death penalty. In light of the rapidly changing legal, political and emotional landscape, Americans must stay vigilant when it comes to human rights, at home and around the globe. But to the cause's foot soldiers, the need for reform is more pressing than ever.

"The capital justice system is a broken system," Kaczynski explains. "It's not going to suddenly start working smoothly, rationally, and accurately. We have to continue uncovering the flaws and mistakes and point out that the system as a whole is an affront to both reason and conscience."

"The case against the death penalty is pretty compelling," he continues. "Who can be complacent about a system that sentences so many innocent people to die?"

"Just keep talking about the issues," adds Bonowitz. "They are there, and they are very real."
Brett Essler writes for Artvoice, an alternative newsweekly based in Buffalo, New york.

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