A call to abolish death penalty

The prophets of the “new abolitionism” met in Austin Hall over the weekend, and one of them, Barry Scheck of the Innocence Project at the Cardozo School of Law in New York, predicted “the end of the death penalty within our lifetimes.” Considering the unanimity of opinion on this one main point – that capital punishment is a bad idea – the gathering was in some ways more a revival meeting for activists than a debate. But, the devil’s in the details and so the conference didn’t lack for pyrotechnics.

Scheck cited two “heartening” currents that he said were leading toward the abolition of capital punishment in the United States: reversal of convictions of the innocent through new DNA evidence, and the trend to life sentences, as in the case of Zacarias Moussaoui, whom a federal jury declined last week to sentence to death for his role in the 9/11 attacks.

“The lessons of Moussaoui should be ringing loudly,” Scheck said.

The occasion was a national conference, “Race and the Death Penalty,” convened to consider what Tufts philosopher Hugo Bedau, one of the nation’s leading opponents of capital punishment, called in his keynote address, “the twin evils” of the current system: racial bias and the conviction of the innocent.

“If we are to believe the friends of the death penalty,” he said, “the risk of these two evils must be borne patiently in the confidence that the benefits of a death penalty system – even a flawed system such as ours – outweigh the harms. Those of us who have looked with care at our death penalty system may be excused if we are unpersuaded.”

The conference convened Friday afternoon (May 5) just hours after another bit of good news for death penalty opponents, the announcement of a federal jury award of $2.25 million to Earl Washington Jr., a Virginia man who at one point had come within nine days of being executed for rape and murder on the basis of a confession fabricated by a police investigator.

Washington was pardoned in 2000 after sophisticated DNA testing proved his innocence. His lawyers, who include Scheck and co-founder of the Innocence Project Peter Neufeld, believe the jury award to be the largest ever in a civil rights case in the history of Virginia.

The conference was the official launch of a new book, “From Lynch Mobs to the Killing State: Race and the Death Penalty in America” (New York University Press), edited by Charles J. Ogletree Jr., Jesse Climenko Professor of Law and director of the new Charles Hamilton Houston Institute for Race and Justice, and by Austin Sarat of Amherst College. And filmmakers Rachel Lyon and Jim Lopes gave the conferees the first glimpse anyone has had outside PBS of their new film, “Race to Execution,” inspired by the work of Lyon’s sister, Andrea Lyon, of DePaul University College of Law, as a public defender.

Rubin “Hurricane” Carter, a former boxer who spent 20 years in New Jersey state prison for three murders he didn’t commit, was another keynote speaker. He told of his ordeal and his new work with Innocence International, which aims to expose cases of the wrongfully convicted and promote restorative justice.

Ogletree, in his letter of welcome to the conference, said, “This conference comes at a critical time. On one hand, public support for the death penalty is waning, and the Supreme Court has restricted its use in important ways. … On the other hand, however, with so much attention directed toward terrorism, the pendulum continues to swing further away from protecting the rights of the accused.”

Plenty of speakers found grounds for concern about the state of justice in the United States. In his remarks, Stephen Bright, president of the Southern Center for Human Rights in Atlanta, invoked the “unlikely heroes” of the 1950s and ’60s – white Southern judges on the federal bench who moved the civil rights agenda forward – and then commented, “Today there are no heroes. There are judges who march onto the battlefield and shoot the wounded.”

He lamented the fact that in the state court systems judges and prosecutors are elected, not appointed. This, he suggested, leads to a politicized buddy system in which it can be hard to keep prosecutors from challenging African Americans off juries – even though the United State Supreme Court has ruled, in the Batson case of 1986, that using peremptory challenges on the basis of race was unconstitutional.

He also charged that by failing to fund public defenders adequately, states have turned the guarantee of court-appointed counsel – as established by the landmark Supreme Court case of Gideon v. Wainwright in 1963 – into “an illusory constitutional right.”

George Kendall, a senior counsel at Holland & Knight LLP in New York, insisted, though, “These are not problems without solutions. This is not rocket science.”

As a workable mechanism to enforce Batson’s requirement of racial fairness in the use of peremptory challenges of jurors, he suggested a system of “inclusion”: Once jurors were initially qualified, prosecution and defense would each get to list the jurors they most want to serve, and the two lists could be reconciled to empanel a jury.

He also called for a political action committee, or PAC, to support what he called the “progressive justice agenda.” Without a PAC, which would enable opponents of the death penalty to support the election campaigns of like-minded candidates for public office, he said, “we are naïve to think we can be effective, in Boston, Washington, or any other city.”