Books

NEW PODCAST: The Death Penalty and Human Dignity; Lessons From the Anti-Slavery Movement

“[T]he issue of race and the death penalty is not unique to the death penalty, it’s part of the broader problem with the criminal justice system,” says Bharat Malkani (pictured), author of the 2018 book Slavery and the Death Penalty: A Study in Abolition, in a new Discussions With DPIC podcast. In the October 2018 DPIC podcast, Malkani—a senior lecturer in the School of Law and Politics at Cardiff University in the United Kingdom—speaks with DPIC’s executive director Robert Dunham and Ngozi Ndulue, DPIC’s Director of Research and Special Projects. They discuss the historical links between slavery, lynching, Jim Crow, and the death penalty and the lessons modern opponents of capital punishment can learn from the strategies employed by slavery abolitionists.

Malkani explores the parallels between the institutional approaches of conservative and moderate anti-slavery activists and the arguments of modern conservatives and contrasts them with the broad morality-based arguments of radical slavery abolitionists, who, he says “fought not just for the abolition of slavery, but for the recognition of the dignity of black people and the equal dignity of black people, alongside whites.” The conservative and moderate opponents of slavery, he said, “focused on slavery as a standalone social issue,” rather than as “a symptom of a much broader problem with the social order. ... And we know in hindsight that one of the problems with [those] anti-slavery voices was that it entrenched the problems of racial subjugation.”

Malkani recognizes that pragmatic arguments based upon innocence, the costs of capital punishment, and systemic failures in the way capital punishment is administered have a role to play in efforts to end the death penalty, but argues that “in the longer term, the morality-based arguments, based on a recognition of dignity, will have a greater social impact.” History teaches “that we cannot think of the death penalty as separate [from] America’s history of slavery and racial violence,” he says. Death-penalty abolitionists, he says, must keep “the bigger, longer-term picture” in mind. “The issue here is not just the problems with the death penalty in practice, but the underlying values that lend support for the death penalty. ... If we do not tackle the values that underpin the problem and question the values that underpin the death penalty, then we’re just going to entrench the problems that lead to the death penalty.”

Filming Underway for Movie Adaptation of ‘Just Mercy’

Filming for the movie adaptation of Bryan Stevenson's best-selling book, Just Mercy, began August 27, 2018 in Montgomery, Alabama. The film will feature Michael B. Jordan (Creed, Black Panther) as Stevenson and Oscar-winner Jamie Foxx (Ray, Django Unchained) as wrongfully convicted death-row prisoner Walter McMillian. Stevenson, the founder of the Equal Justice Initiative, represented McMillian — a Black man framed for the 1986 murder of an 18-year-old White woman in Monroeville, Alabama — in McMillian's appeal of his conviction and death sentence. Like the book upon which it is based, the movie will tell the story of that representation and McMillian's exoneration from death row. McMillian was convicted in a trial that lasted only a day and a half. The prosecution presented three witnesses who falsely implicated McMillian in the murder. The jury — composed of eleven Whites and one African American — ignored the testimony of six African-American alibi witnesses who had been with McMillian at a church fish fry at the time of the murder. Although the jury convicted McMillian, the jurors recommended that he be sentenced to life. However, the trial judge overrode the jury’s sentencing verdict and instead sentenced McMillian to death. The Alabama Court of Criminal Appeals affirmed the conviction and death sentence on appeal, but Stevenson's investigation revealed that prosecution witnesses had lied and that prosecutors had illegally hidden evidence that proved McMillian's innocence. After Stevenson filed a motion for a new trial, the appeals court on February 23, 1993, reversed McMillian’s conviction and ordered a new trial. One week later, on March 2, 1993, prosecutors dismissed the charges against McMillian and he was released. After spending six years on death row, McMillian was exonerated. The film is expected to open in early 2020.

BOOK: Slavery and the Death Penalty

"It is widely recognized that capital punishment in the United States of America continues to be imbued with the legacy of slavery" and, to end it, American death-penalty abolitionists "should draw on the radicalism of [anti-slavery] abolitionists." So argues British death-penalty scholar and abolitionist Dr. Bharat Malkani, a Senior Lecturer at the Cardiff University School of Law and Politics, in his new book, Slavery and the Death Penalty: A Study in Abolition. Malkani's book explores the historical and conceptual links between slavery and capital punishment and the efforts of abolitionist to end both practices. His book contrasts the discourse of conservative and pragmatic anti-death penalty activists, which he says accepts the legitimacy of the institutional machinery of capital punishment and the moral values of harsh retributivism, with arguments that "emphasize the inherent dignity of the person facing execution." He says the lessons of history suggest that the latter, "expressly rooting anti-death penalty efforts in the idea of dignity," is more effective. Malkani looks closely at the practical and psychological links between slavery and capital punishment, which he finds to be clear and inescapable. "The imposition of death sentences discriminates along racial lines and is disproportionately imposed on the poor, just as slavery was marked by divisions over race and class. Executions have occurred mainly, albeit not exclusively, in former slave states — the same places that witnessed the highest frequencies of lynchings. And," he writes, "capital punishment, like slavery, is predicated on the notion that some people do not belong to the political and moral human community." Malkani analogizes contemporary "conservative" and "pragmatic" anti-death penalty arguments that portray the death penalty as a failed government program or that focus on the economic costs of capital punishment to the approach of those anti-slavery advocates who argued for incremental legal restrictions on slavery or called for the gradual emancipation of only some slaves. He argues that the morality-based approach of more radical slavery abolitionists — emphasizing that the inhumanity of slavery violated the dignity of the slave, the slaveholder, and the community as a whole — has greater social impact. He believes that the arguments of many modern-day anti-death penalty activists focus too narrowly on the death penalty, giving too much credence to life in prison without parole as a viable option. These arguments, he writes, ignore the broader social injustices omnipresent within the United States' administration of the criminal laws. "[C]ontemporary anti-death penalty efforts," he writes, "must be radical in their visions, in order to inspire much-needed changes to the tendency to view some people’s lives as less valuable than others."

Professor John Bessler Traces Italian Philosopher's Abolitionist Legacy in New Book and Article

In 1764, Italian philosopher Cesare Beccaria wrote the treatise, Dei delitti e delle pene, which author John Bessler (pictured) says spawned global movements for fair and proportional punishment and against practices such as torture and the death penalty. Beccaria’s book was a best-seller that swept across Europe and, translated into English in 1767 as An Essay on Crimes and Punishments, into the American colonies, shaping the beliefs of America’s founding fathers, and influencing leaders, revolutionaries, and law reformers. In two recent publications, Bessler—a law professor and author of numerous books on the death penalty—traces the lasting influence of the 18th-century Italian nobleman and describes how Beccaria’s advocacy of equal treatment under the law and his powerful opposition to torture and the death penalty remains relevant today and has inspired an international movement that, he says, now “involv[es] scores of highly respected anti-death penalty activists and organizations.” Bessler’s latest book, The Celebrated Marquis, takes its title from a compliment given to Beccaria by the delegates of the Continental Congress. In it, Bessler describes how Beccaria’s ideals have taken root in the U.S. and shaped progressive criminal justice reforms across a span of 250 years. His article, The Abolitionist Movement Comes of Age, published in the winter 2018 issue of the Montana Law Review, chronicles Beccaria’s historical impact on efforts to abolish the death penalty across the globe. “There was a time when death sentences and executions were almost universally embraced throughout the world and when the punishment of death was the mandatory punishment for a wide array of felonies,” Bessler writes. “That has largely changed, with those changes in law and practice taking place in many nations.” The death-penalty debate, he writes, has transformed over the centuries “from one that originally focused on absolute power, the divine right of kings, and the asserted right of monarchs to take human life with impunity, to one focused on whether it violates basic or fundamental human rights for the state to kill individual offenders.” Comparing it to the anti-slavery movement in the 19th century, Bessler says “today’s global anti-death penalty movement ... has finally come into its own on the international stage.” Looking forward, he says, one can see a day in the not too distant future in which there is a peremptory international norm against executions and the death penalty itself joins torture as a prohibited international practice.

NEW RESOURCES: University of Virginia Interactive Database Maps the Modern Death Penalty

 The University of Virginia School of Law has created a new interactive web resource (click on map) that allows researchers and the public to visually explore death-sentencing practices in the United States from 1991 through 2017. The interactive map provides county-level data on death sentences imposed across the United States, drawing from a new database created by University of Virginia Law Professor Brandon Garrett (pictured) for his recent book, End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice. The interactive map, which is a web supplement to the book, permits users to view where and how many death sentences were imposed in the U.S. each year, and to contrast and compare sentencing patterns over time in states, counties, and the U.S. as a whole. Using a slider to view chronological shifts in sentencing patterns, the map illustrates how death sentences have declined nationwide and become increasingly isolated to a few outlier counties. “This is the first resource to map out modern death sentencing in the United States,” Garrett said. “The mapping vividly shows how geographically isolated death sentencing has become.” The data forms the backbone of End of Its Rope, in which Garrett analyzes the dramatic decline in the use of the death penalty over the last 25 years. The publicly available database contains information on more than 5,000 death sentences, allowing researchers and lawyers to analyze patterns and trends. “Several researchers, in addition to those of us at UVA, have already made use of the data, and we hope that more do so in the future,” Garrett said. Garrett worked with a UVA Law librarian, law students, and undergraduates to compile the data from government records, court rulings, and other sources.

BOOK: “Surviving Execution” Chronicles Miscarriages of Justice in the Richard Glossip Case

In his new book Surviving Execution: A Miscarriage of Justice and the Fight to End the Death Penalty, Sky News reporter Ian Woods tells the story of his relationship with condemned Oklahoma prisoner Richard Glossip, whose case gained prominence after the U.S. Supreme Court agreed to review his challenge to the state’s lethal-injection procedures. Although Glossip’s case is most frequently associated with the Supreme Court’s 2015 decision in Glossip v. Gross and Oklahoma’s dramatic, last-minute recission of his execution warrant when the state’s anonymous drug supplier delivered the wrong execution drug, Surviving Execution focuses more on Glossip’s conviction itself and the author’s belief that Oklahoma is attempting to execute an innocent man. Glossip, who has consistently maintained his innocence, was prosecuted and sentenced to death in Oklahoma County by a prosecuting administration riddled with misconduct in capital cases. The book chronicles the details of Glossip’s conviction, exposing the numerous holes Woods sees in the state’s case. Against the backdrop of multiple execution dates, Woods explains how he developed a friendship with Glossip, and in turn, witnessed the intensive ourpouring of support that Glossip gained as his execution date approached, including the high-profile involvement of Sister Helen Prejean, actress Susan Sarandon, and British businessman Richard Branson. Woods—whom Glossip asked to witness the execution—also discusses his personal struggle over whether to watch a man die at the hands of the state. Glossip's execution, originally scheduled for January 2015, was stayed while the Supreme Court reviewed his lethal-injection case. After his narrow 5-4 loss in that case, Oklahoma rescheduled his execution for September 2015. That execution date was stayed by the Oklahoma courts to consider Glossip's claim of innocence. Ultimately, the state court gave the go-ahead for the execution, and Glossip's execution was rescheduled for later in the month. However, that execution attempt was halted when the state failed to obtain the correct lethal-injection drug and all executions in Oklahoma were put on hold while the state reviewed its execution procedures. Woods’ book attempts to combine journalistic independence with his search for the truth and his conclusion that Glossip was not guilty of the murder of victim Barry Van Trease. In a Sky News podcast just before the aborted execution was to occur, Woods summarized Glossip’s case, saying, “There is no incontrovertible proof that Richard Glossip is guilty of murder. No forensic evidence, no eyewitness account, other than that of the killer, who saved his own skin by blaming Richard. The state of Oklahoma is going to kill him on Wednesday, so I’m not going to sit on the fence any longer. I'm telling you: I think that’s wrong.” In Surviving Execution, Woods explains why.

BOOK: Death-Row Exoneree Anthony Ray Hinton Publishes “Heart-Wrenching Yet Ultimately Hopeful” Memoir

Anthony Ray Hinton spent thirty years confined on Alabama's death row for murders he did not commit. Three years after his exoneration and release, he has published a memoir of his life, The Sun Does Shine: How I Found Life and Freedom on Death Row, that recounts stories from his childhood, the circumstances of his arrest, the travesty of his trial, how he survived and grew on death row, and how he won his freedom. The book, co-authored with Lara Love Hardin, has earned praise from Kirkus Review as an “urgent, emotional memoir from one of the longest-serving condemned death row inmates to be found innocent in America,” and "[a] heart-wrenching yet ultimately hopeful story about truth, justice, and the need for criminal justice reform." Nobel laureate Archbishop Desmond Tutu called Hinton's book "an amazing and heartwarming story [that] restores our faith in the inherent goodness of humanity." The memoir begins: “There’s no way to know the exact second your life changes forever.” He was arrested in 1985 and capitally charged in connection with the murder of two fast-food restaurant managers, even though he had been working in a locked warehouse 15 miles away when that crime was committed. The prosecutor, who had a documented history of racial bias, said he could tell Hinton was guilty and "evil" just by looking at him. Hinton's incompetent trial lawyer did not know and did not research the law, and erroneously believed the court would not provide funds to hire a qualified ballistics expert to rebut the state expert's unsupported claim that the bullets that killed the victims had been fired from Hinton's gun. Instead, his lawyer hired a visually impaired "expert" who did not know how to properly use a microscope, whose testimony was destroyed in front of the jury. Hinton was convicted and sentenced to death. Hinton speaks candidly about the psychological effect executions of other prisoners had on him as he feared execution for crimes he did not commit. Writing about the 1987 execution of Alabama prisoner Wayne Ritter, Hinton says, “I didn’t even realize they had executed [him] until I smelled his burned flesh.” Faced with this gruesome reality, Hinton realized, “I wasn’t ready to die. I wasn’t going to make it that easy on them.” In 2002, three top firearms examiners testified that the bullets could not be matched to Hinton's gun, and may not have come from a single gun at all. In 2014, the U.S. Supreme Court unanimously held that Hinton had been provided substandard representation and returned his case to the state courts for further proceedings. Prosecutors decided not to retry him after the state's new experts said they could not link the bullets to Hinton's gun. Hinton's lead attorney in the efforts to overturn his conviction and obtain his freedom was Bryan Stevenson, Executive Director of the Equal Justice Initiative and author of Just Mercy. In the forward to The Sun Does Shine, Stevenson writes that Hinton’s story “is situated amid racism, poverty, and an unreliable criminal justice system.” Hinton, he writes, "presents the narrative of a condemned man shaped by a painful and tortuous journey around the gates of death, who nonetheless remains hopeful, forgiving, and faithful." Hinton—the 152nd person exonerated from America's death rows since 1973—says he hopes his story will increase public awareness of the risks of executing the innocent and the irreparable failures of the nation's capital-punishment system. "The death penalty is broken," he writes, "and you are either part of the death squad or you are banging on the bars.”

Researcher: Racial Disparities Require Abolishing or Severely Restricting Death Penalty

Severely restricting the use of capital punishment or abolishing the death penalty altogether would help rectify some of the persistent racial disparities found in the United States' criminal justice system, according to Cassia Spohn (pictured), the Foundation Professor of Criminology and Director of the School of Criminology & Criminal Justice at Arizona State University. In a chapter on Race and Sentencing Disparity in the recently released Academy for Justice four-volume study, Reforming Criminal JusticeSpohn—the author of How Do Judges Decide? The Search for Fairness and Justice in Punishmentwrites that there is “clear and convincing evidence of racial disparity in the application of the death penalty” in the United States. Spohn's chapter traces the theoretical and methodological development in research into the relationship between race/ethnicity and sentencing over the past eight decades. She concludes that “reducing racial and ethnic disparities in sentencing and punishment requires something more than the passage of legislation designed to reduce incrementally the discretion of prosecutors, judges, and corrections officials." She recommends three major reforms "to reduce both the punitive bite of incarceration and the disparity in punishment": eliminating mandatory minimum sentences, abolishing the death penalty, and enacting Racial Justice Acts that would allow judges to consider whether racial bias played a role in the decision to seek or impose the death penalty and permit prisoners to challenge their sentences with statistical evidence showing a pattern of racial discrimination in sentencing. Spohn cites demographic evidence that, she says, convincingly demonstrates clear racial disparities in the administration of the death penalty in the United States. In 2016, 41.8% of the 2,905 prisoners under sentence of death in the United States and more than a third of those executed since 1977 (34.5%) were Black, although African Americans make up only 13% of the population. Similarly, she writes, those who murder White victims are sentenced to death and executed at disproportionately high rates: from 1977 through 2016, 75.6% of executed prisoners were convicted of killing White victims, as compared to 15.3% who were convicted of killing Black victims, and 6.9% convicted of killing Hispanics. The disparities, she found, were "particularly pronounced" in the use of the death penalty for rape, before the Supreme Court declared that practice unconstitutional in 1977. Between 1930 and 1972, 455 people were executed for rape; 405 of them (89%) were Black men and a number of states did not execute a single White man for rape during this period. Spohn argues that Racial Justice Acts could provide important safeguards in addressing discriminatory death-penalty practices. However, she writes, efforts to enact them have largely failed. The U.S. House of Representatives included a Racial Justice Act as part of the Omnibus Crime Bill of 1994, but it was removed by the Senate, where opponents "argued that it would effectively abolish the death penalty in the United States." Only Kentucky and North Carolina enacted state Racial Justice Acts, and the North Carolina legislature repealed its act in 2013 after four death row prisoners established that race had been a significant factor in their sentencing. Spohn concludes that "[t]he defeat of the Racial Justice Act in Congress and the failure of the issue to gain traction in the states, coupled with persuasive evidence of racial disparity in the application of the death penalty, suggest that the remedy for racial bias in the capital sentencing process is abolition of the death penalty."

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