NEW RESOURCES: The Private Bar’s Efforts to Secure Proper Representation for those Facing Execution

Civil rights litigator and death penalty expert Ronald J. Tabak recently published “The Private Bar’s Efforts to Secure Proper Representation for those Facing Execution” in the Justice System Journal. The article presents an in-depth review of the American Bar Association’s (ABA) role in ensuring effective counsel in capital cases. Tabak recounts the ABA’s efforts since the mid-1980’s to secure competent representation at every state of legal proceedings, stating that “someone without counsel has little chance of securing redress for constitutional violations that may have tainted a conviction or death sentence.”

The article explores the particular problem that exists because the Supreme Court has not recognized a right to counsel in post-conviction proceedings. Death-sentenced inmates may lack representation after their trial and direct appeal even though the legal proceedings that follow would offer opportnities to challenge their convictions and death sentences. Mr. Tabak discusses the ABA’s efforts to find pro bono lawyers to represent death-sentenced inmates in post-conviction proceedings, federal habeas corpus proceedings, and clemency proceedings. “Dealing with the issues specific to capital cases, whether arising from the trial record or requiring further investigation, requires an expertise far beyond that of most criminal law practitioners--not to mention the civil lawyers who predominate among the volunteers whom the ABA recruits,” explains Tabak. If lawyers do not understand the complex procedures and rules of capital cases, it "can literally prove fatal to clients.”

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ARTICLES:The Story of a Death Row Inmate Who Wanted to Die

In 1996, Illinois Governor Jim Edgar commuted the death sentence of Guin Garcia to life without parole, even though Garcia herself had stopped fighting for her life. Garcia would have been the first woman executed in the U.S. in twelve years. She had been convicted of killing the man who had physically abused her, but she had dropped her appeals because she said she was done “begging for her life.” Chicago Sun-Times reporter Carol Marin followed Garcia's case after the commutation and recently wrote about the changes in Garcia's life. Marin told the story of Garcia's early life: her mother's suicide, sexual abuse by her uncle, becoming an alcoholic and prostitute by age 16. Last month, Garcia received an associate degreee in liberal studies from Lake Land College at a graduation ceremony at the Dwight Correctional Center. Fellow graduates at the ceremony pointed to Garcia, now 49, as the reason they earned their GED’s, professional certificates, and furthered their education. They called her “Granny” and said she demanded they straighten out their life as she led through example.

The complete article appears below:

A commuted sentence, and a life reborn

By CAROL MARIN | Sun-Times columnist | [email protected]

Ten days ago, I took a trip I wouldn't have predicted. This is a story about a
near-execution, a graduation and a decision by former Gov. Jim Edgar that has
delivered unexpected consequences.

It's a story about rising up and reaching down.

In January 1996, Guin Garcia, an inmate on Death Row at Dwight Correctional
Center in Downstate Illinois, was on the verge of execution.

Months earlier, Garcia, a 36-year-old convicted double murderer, had dropped
her court appeals, said she was done "begging for her life" and put the wheels
in motion for her death by lethal injection. It would mark the first execution
of a woman in the U.S. in two decades. It became an international story.

Garcia's biography wasn't pretty.

At age 2, she saw her mother jump out a window and die.

Her father split. She was reared by grandparents and an uncle. The uncle began
raping her when she was 7, giving her alcohol to calm her and shut her up.

Family members confirm the grandmother knew but did nothing.

By 16, she was an alcoholic and a prostitute. By 17, she was married and

Her baby, Sara, was not yet 1 when she suffocated her with a plastic dry
cleaning bag rather than face the prospect of DCFS taking Sara away to live
with the grandmother and the pedophile uncle.

She confessed, went to prison for 10 years, married one of her tricks, an
older man named George Garcia, who once, according to Supreme Court records,
genitally mutilated her with a broken bottle.

Drunk one night, she shot and killed George.

Her sorrow over Sara is something Guin Garcia lives with every day. She is not
sorry about George.

Fourteen hours before her scheduled execution in 1996, Gov. Edgar, who had
signed off on the executions of four men, suddenly stopped the wheels from
turning on this one. For a Republican who supported the death penalty, it was
not an easy decision. Edgar commuted her sentence to natural life.

Last week, I went back to the prison at Dwight. With a 3.95 "A" average,
Garcia was graduating magna cum laude from Lake Land College.

Dressed in caps and gowns, marching to "Pomp and Circumstance," 57 other women
received GEDs and certificates in computer technology, commercial cooking, dog
training and business management.

Friends and family filled the prison gym. Small children were in their Sunday
best, waving to their mothers. There aren't many happy days in prison, said
Warden Mary Sigler. This was one.

As one of the inmates rose to claim her diploma, a young man in a back row
proudly cried out, "That's my Mom!"

Garcia was last to be called up, the only one that day to accept a college
degree, an associate in liberal studies.

You might be asking, what's the point? Why waste tax dollars on a lifer?
There's an answer.

It's what Pulitzer Prize-winning author Anna Quindlen calls "Rising up,
reaching down."

Graduates I talked to that day, including one who is 28 and has been locked up
since she was 15, told me the reason she earned her GED last year and got a
certificate in professional dog grooming this year was that Garcia, whom
younger inmates call "Granny," demanded that she straighten up and fly right.

Garcia's quest for education helped motivate hers.

That young woman -- a slight, pretty African American -- will get out in two
years better prepared to go forward because Guin Garcia, in life's depths,
somehow found it in herself to rise up and reach down.

Today, Garcia is 49, with no illusions about getting out. And yet, thanks to a
decision by a pro-death penalty governor to spare one life, new life has been

Rise up. Reach down.

It can happen anywhere.

(C. Marin, ”A commuted sentence, and a life reborn,” Chicago Sun-Times, June 8, 2008). See Life Without Parole and Clemency.

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ARTICLES: Time Magazine: "This weighty moral issue. . . involves a lot of winging it.”

A recent article in Time Magazine by Editor-at-large David Von Drehle examines the current state of the death penalty in the United States at a time when the Supreme Court is considering the constitutionality of the most widely used method of execution--lethal injection. Von Drehle writes, “In a perfect world, perhaps, the government wouldn't wait 30 years and several hundred executions to determine whether an execution method makes sense. But the world of capital punishment has never been that sort of place. This weighty moral issue, expressive of some of our society's deeply held values, involves a lot of winging it.”

Von Drehle says that the death penalty debate often comes down to the question of whether to "fix it or end it."  But that debate, he says, misses the reality.  "One government budget contains millions of dollars for prosecutions, while another department spends more millions to defend against them. Indeed, the very essence of ambiguity is our vain search for a bloodless, odorless, motionless, painless, foolproof mode of killing healthy people."

He compares the death penalty to a "Rube Goldberg machine" that we are constantly tinkering with:

Supreme Court Justice Harry Blackmun aptly described this endless activity as "tinker[ing] with the machinery of death." He spoke as a veteran tinkerer, having helped cook up an abstruse set of requirements for calculating the aggravating and mitigating factors in a prisoner's life and crimes--a concept that continues to bog down juries and judges a generation later. Other veterans of the Supreme Court's long struggle with capital punishment have also soured on the experiment. Justice Lewis Powell told a biographer that the vote he most regretted was the one he cast in 1987 to save capital punishment. Another member of the five-Justice majority in that case, Sandra Day O'Connor, told a group of Minnesotans not long ago that they should "breathe a big sigh of relief every day" that their state doesn't have the death penalty. Justice John Paul Stevens, who as a new Justice in 1976 voted to restore capital punishment, now speaks of the "serious flaws" in the system he helped devise.

However, attempts to end capital punishment must overcome inertia and the weight of public sentiment. This isn't easy. In the U.S., support for the death penalty has fallen from a high of about 80% at the peak of the murder epidemic of the 1980s and '90s to somewhere between half and two-thirds, depending on the poll. But politicians know that a 69% approval rating is nothing to sneeze at. Only one state has abolished capital punishment since the Supreme Court reinstated it in 1976: New Jersey, last month. Legislatures in New Mexico, Montana, Nebraska and Maryland appear to be within one or a few key votes of following suit. New York's high court struck down that state's death penalty without stirring up much protest. But while that means 14 states now have no death-penalty law in effect, the majority of states are a long, long way from giving up.

Instead, the death penalty is being hollowed out. Nearly all the states have adopted the alternative of life-without-parole sentences, and prosecutors and juries are embracing the option. Life without parole doesn't trigger the separate sentencing trials and automatic appeals that can make death sentences so financially and emotionally costly. As a result, prosecutors are seeking and juries are delivering far fewer death sentences: last year's total of 110 was the lowest since the introduction of the modern death-penalty system. Nationwide, the number of death sentences has fallen almost two-thirds, and the trend extends even to Texas, the heart of the death-penalty machine. There, 14 prisoners were sentenced to death in 2006, compared with 40 a decade earlier.
. . .

We now have a situation in which a majority of the states that authorize the death penalty seldom if ever use it. Last year only 10 states carried out an execution. And even that number overstates the vigor of the system. If you don't count executions of inmates who voluntarily dropped their appeals and asked to be killed--essentially government-assisted suicides--the state count falls to eight.

Our Rube Goldberg contraption is being dismantled the same way it was built--not straightforwardly but in uncoordinated and even inconsistent steps. The ungainly, ambivalent collapse of the death penalty seems unfitting for a punishment whose very existence is largely symbolic. But the trend is unmistakable.
. . .

The discussion itself is another sign of the nation's ambivalence about the ultimate, irreversible punishment. And as long as we're ambivalent, we'll continue to have the system we have made for ourselves--inefficient, beyond repair and increasingly empty. 

(“Death Penalty Walking,” by David Von Drehle, Time Magazine, January 3, 2008). See Lethal Injection, Public Opinion, and U.S. Supreme Court.

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