World and European Day Against the Death Penalty: Expert Panel Discusses Systemic Flaws in U.S. Death Penalty

Expressing the hope “that we’ll be able to celebrate very soon, together with the American people, the abolition of the death penalty in the United States,” European Union Ambassador to the United States Stavros Lambrinidis opened the EU in the USA and Council of the Europe’s virtual commemoration of World and European Day Against the Death Penalty.

“Let’s work together to get this done,” Lambrinidis said.

As part of the commemoration, the Death Penalty Information Center and Witness to Innocence partnered with the E.U.’s U.S. embassy to present a panel discussion on October 14, 2020 about the United States death penalty and the film Just Mercy. The speakers surveyed the state of capital punishment in the U.S., underscoring both a broken system and a need for reform. The panelists included Louisiana death-row exoneree Shareef Cousin; Ohio Assistant Federal Public Defender Paul Bottei; Death Penalty Information Center Executive Director Robert Dunham; and Federal Capital Habeas Project Director Ruth Friedman. Paula Redondo Alvarez-Palencia, political officer representing the Delegation of the European Union to the U.S., moderated the panel.

Ambassador Lambrinidis and Ambassador Emily Haber of Germany, which currently holds the Presidency of the Council of the European Union, stood firm in their arguments against the death penalty and discussed the importance of death penalty abolition for democratic societies in their opening remarks. Both emphasized that the death penalty is not a deterrent to crime and that its abolition across Europe has not made the continent less safe. “I submit to you that we cannot allow a killer to turn us into an executioner,” Lambridinis said. “It is our dignity that is on the line.”

Ambassador Haber urged the panel not to forget the lessons learned from World War II, including the dangers of allowing capital punishment to be “an exception to the right to life.” “Nazi Germany used the death penalty as an instrument of its racist, totalitarian, Anti-Semitic policies,” she said. “Our clear position today stands at the end of a historic process that was to a large extent also triggered by the horrors of the Holocaust and lawless totalitarianism on European soil in the 20th century.”

“Honestly, it’s made me broken.”

Shareef Cousin started off the panel discussion, recounting the traumatizing events that led to his illegitimate imprisonment and exoneration in Louisiana. At the time of the murder, 16-year-old Cousin was playing youth basketball and the game was videotaped. “I had 20 witnesses, other kids that were playing basketball with me — they were there to testify, where I was at the time of the murder,” he said. “And I never tell people that I was ‘wrongfully convicted’ … [I] say I was actually ‘framed,’ because the police department and the DA’s office conspired to put me on death row when the evidence showed that I was innocent.”

At age 17, Cousin was the youngest person on Louisiana’s death row. “At 17, you should be thinking about your high school prom, or your high school graduation, or what you’re going to do, you know, with the next years of your life,” he said. “There’s no reason why a child should be on death row, thinking about whether or not he’s going to live or die. … [H]onestly, it’s made me broken.”

Bottei, Dunham, and Friedman — all experienced capital litigators — explained that the issues in Cousin’s conviction and exoneration have occurred repeatedly in other death-penalty cases — as in the case of Alabama death-row exoneree Walter McMillian that inspired Just Mercy. “The main issues … with wrongful convictions [are] law enforcement, prosecutors, jurors, witnesses, and counsel,” Bottei said. “It’s the perfect storm — one, or two, or three, or four of these problems all existing at the same time.”

The modern death penalty “is a manifestation of America’s race problem.”

Dunham discussed DPIC’s September 2020 report, Enduring Injustice: the Persistence of Racial Discrimination in the U.S. Death Penalty, identifying an inextricable link between the death penalty and racial discrimination in the United States. “What we found when we looked at the current practice is that rather than the death penalty having a race problem, the modern death penalty is in itself a manifestation of America’s systemic problem with the criminal justice system and race,” Dunham said. Later, in a response to a question about the prevalence of wrongful convictions, he added, “You can fix a lot of things that are wrong with evidence. What you can’t fix is the way that racism affects the system. And what you can’t fix is the way misconduct occurs.”

Friedman confirmed that racial bias is as much of a federal problem as a local one. She added that the death penalty is also geographically arbitrary: “Three states alone make up almost half of the row. … Do we believe that those three states — which are Texas, Missouri and Virginia — have the worst crimes and the worst of the worst offenders?” She also raised the case of her client Daniel Lee, the first prisoner to be executed this year by the federal government after a 17-year hiatus. Following Lee’s appeals, his lawyers found that the prosecution had withheld important evidence: the government expert responsible for Lee’s psychological assessment had later disavowed it, and Lee’s record of prior murder turned out to be false. Despite both victims and prior judges coming out against his death sentence, procedural roadblocks prevented the judiciary from reaching the case. “That is an indictment of our system,” Friedman said.

“The federal government is completely out of step with the rest of the country.”

The panel then went on to answer questions on whether the 2020 execution spree by the federal government represented a resurgence of the death penalty in the U.S., lethal injections, wrongful convictions, and the role of the international community.

“The federal government is completely out of step with the rest of the country,” Dunham said, contrasting current federal practices with continuing trends away from the death penalty at the state and county levels. Since the 1990s, the number of death sentences imposed each year in the U.S. has decreased by 85%, Dunham said, and executions are down by 75%. An additional 10 states have abolished the death penalty in the past 15 years, bringing the total number of abolition states to 22. Other states have imposed moratoriums on the death penalty, and the practice has declined significantly in states where it is still authorized. While there have been more federal executions in the last three months than in the previous 60 years combined, Dunham said, 2020 will see the fewest state executions in 37 years and fewer new death sentences than in any other year since the death penalty resumed in the U.S. in the 1970s.

“You can’t be using these drugs to try to execute people.”

Discussing lethal injection in Ohio, Bottei explained, that the first drug in the state’s three-drug execution protocol, “[a] sedative called midazolam … has very, very serious problems.” Midazolam “doesn’t anesthetize,” Bottei explained. “The person does feel the pain of the execution.” As a result, the prisoner experiences a sensation akin to waterboarding, suffocation, and chemical burning as the other drugs are administered. “[A]nd,” Bottei said, “the governor has recognized that, under the circumstances, you can’t be using these other drugs to try to execute people.”

On the subject of prosecutorial misconduct, a central theme to the movie Just Mercy, Friedman emphasized that cases like Walter McMillian’s are more common than people believe. “So, the [Equal Justice Initiative] got involved in that case. What if it hadn’t?,” she asked. “Would the case have been investigated — would all of this have come to light?” Prosecutorial misconduct, she said, “is so much more rampant and prevalent than people are aware.”

Cousin ended the discussion with two quotes from Martin Luther King, Jr., “‘[inj]ustice anywhere is a threat to justice everywhere’” and “whatever affects one directly affects us all indirectly.” “We are all mutually tied, interconnected with humanity,” Cousin said, emphasizing the broad potential for European Union advocacy against the death penalty to reach and affect audiences all over the world.