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 20^th 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.

Watch the panel discussion here: