A Criminal Enterprise

Louisiana v. Barbour: Non-unanimous verdicts hinder justice in the South

Posted in Cases, News by Sophie Cull on February 2, 2011

Despite showing interest in a cert petition dealing with the issue of non-unanimous juries, the US Supreme Court has again decided to let the issue alone, rejecting to hear Herrera v. Oregon earlier last month. The Court had asked the state of Oregon to file a response to the petition late last year, but passed over the petition in silence on January 10.

Louisiana defendant Troy Barbour is also awaiting a response from the SCOTUS to his cert petition dealing with the same issue. The ABA has filed an amicus in support of his appeal, but it remains to be seen whether Barbour’s case will catch the Court’s attention.

In Barbour’s petition, defendant cites Justice Kennedy in providing an analysis of jury dynamics and the importance of non-unanimous verdicts:

The dynamics of the jury process are such that often only one or two members express doubt as to [the] view held by a majority at the outset of deliberations. A rule which insists on unanimity furthers the deliberative process by requiring the minority view to be examined and, if possible, accepted or rejected by the entire jury. The requirement of jury unanimity thus has a precise effect on the fact-finding process, one which gives particular significance and conclusiveness to the jury’s verdict. Both the defendant and society can place special confidence in a unanimous verdict.

United States v. Lopez, 581 F.2d 1338, 1341 (9th Cir.1978)

The Equal Justice Initiative’s recent report on race and jury selection discusses the importance of the racial diversity of juries in order to promote the inclusion of different perspectives. Compared to diverse juries, all-white juries are more likely to make factual errors, are less likely to correct their mistakes, are likely to spend less time deliberating, and consider a smaller range of perspectives.

Reflecting on Justice Kennedy’s comments, it seems that we should consider the impact of non-unanimous convictions in a state like Louisiana where convictions are handed down by nearly all-white juries. If such juries are more likely to make mistakes and spend less time deliberating, then surely they shouldn’t be able to expedite the deliberative process by leaning on non-unanimous verdicts.

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Deterrence and the Death Penalty

Posted in News by Sophie Cull on January 18, 2011

Outgoing Governor of Pennsylvania, Edward Rendell, wrote a letter to the state General Assembly in his final days as governor, questioning the effectiveness of the death penalty. He wrote,

“As a former District Attorney and as a death penalty supporter, I believe the death penalty can be a deterrent – but only when it is carried out relatively expeditiously.”

Dissatisfied by the delays in actual executions caused by the appeals process, the Governor called on legislators to decide if the process could be sped up or otherwise, called them to consider repeal.

There is no doubt that Rendell is a death penalty supporter: he signed six execution warrants on the same day that he issued this letter – bringing the total number of execution warrants to 119 during his term as governor.

Rendell subscribes to Beccaria’s well-accepted theory that deterrence will only be achieved through punishment that swiftly follow on the heels of the crime. His frustration with capital punishment is rooted in his belief that it can deter future crimes – if only the process didn’t take so long.

Last week, the Illinois legislature voted to repeal the death penalty. Some opponents of the bill spoke about the need for capital punishment to protect prison guards and deter murderers serving life from killing inside the prison walls. Others spoke of general deterrence, claiming that without the death penalty, there would be a higher murder rate in the state of Illinois. That will remain to be seen if the Governor signs the bill.

Regardless of whether the death penalty does deter would-be murderers (and we can probably all agree that pursuing a conclusive answer to this question seems much like chasing the white rabbit), the question we should ask is: what weight should we give deterrence in deciding whether or not we want the death penalty?

It seems to me that deterrence is a secondary reason to have the death penalty which is only compelling in conjunction with a primary reason. If we believe that the death penalty is a just, retributive punishment for the taking of a life, then deterrence would provide a further reason for carrying that punishment out.

But deterrence alone should not be a satisfactory reason for our society to ask for the death penalty. We may deter a child from disobeying us by striking her across the cheek, but just because our technique is effective, it does not make it right. You may disagree, thinking “The death penalty is absolutely necessary if it means we will stop future homicides.” But that is to assume it is the only way to prevent future homicides, as though there are no alternative measures we might take. I believe that way of thinking undersells our potential to create positive change in our communities. In Louisiana, for instance, perhaps the money that is spent potentially preventing homicides by putting people on death row could be funneled into education, healthcare and infrastructure to try and turn around Louisiana’s ranking as the 2nd worse state in the U.S. to raise a child. It is not a coincidence that the vast majority of death row inmates in Louisiana grew up in poverty and dropped out of school. While the link between the death penalty and the homicide rate is inconclusive, there is no question that education and poverty plays a key role in the prevalence of violent crime.

Therefore, I submit that we should not simply ask “is the death penalty deterring crime?” as Governor Rendell urged his legislature to do; we should ask “is the death penalty the most effective way to deter crime?”

Autobiography of an Execution

Posted in Uncategorized by Sophie Cull on February 12, 2010

Professor David Dow is the director of the Texas Innocence Network at the University of Houston Law Center and has just released a new book: “Autobiography of an Execution.”

Dow deals with a number of issues in the book – how he reconciles his passion to represent death row inmates with the reality of what his clients have done to victims and their families; how he struggles to balance his emotionally devastating and time-consuming work with his desire to be a good husband and father; and how he battles against a system of courts that overwhelmingly defeats his efforts to save his clients’ lives.

Below is an excerpt from the first chapter of Dow’s book. It’s a good example of the way Dow integrates his personal reflections into an account of his professional life. Though it is unsurprising that he cannot separate the two.

My first client was executed in 1989. Derrick Raymond was an average bad guy who did one very bad thing. He dropped out of high school in tenth grade. Two years later he enlisted in the army to learn a skill. He wound up in Vietnam. He did not talk much to me about the war. I learned about his service record ten years after he was executed, when one of his army buddies tried to track him down but got in touch with me instead. Derrick returned to Houston with a purple heart and a heroin habit that cost him five hundred dollars a week, but still without any job skills. He pumped gas until he got fired for missing too many days. Drug addiction has many consequences. He started robbing convenience stores and fast-food restaurants. After one stickup, which netted him $73 and change, he was running down the street when the security guard gave chase, shooting. One shot hit Derrick in the leg. He fell to the pavement, turned around, and fired five shots at the security guard. The guard took cover, but one shot hit a seven-year-old boy who had just finished having lunch with his mother. There might be nothing sadder than dead children. On top of that, Derrick was black and the boy was white. That’s a bad combination. The jury took less than two hours to sentence him to death.

Derrick’s lawyer fell asleep during the trial—not just once, but repeatedly. The prosecutor was appalled, but the trial judge just sat there. When a new lawyer requested a new trial, the court of appeals said no, because the judges believed Derrick would have been convicted even if his lawyer had been awake. Another court-appointed lawyer represented him for his habeas corpus appeals in state court. That lawyer missed the filing deadline. If you miss a deadline, the court will not -consider your arguments. That’s when I got appointed to represent Derrick in federal court. But the federal courts have a rule: They refuse to consider any issues that the state courts have not addressed first. The state court had said that Derrick’s lawyer was too late and had therefore dismissed his arguments. So the federal court would not hear our appeal either.

My job as a lawyer, therefore, consisted mostly of planning the disposition of Derrick’s estate. Of course, he didn’t have an estate, meaning that my job was to arrange for the disposal of his body. (He did not want to be buried in a pauper’s grave right outside the prison gates in Huntsville, Texas.) Making funeral arrangements didn’t take very long either, so my job was really just to be his counselor, to listen to him, to send him books or magazines, to be sure he would not have to face death alone. My goal is to save my clients, but that objective is beyond my control. All I can control is whether I abandon them.

I would visit Derrick once a week and talk to him by phone another day. He had a son, Dwayne, who was twelve when his dad arrived on death row and nineteen when Derrick was executed. I sat next to them as they struggled to connect. The Internet is ruining society because human relationships are inherently tactile. It’s hard to become close to a man you can’t touch, even (maybe especially) if he’s your dad. I told them I was hopeful that the Board of Pardons and Paroles and the governor would commute Derrick’s sentence, and I was. I am always hopeful. Nothing ever works out, but I always think that it’s going to. How else could you keep doing this work? I watched his execution because he asked me to.

At 12:37 a.m. on Thursday, March 9, 1989, Derrick was put to death in front of me, Dwayne, and two local reporters. Afterward, I hugged Dwayne, got in my truck, and drove with my dog and a case of Jack Daniel’s to my cabin on Galveston Island. I sat on the deck watching the Gulf of Mexico and drinking. The moon was bright. The mullet were jumping in schools and I could see trout in wave curls feeding. I smelled the rain. I left the front door open so the dog could go outside when she needed to and dumped a week’s worth of food in her bowl. At dawn the sky blackened and the storm rolled in. I made sure my lounge chair was under the eave then closed my eyes and slept. When I’d wake up to use the toilet, I’d drink a shot of whiskey and chase it with a pint of water. I intended not to get dehydrated. Other than the birds and the surf, the only sound I heard was the thump of newspapers landing on driveways every morning. On Monday, I opened four papers, to figure out what day it was. I ran for an hour on the beach with the dog and swam for thirty minutes in the surf while the dog watched. Walking back to the cabin for a shower I said to her, Sorry for being a terrible master. She picked up a piece of driftwood and whipped her head back and forth.

We had lunch sitting on the deck at Cafe Max-a-Burger. I ordered four hamburgers, a basket of onion rings, and a lemonade. The dog ate her two burgers so fast that I gave her one of mine. When I paid the bill the cashier said, That’s one lucky dog.

I said, Thanks for saying so, but you have it backwards. That dog is by far my best quality.

Publisher: Grand Central Publishing; Date: February 2010

You can hear an interview with David Dow about the book here (see Feb 9):

http://www.abc.net.au/rn/lifematters/

Guantanamo Detainees Flounder as Europe Averts its Gaze

Posted in News by Sophie Cull on January 12, 2010

Being committed to your values is easier said than done. I am all for being green, but when the supermarket charges for recycled shopping bags, I’m tempted to stick with plastic. My decision to work in an anti-death penalty law office in the South was solely driven by my commitment to the abolition of the death penalty. But when I encounter a case involving a horrific crime, I find it hard to imagine the task of attorneys in my office who must dedicate themselves to representing the one who perpetrated it. In the case of capital punishment, though, a defense attorney’s queasiness at their client’s crime is easily reconciled with their queasiness at the state’s desired penalty – in both cases, the taking of life is abhorrent. But what happens when our commitment to our values leads us down an undesirable path with unsettling consequences?

It is eight years today since Guantanamo Bay was first used as a detention center for suspected terrorists. At present, 200 prisoners remain in Guantanamo – the vast majority of whom have never been charged. On this anniversary, it is tempting to point the finger at the United States and ask why Obama’s call for a speedy closure of the facility is taking such a long time. But Amnesty International is asking a different question.  What happened to Europe?

On 16 June 2009, the EU-US Joint Statement on the Closure of Guantanamo Bay was issued which expressed the readiness of some EU Member States to receive former detainees on a case-by-case basis. Amnesty purports that while some European states are volunteering to take in Guantanamo detainees, a number of those states that once fiercely argued for the closure of Guantanamo Bay are now disappointingly silent.

Many European governments have condemned the ongoing detention of prisoners at Guantánamo Bay. Now they can do something about it… Actions really do speak louder than words in this case; it’s time to turn the rhetoric into reality and get Guantánamo closed as soon as possible” said Clive Stafford Smith, Director of Reprieve.

Both Amnesty and Human Rights Watch state that other countries must take in detainees that will be tortured, subjected to further detention without charge and other human rights abuses should they be involuntarily repatriated to their country of origin. But nearly seven months since the EU-US statement was issued, only seven former detainees have been accepted by Europe as free men – 50 more await help.

If the worldwide refugee crisis has shown us nothing else, it is that when it comes to international human rights, actions cost much more than words. It is not difficult to see why governments would rather not take in Guantanamo detainees, but their inaction means these men will likely be relocated to once again be held without charge, only this time in a less visible setting.

At the root of the idea of ‘human rights’ is the idea that universal rights should be afforded to all people no matter which state they belong to. The ideal is universal; therefore the burden is international. Those states which once called for the closure of Guantanamo Bay may now realize their objective, but only if they are prepared to back their words with action. Henry David Thoreau’s quote serves as a useful check for us self-righteous moralists whose eyes quickly divert from the paper bag to the plastic when we think no one is looking: “Aim above morality. Be not simply good; be good for something.”

Criminalizing the Vulnerable: Asylum seekers an easy target

Posted in News by Sophie Cull on November 3, 2009

Since 2001, ‘asylum seeker’ has become a dirty word in Australia. ‘Boat people’, ‘illegal immigrants’ and (used far less frequently) ‘refugees’ are terms used interchangeably to refer to people arriving on Australian shores by boat in an effort to seek asylum. And now ‘terrorist’ has been added to the list.

West Australian backbencher Wilson Tuckey recently stated that terrorists could be masquerading as asylum seekers on the unauthorised boats that reach Australian waters. Fear-mongering has been the most successful policy used by Australian politicians to resist influxes of ‘boat people’ over the last decade since the Child Overboard incident.

While Tuckey’s comments have sparked outrage amongst human rights groups and received backlash from the Prime Minister, there is no shortage of Australian politicians, media outlets and citizens who share his fears. Public debate has once again flared over how to deal with asylum seekers.

There is one interested party who often remains almost entirely silent in the midst of these recurring debates: those people seeking asylum. Locked in detention with no materials to identify who they are, no ensured legal representation and little means of communication with the outside world, only statistics can speak for these people.

So GetUp, a grass-roots community advocacy organization that allows Australians to get involved in holding Australian politicians accountable, has put together a short Myth-busting Factsheet to educate us Aussies on how big of a ‘threat’ asylum seekers really are. It’s a short but interesting read: http://www.getup.org.au/files/campaigns/asylum_myths_factsheet.pdf.

Perhaps the most compelling myth-busting fact is that those ‘queue jumpers’ arriving by boat are actually the most likely to be genuine refugees:

There is also data to suggest that people who arrive by boat are more likely to be legitimate refugees. Of asylum claims made by people who arrive by aircraft, 55% are rejected. Only 2-15% of claims made by people arriving by boat are denied.

Yet the war of words continues to criminalize these silent few who come with nothing, asking for help. It can only be hoped that researched and rational thinking on this subject speaks with a louder voice than the likes of Wilson Tuckey.

Abolitionist Australia proves indecisive on capital punishment

Posted in News by Sophie Cull on October 16, 2009

When people down here in the South ask me why I have come all the way from Australia to work in an anti-death penalty law office, I reply that I’m really interested in the work and that I can’t do it in Australia since we don’t have capital punishment. Once and a while this conjures a surprised and even shocked response – “Australia doesn’t have the death penalty?”

The city of Melbourne in south-east Australia held a rally on October 10 for the seventh World Day Against the Death Penalty. Two thousand people attended. This may sound like a meager number, but keep in mind two things: 1) Australia’s population is pretty small and 2) there is little reason for people there to care about capital punishment at all since it no longer affects them… right?

But capital punishment is still a live issue in Australia. What’s more, Australia’s position on the death penalty is far from clear cut.

In 2003, then Prime Minister John Howard publicly called for a national debate on the reintroduction of the death penalty following the handing down of a death sentence to one of the Bali Bombers. Howard suggested that in the climate of the War on Terrorism, it was a much needed discussion that should take place in parliament.

In times of peace there is no question that, even when popular opinion does not reflect it, Australia is an abolitionist nation. As one of the 31 sponsors of the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty, Australia has made an international statement that it does not support the use of capital punishment in any context. Yet when heinous acts are perpetrated against Australian citizens, particularly offenses of terrorism, Australia cannot seem to take a firm stand.

In fact, the Australian Federal Police (AFP) have been involved in a number of cases in recent years that have resulted in the handing down of death sentences. Prime Minister Howard authorised the AFP to help gather evidence and statements and to subpoena witnesses to assist in the conviction and sentencing to death of the Bali Bomber, Amrozi. Likewise, in the case of the Bali Nine – which involves nine Australian drug mules caught in Indonesia, three of whom were sentenced to death in 2006 – the AFP assisted the Indonesian authorities in the Nine’s arrest and conviction. The AFP’s co-operation with Indonesian police in this way violates Australia’s international obligations to work towards the worldwide abolition of the death penalty, as was recognised by the UN Human Rights Committee in the case of Judge v Canada:

For countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application.
Judge v Canada (2002) UN Doc CCPR/C/78/D/829/1998, [10.4]

What’s more, Howard’s position on the Bali Bombers has endangered Australians fighting death row abroad: when petitioning for an Australian’s life in Singapore, Howard’s earlier remark that he didn’t see why ‘anyone would consider execution barbaric for the Bali Bombers’ was thrown back in his face. The Australian was hanged.

The Bali Nine case is particularly worrisome since it involves non-violent drug offenses and the imminent execution of Australian citizens – yet even the current Australian government seems reluctant to try to bring them home.

The father of Scott Rush, one of the Bali Nine, recently launched a petition put forward by the Australian Services Union and the Victorian Committee of Make the Death Penalty History that calls for the national outlawing of capital punishment in Australia and for Australians convicted of capital offenses overseas. In August, Australia’s federal Attorney General also publicly called for capital punishment to be nationally outlawed.

In a time of ‘peace’, there may be enough parliamentary support to push through such a bill if a politician is willing to take up the cause. But anti-death penalty advocates know time is short. In the event that a terrorist attack reaches Australian shores in the next few years (which, we are reminded, is a real possibility) then there is reason to think that Australians might see capital punishment as the only appropriate response.

Life Means Life: But should we be paying for it?

Posted in News by Sophie Cull on September 30, 2009

The Sentencing Project (a District of Columbia non-profit) has recently reported that Louisiana has the highest percentage of life-without-parole (LWOP)  prisoners in the nation[1]. Almost 11% of the Louisiana prison population are incarcerated for the term of their natural life.

The United States leads the world in the percentage of people it incarcerates each year, with more than one in one hundred Americans spending time behind bars. Even in aggregate terms, China is running a distant 2nd and Russia a very distant 3rd behind.   Increases in length of sentences, “three strike rules” and the widespread use of life-without-parole means that, like the rest of the population, US prisoners are ageing at levels that threaten to overwhelm the prison system. Elderly inmates represent the fastest growing segment of federal and state prisons.

In 2005, the State of Louisiana spent $13 000 a year to keep a single prisoner incarcerated. Multiply that number by a lifetime, and combine it with the fact that elderly prisoners cost around 3 times as much as young prisoners to look after, and taxpayers find they are spending well over a million dollars keeping one person in prison for life.

Of the 5000 inmates at the Louisiana State Penitentiary, 85% will die there. In a period of serious financial difficulty, the question must be asked: does it make sense to keep elderly and dying prisoners locked up to the end of their life?

California prison activist Cassandra Shaylor explains that the rhetoric around public safety is so entrenched in the US that states can claim a person is a threat to society “merely by virtue of their status as a prisoner, regardless of their physical or mental capacity”. She points to a move by Govenor Arnold Schwartznegger in 2004 to veto a bill that would have saved CA millions of dollars through the early release of 13 people who were unable to tend to their daily needs or were in a vegetative state. Schwartznegger cited ‘security concerns’ as his reason for vetoing the bill.

Back in Louisiana, a commitment to tough law and order policies (and associated rhetoric) attempts to rationalize the financial costs of having hundreds of elderly and disabled people die in prison. But in a state ranked 3rd for poorest students in the United States  and which has received a D ranking for the last two years for children’s health it might be worth considering whether the cost of upholding the toughest sentencing policies in the country is justifiable from an economic or political standpoint.

While some officials argue that the savings that come from early release programs in prisons must be measured against security concerns and the movement of costs to other state programs such as unemployment benefits, these arguments have limited weight. Federal studies show that the recidivism rate for prisoners over 55 is between 2 and 4 percent. Furthermore, even if this class of prisoner were released under continued supervision (such as through electronic bracelet systems, intensive parole supervision or home detention) the cost of looking after them is reduced from $70 a day to $8 per person.

Adam Gelb, director of the Pew Center’s Public Safety Performance Project and the author of a 2008 study on incarceration rates, suggests

“there are large numbers of people behind bars who could be supervised in the community safely and effectively at a much lower cost — while also paying taxes, paying restitution to their victims and paying child support.”

While criminal justice is not an area of policy that politicians or citizens like to see determined by economic outcomes, the current financial situation necessitates a revision of natural life sentences. After all, the cost of these sentences to the taxpayer is not all that is at stake – there are generations of young Louisiana children going without in health, education and housing because punishment is our priority.


[1] “More La. Prisoners in for life”, The Advocate, 7.24.09.