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Fixing the Solution

When a murder goes unsolved, the victim’s family is left with only their imaginations of what might have happened. There are no answers and certainly no justice. That is why New Hampshire state representative Renny Cushing supported a law establishing the state’s first Cold Case Unit dedicated exclusively to investigating unsolved murders.

“When they reopen an investigation, they start by re-interviewing the family members. This can trigger trauma memories. Like anyone else, they would want to speak to a mental health professional around this time,” said Rep. Cushing. But a statute of limitations on requests for victims’ compensation meant that if the crime happened more than two years ago, families who couldn’t afford to pay for counseling were out of luck.

So Rep. Cushing sponsored a bill, which became law this September, eliminating the time limits on victims’ compensation. It is the first time in the country that cold case victims are recognized under victims’ compensation statutes.

The new law also raises the amount of compensation available and extends eligibility to families of missing persons, when a homicide is presumed. All these families can now draw support for counseling, lost wages, travel to attend trials, and other expenses.

Rep. Cushing’s own father was murdered in 1988 and since that time he has devoted his energies to changing the criminal justice system. He wants to see the false promise of the death penalty ended and real support for victims’ families in its place. He is proud that New Hampshire is leading the country on new ways of meeting the needs of victims of crime. And, with a promising repeal campaign in New Hampshire just around the corner, the state might soon lead the country in other ways as well.

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After the death penalty everything is all fixed…or is it?

New Yorkers for Alternatives to the Death Penalty (NYADP) could have closed up shop years ago – when New York effectively ended the death penalty. But they are still in business and the recent case involving Frank Sterling is a good reminder why.

Frank Sterling had been awake for 36 hours when he confessed to murdering Viola Manville.

That was in 1988. Throughout his 19 years in prison Sterling maintained his confession was false and he was innocent. Just a few months ago, DNA evidence pointed to the same conclusion and a New York court ordered Sterling’s release.

Collateral damage

While Frank Sterling was locked away for another man’s crime, the person who killed Viola Manville killed again. His second victim was a four-year-old girl. That murder took place six years after Viola Manville’s. Prying a false confession from Sterling left the guilty man free, with terrible consequences.

This situation is far from unique. In at least 11 of the 138 cases of exoneration from death row, someone was killed or harmed by the real perpetrator while the wrong man sat awaiting execution.

The ingored effect on victims

Sterling’s wrongful conviction devastated his own life and threatened the safety of others. But wrongful conviction can also affect surviving victims and their families.

Jennifer Thompson-Cannino was violently raped in 1984. She survived but the experience changed her. She described it as having “your soul and spirit taken from you and crushed before your eyes.” Jennifer eventually identified Ronald Cotton as the perpetrator and he was convicted and sentenced to life. Nine years later, just as Jennifer had established a sense of normalcy to her life, Cotton was proved innocent through DNA.

“With the delivery of the DNA results came an overwhelming shame and guilt,” wrote Jennifer in a 2004 blog post. “My mind began to question everything I had believed in. I pulled away from the world as I knew it; I had no answers. Over four thousand days of a man’s life were gone and nothing I could do would ever change that.”

Supporters say the death penalty is supposed to provide justice to victims. Would it have delivered that in this case?

Jennifer now advocates around the country not only for ending the death penalty, but also for reforms to witness identification procedures that could have helped to prevent her mistaken identification.

A broader mission

Every exoneration is a reminder that the death penalty can endanger an innocent person. Exonerations also highlight that ending the death penalty is not the ultimate solution to all the system’s problems. That is why NYADP still exists and why EJUSA works in continued partnership with state groups even after they have ended the death penalty.

EJUSA believes that an effective criminal justice system should serve victims, defendants, and the public. That is why we invest in strategies that find common ground among disparate constituencies – including law enforcement, victims, and defendants. Until the system can stop pitting each party against one another in a zero-sum game, it will continue to fail.

Our partners at NYADP are implementing just such an approach. They are bringing together diverse groups to improve responses to violence overall – with an emphasis on reducing crime and meeting the needs of victims and their communities.

Reforms to eyewitness identification procedures can help to reduce wrongful convictions, so that disasters like those that happened to Frank Sterling and Ronald Cotton could be avoided. But the real prize is a society where acts of violence themselves are lessened. Clearly, there is still work to be done to make the system work better – beyond the death penalty.

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New Hampshire hears from the executioners

For every execution, there is a team of executioners. They are the ones who watch the inmate in his or her final days, who strap the inmate to the gurney, who insert and reinsert the needles, and who remove the inmate from the gurney following the execution. They are the ones who deal with botched executions, who struggle with inmates fighting to stay alive, and who pull inmates away from their families when it is time for their final goodbyes.

The New Hampshire Death Penalty Study Commission recently held its fourth public hearing on the death penalty. It was the first time they heard from the people whose job it is to carry out executions.

Corrections officers speak out

Ron McAndrew, who helped perform three electrocutions in Florida and oversaw five lethal injections in Texas, was the first to testify. He told commissioners that he had thought he would have no trouble carrying out the death penalty.
“I felt that murderers and rapists and barbaric people really didn’t deserve to be on this earth.”

But the reality, said Ron, was quite different.

After the executions, Ron said, he was haunted by the men he executed: “I would wake up in the middle of the night to find them lurking at the foot of my bed.” And he wasn’t the only one scarred by the experiences. Ron described officers who “fought tears, cowering in corners so as not to be seen.” He said some turned to drugs and alcohol. “These aren’t weak men,” Ron said. “These are good ol’ country boys who spent their life in careers that forced them to be hard. And yet we suffer now, crying through the pain and the intense guilt.”

Dr. Allen Ault, who spent over 30 years working in corrections in Georgia and Mississippi, was also affected by his experiences in the execution chamber. He was also part of the hearing. “You were very up-close and personal on all of them,” he said. “You talked to the inmates before they were executed. You gave them an opportunity to say their last words. I remember one tried to make a filibuster out of it and I had to stop him and proceed with the execution…it is extremely difficult for somebody with a conscience, somebody [sic] has some ethics.”

Dr. Ault emphasized that these experiences were widespread amongst the corrections officers involved in executions, saying, “as far as I could tell, everybody suffered. And I still get flashbacks.”

But are we listening?

“What corrections officers go through so that we can have a death penalty is usually hidden,” said Katherine Cooper of the New Hampshire Coalition to Abolish the Death Penalty (NHCADP). “You could feel the unpleasant reality of the situation start to settle on everyone in the room.”

But one man was oblivious to the poignant testimony: New York Law School professor Robert Blecker.

Blecker followed the corrections officers’ testimony with his own in support of the death penalty. He argued that a sentence of life without parole was not a viable alternative to the death penalty because prison amenities like televisions and pool tables make life too comfortable for inmates.

Ron McAndrew politely interjected. He noted that there is often only one corrections officer supervising anywhere between 125 and 200 inmates all by him or herself.

“The television set is a working tool,” he said. “It occupies the inmates. It keeps them under control so that this one uniform person, who is unarmed and willing to step inside of a state prison to do this really tough job for you everyday, he has few tools to work with. A tool is a ping pong table. A tool is a television set. A tool is anything that will occupy time.”

“The exchange between Blecker and McAndrew reminded everyone that if we want safe prisons, we need to listen to corrections officers,” said Katherine Cooper. “They are telling us what they need and what they don’t need. The death penalty is something they don’t need. What they do need is a budget that will provide adequate staffing levels, not a multi-million dollar execution that will require trauma counseling for the staff who have to participate. The death penalty just makes things worse for them.”

Equal opportunity flaws

It was not the first time Blecker offered testimony that offended a constituency on the front lines of the death penalty process. In 2006 he told the victims advocate on the New Jersey Death Penalty Study Commission that the suffering of victims’ families was not a problem to be solved, but rather an unfortunate price families had to pay so that society at large could keep the death penalty.

Ostensibly, Blecker was representing the pro-death penalty perspective, but he did not seem to do it any favors. His set of rules for who fits the “worst of the worst” was remarkably specific. Blecker would remove the death penalty for people who hired someone to kill but keep it for the people who did the killing. He’d apply the death penalty to those who killed police officers because they were police officers, but not to people who killed police officers to escape capture.

That last scenario describes precisely what happened in New Hampshire’s only current death penalty case. In other words, one of the Commission’s few pro-death penalty witnesses testified that New Hampshire should not apply the death penalty to the one case in which they have used it.

This part of Blecker’s testimony served to highlight one of the most problematic aspects of a death penalty. Everyone has their own opinions on what constitutes “worst of the worst” and there is no one way to codify these emotional responses into law.

The New Hampshire Commission to Study the Death Penalty will issue its final report in December. Out of the dozens of witnesses they have heard so far, only six have testified against repeal. Last year the New Hampshire House of Representatives voted to repeal the death penalty, so momentum is already strong. And if the people of New Hampshire continue to confront the death penalty’s grim inner workings, we could see repeal become reality the next time around.

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An Overwhelming Testimony to Repeal

New Hampshire’s death penalty study commission, which started its investigation in October 2009, just concluded its final hearing.

The Commission has heard from over a hundred witnesses on issues such as innocence, fairness, public safety, and alternatives. The review has been a showcase of the death penalty’s litany of problems.

Ray Krone and Juan Melendez testified about spending years on death row for crimes they didn’t commit. They were exonerated not because of the system, they said, but in spite of it.

Family members of murder victims testified about how the death penalty system can prolong their pain. Laura Bonk, whose mother was murdered, said, “Each day of waiting for a trial is a day that’s not lived fully. It is a day of stress and anxiety.” The length of time capital cases take, she said, “must cause great harm to the victims’ family.” She also spoke of how the death penalty divides victims, sending the message that some lives are more valuable than others.

And the Commission heard from people who are often ignored in this debate – corrections officials who carry out executions. Former prison wardens Ron McAndrew and Dr. Allen Ault spoke about psychological scarring widespread amongst the corrections officers involved in executions. Both men asked for New Hampshire to honor their corrections officers by not putting them through the trauma that the death penalty system necessitates.

The Commission also held 3 public hearings that drew packed in crowds. At one hearing, more chairs had to be dragged out of the closet. In all, around 500 Granite Staters attended. About 65 of them testified and out of that 65, no more than six spoke out against repeal.

In December the Commission will issue its final report. “The Commission heard an overwhelming body of evidence that the death penalty is broken,” said Shari Silberstein, Executive Director of Equal Justice USA, a national organization working to end the death penalty in New Hampshire and other states. “We are hopeful that the final words and recommendations will reflect this overwhelming consensus.”

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Our very own ‘product recall’

The American Law Institute (ALI), one of the most respected institutions in American jurisprudence, recently got rid of the capital punishment section from its Model Penal Code.

If that sounds dry to you, consider this: the Model Penal Code serves as a blueprint for state laws. Their capital punishment section was the framework on which every state’s modern death penalty law was based. So the decision to scrap that section altogether is pretty momentous. After a comprehensive study, the ALI simply realized that the death penalty system was too broken to fix.

And when the vanguard of the legal establishment thinks the death penalty deserves to be dropped, lawmakers sit up and listen.

Testimony on the ALI decision during recent hearings in Kansas elicited “rapt attention,” according to Donna Schneweis, Coordinator of the Kansas Coalition Against the Death Penalty (KCADP):

“Sometimes you see people on their laptops or shuffling papers but not here. There were enough lawyers on the committee that they recognized the significance of the ALI’s move.”

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Repeal bill advances in Kansas

A bill that would end the death penalty in Kansas passed the senate judiciary committee by a vote of 7 to 4! The ‘yeses’ included five Republicans and two Democrats and this bi-partisan endorsement moves the bill on to the full state senate, which will debate the issue as early as next week.

The committee’s decision was inspired by the myriad voices in support of repeal that senators heard in the hearings that preceded the vote. Former district attorney, Sam Milsap, highlighted the death penalty’s risk of executing an innocent person Bishop Michael O. Jackels spoke of Catholic thinking in opposition to the death penalty. Professor Michael L. Radelet laid out the evidence that the death penalty does not promote public safety. Bud Welch, whose daughter was killed in the Oklahoma bombings, told his story in which the perpetrator’s execution gave him not one iota of healing or peace.

Jordan Steiker, who teaches death penalty law at the University of Texas, highlighted the recent decision of the American Law Institute (ALI) to drop the capital punishment section from its Model Penal Code. The Model Penal Code serves as a blueprint for state laws. Their capital punishment section was the framework on which every state’s death penalty law was based, so the decision to scrap the section is pretty momentous. After a comprehensive study, the ALI simply realized that the death penalty system was way too broken to fix.

Donna Schneweis, Coordinator of the Kansas Coalition Against the Death Penalty (KCADP) said that when Steiker was speaking, the committee was in “rapt attention.” Said Donna, “Sometimes you see people on their laptops or shuffling papers but not here. There were enough lawyers on the committee that they recognized the significance of the ALI’s move.”

KCADP’s organizer Chris Cook told me that the hearings resonated with the Kansan public as well. “The hearings really motivated people to get involved and let their legislators know they want change. We are very pleased that the committee voted to send the bill to senate floor and, with more people engaged then ever before, we are feeling very hopeful. I urge all Kansas to contact their state senators and have their voices heard.”

The whole team at KCADP believes it’s a new day for Kansas. And with Kansas at the center, the very heart, of the nation, this could be big news for all of us.

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City councils calling for a moratorium

The list of local governments calling for a moratorium on executions has now reached 110! On May 3, the New Haven, CT Board of Alderman took an additional step and became the second local government in the nation to call for complete abolition of the death penalty. Congratulations to local organizers and citizens across the country who continue to pursue these victories. If your town or city council isn’t on the list, contact EJUSA for an organizing packet to get started!

Alameda County, CA
Albany, NY
Albany County, NY
Asheville, NC
Atlanta, GA
Baltimore, MD
Berkeley, CA
Bessemer, AL
Birmingham, AL
Blacksburg, VA
Boligee, AL
Brighton, AL
Brookline, MA
Buffalo, NY
Cambridge, MA
Camden, NJ
Camp Hill, AL
Carrboro, NC
Cary, NC
Chapel Hill, NC
Charlotte, NC
Charlottesville, VA
Chesilhurst, NJ
Chatham County, NC
Cincinnati, OH
Cofield, NC
Davidson,NC
Dayton, OH
Detroit, MI
Dobbins Heights, NC
Durham, NC
Durham County, NC
East Palo Alto, CA
Erie, PA
Eutaw, AL
Fayetteville, NC
Five Points, AL
Forkland, AL
Gainesville, AL
Garysburg, NC
Gettysburg, PA
Gordonville, AL
Greenburgh, NY
Greene County, AL
Greensboro, NC
Harrisburg, PA
Hartford, CT
Haynesville, AL
Hays, TX
Highland Park, NJ
Hillsborough, NC
Hobson, AL
La Fayette, AL
Leighton, AL
Leverett, MA
Lexington, VA
Lincoln, NE Council*
Lowndes County, AL
Macon, GA
Marin County, CA
Menlo Park, CA
Montgomery County, MD
Mosses, AL
Mount Rainier, MD
Mount Vernon, NY
Nashville-Davidson County, TN
New Castle, NY
New Haven, CT (abolition)
New York City, NY
Norlina, NC
North Courtland, AL
Oakland, CA
Orange County, NC
Palo Alto, CA
Philadelphia, PA
Pittsburgh, PA
Portola Valley, CA**
Prichard, AL
Prince George’s County, MD
Princeton, NJ
Rochester, NY**
Rouseville, PA
Salinas, CA
San Francisco, CA
San Miguel County, CO
Santa Clara County, CA
Santa Cruz, CA
Santa Fe, NM (abolition)
Santa Monica, CA
Selma, AL
Sebastopol, CA
Shippensburg, PA
Sommers Point, NJ
Sumter County, AL
Syracuse, NY
Takoma Park, MD
Tallahassee, FL
Taylortown, NC
Thomasville, NC
Travis County, TX
Tuscon, AZ
Uniontown, AL
West Hollywood, CA
White Hall, AL
Wilcox County, AL
Wilmington, DE
Winfall, NC
Winston-Salem, NC
Yellow Springs, OH
York, PA

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International Court rules U.S. violated international treaty in cases of Mexican nationals

In 1969, the U.S. voluntarily ratified the Vienna Convention on Consular Relations. The treaty guarantees diplomats immediate access to their citizens arrested in a foreign country. U.S. embassies routinely rely on it to protect U.S. citizens arrested in the other 164 nations that are now party to the agreement. In return, U.S. law enforcement authorities are obligated to notify appropriate Consular authorities in the U.S. when they arrest foreign nationals.

But on March 31, the International Court of Justice (ICJ) ruled – for the third time in recent years – the U.S. is not fulfilling its obligations under the Vienna Convention. Siding with Mexico, the ICJ concluded that the U.S. violated the consular rights of 51 Mexican citizens now on death row in eight U.S. states. Specifically, U.S. authorities failed to inform the Mexican Consulate “without delay” of their arrest of these prisoners. In 34 of the 51 cases at issue, notice came too late for the Mexican Consulate to arrange legal counsel.

In the case of Osbaldo Torres, for example, it took three years for Mexico to even learn of Torres’ 1993 arrest, by which time he had been tried for murder and sentenced to death twice in Oklahoma. A state court set an execution date for Torres in March, before the ICJ had even ruled, despite the urging of Oklahoma’s Attorney General that it be delayed “out of courtesy” to the ICJ. Torres’ execution still looms on May 18.

U.S. Response

The State Department’s legal bureau is reported to be studying the ICJ decision in consultation with various other agencies that would be affected. “Each case should be looked at individually,” a Department spokesperson told the ABA Journal. “It does not mean that there must be a different outcome.”

State and federal authorities in the U.S. have repeatedly asserted that Mexican consular assistance would not have made any difference in the prisoners’ cases. Mexican Foreign Ministry lawyer Juan Manuel Gomez Robledo strongly disagrees, noting that Mexican defendants are routinely assigned lawyers who “speak little or no Spanish and have no experience in death penalty cases.” He insists that following the treaty would ensure Mexican citizens get a fair trial, which could mean “the difference between life and death.”

In Texas, where 15 of the 51 prisoners face execution, Governor Rick Perry showed open distain for the ruling: “the International Court of Justice doesn’t have jurisdiction in Texas.” In fact, Article 6 of the U.S. Constitution explicitly states that all ratified treaties are “the supreme law of the land” and are binding on “judges in every state.” Back in 1998, a report from the U.N. Commission on Human Rights revealed that such ignorance among state officials is likely widespread; outside the State Department, those officials who met with the U.N.’s investigator (Texas officials had refused) displayed little or no knowledge of their obligations under international law.

Jurisdiction of the International Court of Justice

Based in The Hague, the International Court of Justice is the principal judicial body of the United Nations. Under the Vienna Convention, the ICJ has “compulsory jurisdiction” to settle disputes between nations over the treaty’s interpretation and application. “It’s not as though the World Court just assumed jurisdiction in this case,” one of Mexico’s lawyers in the case told the National Law Journal. “It’s part of the agreement that these countries signed.”

The ICJ’s March ruling orders U.S. courts to review each of the 51 Mexicans’ convictions and death sentences, taking into account the consular rights violations. While the Court was not directive about how such reviews should be conducted, it did make clear that additional judicial process was required, as opposed to clemency review by a governor or state pardon board.

The Court did explicitly forbid U.S. courts from simply dismissing the issue because the prisoner had failed to raise it early enough in the appeals process. This is particularly important given that the violation involved the U.S. failure to properly inform the Mexicans of their rights on time, when they were still defendants. Indeed, to deny legal review based on such procedural barriers to foreign nationals who were denied information about their consular rights in the first place sets up the ultimate catch-22.

Torres encountered just this catch-22 when he tried to raise the consular violations in his federal appeal – he was told it was too late and that Mexico’s help would not have made a difference anyway. The U.S. Supreme Court refused his appeal of this issue in November 2003, with Justices Stevens and Breyer dissenting. How Torres’ lawyers should now proceed is far from clear.

Broader Impact

While the ICJ ruling’s legal effect on U.S. courts remains uncertain, it clearly impacts on national and world opinion regarding the U.S. government’s commitment to international law. On April 19, The New York Times strongly editorialized that “Washington ought to call off any executions of these 51 Mexicans. The alternative would poison relations with Mexico, send a signal that the United States doesn’t take its international obligations seriously and – worst of all – imperil Americans overseas.” Jamie Fellner, U.S. program director for Human Rights Watch, agrees. “The United States cannot go to the other countries and say ‘consular access’ if it is not complying with the treaty here at home.”

Already, the U.S. has faced extensive international criticism of its death penalty. Allies in the fight against terrorism that are member nations of the European Union are barred from extraditing suspects to stand trial in the U.S. if they will face the death penalty.

On the heels of the ICJ ruling, Amnesty International released a report demonstrating that the U.S., China, Iran, and Vietnam are responsible for 84% of the world’s known executions.

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Books to Prisons

Books to Prisons

The U.S. prison population is among the highest in the world. The DC Area Books to Prisons Project (BTP), coordinated by EJUSA staffer Caleb Eber, provides a critical link between citizens who are incarcerated and those outside prison walls.

In 2002, BTP expanded the number of prisoners served from 500 to 600 in over 35 states – despite delays in finding a permanent home for its ever-growing library of donated books. In February, BTP’s regular book packing meetings grew in frequency, from every-other-week to weekly. Through ongoing correspondence with prisoners, BTP monitored prisoners’ access to the books shipped to them. The project also began collecting law books to help start or expand existing law libraries in prisons. In conjunction with the Maryland Justice Coalition and the National Women’s Prison Project, BTP made its first donation of legal books in mid-December, to the Baltimore City Women’s Detention Center.

In 2002, the project also identified the need for beginning reading materials to widen the scope of prisoners it serves to include those who are struggling with basic reading skills. The project has begun to reach out to correctional educators and ex-offenders for help in locating or developing such materials.

Looking ahead: In February 2003, BTP plans to finally open its permanent library in The Fleming Center. The Center, located in a Washington, DC neighborhood heavily impacted by the criminal justice system, is designed to be a hub for progressive activism where BTP will find much potential for attracting new people (particularly youth) to weekly book shipping gatherings and into the project’s core collective.

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David Kaczynski on EJUSA

David Kaczynski

“New Yorkers Against the Death Penalty (NYADP) is proud of shepherding a moratorium resolution through the New York City Council, but it wouldn’t have happened without Equal Justice USA. EJUSA’s Northeast Field Organizer, Celeste Fitzgerald, guided the way based on strategies that had been used successfully elsewhere, so we didn’t have to reinvent the wheel. When we ran into snags, Celeste was always there with a practical solution and calm reassurance to settle our frazzled nerves. Once the resolution passed in June, EJUSA helped spread the word to national media.

“The NYC moratorium resolution was actually just one component – albeit a key component – of a statewide strategy that EJUSA helped design. Prior to the NYC Council resolution, Celeste facilitated a retreat in which the NYADP Board of Directors developed a strategic plan for the organization; later, she did the same for NYADP’s local chapter in Albany, the state capitol. Having EJUSA as a partner helped NYADP get off the ground as a credible statewide organization with the ability to make an impact on the news, politics, and climate of opinion in New York.”

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