When the stakes are life or death

In the same week that the Florida Supreme Court rejects the appeal of an inmate with schizophrenia, now due to be executed Monday, Texas death row lawyer David R. Dow explains why he continues to figh­t these losing battles.

Last week the United States Supreme Court dismissed pleas from the lawyers of Texas death row inmate Jonathon Green to spare his life on the basis that he was long-term mentally ill and suffering from schizophrenia. Green, who protested his innocence up until his very last breath, was executed by lethal injection becoming the 10th inmate to be executed in Texas and the 31st prisoner to be executed to be in the US this year alone. The rejection of this type of appeal is not an isolated case.

Despite a United States Supreme Court ruling in 1986 deeming it unconstitutional to execute anyone lacking the “the ability to comprehend the nature of the penalty” a series of executions have taken place this year, and many others since the ruling, of reportedly mentally ill inmates. This summer Amnesty International commented it was "highly disturbing" that the courts had refused to grant a stay in the execution in Texas of Marvin Wilson, despite his low IQ of 61. It is not only Texas that continues this practice as currently spates of legal disputes have taken place across the US. Among these stories is the controversial case in Florida this week where the state Supreme Court rejected the appeal of senior citizen and diagnosed paranoid schizophrenic death row inmate John Ferguson, effectively giving permission to the state to carry out the execution next week. The ruling has prompted outrage amongst critics of the death penalty including an editorial condemning the decision in Thursday’s New York Times. His lawyers are now appealing to the US Supreme Court and his new execution date is scheduled for Monday.

Lawyer David R. Dow has represented over 100 death row inmates in his 22 years battling against a system that in recent years has legislated so it is nearly impossible for condemned men to be granted relief. Visiting London last weekend he explained to the annual LifeLines conference, an organisation that connects people living in the UK to death row inmates through letter writing, why he keeps, as he jokingly tells the group, “beating his head against brick wall”.

As a law professor at the University of Houston Law Centre one of his former students was part of the team that represented Green last week, in what he thinks was an unfair execution. Dow comments that “Jonathan Green was crazy. Jonathan Green was a crazy man and any just death penalty regime would not have executed him”. Dow argues that even if the United States Supreme Court decides to side with Ferguson on this rare occasion there is still a significant problem with the differing interpretations of taken by individual states courts compared to precedents set by the Supreme Court. Despite the Supreme Court deeming the execution of prisoners who are mentally ill or of diminished intelligence as an unconstitutional act very rarely does this actually save lives as it fails to enforce its own rulings. In Texas, David points out “eight, ten, twelve people have been executed who even if one day the Supreme Court changes its mind will still have been executed”.

While most people would expect that the death penalty system in the United States is getting fairer the reality is quite the opposite. Since the reintroduction of the modern day United States death penalty in 1977, Dow argues it has become staggeringly difficult to gain relief for his clients, mentally ill or otherwise. Instrumental in this was the introduction of the Antiterrorism and Effective Death Penalty Act of 1996, introduced under the Clinton administration following on from the 1993 bombing of the World Trade Center. 

As Dow explains,

“Between 1977 when the death penalty came back and 1995 which is the year before act came in about two thirds of death row inmates got relief on legal appeals. That doesn’t mean they got out of prison, it means that they got a new trial. Two thirds. Think about that. Two thirds of all death penalty trials had such a significant error that they had to be retried.”

“In death penalty cases two out of three were getting reversed. 80 per cent of the people who got relief and got a new trial were sentenced to life sentences. You can do the math yourself, it means that almost half the people on death row ended up with death sentences because of mistakes at their trials. From 1995 to the present - the same window of time but this side of the Act instead of that side - the percentage of death row inmates that get relief is not above 9 per cent any jurisdiction. In Texas it is about 4 per cent. So that has gone from two thirds to 4 per cent.

Faced with such diminishing odds Dow often finds people asking how he became a death row lawyer and why he continues in this apparently thankless work. The answer to the first part was simple, it was an accident.

After graduating he initially decided to teach and began specialising in the legal issues surrounding habeas corpus, the writ that allows convicted prisoners to appeal and challenge their conviction. During this period of the early 1990s it just so happened that the most significant cases relating to this area were death row appeals. Around the same time Congress set aside some money to recruit volunteer lawyers to represent death row inmates who until that time, much to David’s amazement, hadn’t been allowed lawyers in their habeas corpus appeals. Given that the literacy skills of the typical death row prisoner are below average David said it was “a farce” that inmates were expected to navigate what he finds an “extremely complex” area of law.

One Saturday afternoon David went with his friend who had been enlisted with recruiting lawyers in the Texas area to help with these cases. On the way home in the car his friend asked him if he would represent one of the condemned men, who was without a lawyer and due to be executed in two weeks time. He would, his friend argued do a better job representing the man than the man would do representing himself. Dow says the decision was an obvious one: “If you have a law degree and a beating heart that is a very hard offer to say no to.”

On his 50th Birthday an extraordinary coincidence occurred that reaffirmed David’s belief in his chosen career path had been the right one. Whilst in college David would spend his spare time visiting local art galleries. On one memorable trip he saw a painting by entitled Jacobs Dream that depicted the biblical story from Genesis which struck him profoundly. After speaking to gallery owner and realising he was unable to afford the painting he cycled home and read the story in the Bible before pushing the event out of his mind. Almost 30 years later on his 50th birthday while holidaying in Utah later he received a voicemail from Texas. It was the owner of the gallery where he had seen that painting all those years before. She wanted to know if he would represent the son of the artist who was on death row for murder. He is a non-religious man but that after such an amazing chain of events he found it difficult to believe there wasn’t something calling him to these cases.

Dow began his career having not taken a personal stance on the death penalty. “I wouldn’t describe myself as someone who was strongly in favour of it. It was just not an issue that occupied very much of my time. I hadn’t thought about it really at all,” he says. While he and many of his colleagues continue to face steeped criticism from supporters of capital punishment Dow is very much vocal in his support of rational debate surrounding the subject.

Most of his clients come from what he calls “families so dizzyingly dysfunctional that you really need a new word in English to describe it because dysfunctional doesn’t even come close”. However he stresses he is not making excuses for the act of murder.  “I am familiar with the details of hundreds and hundreds of murders and they range from despicable and vile to unspeakable and heinous. There’s no such thing as an okay murder,” he says.

Another increasingly huge factor as to why so many the death row appeals are unsuccessful is the legal resources granted to inmates. As Dow argues, it is not the competency of the lawyers that has a direct impact on the outcome of appeals but insufficient resources. He says “When I investigate a case on behalf of my clients I investigate back three generations of the family tree. I have charts in my office that have three generations that can show mental illness, that show alcoholism, physical and mental abuse. These are big big jobs. By the time my client is executed I know more about them than anybody in the world. I know more him than he knows about himself. I probably know more about him than I know about my wife because there is not a person he has ever known who I have not talked to or tried to talk to. Now I just want you to try to think for a moment about the resources required to try and conduct that kind of investigation. That is an expensive proposition.”

Dow says that what happened to his beliefs surrounding the death penalty is “what happens to every death penalty lawyer, whether a supporter, a death penalty agnostic or a completely death penalty foe, which is you get to know your clients”. 

When asked why he continues to be a death row lawyer in the face of such apparent unfairness he says it is because although it is rare to save a life the support he and his colleages can give to prisoners it helps them in less obvious ways. In unsuccessful appeals he has physically seen many of his clients executed when they have asked him to attend their executions. However in most cases the decision goes right down to the wire Dow had call them from the court and tell them their fate. Their reaction, he says is why his job is worth it. “Do you know what they always say to me?” he says. “Thank you. I call to tell them I’ve lost and they’re about to be executed and they say thank you. And before you got want to make sure I thank all the other lawyers on the team. The reason they’re saying thank you is that they never had anybody who cares about them before.”

David R. Dow is the author of several books on the death penalty details of which can be found on his website http://www.davidrdow.com. For more information about LifeLines and how to write to death row inmates visit http://www.lifelines-uk.org/

Anti-death penalty activist Delia Perez Meyer addresses a rally outside the US Supreme Court. Photograph: Getty Images
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France’s burkini ban could not come at a worse time

Yet more legislation against veiled women can only further divide an already divided nation.

Since mayor of Cannes David Lisnard banned the full-body burkini from his town’s beaches, as many as 15 French resorts have followed suit. Arguments defending the bans fall into three main categories. First, it is about defending the French state’s secularism (laïcité). Second, that the costume represents a misogynistic doctrine that sees female bodies as shameful. And finally, that the burkini is cited as a threat to public order.

None of these arguments satisfactorily refute the claims of civil rights activists that the bans are fundamentally Islamophobic.

The niceties of laïcité

The Cannes decree explicitly invokes secular values. It prohibits anyone “not dressed in a fashion respectful of laïcité” from accessing public beaches. However, the French state has only banned “ostentatious” religious symbols in schools and for government employees as part of laïcité (the strict separation between the state and religious society). And in public spaces, laïcité claims to respect religious plurality. Indeed, the Laïcité Commission has tweeted that the ban, therefore, “cannot be based upon the principle of laïcité”.

While veils covering the entire face such as the burqa or niqab are illegal, this is not to protect laïcité; it is a security matter. The legal justification is that these clothes make it impossible to identify the person underneath – which is not the case for the burkini.

 

By falling back on laïcité to police Muslim women in this way, the Cannes authorities are fuelling the argument that “fundamentalist secularism” has become a means of excluding Muslims from French society.

Colonial attitudes

Others, such as Laurence Rossignol, the minister for women’s rights, hold that the burkini represents a “profoundly archaic view of a woman’s place in society”, disregarding Muslim women who claim to wear their burkini voluntarily.

This typifies an enduring colonial attitude among many non-Muslim French politicians, who feel entitled to dictate to Muslim women what is in their best interests. Rossignol has in the past compared women who wear headscarves through choice to American “negroes” who supported slavery.

Far from supporting women’s rights, banning the burkini will only leave the women who wear it feeling persecuted. Even those with no choice in the matter are not helped by the ban. This legal measure does nothing to challenge patriarchal authority over female bodies in the home. Instead, it further restricts the lives of veiled women by replacing it with state authority in public.

Open Islamophobia

Supporters of the ban have also claimed that, with racial tensions high after recent terrorist attacks, it is provocative to wear this form of Muslim clothing. Such an argument was made by Pierre-Ange Vivoni, mayor of Sisco in Corsica, when he banned the burkini in his commune. Early reports suggested a violent clash between local residents and non-locals of Moroccan origin was triggered when strangers photographed a burkini-wearing woman in the latter group, which angered her male companions. Vivoni claimed that banning the costume protected the security of local people, including those of North African descent.

Those reports have transpired to be false: none of the women in question were even wearing a burkini at the time of the incident. Nonetheless, the ban has stood in Sisco and elsewhere.

To be “provoked” by the burkini is to be provoked by the visibility of Muslims. Banning it on this basis punishes Muslim women for other people’s prejudice. It also disregards the burkini’s potential to promote social cohesion by giving veiled women access to the same spaces as their non-Muslim compatriots.

Appeals to public order have, occasionally, been openly Islamophobic. Thierry Migoule, head of municipal services in Cannes, claimed that the burkini “refers to an allegiance to terrorist movements”, conveniently ignoring the Muslim victims of recent attacks. Barely a month after Muslims paying their respects to friends and family killed in Nice were racially abused, such comments are both distasteful and irresponsible.

Increased divisions

Feiza Ben Mohammed, spokesperson for the Federation of Southern Muslims, fears that stigmatising Muslims in this way will play into the hands of IS recruiters. That fear seems well-founded: researchers cite a sense of exclusion as a factor behind the radicalisation of a minority of French Muslims. Measures like this can only exacerbate that problem. Indeed, provoking repressive measures against European Muslims to cultivate such a sentiment is part of the IS strategy.

Meanwhile, the day after the incident in Sisco, riot police were needed in nearby Bastia to prevent a 200-strong crowd chanting “this is our home” from entering a neighbourhood with many residents of North African descent. Given the recent warning from France’s head of internal security of the risk of a confrontation between “the extreme right and the Muslim world”, such scenes are equally concerning.

Now more than ever, France needs unity. Yet more legislation against veiled women can only further divide an already divided nation.

The Conversation

Fraser McQueen, PhD Candidate, University of Stirling

This article was originally published on The Conversation. Read the original article.