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
ANGELOS TZORTZINIS/AFP/Getty Images
Show Hide image

How the refugee crisis became invisible

Since the failed coup in Turkey, there are on average 200 refugees a day arriving in Greece. But the world's media has gone home.

The image was familiar for the volunteers in Lesvos that still man the beaches where refugees arrive by boat from Turkey. It’s been many months since boats carried 256 people in a single day across the narrow passage of sea. The refugee crisis seems to be giving way to much larger geopolitical issues to the east of the Greek coastline. Those refugees stuck here might soon be joined by the thousands that remain in Turkey as the situation in Syria deteriorates. There is no solution is on the horizon for the bloodshed.

Almost 300 people arrived that Thursday last week, a number not seen since a deal between the EU and Turkey was reached this spring to curtail the flow of refugees heading for Europe. Following the failed coup attempt in Turkey last month, however, something has changed. 3,300 people have arrived on the islands of the eastern Aegean since, according to the official data released by the Greek state, averaging around 200 a day. Reports on the ground suggest that the traffickers operating in the area are expecting a new wave of refugees leaving Turkey soon, a card for Tayip Erdogan to play in his bid for visa-free entry to Europe for Turkish citizens.

Since the deal – and unlike last year, which saw more than a million people passing through Greece and heading up the Balkan corridor towards Germany and the prosperous north – the crisis has taken a new shape, and it’s now largely invisible. Lesvos, the island formerly seen as the frontline of the refugee crisis, is unseen, abandoned by the media and the tourists that used to be its main source of income.

The refugees unlucky enough to be stuck in Greece after the borders to Macedonia closed are distributed in camps across the country. The camps established at the points of arrival, known as “hotspots”, are overcrowded to breaking point, with violence often erupting between refugees, locals and the police. Instances of violence against unaccompanied minors by police were even recorded in the Moria camp in June.

Now, for the close to 60.000 people who in limbo while their asylum applications are processed, it’s a waiting game that looks more like prison than anything else. Meanwhile, deportations back to Τurkey have effectively stopped because of the political insecurity and terrorist attacks there, despite the fact it is still deemed a “safe third country”.

Forty-nine camps have been set up across Greece, but the government has announced that more are on their way. Local business owners in Crete have already protested the news of a camp for 2,000 refugees established on the island. After what happened in Lesvos the tourism industry – arguably the country’s most important, contributing close to 10 per cent of the GDP – is nervous.

Inside the camps, reports of overcrowding, poor hygiene, illness, violence, trafficking and drugs are on the rise. Even in Greece, Yazidis are not safe in the camps, and special arrangements have had to be made for them. The Greek and Albanian mafias have infiltrated camps on the mainland, especially around Thessaloniki, and are pushing hard drugs, which have become a solution for some of the refugees stuck there. Around the downtown area of Victoria in Athens, reports by the BBC and Refugees Deeply have found underage boys prostituting themselves in the nearby parks for 5 euros.

Here is the real problem: while the numbers arriving are nowhere near those of last year, the infrastructure available to take them in is now so strained that every new arrival counts. The margin for the most vulnerable between safety and harm, has narrowed to nothing. The Katsikas camp, near my hometown in north-western Greece, paints a grim picture. Set up hastily on the site of an old military airport, it is almost entirely unsuitable to host the simple military tents the refugees are expected to live in. The ground turns to mud every time it rains, and it rains often. There are scorpions and snakes wandering the camp.

Living conditions are so horrible that according to the camp’s director, Filippas Filios, 200 people recently walked out and abandoned it, preferring to try their luck crossing the Albanian or Macedonian borders on foot. From the 1,020 people that were transported here between March and April, just 520 remain. Another space is being prepared to take those remaining before September – an abandoned orphanage. Unlike most of Greece, the weather here is rainy and cold. If preparations stall and they are caught outside, these people are unlikely to remain in the camp under such conditions. Traffickers who have been active in the area for decades, are banking on just that.

The EU, via Angela Merkel saying that “we must agree on similar deals with other countries, such as in North Africa, in order to get better control over the Mediterranean sea refugee routes”, is hinting at a similar deal to that with Turkey to try and deal with the flow from Libya. With the current arrangement looking shaky, and those living with the consequences being ignored or even blamed for their predicament, we are on perilous ground. There is hardly anything more that Greece can do.

What’s worse is that in the last few months – under pressure from the EU – the Greek government has been dismantling the solidarity networks that alleviated much of the weight of the crisis last year. But they too, where they still hold, are creaking under the weight of the situation. The conditions in some of these informal camps resemble those in the official camps. The more these people are trapped in either situation, the more likely they are to become victims again, be it of trafficking, drugs or violence. For now, the pro-refugee sentiment still holds in Greece, but the illusionary structure of a “dealt with” crisis might come crashing down sooner than most realise.

Yiannis Baboulias is a Greek investigative journalist. His work on politics, economics and Greece, appears in the New Statesman, Vice UK and others.