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
Getty
Show Hide image

"The land of Gandhi can never be racist": is India in denial about its attitude to skin colour?

“If we were indeed racist, why would we live with the South Indians?" was how one politician addressed the debate. 

When we were kids, my younger brother and I would spend much of our time thinking up new and innovative ways to get under each other’s skin, as siblings often do. One of the most reliable weapons in my brother’s arsenal was a taunt about skin colour - he was quite fair even by Punjabi standards, a fact that he was inordinately proud of. I on the other hand, had a permanent tan. This is now politely referred to as a "dusky" complexion, but back then was just "kaala" (black).

Being older, I generally had the upper hand in this cold war of insults and condescension, but my brother employed this particular tactic to great success for a couple of years. Because it rankled, it really did. No amount of explanation about melanin and sun exposure, or the fact that we were both "brown" in the eyes of the world made a difference. He was fair, I was not, and that was that. We didn’t have the context or the vocabulary to articulate why that minor difference in skin tone was important, but we knew instinctively that it was. It took us years to realise how problematic these little exchanges were. By then, we had  recognised how racism and prejudice about skin colour had wormed its way into our psyches at a young age, even growing up in a fairly liberal household. We laugh about it now, and my brother is more than a little embarrassed about that short phase during his pre-adolescent years. But as recent events have reminded us, for many people in India, racism and colourism is no laughing matter.

Two weeks ago, a video posted on Facebook by the African Students Association of India (AASI) went viral. It showed a mob of 40-odd Indians armed with snooker cues, dustbins and chairs brutally assaulting two Nigerian students inside a mall in Greater Noida, a city in the northern state of Uttar Pradesh, just 40km from the national capital, and home to hundreds of students from Africa who study in the city’s many private colleges and universities. This was part of a wave of violence unleashed by residents of the city that saw at least four Nigerian students admitted to the hospital with serious injuries, and countless others being treated for minor injuries. The details of what transpired over that week are as familiar as they are sordid - a missing Indian student, who was later found, and died in the hospital of a suspected drug overdose. Rumours of Africans being "cannibals", a new addition to the long, long list of racist stereotypes about black Africans that are bandied about to justify such violence. Demands that all African residents of the area be kicked out. And eventually, inevitably, mob violence.

The response by the government and the police followed the general SOP for when such attacks happen - and they do, with alarming frequency. There were promises of swift action (which rarely materialises), brazen denials that the violence was motivated by racism or xenophobia (“Criminal not racial” is how External Affairs Minister Sushma Swaraj described one attack in 2016) and victim-blaming (“Africans are involved in drug-dealing, Africans don’t assimilate”).

Then there is the Gandhi factor. “India is the land of Gandhi and Buddha…we can never have a racist mindset,” declared a pompous Swaraj, conveniently ignoring the fact that Gandhi himself was a proponent of anti-blackness in his early years, separating the South African Indian community’s struggle for freedom from that of the Zulus and writing that “about the mixing of the Kaffirs (blacks) with the Indians, I must confess I feel most strongly.” The truth is that, despite three centuries of experiencing racial discrimination at the hands of British colonisers, India’s unrequited love affair with whiteness has remained undimmed. We - specifically the North Indians who dominate so much of our national political and cultural discourse - take pride in our "Aryan" heritage, thereby aligning ourselves with global white hegemony. We have internalised the pseudo-scientific European racial theories that were in vogue in the 19th and early 20th century, but have lingered on in our school textbooks long after they were debunked. Indeed, when black Africans in India talk about being treated like a caged animal in a zoo, it’s hard not to make connections with 19th century Europe’s infamous "human zoos".

But while much of India's anti-blackness can be traced back to a colonial hangover, it is also fuelled by our own indigenous strain of "colourism", one that predates European theories of racial superiority. Last week, former Bharatiya Janata Party MP Tarun Vijay went on an Al Jazeera programme to talk about the recent spate of attacks. “If we were indeed racist, why would all the entire south – you know Kerala, Tamil, Andhra, Karnataka – why do we live with them?,” he said. “We have blacks…black people around us.” In his attempt to defend India from charges of anti-blackness, Vijay inadvertently laid bare the full extent of India’s problem with skin colour-based bigotry - our othering of not just black Africans but also of the darker-skinned citizens from our own country. It’s not hard to guess who the "we" in that statement is - the fairer, upper caste North Indian Hindus that form the BJP’s core constituency, and who have for ages thought of themselves as the template for the "true Indian". Everyone else, whether it’s Dalits and lower caste citizens from across the country, or the Dravidian residents of the southern parts of the country (both associated, though not entirely accurately, with darker skin colour), are merely tolerated. These two strains of bigotry - race and caste - combine to create a society where darkness is, at best, treated as a personal failing, something that you must strive to overcome. At its worst, it leads to dehumanisation and, eventually, violence.

Much of the blame for the persistence of such toxic attitudes towards skin colour rest with India’s pop culture and mass media industries. Bollywood, as always, has been a pioneer. For decades, people of darker skin colour have been pushed to the margins, relegated to the role of caricature or villain. Take for example the still iconic song from the 1965 film Gumnaam, in which comedian Mehmood tries to win the attention of Anglo-Indian actress Helen. “Hum kaale hue to kya hua dilwale hain (so what if I’m black, I still love you),” he sings, reinforcing the improbability of a beautiful (read fair-skinned) woman like Helen falling in love with a dark-skinned man. More recently, there was the 2008 film Fashion, in which Priyanka Chopra plays a model whose descent into drugs and depravity finally hits rock bottom when she wakes up one morning next to a black man. There’s also a long history of Indian films featuring "blackface" and racist stereotypes of black Africans, best exemplified by a horrifying scene from 2000 film Hadh Kar Di Aapne, in which… actually, just watch it yourself because I can’t figure out a way to put it into words without throwing my laptop out the window.

Indian television is no different, with dark-skinned actors - especially women - so rarely seen on programmes or advertising, that any advertisement that dares to break the norm is celebrated as groundbreakingly progressive. And then there’s the fairness cream industry, endorsed by a host of top film and television celebrities, with advertisements that inextricably link fairness not just to beauty but also to employability, self-confidence and suitability for marriage. Just take a look at this epic five part tele-commercial by Ponds, appropriately titled White Beauty. The focus on whiteness is relentless, and this colourism runs rampant even as Indian movies and television borrow and steal from black culture at will, even bringing in rap artists like Snoop Dogg and T-Pain to perform on Bollywood songs. It’s another thing that Snoop Dogg - or anyone with the same skin colour - has as much chance of playing the lead in Bollywood as I have of becoming Potus.

In recent years, as Indians outrage about racist attacks against non-resident Indians (NRIs) in the US and Europe and get involved in global conversations about racism and cultural appropriation, many of us have also started turning a spotlight on racism back home. The fairness cream industry is facing increasing criticism, even from high profile actors like Abhay Deol who would otherwise earn big money by appearing in their ads. Explicit racism in film and in advertising no longer goes unchallenged. When former Miss World and current Bollywood royalty Aishwarya Rai appeared in a print ad for a jewellery brand that alluded to 17th century European paintings of noblewomen, complete with emaciated black child servant holding up a red parasol, she was met with a barrage of criticism and outrage that forced the company to withdraw the ad. But as last month’s attacks make clear, this is not nearly enough.

First, the Indian government and our political class needs to acknowledge that racism and anti-blackness are a real problem, instead of trying to brush it under the carpet. Step one would be to bring in a long overdue law against racial discrimination. But as the persistence of caste despite the legal abolition of caste distinctions 70 year ago shows, having laws on the books is not enough. We need massive programmes to sensitise police, bureaucrats and the public at large about the toxic effects of racism and how to counter it. Racist stereotypes in media and public discourse should be shut down, not tolerated or even reproduced by political leaders as they are now. Anti-racist and anti-caste discourse should be an integral part of the school curriculum. Celebrities, activists and civil society needs to be much more vocal in their critique of racist and colourist speech and actions. There are more than enough policy prescriptions out there, if we can find the political will to put them into action. And we must find it soon. Or our kids will continue to grow up with the notion that social worth is tied to where you are on the Fitzpatrick scale, they will continue to weaponise skin colour in schools and in playgrounds. And for those of us with darker skin, whether black Africans or "black" Indians, the possibility of sudden, explosive violence will always lurk around the corner.

Bhanuj Kappal is a freelance journalist based in Mumbai. 

0800 7318496