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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Locals without borders: governments are using diasporas to shape the migration crisis

Governments of countries key to the migration crisis are tapping diaspora influence more than ever before.

Last month, on 21 June, thousands of Eritreans descended on Geneva and marched across the city, finally stopping at the Place des Nations in front of the UN. The demonstrators had come from across Europe: Italy, Germany, London, and a young man who looked blankly at my French and English questions before exclaiming “Svenska!” (“Swedish!”).

They were here to denounce a recent report by the UN Human Rights Council condemning widespread violations of basic rights in Eritrea. According to the protesters, the report was based on shoddy research and is biased and politically-motivated: “Stop regime change agendas!” said one banner.

Two days later, a similarly sized group of Eritreans marched in the same direction, for the opposite reason. This contingent, 10,000-strong according to the organisers, wanted to show their backing for the report, which highlights many of the problems that led them to leave the Horn of Africa in the first place. Forced conscription, extrajudicial killings, and official impunity, all pinpointed by the UN inquiry, have driven a mass exodus to the surrounding region and beyond. In 2015 alone, 47,025 Eritreans crossed the Mediterranean to request asylum in Europe.

Two things stood out. First was the sharp polarisation of the Eritrean diaspora community in Europe, which muddies the waters for outsiders trying to make sense of the situation: how can one side say everything is fine while the other claims massive abuses of rights?

Second was the sheer engagement of this diaspora, some of whom may never have set foot in Eritrea. They had come from across Europe, with or without the help of funding, to stand on a rainy square and fight for the narrative of their nation.

As an Irishman abroad, would I have the commitment to jump on a plane for a political protest with no certain outcome? I probably wouldn’t, but then again my country is not just 25 years old and still struggling to define itself on the international stage.

Individual stakes are also much higher for people like Abraham, an Eritrean in Switzerland who told me how he was forced into the army for seven years before managing to escape via Sudan two years ago. With two children still in Asmara, he has significant skin in the game.

As for the naysayers, they are also under certain pressure. Some reports suggest that the government in Asmara exercises extensive power in certain diaspora circles, threatening to cancel the citizenship of those who denounce the regime or refuse to pay 2 per cent income tax each year.

Ultimately, such a situation can only lead to a committed kind of polarisation where pro-government supporters need to publicly demonstrate their backing, and the anti-government kind have nothing left to lose.

But on a more benign level, the idea of states systematically harnessing the power of the diaspora for domestic gains has also been growing elsewhere – including in Ireland. Historically a nation of emigrants, Ireland has seen its diaspora swell even further following the economic downturn: OECD figures estimate that one in six Irish-born people now live abroad.

In an age of networks and soft power, this represents a sizeable demographic, and a well-educated and well-off one to boot. The government has clearly recognized this. In 2009, the first Global Irish Economic Forum was held to tap into the business know-how of expats, and has since taken place biannually.

More importantly, two years ago the first Minister for the Diaspora was appointed, tasked with taking overall charge of engagement efforts: no longer simply cultural ambassadors operating Irish bars abroad, emigrants are economic and political seeds to be cultivated. A referendum is planned next year on whether to grant them the right to vote from abroad in presidential elections.

Elsewhere, in Germany, the 3m-strong Turkish population has attracted renewed interest from the government of Recep Tayyip Erdogan in recent years. According to a 2014 paper by think tank SWP, Ankara now explicitly designates these Turks abroad as a “diaspora” rather than a scattered group, and adopts clear public diplomacy efforts, channelled through cultural centres, to tap their influence.

This has sometimes rankled in Berlin: although Ankara’s diaspora policy encourages citizens to learn German and integrate into German society, the underlying motivation is one of Turkish self-interest rather than benign assimilation. In a battle for the front-foot, German immigration policy clashes with Turkish emigration policy.

Intra-EU movements, largely unhampered by visa questions, have also become substantial enough to warrant attention. For example, hit hard by the economic downturn and austerity measures, many educated Spaniards and Portuguese have flocked to Northern European cities to seek employment.

London, a melting pot of diasporas from all over the world, is reportedly home to more French people than Bordeaux: together they would make up the sixth largest city in France. As countries continue to rebuild following the financial crisis, forging a connection to the skills and political power of such emigrants is a policy imperative.

And if no other EU country, aside from Ireland, has introduced a dedicated minister for this, the growing economic potentials may spur them to do so.

Diasporas have been around for millennia. Why are governments getting so interested now? And what does it mean for the future of citizenship, nationality, and identity?

Technology is one obvious game-changer. Diasporas not only have more options to keep in touch with their home country, but with so much of daily life now happening on virtual platforms, they also have less reason to integrate in their host society.

It is now almost feasible to ignore the surrounding communities and live quite comfortably in a bubble of media and connections from back home. This then works both ways, with governments increasingly willing to use such communications to maintain links. The “imagined spaces” of nations are morphing into “virtual spaces”, with unpredictable consequences for traditional models of integration.

Marco Funk, a researcher at the EU Institute for Security Studies in Brussels, says that the growing ease of mobility compounds the idea of “people moving from one country to another and staying there” as simply out-of-date.

The coming years, he says, will be marked by patterns of “circular migration”, where citizens hop from one country to another as whim and economic opportunity arise. Governments, especially in an increasingly stagnant Europe, will likely try to beef up links with this mobile generation, especially since it is often pulled from the more educated classes.

Fearing a “brain drain”, yet unable to keep the talent at home, they may foster a more fluid system of “brain exchange”: the diaspora as a mobile resource rather than physical loss.

Of course, none of this will be straightforward, especially at a time when a major fault-line around the world is the future of globalisation and migration. An uptick in nationalist tendencies may mean that diasporas will find themselves (once again) unwilling pawns on a political chessboard, protected or manipulated by governments back home while scapegoated by segments of their host societies.

But one thing is sure: even as walls are rebuilt, diasporas will not disappear, and governments are recognising their power. All politics may remain local, but the local now knows no bounds.