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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Clinton vs Trump: How does the electoral college work?

A brief history.

If you have even the vaguest awareness of US politics, you'll no doubt recall the role Florida played in the 2000 presidential election. The result in the state was so close that arguments about recounts and hanging chads went on for weeks, before the result was finally settled – and the next president decided – by the US Supreme Court.

The odd thing about Bush v Gore, though, is that nobody questioned which of the two had more votes: it was Al Gore, by more than half a million. (The number of contested votes in Florida was something like a tenth of that.) To put it another way, it was always clear that more Americans wanted Gore as president than Bush.

And yet, the outcome of the election ignored that entirely. It turned instead on who had won Florida. That, the Supreme Court decided, had been Gore's opponent: George W. Bush became the 43rd president of the United States, and the rest is history.

So why did a man who everybody agreed had come second become president? Why did the whole thing end up turning on the number of votes in a few counties of former swamp?

History and geography

The answer comes down to that weirdly undemocratic American invention, the electoral college. The founding fathers, you see, did not actually intend for the president to be chosen by the people.

Much of the constitution was the work of the over-achieving Virginian delegation to the Constitutional Convention of 1787. Their plan, written by James Madison, suggested that the president should be chosen by Congress.

That idea was rejected on the grounds that it would undermine the president's independence. Some delegates feared that allowing a bunch of men who spent all their time locked in a room together arguing pick the head of state would lead to “intrigue” (yes), and suggested the president should be chosen by popular vote instead.

So they settled on a compromise. Each state would pick “electors” – how they did so was their own business – and these would in turn pick the president. Senators and congressmen were specifically barred from becoming members of this electoral college; but an aspect of the original plan that survived was that the number of electors in each state would be equal to the number of representatives it had it Congress.

Some of the oddities in this system have been ironed out over time. By the mid 19th century most states were choosing electors by popular vote: the presidential election may be indirect, but it's an election nonetheless. After the 23rd Amendment passed in 1961, those who lived in Washington DC, previously disenfranchised because it isn't a state, were given the vote too (it gets three votes in the electoral college).

But others anomalies remain. Here are three:

1) A lack of proportion

One of the big issues in 1787 was persuading the original 13 states to agree to the new constitution at all. Many of the smaller ones (Delaware, New Hampshire) were nervous that, by joining the union, they would instantly be dominated by their much bigger neighbours (Virginia, Pennsylvania, Massachusetts).

To keep them on board, the Constitutional Convention agreed the “Great Compromise”. The size of the delegations each state sent to the House of Representatives would be roughly proportional to the size of its population; in the Senate, though, every state would get two senators, whether it had several million people, or three old blokes and a dog. In other words, the US constitution had to deliberately over-represent smaller states in Congress, just to persuade them to sign up to the thing in the first place.

All this still applies today – and because size of a state’s delegation to Congress determines the number of votes its gets in the electoral college, smaller states are over-represented in presidential elections, too. The result is that a vote in California is worth less than a third of a vote in Wyoming:

Image: Fzxboy/Wikimedia Commons.

2) A lack of faith

The people don't choose the president: the electoral college does, with electors generally voting based on the votes of the people in their state.

But the operative word there is “generally”: while most states have laws requiring electors to vote with the popular will, or rendering their vote void if they don't, some 21 states do not. So, occasionally, there are “faithless electors”, who don't vote the way their state wants them to. In the 57 presidential elections between 1788 and 2012, there have been 157 incidents of such faithlessness (although, to be fair, in 71 cases this was because the electorate's preferred candidate was dead).

This has never affected the outcome of an election: the closest was in 1836 when the Virginia delegation refused to vote for vice presidential candidate Richard Mentor Johnson on the grounds that he was having an affair with a slave. (Being massive racists, they were fine with the slavery and the abuse of power; it was the interracial sex they had a problem with.) But Martin Van Buren's election as president was never in doubt, and even Johnson was confirmed after a vote in the Senate.

Even in those states which don't have laws to punish faithless electors, becoming one is still often a bloody stupid thing to do, since it generally means betraying the party that made you an elector in the first place, an act which will almost certainly wreck your career. Nonetheless, it is constitutionally possible that, when the electoral college meets after November's election, some of its members will ignore the result entirely and propose, say, Kevin Spacey as the next president. And those are the votes that count.

3) A lack of interest

The biggest oddity of the system though is the fact of the electoral college at all. The voters don't pick the president: the electoral college does. The result is that presidential campaigns need to focus not on individual voters, but on states.

Most states allocate their electoral votes on a winner takes all basis. There are two exceptions to this: Nebraska and Maine both hand out one electoral vote to the winner in each congressional district, and two to the state-wide victor. This rarely makes any difference, since both states are small, and any candidate who carries the Maine 2nd is likely also to have carried the whole of Maine. Just occasionally, though, it does: in 2008 Obama narrowly carried the Nebraska 2nd (Omaha, basically), prompting grumpy local Republicans to redraw the boundaries to dilute the local Democratic vote and so ensure this wouldn't happen again.

In the vast majority of states, however, winning 50.1 per cent of the vote will be enough to get you 100 per cent of the electoral votes. In an election with more than two candidates, indeed, you don't even need to do that: a simple plurality will get you 100 per cent of the vote, too.

This, combined, with demographics, mean we already know how something like 363 of the 538 electoral votes on offer will go. Only around 13 states are considered competitive this year. In the other 37, plus the District of Columbia, we might as well already know the result.

The result is that, for the next few weeks, there will be endless reports about Florida, Virginia and Ohio. But you're not going to hear so much about how voters are feeling in California or Delaware or Arkansas or Texas. The first two will go for Clinton; the last two will go for Trump. The campaigns will ignore them; the voters may as well not show up. State-wide demographics mean the result is already clear.

In a true popular election, every vote would count equally. In the electoral college, they do not. The result, 16 years ago, was four weeks of legal wrangling over a few hundred votes in Florida. The result, this year, is that it’s entirely possible that Donald Trump will become president – even if Hillary Clinton gets more votes.

Jonn Elledge is the editor of the New Statesman's sister site CityMetric. He is on Twitter, far too much, as @JonnElledge.