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 For more information about LifeLines and how to write to death row inmates visit

Anti-death penalty activist Delia Perez Meyer addresses a rally outside the US Supreme Court. Photograph: Getty Images
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America’s domestic terrorists: why there’s no such thing as a “lone wolf”

After the latest attack on Planned Parenthood in Colorado Springs, America must confront the violence escalating at its heart.

First things first: let’s not pretend this is about life.

Three people have died and nine were injured on Friday in the latest attack on a women’s health clinic in the United States. Planned Parenthood in Colorado Springs was besieged by a gunman whose motives remain unclear, but right-to-lifers—who should really be called “forced birth advocates”—have already taken up their keyboards to defend his actions, claiming that women seeking an abortion, or doctors providing them, are never “innocent”. 

This was not unexpected. Abortion providers have been shot and killed before in the United States. The recent book Living in the Crosshairs by David S Cohen and Krysten Connon describes in sanguine detail the extent of domestic terrorism against women’s healthcare facilities, which is increasing as the American right-wing goes into meltdown over women’s continued insistence on having some measure of control over their own damn bodies. As Slate reports

In July, employees at a clinic in the Chicago suburb of Aurora, Illinois, reported an attempted arson. In August, firefighters found half a burning car at the construction site of a future clinic in New Orleans. On Sept. 4, a clinic in Pullman, Washington, was set ablaze at 3:30 a.m., and on Sept. 30, someone broke a window at a Thousand Oaks, California, clinic and threw a makeshift bomb inside.

The real horror here is not just that a forced-birth fanatic attacked a clinic, but that abortion providers across America are obliged to work as if they might, at any time, be attacked by forced-birth fanatics whose right to own a small arsenal of firearms is protected by Congress. 

The United States is bristling with heavily armed right-wingers who believe the law applies to everyone but them. This is the second act of domestic terrorism in America in a week. On Monday, racists shouting the n-word opened fire at a Black Lives Matter protest in Minneapolis, injuring three. This time, the killer is a white man in his 50s. Most American domestic terrorists are white men, which may explain why they are not treated as political agents, and instead dismissed as “lone wolves” and “madmen”.

Terrorism is violence against civilians in the service of ideology. By anyone’s sights, these killers are terrorists, and by the numbers, these terrorists pose substantially more of a threat to American citizens than foreign terrorism—but nobody is calling for background checks on white men, or for members of the republican party to wear ID tags. In America, like many other western nations, people only get to be “terrorists” when they are “outsiders” who go against the political consensus. And there is a significant political consensus behind this bigotry, including within Washington itself. That consensus plays out every time a Republican candidate or Fox news hatebot expresses sorrow for the victims of murder whilst supporting both the motives and the methods of the murderers. If that sounds extreme, let’s remind ourselves that the same politicians who declare that abortion is murder are also telling their constituents that any attempt to prevent them owning and using firearms is an attack on their human rights. 

Take Planned Parenthood. For months now, systematic attempts in Washington to defund the organisation have swamped the nation with anti-choice, anti-woman rhetoric. Donald Trump, the tangerine-tanned tycoon who has managed to become the frontrunner in the republican presidential race not in spite of his swivel-eyed, stage-managed, tub-thumping bigotry but because of it, recently called Planned Parenthood an “abortion factory” and demanded that it be stripped of all state support. Trump, in fact, held a pro-choice position not long ago, but like many US republicans, he is far smarter than he plays. Trump understands that what works for the American public right now, in an absence of real hope, is fanaticism. 

Donald Trump, like many republican candidates, is happy to play the anti-woman, anti-immigrant, racist fanatic in order to pander to white, fundamentalist Christian voters who just want to hear someone tell it like it is. Who just want to hear someone say that all Muslims should be made to wear ID cards, that Black protesters deserve to be “roughed up”, that water-boarding is acceptable even if it doesn’t work because “they deserve it”. Who just want something to believe in, and when the future is a terrifying blank space, the only voice that makes sense anymore is the ugly, violent whisper in the part of your heart that hates humanity, and goddamn but it’s a relief to hear someone speaking that way in a legitimate political forum. Otherwise you might be crazy.

American domestic terrorists are not “lone wolves”. They are entrepreneurial. They may work alone or in small groups, but they are merely the extreme expression of a political system in meltdown. Republican politicians are careful not to alienate voters who might think these shooters had the right idea when they condemn the violence, which they occasionally forget to do right away. In August, a homeless Hispanic man was allegedly beaten to a pulp by two Bostonians, one of whom told the police that he was inspired by Donald Trump’s call for the deportation of “illegals”. Trump responded to the incident by explaining that “people who are following me are very passionate. They love this country and they want this country to be great again.”

But that’s not even the real problem with Donald Trump. The real problem with Donald Trump is that he makes everyone standing just to the left of him look sane. All but one republican governor has declared that refugees from Syria are unwelcome in their states. Across the nation, red states are voting in laws preventing women from accessing abortion, contraception and reproductive healthcare. Earlier this year, as congressmen discussed defunding Planned Parenthood, 300 ‘pro-life’ protesters demonstrated outside the same Colorado clinic where three people died this weekend. On a daily basis, the women who seek treatment at the clinic are apparently forced to face down cohorts of shouting fanatics just to get in the door. To refuse any connection between these daily threats and the gunman who took the violence to its logical extreme is not merely illogical—it is dangerous.

If terrorism is the murder of civilians in the service of a political ideology, the United States is a nation in the grip of a wave of domestic terrorism. It cannot properly be named as such because its logic draws directly from the political consensus of the popular right. If the killers were not white American men, we would be able to call them what they are—and politicians might be obligated to come up with a response beyond “these things happen.”

These things don’t just “happen”. These things happen with escalating, terrifying frequency, and for a reason. The reason is that America is a nation descending into political chaos, unwilling to confront the violent bigotry at its heart, stoked to frenzy by politicians all too willing to feed the violence if it consolidates their own power. It is a political choice, and it demands a political response.

Laurie Penny is a contributing editor to the New Statesman. She is the author of five books, most recently Unspeakable Things.