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
Photo: Getty
Show Hide image

What's happened to the German left?

For a fourth successive election, the left seems to be failing to challenge the status quo.

When Germany goes to the polls this weekend, Angela Merkel is expected to win a fourth term in office. Merkel has maintained her commanding lead in the polls on 37 per cent, while her closest competitor, the Social Democratic Party (SPD) has been relegated to, at best, a possible coalition partner. 

The expectation that the status quo will continue has left commentators and politicians of all stripes asking: what has happened to the German left?

Lagging behind in the polls, with just 20 per cent of the country's voting intention, Martin Schulz’s SPD has slumped to its lowest level this year only days before the vote, according to the latest poll by Infratest dimap for ARD television.  

Even the prospect of a left-wing alternative to a Merkel-led coalition appears to have become unpalatable to the electorate. An alliance between the SPD, die Grünen (the Greens) and the socialist party die Linke (the Left) would not reach the threshold needed to form a government.

One explanation for the German left's lack of impact is the success Merkel has had in stifling her opposition by moving closer to the centre ground. Over the last four years, she has ruled a grand coalition known as GroKo (Große Koalition) with the centre-left SPD, leaving many of its voters believing their party was no longer any different to the chancellor's conservative Christian Democratic Union (CDU).

Rolf Henning, 34, has been a member of the SPD since 2004. Campaigning in Pankow, a diverse area of eastern Berlin which has traditionally voted on the left, he told the New Statesman that although the coalition had enabled the SPD to push its social agenda, the party did not receive any credit for it.  

“It is now hard to motivate people to vote for the SPD because people think it will not make any difference. If we were to enter a coalition again with Merkel and the CDU then our support base will drain even further,” he said.  

Another grand coalition between the CDU and the SPD is very much on the cards, as Merkel is unlikely to win an outright majority. But while the arrangement has seemingly worked out well for the chancellor, its benefits for the SPD seem rather less certain.

“The political strength of the left is an illusion," says Gero Neugebauer, a political analyst and a former senior researcher at the Freie Universität Berlin, "The SPD did a good job in the coalition to push issues of social policy and family policies, but Ms Merkel took the credit for a lot of it. People saw the car and the chauffer rather than paying attention to the engine."

In 2015, under pressure from the SPD, the Merkel administration introduced a minimum wage in Germany, a benchmark for many in the party which yet did little to gloss over the SPD’s image. On the contrary, Merkel’s election campaign sought to win over disillusioned SPD voters.

According to Neugebauer, the left-wing parties have failed to work together to form a real alternative coalition to the Merkel administration. He warns that Germany’s left-wing camp has become “an illusion” with “virtual power”.

For a short-lived moment the election of Martin Schulz, the former president of the EU Parliament, to head the SPD, brought hope to the idea of a left-wing coalition. 

Stefan Liebich, a member of parliament for die Linke representing the Pankow district, says the SPD initially rose in the polls because people thought there could be an alternative coalition to Merkel. "But then the SPD made a lot of mistakes and they were wrongly told they would lose support if they worked with us," he adds.

"Now nobody believes a left-wing coalition could ever happen because the SPD is so low in the polls.” 

Before Schulz took over the SPD, few believed that after four years in the coalition government the party had a good chance in the upcoming election. “But Schulz arrived and said ‘I will be chancellor’ and it was like a phoenix rising from the ashes,” says Neugebauer.

Schulz revived the social-democratic tradition and spoke about social justice, but the delay of his election programme left many wondering whether he would be able to walk the walk – and his popularity started to fall.

“Compared to Merkel, he became less credible and less trustworthy,” says Neugebauer.  

The SPD are, of course, not the only left-wing party running. Back in Pankow, Caroline, a lawyer and a long-time SPD voter said she was considering voting for the more left-wing die Linke because she did not want to give her ballot to Schulz.

“There is something about him, he is not straightforward and he is too much like the CDU," she continues. "As the head of the EU Parliament, Schulz was good but I don’t think he has what it takes to tackle issues in Germany."

For Ulrike Queissner, also a Pankow resident, the SPD’s lurch to the centre convinced her to vote for die Linke: “The SPD has become mainstream and part of the establishment. It has become too close to the CDU and has no strong position anymore.”

Stable at about 8 per cent in the polls, die Linke is still trailing the extreme-right Alternative fur Deutschland (AfD), which is anticipated to win between 8 and 11 per cent of votes. This means it would enter the German parliament, the Bundestag, for the first time, becoming its third biggest party.

At the core of die Linke’s manifesto is the redistribution of wealth, a peaceful foreign policy and measures to stamp out the remaining social rift between east and west Germany.  

The party strives to challenge Merkel’s feel-good slogans by putting the spotlight on the discrepancies between rich and poor, and east and west.

 “When we look around to Portugal, Spain, Italy, and maybe even to the UK, we seem happy," says Liebich. "We don’t have an exit [from the EU] debate or a high unemployment rate. And yet, there is a part of Germany that sees that things are not going so well."

And for some of die Linke’s eastern electorate, immigration is at the top of the list of grievances, putting pressure on a party which has always defended an open door-policy – something Liebich acknowledges.

“In Berlin a majority of voters say they are open to people who need help, but in the eastern states, where we have a high unemployment rate and a lot of people who are not used to living with people of other cultures, there is a lot of anger."

That will add to concerns that large numbers of silent AfD supporters could create a surprise in the traditionally left-wing area of east Germany, where the far-right party is capitalising on the anti-immigration sentiment. The left seems to be squeezed between Merkel’s move to the centre ground and the AfD’s growing populist threat.

For Neugebauer the prospect of AfD members in parliament should force left-wing parties to sharpen their political lines, and form a consensus bloc against the rising extreme-right. The silver lining lies in the hope that all three left-wing parties – die Linke, die Grünen and die SPD – find themselves together in the opposition.

“Then, there would be an opportunity to start a conversation about what the parties have in common and start working together," he says. "It would be a chance for the German left to find itself again and create a vision for co-operation.” 

And yet, commentators still anticipate that at least some part of the left will end up working with Merkel, either through a grand coalition with the SPD or a three-way “Jamaica coalition”, with the pro-business FDP and the Greens. For the German left the time for cooperation, and a shot at taking charge of Germany's future, may still be some years away.