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
FABRICE COFFRINI/AFP/Getty
Show Hide image

Is Switzerland about to introduce a universal basic income?

A referendum on 5 June, triggered by a 100,000-strong petition, will determine whether the country transforms its welfare state with a monthly no-obligations cash handout available to all.

The Office Cantonal de l’Emploi (OCE), Geneva’s unemployment administration, is what you might expect of a modern bureaucracy. Not exactly Kafka-esque, it moves slowly but rationally: take a ticket, wait your turn, learn which paperwork is missing from your dossier, repeat. Located in a big complex of social administration behind the main train station, the office is busy for a region with an unemployment rate between 5 and 6 per cent, well below the European average. The staff, more like social workers than bureaucrats in dress and demeanour, work hard to reinsert people into the job market: officials can be responsible for over 40 dossiers at a time.

Objectively, Switzerland is a good place to be out of work. For a low-tax country the welfare system is robust. On condition of having worked and paid taxes in the state for over 12 months, a newly-unemployed is assured 70-80 per cent of his previous salary for a period up to 2 years: ample income in a country with some of the highest average wages in the world. In practice, the system is a hybrid between the OCE (which tries to get people back to work) and union-allied social insurance bodies (which take care of monthly payments) and is complex but effective. There are welfare trade-offs – easy firing, expensive healthcare – but Switzerland is far from a free market machine without a safety net.

***

It seems strange that such a well-oiled system could soon be obsolete. On 5 June, Switzerland will hold a referendum on an initiative to introduce a universal basic income (UBI): a guaranteed, no-strings-attached, monthly payment of 2,500 Swiss francs (£1,784) for each legal resident. Driven by a popular initiative which collected the requisite 100,000 signatures, the UBI would revamp the welfare state by streamlining its core into this single monthly cash transfer. No more obligations to apply for a certain number of positions per month in order to “qualify” for your handout: you could choose to continue working and earning, or you could lead a life of leisure. The existential fear associated with finding, and maintaining, employment would disappear.

Last month, a “robot rally” was held in Zürich to drum up support for the initiative. Hundreds of badly-disguised campaigners paraded through the city advocating a futuristic social contract between man and machine: according to these robots, as they become more advanced, displacing more and more blue and white-collar jobs, the only solution is a UBI allowing for dignified coexistence. Robots must be our friends, not our foes, they claimed. This common refrain of digital disruption is a core tenet of the campaign and echoes a zeitgeist debate in Switzerland around the future of work and technology. The concept of a “Fourth Industrial Revolution”, championed by Klaus Schwab, Executive Chairman of the Geneva-based World Economic Forum, has risen from soundbite to serious topic. Schwab says that current shifts in AI and connected technologies amount to “nothing less than a transformation of humankind”, one which will need solutions guaranteeing some sort of a minimum-income for all.

A record-breakingly large poster in the Pleine de PlainPalais, Geneva. Photo: Fabrice Coffrini/AFP/Getty

But the ego of an epoch tends to historical self-aggrandisement. Hasn’t technological change always been an issue? In the opening scene of the 1986 Only Fools and Horses episode “Let Sleeping Dogs Lie”, Rodney complains about computers and mass unemployment in Thatcherite Britain: “How many people have been put on the dole by a robot what [sic] can build a car?” Digital advances aside, this is hardly the case in Switzerland, where the average unemployment rate is 3.7 per cent. Che Wagner, spokesman of Basic Income Switzerland, the organisation behind the popular initiative, concedes that the country is not suffering from any “emergency problem”. Yet it is precisely the triad of “political stability, economic wealth and a strong liberal culture of self-determination” which makes Switzerland an ideal testing ground for opening the debate. Whereas welfare politics have traditionally aimed to solve problems, this initiative is a more positive affirmation of how best to organise an affluent society of the future. The key goal is more philosophical than economic; he is determined to “decouple the concepts of labour and self-worth”.

In this sense the initiative is a radical departure from both “welfare-politics-as-usual” and neo-liberal proposals for basic incomes. Che and his colleagues make up an independently-funded, wilfully apolitical group which eschews traditional concepts of left and right. There are no Marxist hangovers in the proposal (“we don’t want to take anything from anybody to give it to somebody else”), yet there is also no indication that they support a radical rationalisation of taxation and wealth creation implied by liberal economists like Milton Friedman. The UBI would not negate certain benefits guaranteed under the current welfare system – disability allowances, for example – and is not Randian model of eradicating poverty to let the wealth creators run free. The core raison d’être is an individualistic, humanist empowerment; any socio-economic reorganisation which would be bound to arise is secondary.

This reflects the messy international debate, which has come on the agenda in recent years and attracted inputs from across the spectrum. Both Yanis Varoufakis and Joseph Stiglitz have voiced approval. Slavoj Žižek, the loud Slovene philosopher of the far left, wants a reconceptualisation of UBI to recognise that “in a knowledge-based economy, collective productivity of the ‘general intellect’ is the key source of wealth” – a similar idea to Paul Mason’s vision of a “post-capitalist” socialism for a digital age. Unsurprisingly, the companies and tech evangelists who reap the largest benefits from this data-based economy are also concerned. Some are researching liberating models of “seed money for everybody” which would have the dual-advantage of reducing annoying government bureaucracy and mitigating the possible backlash against future technological gains. In true internet-emancipatory fashion, they also want to liberate people’s latent creativity by replacing the obligation to work by the incentive to innovate.

***

It is difficult to argue with the idea that people should work because they want to, not because they have to. But Swiss referendums are not won and lost on philosophical niceties. Direct democracy depends upon an engaged and pragmatic population which deliberates more earthly concerns: is our society ready for this? What would happen to the Swiss economy? Most importantly, how would it work in practice? Unfortunately for the “yes” side, these matters have proven more difficult to communicate.

One opinion poll conducted in January found that just 2 per cent of the population would quit their jobs if the measure came into effect. This is far from any imagined society of freeloading slackers which people seem to fear (ironically, one-third of the same respondents said that they expected that others would leave their jobs). But in a nation where, like elsewhere, the education system is designed to train people for specific professions and the social expectation is that you are what you work, it is difficult to see beyond a vanguard of creative or entrepreneurial youth who might embrace the freedom. Of course, those working part-time positions paid little more than 2,500 Swiss francs would have little incentive to keep working, but elsewhere it may be business as usual. My local kebab vendor told me that he had been working since he was 14, so he would see no reason to stop now.

What the experiment would do to Swiss GDP is also unclear. According to the initiators of the plan, the extra cost to the exchequer to pay a UBI to all those currently under the 2,500 Swiss franc level would be a meagre SFr18 billion (the federal government puts this at SFr25 billion). This shortfall could be met by imposing a small tax on financial transactions, they suggest. Savings could also be made through the rationalisation of the welfare system, and VAT hikes have also been mooted. Under current conditions, then, the scheme would be feasible. But this is without factoring in various known unknowns: possible outsourcing of some industries due to less competitive wages, or a global reduction in GDP due to many workers reducing - if not eliminating - the hours they work. “A step too far in the right direction2, was how economist Tobias Müller put it recently in the daily Le Temps, echoing the consensus of the Swiss political class.

At the practical individual level, finally, how it would affect the pockets of the Swiss middle class is unclear. For those earning more than the minimum amount, the only difference would be that the first SFr2,500 of their salaries would be “re-packaged” as UBI. Being presumably tax-exempt, the measure therefore would mean an incremental gain but ultimately a maintaining of the status quo. An employee in an international organisation complained to me about the lack of clarity communicated both by the campaign and the government on the initiative: the actual vote hinges on three short constitutional amendments to ensure a “dignified” minimum income for the population, but details are scarce. Although she is “of course in favour” of the suggestion, she will thus vote against it. The middle and upper classes of Swiss society simply haven’t been convinced of the need for such radical change, she said. Who benefits?

***

Ultimately, at all levels of politics and society, the strength of the proposal is also its weakness. Its vague, normative nature has attracted interest, but the lack of clarity around how it would work concretely and how it would affect the income of the majority of Swiss people has undercut any chance of success. Current indicators suggest it will be roundly rejected. The always out-on-a-limb Greens are the only political party to announce support. A recent opinion poll found that 72 per cent of the population were opposed to the measure.

The amount of air-time and attention it has received will nevertheless be perceived as a success by proponents. The broad nature of the proposal and the sometimes flamboyant campaign (last week they unveiled the largest campaign poster in history in Geneva (see above); the Guinness Book of Records was on hand) highlighted that their major goal was not to meticulously rewrite Swiss legislation but to kickstart the debate on their terms. The first rule of negotiation theory is to bid high. That the direct democracy system here allows for such radical proposals (whether progressive or lamentable, like some previous votes on immigration) is a boon for the international efforts to raise awareness of this future reordering of welfare.

As referendum season continues elsewhere in Europe, there may be a lesson for campaign strategists. Emotive issues are sure to attract commentary and vocal support, but the silent majority is more pragmatic than they are often given credit. It is one thing to aim for Marx’s vision of an economic system allowing us to “hunt in the morning, fish in the afternoon, rear cattle in the evening, and criticise after dinner”: voters want to know how the hunting rights and fish quotas would operate before signing up.