One Step Backwards For Two Steps Forward

In a world that is slowly progressing toward abolition, America was poised to take a step backwards. The prospect of regressing to a situation of allowing the death penalty to apply to non fatal crimes was a very real one. Indeed, with Scalia and Alito sitting on the bench it was thought that the decision could very easily fall in favour of the Louisiana legislation.

For those who don't know, the Louisiana legislature enacted a bill that allowed for the execution for the crime of rape of a child under the age of 13.

I've touched on the issue of child rape and the death penalty in this blog before. It came up as an issue because the Supreme Court of the United States had granted certiori to hear the case of Kennedy v. Louisiana. I was in Louisiana while the Capital Appeals Project was preparing their submission to the court and I saw first hand the incredible amount of work that Jelpi Picou and others were putting in to it.

It seems like a relatively peripheral issue, the question of what sort of crimes deserve death. An abolitionist would counter that no crime deserves death, and to compare the suffering of victims is a fruitless task. However, in the case of Kennedy the question is solely whether or not a non-fatal crime warrants death, and so capital punishment applying to murder cases must be accepted as the "standard". Clearly, in the case of Kennedy v. Louisiana, the interests of abolitionists were on the defensive, and an unfavourable verdict stood to set back national values by almost have a century. However, by taking a step backwards and accepting that "death is different", the lawyers for Kennedy were able to consolidate the present position of the death penalty in America.

The decision highlights a shifting climate in America, as more and more states abolish the death penalty, retentionist states find their system falling into disrepair and being without purpose. Louisiana, who had sentenced two men to death under the law in question, has not held an execution since 2003. California are reporting their system costs almost twice as much as a life sentence. There are some states, however, that continue killing fervently, with Texas leading the way.

The issue of paedophilia has been all over the news. From the confiscation of Bill Henson's art to the international horror at the discovery of Hans Fritzl's dungeon. Our obsession with sexual deviants is obvious, and our hatred of them makes for a sort of morbid fascination.

To even consider punishing this sort of crime with the death penalty shows just how much some legislatures in America have been influenced by the outcry of certain vocal public groups. I realise that a child rapist is someone who preys on the vulnerable, causes life long and irreparable damage to the victim and has a high tendency of reoffending, but to call for their death simply doesn't make sense.

These are cases where very often the strongest evidence will be the testimony of the child. Criminal trials are incredibly traumatic for victims to undertake in regular circumstances, and so for a child these must be horrific. Defense attorneys are requried to cross examine victims as diligently as possible, but with the utmost sensitivity and compassion. Imagine now that you are a defense attorney and your client's life is on the line depending on how effectively you cross examine this child. This issue was raised by a defense lawyer in Texas, who claimed that he would "rip the kids apart" and ensure that he was as brutal to the victim as the state of Texas was prepared to be to his client. At first this approach caught me off guard, but I realised it was more hyperbole than anything else. This defense lawyer is confronted with an impossible situation, his compassion for the suffering of a young girl, and his obligation to stop his client from being murdered.

Then there is the public humiliation of sex offenders. During my time in the U.S. I was amazed by the insensitivity with which child sex offenders were dealt with. There was a section in the newspaper where they were forced to announce any change in address, with a photo of their face and an announcement of the crime they were convicted of. The sort of ignorance, intolerance and hatred this must expose them to would be no doubt overwhelming. Having some form of rehabilitation or community support is exactly what people in this position need. Sadly, further isolation and persecution is likely to aggravate their problems and put them at greater danger of offending again, perhaps even more violently.

Rather than executing those in our society who fail to respect the rights of children, we should consider what can be done to help prevent this sort of behaviour from manifesting itself. This would not only go towards curbing recidivism, but also in preventing any initial crime from ever occuring.

Quote of the day:

"Society has erected the gallows at the end of the lane instead of guideposts and direction boards at the beginning."

- Edward George Bulwer-Lytton

In The News - June

June has seen some huge developments in the death penalty around the world, some welcome and some tragic.

Indonesia vowed to expedite the execution of drug smugglers. As a result of this call to push for the executions to be carried out, there were riots in Indonesia's maximum security prison. Prisoners are moved from Kerobokan to this island prison when their executions are pending. The riot was believed to have been caused by, or in sympathy for two Nigerian men who received their death warrants the day that the announcement was made to speed up executions.

The two men were shot 2 days later in a tragic conclusion to an incredibly tense week in Indonesian prisons. It's a chilling reminder that even though the appeals can last for years, the threat of death is very real, and handed down with cold blooded efficiency.

I don't need to spell out just how damaging this is to our Australians on death row in Indonesia. Only 3 of the Bali 9 are left on death row – Scott Rush, Andrew Chan and Myuran Sukumaran. The three of them are yet to lodge their judicial review appeals which proved successful for Chen, Norman and Nguyen.

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Perhaps the biggest news, but not so close to home, was the decision in Kennedy v. Louisiana by the Supreme Court of the United States.

The full judgment can be found here.

In Kennedy v. Louisiana the Supreme Court of the United States has ruled that the 8th Amendment of the Constitution (cruel and unusual punishment) prohibits executions for the crime of rape of a child under 13 in a 5/4 decision.

It has been widely criticised in America by both presidential candidates, McCain and Obama. Whether or not Obama is simply paying lip service to the death penalty in order to keep the conservatives on side is yet to be seen. The decision is seen to be judicial activism at its worst, with the majority finding that "developing standards" do not adhere to the ultimate punishment applying to non-fatal rape.

Alot of opinions I have read on the matter maintain that the elected representatives in Louisiana have been robbed of their right to represent the people of Louisiana by the subjective morals of five rogue justices. Interestingly, in all my time in New Orleans, Louisiana, most people I spoke to were entirely unaware that the death penalty applied to the crime of rape.

It is a challenging question; What severity of crime warrants the ultimate penalty? For an abolitionist, combating this question take some mental acrobatics. Comparing the suffering of different victims is always bound to raise objections. Many retentionists see this decision as a "green light" to paedophiles and a slap in the face to child rape victims, but it is just not that simple.

I'll save this question for my next blog entry. You'll have to forgive the lateness of this post, but after writing a 5000 word essay on the death penalty my creativity and passion was totally drained.

Monsters Like Us

I've touched quite a few times on my thoughts when it comes to the morality of human beings who commit horrendous acts. I don't believe in words like "evil" and "inhuman" simply because they imply that the action is beyond human capabilities and comprehension. I believe that for as long as we fail to recognise certain behaviours as inherently human, we fail to understand the causes and therefore we let down ourselves and those that we condemn.

I said in my first post that I wanted to develop my opinions on the death penalty through open discussion. After I wrote my blog entry on Josef Fritzl and the international hatred that was aimed at him, a few people (who I won't name) broached the subject with me in person. They disagreed, feeling that I was being insensitive to the feelings of those people who were truly affected by what happened. I think my initial response was that I have little sympathy for people who have only had their sensibilities affronted, and that people so willing to judge when their connection to the case is as fleeting as a few articles in the newspaper don't concern me at all. When it comes to the victims and their families, it is a different story all together. I can't possibly imagine the suffering that they are going through, and wouldn't suggest that I could quantify or rationalise that suffering.

When I was interviewed for my internship in the U.S. I was asked a question that took me a few days to realise the answer to:

There is a man who has been arrested for murder in the second degree and sentenced to life in prison. While incarcerated, he smuggles a gun into the prison and shoots a prison warden to death. He is sentenced to death for the crime and while on death row he fashions a knife and stabs another warden to death. How would you justify to the families of these 3 victims that this man doesn't deserve to die? Every day this man is a risk to the lives of people who are just getting up and going to work and trying to live their life.

The answer, I realised is that there is no answer. One of our most defining qualities as human beings are the values we have been brought up with. In a situation such as this, you do not justify your values to the families of those 3 victims. You show humility in the face of their suffering and you swallow your pride. You can't reason with that sort of anguish and nor should you try.

In that case, is it ever justifiable to engage in discussion about the morality of murderers and rapists?

I read an article in the A2 (The Age) on Saturday entited "Monster Like Us: Is evil knowable, or does morality demand that we deny its humanity?" by Maria Tumarkin, that examined this very question in the context of the Holocaust. The Holocaust was a crime that claimed up to 6 million souls, and has had such a wide impact, has touched so many lives directly, that perhaps it is wrong to examine it objectively and dispassionately. This post draws heavily from the article that appeared in The Age.

This article was of great interest to me, especially since I had studied the Holocaust in university and had written a few papers on whether or not "ordinary" Germans were capable of committing the atrocities or if they were inherently "evil" people.

I realised that this is an issue that has divided human thought and feeling for centuries. From Rousseau who believed that we must make "evil" intelligible, to Voltaire who stated that our morality demands that we don't.

Hannah Arendt is no doubt one of the most controversial figures on the subject of "moral relativism". She observed the trial of Eichmann, who was eventually hung by the state of Israel. She wrote on the "banality of evil":

"It is indeed my opinion now that evil is never radical, that it is only extreme, and that it possesses neither depth nor any demonic dimension. It can overgrow and lay waste the whole world precisely because it spreads like a fungus on the surface... That is its banality. Only the Good has depth and can be radical."

Opinions like this always spark angry reactions, labeling them as apologist, revisionist or trivialist. More so, how can someone who has never been even remotely close to such a tragedy comment on the nature of evil. The article quoted a poem written by Aushwitz survivor Charlotte Delbo that really struck me:

"O you who know / did you know that you can see your mother dead / and not shed a tear... / Did you know that suffering is limitless / that horror cannot be circumscribed / Did you know this / You who know."

It appears there are two reasons that challenge those who seek a human element to seemingly inhuman acts. There are those who would tell you that until you have experienced such suffering yourself you are not capable to speak of it. And others who threaten that to stare evil in the eye, shake its hand and treat it with equal consideration is not far from courting the devil itself.

Before reading this article my opinions were too absolute. I believed that nobody had a monopoly on suffering, that nobody had the right to consider another human being as inhuman or evil. The author, Maria Tumarkin made it quite clear that a battle rages inside of her head:

"And so the two voices in my head grow louder. There is no peace. Not even a prospect of ceasefire. Such blind foolishness fuelled by the self-congratulatory missionary zeal to insist that the darkness is knowable, always ready to yield meaning and to be illuminated. Such pig-headed denial of what makes us human to insist that the darkness is impenetrable, off-limits."

The possibility that arrogance is the driving factor behind delving into the unknown is an interesting point of view. Perhaps it is a denial of a natural human reaction to rationalise "evil" acts, and to do so is nothing but a "pig-headed" attempt to distance ourselves from our natural emotions. Much like Marlow, who "delved deeper and deeper into the heart of darkness" and experienced first hand "the horror" of the human condition, we are delving into elements of the human psyche which are impossible to rationalise or humanise.

What is the correct answer, the right approach? What I've realised is that there isn't one. But what is necessary is that the nature of humanity is always open for discussion and that absolutism only stifles the discourse. It is inherently human to consider the incomprehensibly cruel acts of others as inhuman, while at the same time it is inherently human to search for humanity when faced with seemingly limitless evil.

Quote of the day:

"I think the only answer is to look inside ourselves, not others. The Nazi, the Khmer Rouge, the Rwandan killer is a man who looks like us. That's my only conclusion."

-Francois Bizot

In The News - May

Two cases in the news over the past month have caught my eye and both of them are related in so far as they represent two polar issues surrounding the death penalty.

It's strange that both of these cases took place in Victoria, a state that hasn't utilised the death penalty in over 30 years.

I'll start with the first story, which occurred on 28 April 2007 when Leigh Robinson, 60, chased down Tracey Greenbury and shot her to death on her neighbours doorstep while she screamed for help. It sounds like something straight out of a horror film. There were many witnesses who observed the murder, and watched the man flee into a car and speed off. A statewide manhunt was conducted by police, and it wasn't until 30 April that he was finally apprehended.

What makes this relevant to the death penalty is Leigh Robinson's past. He was sentenced to hang after stabbing his 17 year old girlfriend to death with a carving knife in 1968. His sentence was commuted around the time when Victoria abolished the death penalty and so he was spared the noose. Newspapers claimed that Robinson had "escaped the gallows" and murdered again, painting a very clear picture that the government had failed in protecting us.

I don't need to emphasise the challenge this creates for anyone who doesn't believe in the death penalty. A man who does his time in prison, is released and then kills again. If he had been executed then Tracey Greenbury would still be alive and I can't dispute that. It's challenging to justify why this doesn't shake my opposition to capital punishment. I don't believe that the taking of a life creating the vague possibility that another life might be saved in the future is a justfication for an execution. It is akin to someone justifying a murder by saying that they've saved the life of an unknown person who could have been killed in the future by the person they murdered. Slightly rediculous and far fetched? I understand that Leigh Robinson had murdered before and therefore some would suggest that he was more likely to murder again, but there is simply no evidence that this was a probability. You can't kill people based on hunches.

The other side of the issue relates to the exoneration of Colin Campbell Ross after 86 years. Ross was executed in 1922 for allegedly murdering Alma Tirtschke. He was charged with luring the 12 year old girl into his bottle shop, raping her and killing her. Attorney-General Rob Hulls signed his exoneration on 27 May based on fresh DNA evidence, almost a century too late. The two families, that of the victim and the accused have suffered a great deal from both the cruel murder of Alma, and the unjust murder of Colin. An execution cannot be undone, and just like the murder which it seeks to avenge, has consequences that echo for lifetimes. The niece of Colin Ross described a shadow that had lifted from over her, and the stigma attached to be the descendant of a convicted child rapist and murderer.

Both of these stories, that of Leigh Robinson and Alma Tirtschke are undeniably tragic, and the consequences are irrevocable. However, no matter which way you look at it, no matter what your opinions are, one is a story of the government failing to protect its citizens, the other is a story of a government that murdered one of its citizens.

Defending the Indefensible

A question that I hear quite alot when it comes to criminal defense work is, "How do you rationalise defending someone who is very possibly guilty of whatever crime they are charged with?"

It's not a baffling example of cranial compartmentalisation that allows me to justify it, it's just a belief in the fundamental rules that apply to our criminal legal system.

Every one is innocent until proven guilty. This is quite a lofty fall back line and I would be quite naive if I said that this alone makes it easy to defend someone no mater how guilty they may be. What it does reinforce in my mind is that every body deserves their day in court and everything that this entails. There are prosecutors who, by their role alone are seeking to prove the accused guilty beyond reasonable doubt by any legal means available to them. It's for this reason that an equally vigorous and diligent defense should be provided to the accused. With the two sides presenting the most favourable of arguments to their conclusion of innocence or guilt, it is hoped that the jury can decide whether reasonable doubt exists or not. It goes further than this however, and involves keeping close scrutiny on the opposing sides conduct during the trial and ensuring that the accused exercises all of the rights that are available to them.

It might seem manipulative and callous to suggest to a man arrested by police as a suspect for murder to give no comment. I can understand that such advice seems to be perverting the course of justice, but the truth is, the justice is meant for a courtroom, and to make admissions to police upon arrest almost always makes things extremely difficult in the long run. It's not manipulative to exercise your right to silence, in fact it's prudent. In my brief experience with the criminal law, police have been known to use a laundry list of manipulative tactics to get a suspect to talk. They deprive the suspect of sleep, they badger the suspect with questions, threats and promises. The whole experience is exhausting and in such a high stress situation you might be end up saying anything. There have been times in my life where I have said something under far less pressure only for that poorly thought out comment to come back to haunt me.

This is why defense lawyers exist, to act as a dedicated and committed advocates in the interests of the accused when so much power and resources is weighted against their demise.

What amazes me is that this basic mechanic of our legal system still receives strong criticism. With the recent media frenzy regarding Josef Fritzl and his incestuous relationship with his daughter that he imprisoned in a dungeon, this criticism has reached international levels. The defense lawyer of Fritzl has suggested he will plead insanity if one of the two doctors who assess him find that he is mentally unable to stand trial. I don't find this at all unjust or despicable, but a basic right that is recognised on an international humanitarian level. Yet still people call for blood, the executions of both Fritzl and his attorney, Rudolf Mayer, on the basis that "any man who can defend such an evil monster deserves to join him on the gallows."

I've written before about the use of the word "evil" and the refusal to really understand the underlying causes that surround tragedies like these. So often it seems that people get carried away by their emotions and forget that someone like Fritzl is still human and deserves equal consideration before the law.

No matter how hard you squint your eyes, pull the blankets up above your head in fear, the boogeyman exists only in your imagination. There are no inhuman beings or incomprehensible acts. Beneath every human action there is a human thought or feeling. Some of these are failings as we are by no means perfect, but it is acknowledgeing these inherently human faults that is crucially important to any opposition to the death penalty. Everything is capable of being understood, we just need to look beneath the surface rather than casting stones.

Quote of the day:

"There is an explanation for every deed, for every criminal act."

- Rudolf Mayer

In The News - 16 April

There has been a huge amount of news during my silence. I'll start with the most recent and move on.

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Death Penalty Ruled Constitutional

Today the U.S. Supreme Court has ruled that lethal injection is constitutional and is not cruel and unusual punishment in the case of Baze v. Ress. 7 months ago a case was brought before the Supreme Court by two men sentenced to death in Kentucky. They claimed that lethal injection was cruel and unusual punishment because a) there was a good chance it may not be administered properly, and b) it paralyzes you so you have no way of expressing the pain you are suffering. The death penalty in all states was put on hold, pending this decision. I wrote an entry on it earlier this year. The decision was split 7-2.

The decision is unambigious and it is certainly disappointing. There can be no doubt that, at the very least, it has sparked debate and raised doubt. At the most, it spared some lives for a least a little while and gave defense attorneys much needed time. Perhaps it even gave some inmates the rare gift of hope, but I didn't discuss it with the men that I visited.

Interestingly, one of the majority Judges, Stevens, said in obiter:

''I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself''

The article states that a decision by the Supreme Court on the validity of the death penalty for child rapists is expected in June.

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Racial Discrimination in Jury Selection

A case that my office was working on has had a favourable outcome. An appeal to the U.S. Supreme Court was successful in overturning the conviction of Allen Snyder based on the prosecutor striking off black jurors unfairly. Jury selection is a notoriously exploited means through which a trial can be tipped in the favour of prosecution, especially against black defendants.

This is an incredibly powerful message to all American trial judges and prosecutors to conduct proper jury selection. It's a small step in the right direction for reforming a dangerously corruptible system.

Allen Snyder's case will go to retrial.

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Three of Bali Nine Spared Death

Three members of the Bali Nine have had their death sentences commuted to life. The "Melasti Three", Tan Duc Thanh Nguyen, Si Yi Chen and Matthew Norman, have successfully appealed against their death sentences that were upgraded from 20 years to death upon successful counter-appeal by the prosecution.

While Sukumaran and Chan, the two I have been working on, were appealing to the Constitional Court, these three made a direct appeal to the Supreme Court for a judicial review of their trial. There are 51 justices on the Supreme Court bench, and so the chances of getting a new batch of more favourable, less conservative judges was high.

It's a great success for Australia and the Bali Nine, however there are still three of on death row, Scott Rush, Myuran Sukumaran and Andrew Chan. As you can imagine, the fight for these three is energised and positive. Exactly what impact this decision will have on the future of the final three on death row is unknown. Due to my work with the lawyers and the sensitive nature of the case I won't be able to write in too much detail about what I know, or what is going to happen next. Needless to say, it's a busy and exciting time.

Reflections

You'll have to forgive my absence from writing anything at all. My internship with Reprieve finished in late February and since then I was travelling through Central America and only returned home a few days ago.

I wanted to reflect just briefly about my time in New Orleans. Here are some of the questions I'm asked most frequently. I'd be happy to answer any other questions, just post a comment to this.

Is New Orleans recovering from the hurricane?

In some ways yes, in others, no. For most of my time there, I stayed mostly in the Downtown, French Quarter, Marigny area which was fairly untouched by the hurricane (the odd street sign is missing). On my last day, however, I visited the 9th Ward which was still totally destroyed beyond anything I could have imagined. The reason is simple, the people who lived here are simply too poor to relocate back home and rebuild. By comparison the more affluent suburbs who were hit equally as devastatingly, are recovering quickly, with houses being built, and many of the houses still standing (due to stronger structures). Many of these houses are being built on stilts.

What is your most memorable moment?

All of my visits to Angola State Penitentiary. Every trip up there was eye opening and humbling. I would recommend to anyone who feels passionate about the abolition of the death penalty the get in contact with a death row inmate. Communicating with them in genuine good will is one of the kindest things you could possibly give them. They have only other prisoners and guards to talk to much of the time, and so an outside perspective, a fresh voice, helps them persevere more than you could possibly know. Reprieve offer a penpal program, click here. There are also numerous websites where inmates on death row can advertise themselves as pen pals. Unfortunately, this is often abused by relgious fanatics and crazy women who want to dote on a helpless human being. Don't write to these men with pity in your heart, just compassion.

What was your biggest disappointment?

Not being let into a jury members house. We conducted jury interviews which is an attempt to find some sort of jury misconduct in a trial. We ask them questions to try and ascertain if they, or any one else did anything that is not prohibited during deliberation. I went to the houses of 2 jurors, and both of them told us to go away, that they didn't want to talk to us. My other colleagues had more success, finding evidence of misconduct. It would have been a great experience to have interviewed a juror, but no such luck.

What was your most moving experience?

Interviewing the grandmother of an accused. As we spoke to her about her grandson's upcoming trial, I remember the sheer absurdity that seemed to accompany a fairly placid conversation regarding the murder of this 19 year old boy. Talking to someone about the the future execution of a family member as if it was simply an everyday thing was incredibly confronting. Photos of the boy lined her wall just like you'd expect in any grandmother's house, especially mine. No one should have to go through this.

What was it like meeting people on death row?

Nothing like what I expected. They were funny, friendly, optimistic, remorseful and contemplative. I was not expecting to meet crazies but I was expecting them to be far more subdued. I, personally, couldn't imagine functioning coherently with the constant thought of impending execution upon me every day. Death Rown Syndrome is a recognised mental illness that is caused by the isolation of the prison cell and, no doubt, the constant fear they endure. Making conversation with a man who is limited to a cell 23 hours a day, and a courtyard for the other hour was a challenge, but a good experience. The obvious questions that we all learn as social etiquette on how to make polite conversation doesn't apply. It was challenging, and they were naturally apprehensive when they met me, but they opened up after a little while. I still keep in touch with one of them.

What shocked you most about the Louisiana legal system?

There is a man in Louisiana who has been incarcerated for 6 years without trial. The constitutional maximum is 2 years. How this is possible is beyond me. The reason for the delay is because the parish does not have the money to give him a capital trial, so they delay until they have the money. This is the same parish that apparently has satanic cults roaming around, run by the son of the sheriff. Scary? This son is also implicated in numerous murders. He apparently offers poor people large sums of money to off certain people. I was more than a little anxious while I was there.

Did you save anyone's life?

No. It's a long and arduous process. Often the greatest development is simply a retrial, which then takes months to complete.

What now?

I'm returning to work with Julian McMahon in defense of the Bali 9, hopefully staying involved with Reprieve and writing a 5000 word essay on the death penalty. My topic will be on sentencing child rapists to death and the implications of non-fatal crimes being punishable by death.

(A little quote sent to me by Arthi. Thanks for reading!)
Quote of the day:

"There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest"

- Elie Wiesel