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

In The News - 31 January

Just Punishment was screened at the HRAFF earlier this month. It's now being screened around Australia and will hopefully be aired around Asia over the coming years.

It's an amazingly moving story about the reformation of Van Nguyen on death row in Singapore. It was filmed over 2 years, following the lives of those close to him, and his own life through a diary he kept while incarcerated.

See the trailer here.

The Politics of Life and Death

It always seems like the death penalty is an issue that politicians use for their own political advantage. The politics of life and death can twist the real questions surrounding capital punishment into an aberration.

The best example at the moment is the question of the "constituionality" of the death penalty. The "three drug cocktail" debate that is before the U.S. Supreme Court is utterly surreal. First of all, an anesthetic is administered into the body, followed by pancuronium bromide and potassium chloride. The former paralyzing all the muscles in the body and the latter causing cardiac arrest. The real issue that is before the Supreme Court is the possiblity of the anesthetic being administered incorrectly, followed by the condemned man suffering an excruciating death, trapped within his own body that is incapable of expressing the agony they are experiencing. Imagine waking up during open heart surgery, but unable to move or communicate that you are able feel your body being torn open. The possiblity of the anesthetic being incorrectly administered is all too real, especially when the hypocratic oath forbids real physicians from being present. I know very little about anesthetics, but I do know that being an anesthetist is almost as specialised and complex as being a surgeon, and the intricacies of putting a person "under" is somewhat of an art form.

The purpose behind a drug that paralyzes the muscles is to make the death easier for the community to swallow. A politician won't be able to sell to the public a form of execution that leaves the victim convulsing wildly on the table. Essentially, it's for our good that they are being stopped from expressing any signs of pain or agony. Justice Stevens recognised this,

“I’m terribly troubled by the fact that the second drug is what seems to cause all the risk of excruciating pain and seems to be almost totally unnecessary.”

It may seem that arguing about the constitutionality of lethal injection is conceding the legitimacy of the death penalty. I believe that arguing about humane murder is an exercise in futility, yet it does serve a valuable purpose. With every day that passes without an execution, the condemned are given a reprieve, the system loses momentum and opposition to the death penalty must inevitably grow from this. Take away the constant stream of executions and more and more people will lose the taste for it.

The death penalty is, of course, going to be a strong issue during the U.S. election this year, and I was disappointed to hear that all the Democratic candidates are pro-death. It almost seems like a political necessity to avoid appearing soft on crime.

Back home we have a similar problem with the Rudd government stating that “The Australian Government will intervene to oppose the death penalty only in the case of Australian citizens.” The words "intervene" suggests different emphasis than the Howard government which stated quite clearly that "I find it impossible … to argue that those executions should not take place when they have murdered my fellow countrymen and women." The difference in approach is in the nationality, rather than the nature of the crime. What I'm trying to say is, it's rational to say that Australia will not use forceful negotiation to save the lives of non-Australians on death row in other countries. It makes sense to me that a nation has no place to "intervene" in the autonomy of another nations democratic processes unless it threatens the lives of that former countries nationals. Voting at the United Nations for a worldwide moratorium on the death penalty tells me that the Rudd government is pushing for a world free of state executions.

Even though Australia won't intervene in the executions of the Bali Bombers, it shouldn't support them through silent approval. There is a thin line between refusing to "intervene" and condoning something. An official government policy that states that Australia does not support executions has just been made to the U.N., so why can't we say the same thing to Indonesia? It's not "intervention" to simply state our stance on a matter.

And then that contradictory, racist and political head rears itself. Mr. Rudd will never intervene to save the lives of a terrorist. What about an Australian terrorist? Is this why David Hicks spent 6 years in an illegal prison without trial, because he was a terrorist? What if David Hicks was facing a firing squad in America after being found guilty of terrorist acts? I call this view contradictory because to say we will never condone the executions of Australians, but never save the lives of terrorists creates a huge logical gap. I call it racist because it suggests that terrorists only come from elsewhere, and that it's not possible that they could originate from "white" Australia. Right now Kevin Rudd's approach on the death penalty is purely political. He's playing the game, pandering to what we want to hear, but he's talking himself in circles.

So why does politics always breed the wrong focus on the issues behind capital punishment? The rhetoric that is used by politicians when they talk about the death of other human beings simply creates static around the issue. So many people have no idea that executions in America are on hold. So many people in Louisiana have no idea that the rape of a child attracts the death penalty. Why are so many Americans disinformed or disinterested in the process? It almost seems like state killing is a political toy born of ignorance and fear. I know that I can't change the fact that politics is mercurical and pragmatic by nature, but if I had my way I'd make those politicians a little bit more aware of just what their gambling with.

Quote of the day:

"How many deaths will it take till he knows that too many people have died?"

-Bob Dylan

It's Always Darkest Before Dawn

The sayings usually go, an eye for an eye or a life for a life and from one perspective it seems entirely fair and just, but from another it seems hypocritical and shallow. The situation in America with regards to the death penalty is like a tale of two cities, it's the best of times and it's the worst of times, no matter what point of view you hold.

On the one hand, as I wrote about in my last entry, there seems to be a growing distaste for capital punishment as a form of justice with New Jersey being the first American state to abolish it in 27 years. It goes further with the United States Supreme Court currently considering the constitutionality of lethal injection. In the unlikely event that it will be found too cruel a form of execution, I can only wonder at what possible alternative they could dream up. Whatever the case, the nation is taking note of the Court's pending decision.

The same is also occurring, however, on the opposite side of the coin. Since the death penalty was reinstated by the Supreme Court in 1976 no one has been executed for a crime that was anything less than a homicide. In Coker v Georgia it was ruled by the Supreme Court that the rape of an adult woman could not attract the death sentence because it was not proportionate to the crime. The case failed to address any other offences which were not grievous enough to attract the death penalty, but it would be necessary in the future to show that it is a worse crime than rape.

In 1995 Louisiana enacted a statute under which it was a capital offence to rape a child under the age of 12. This decision effectively found that the rape of a young child could destroy the life of a child and therefore was equally as morally corrupt as murder. The practice of comparing suffering is always dangerous ground, especially something as volatile as rape. The vulnerability of the child is the key issue, and in other states these laws include the rape of elderly persons. A handful of American states have variations, such as the execution of repeat offenders, however the basic premise remains the same, the execution of people who have not committed a crime of homicide.

Two men now sit on death row in Louisiana, Patrick Kennedy being the first to be convicted of the rape of an 8 year old girl, and the second convicted only a month ago.

Personally, I find it difficult to see murder as more deserving of the death penalty than rape, and it seems unhelpful to discuss degrees of what qualifies more for a death sentence when I believe that nothing fulfills such a standard. However, there can be no doubt that an extension of death penalty beyond normal social standards is worrying. Much like the cases of Atkins and Roper, where the executions of mentally disabled and juveniles was found unconstitutional by the U.S. Supreme Court, the case of Patrick Kennedy raises similar questions.

Indeed, Patrick Kennedy has been granted Cert to appeal to the U.S. Supreme Court. If precedent prevails, the question will be approached in the same manner which it was in Atkins and Roper, where the court looked at the national consensus, jury considerations and international trends. There can be no doubt that the vast majority of the country does not feel that child rape warrants execution, and internationally the same standard would seem to prevail. The decision will have far reaching effects whatever way it goes. It could spell the end of executions for non-homicide crimes with the court deciding to set a standard rather than just restricting themselves to the facts of the case at hand. There are still far more hurdles to overcome however.

Child sex offenders are easy targets, they often suffer from psycho-sexual disorders and without the right support are likely to reoffend. I was reading the Times-Picayune the other day and turned to the announcements section. Under the Legal Notices there were the photos of about 8 men, all sex offenders, all forced by law to announce their prior convictions when moving address. That is one way to ensure that a sex offender is unable to reoffend, however it certainly doesn't offer them any sort of social support, infact it likely serves to vilify them and make them victim to hate crimes within their neighbourhood. I'm not saying that communities shouldn't be made aware of when sex offenders move into their area, but it should be done in a way that will discourage any sort of vilification.

The movie Little Children focuses ever so slightly on a man who is harassed by his neighbours for revealing himself to some children. Without spoiling the film, the result of his constant vilification and total lack of social support has serious consequences for both him and his family.

The step towards the execution of child rapists almost seems to draw from the Stalin-esque concept of "No man, no problem." This approach is based on the likelihood of the person reoffending, and so, by simply removing them from existence there is no fear of another child being harmed. This cold and callous approach is indicative of the extent of respect and support that such people receive from a system which fails to rehabilitate them. Either a community can attempt to help these people or they can kill them off.

For me, the right direction seems obvious, but the right answer more clouded. I don't know the most effective systems or methods of support to offer child sex offenders, but I do know the first step is to treat them like human beings.

Quote of the day:

“The guilty one is not the who commits the sin, but the one who causes the darkness.”

- Victor Hugo

In The News - 17 December

This morning the Governer of New Jersey signed a bill that would repeal the death penalty. 8 men on death row will have their sentences commuted to life without parole. This is a pretty big deal in a country where no state has abolished capital punishment in 3 decades. It also comes at a time when the Supreme Court is considering whether or not lethal injection is cruel or unusual punishment.

I can only hope that some sort of domino effect results from one state taking some positive action. Apparently alot of states are seriously discussing it, but down South they are sentencing people to death like it's nobody's business. Infact, just on Wednesday last week the second man ever in Louisiana was sentenced to death for aggravated rape in Shreveport. Aggravated rape in Louisiana is the rape of a person under 12.

In news back home, K-Rudd seems to have made it pretty clear that he intends to push strongly for the sentences imposed on the Bali 6 to be commuted.

Perhaps the most imporant news, it's about 5 degrees outside and I don't have a bloody jacket because I decided to "pack light". I'm a fool who thinks he is immune to the cold, even my sleeping bag is about as thick as a bed sheet.

The Dearly Departed

It's easy to get romantic about our life experiences, to look at things through from a sort of rose coloured nostalgic perspective. Throughout our lives we no doubt have a wealth of memorable moments, but there are of course many that we won't have a chance to experience. What is life if not a string of moments, one after another. Living life is about having experiences, the good along with the bad.

I visited three men on Death Row yesterday at Angola prison but that's not where my story begins.

When I arrived home late from work on Thursday night I found all of my neighbours gathered in the courtyard having dinner. They told me that they planned to watch "Dead Man Walking" that night, a movie that is arguably the most renowned cinematic representation of "southern hospitality". So many times I've walked in to Blockbuster with every intention of renting the movie, only to be distracted by "Blades of Glory" as a new release, or some other Hollywood flick which promises a much more upbeat evening. What are the chances that the day before my journey out to Angola a group of people I live with will decide to watch that very movie, a total coincidence. I had to get up at 6am Friday morning but I decided to make a date with destiny and just watch it.

For obvious reasons I can't write about the names or the details of the conversations that I had with those three men, but I will write about the effect that it had on me. Angola sits on the border of Mississippi and Louisiana and is one of the biggest state prisons in America. It's not what you'd expect if you just arrived there out of the blue. It's a giant chunk of land with farms and animals on one side, and on the other concrete buildings, high fences and row upon row of razor wire. It takes nearly 1o minutes to drive from one end of the prison to the row, which sits right at the end of the facility.

The rooms in which you sit are a little bigger than a telephone booth. Thick plate glass separates you from them and a phone exists as your link of communication. When you first enter the room you're alone for awhile as the guards retrieve the man from his quarters. The glass is so dense you can see your reflection in it as you wait. Your own image sits, staring back at you, perfectly in line with the empty chair on the other side. At this moment I was hit with the most overwhelming feeling of isolation. How easily I could be sitting in that chair on the other side. How incomprehensible it is that an inch of glass can distinguish the living from those condemned to die. The feeling of helplessness is difficult to deal with when it's just sympathetic, and so it is impossible to imagine how it must feel when it is the cold reality you wake up to every morning.

This is a life experience I hope to never have to live through, but it is certainly one that I can't help but wish I could understand. A strange respect and deference grows from this sort of inability to comprehend. They must be incredibly brave to keep pushing forward every day when others are working hard to kill them. It's so easy to admire someone for what they have endured in their life. The stress and anxiety that is created when you live everyday with the thought that there are people who hate you and want to kill you is something we appreciate in our ANZACS, both dead and living. We revere them for sacrificing their peace and safety for turmoil and violence. We vow every year, lest we forget, that their sacrifices were not in vain nor will they ever go unappreciated. Our Diggers are respected for what they accomplished, but more importantly, they are considered heroes for what they endured.

There is a fine line between respecting peoples sacrifices, and glorifying warfare. The same goes for these men on the row, after all they are men who endure the threat and fear of death every moment of their lives. Are they heroes too? It's easy to get romantic, to get carried away with the injustice of it all and to treat them like heroes. They aren't heroes, nor are they martyrs. It's unhelpful to take the bleeding heart approach and treat them like helpless victims, and god forbid pity them. I hate that word, pity.

It's easy to justify why I would fight for the life of someone on Death Row, but it's hard to stop yourself from putting them up on a pedestal. It's hard to fight for the rights of people who did not respect the rights of others. It's hard to believe that the person sitting across from you murdered someone. It's even harder to believe that someone intends to murder them in the future. I didn't look up the crimes committed by the men I visited because I didn't feel like it should matter. I wanted to treat them with the respect and dignity I'd give anyone else. Their punishment lies in the arresting of their liberties, not in being treated like something less than human. At the same time I have to always remember how important it is that these people be held responsible for their actions. It's difficult to give your heart and mind to a cause which demands that you curb your compassion at the same time.

In "Dead Man Walking", Helen Prejean, a nun living in New Orleans, battles against the values and expectations of those around her. Matthew Poncelet is a man convicted of double murder and sentenced to death, but still professing his innocence. The movie depicted the struggle of her urge to save the mans life with the fact that he was entirely unrepentant. It's hard not to feel a great deal of sympathy for a man who says with great conviction that he is innocent. The movie tricks you into believing fully in Poncelet's innocence by showing the moment of the crime in a flashback, with another man committing the murder. But the message in the film isn't that the Death Penalty is horrible because it could possibly execute an innocent person, that doesn't go nearly far enough. Moments before his execution he admits to the murder and it's as if the director has pulled the supports out from under you. The movie is no longer about innocence or guilt, but life or death. The viewer is forced to watch the execution of a guilty man, but a man nevertheless. The scene of his execution is cut intermittently with the true version of events during the crime, which confirm that he did indeed commit the murder. The message seems, at least to me, to be that no man deserves to die, but that such compassion or sympathy should never forget or forgive the crimes that they committed.

The experience of meeting those men on Death Row was incredibly challenging and confronting and something I would struggle to forget. They spoke about their experiences with the sort careful consideration that we so rarely afford ourselves in our modern, hectic lives. I'll finish this post off with the words of one of the guys I spoke with. It's not the last time I'll speak to them, and it's certainly not the last time I'll walk away from that prison feeling absolutely humbled.

Quote of the day:

"We're not monsters. We're just people, people who have made really stupid choices but people nevertheless. No-one can take that away from us."