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Monday, April 16, 2012

Some (Lots of) Thoughts on the Death Penalty: Or Why Does My Government Still Kill its Own Citizens? Part 1 of 2.

I spoke recently to a high school friend I hadn’t talked to in several years and he politely chided me for, as he perceives it, my abandoning of various activist and human rights causes in favor of Yiddish related activities.  Whereas I’m known today primarily for Yiddish related things, in high-school I was mostly associated with various political causes, most especially efforts to abolish the death penalty in the USA and around the world.  I not only was constantly organizing things related to death-penalty abolition, but also had an encyclopaedic knowledge of the history of the institution in the US and around the world which led at least two different people to refer to me regularly as “Mr. Death Penalty.”  While as an activist I was mostly focused on current laws, as a cultural historian of sorts I was fascinated by how the death penalty was perceived in different societies and how changes in these perceptions led (or didn’t lead) to it being ended.  I also was fascinated by the role of the death penalty in folklore and maintained an encyclopaedic database in my head of historical death penalty related milestones.  Among such milestones were famous cases of people executed and later found to be innocent, important media portrayals of the death penalty, changes in which crimes a person could be hung for and which year they would have been alternatively hung, gassed, guillotined or shot and why the relevant government had decided to switch methods when it did.    

While Yiddish related cultural work makes up more of my day than I would have ever imaged it would and it’s certainly what I’m most known for now, I never stopped being involved with anti-death penalty work.  And although I can no longer recite facts and figures in the same way that I can no longer tell you off the top of my head what Josh Gibson’s batting average in Negro League All Star Games was (I really would have known that when I was 13), like with the Negro Leagues I still retain an extremely detailed and nuanced knowledge of the related socio-cultural history.  As far as activism, I still sign and distribute petitions and run Facebook groups but I’ve found that in most cases I’m more effective at influencing people one on one as an individual in conversations when they arise than as a member of an activist group.  And although I usually elucidate my thoughts on complicated topics (both to myself and to others) through writing; with the death penalty I have so many opinions tangled in webs of emotions and anecdotes that I have a much harder time writing a coherent argument about one aspect of the related debate(s) than on any other topic.  It would be easier for me to write 50,000 words about the death penalty than to write 500 and for that reason I’ve found that I’ve written nothing about it on my blog at all.  If I wanted to write something from an international human rights perspective, I’d somehow get caught on the little known fact that (in America at least) it’s far more expensive to execute a person than to keep them in prison for their entire life.  If I wanted to explain why I see an inherent moral failing in killing a person to prove that killing is wrong, I’d stumble into showing that many people sentenced to die in my country in the past 30 years have been later shown to be innocent, which is of course completely irrelevant to the broader point about the morality of killing someone to show that killing is wrong.  If I were to successfully write something about my own experiences as an anti-death penalty activist, it would take away from the accounts of the thousands of people who are doing a lot more than I am.   And in any case, there are dozens of important books on the death-penalty and nothing I contribute would be that earth-shattering.  

Even so, after learning that at least one person was upset that I had appeared to abandon the cause I felt that it was important that I write something about the death penalty on my blog.  So here are, in semi-chronological order, some death-penalty related facts and cases interspersed with some of my personal commentary. I’ll try to weave these into a series of broader points at the end of the post.  

The Execution of Timothy Evans and the Abolishment of Capital Punishment in the UK

Like all European countries other than Belarus there is no capital punishment in the United Kingdom.  This is particularly noteworthy when you consider that just a century and a half ago Britain executed more people per capita for more crimes than any other country by a factor estimated by the British Parliament itself as being nearly 3 to 1 above its nearest competition, the USA.   Known as the “bloody code,” a series of laws enacted in the 17th century to protect the newly emergent urban middle-class in England imposed the death penalty for 220 distinct crimes including;"being in the company of Gypsies for one month", "strong evidence of malice in a child aged 7–14 years of age" and "blacking the face or using a disguise whilst committing a crime.”  

Many British social campaigners in the 18th and 19th century were mortified by their country’s penchant for hanging young children for minor crimes such as pick-pocketing.  Although executing pick-pockets was banned in 1808, execution for other non-violent crimes remained the norm for many years after that.  

When I gave a lecture about the history of the death penalty in England and Ireland to a group of middle-school aged students as a guest-teacher at a Jewish Sunday school I highlighted one of several well-known English and Irish ballads which feature a man waiting at the gallows for his lover (or in some versions his father) to bring bail-money to have him released.  Almost always the lover arrives but without bail money, forcing the condemned man to watch his fiancée weep as he is led to the gallows.  The children were confused about why someone would either be executed or released on bail because in the US someone eligible to be executed is either executed or remains in prison for the rest of their natural life.  But for several centuries in the UK the options were generally either pay bail money or be executed.  Of course, if the crime was severe enough to begin with the person would be executed no matter what.

The idea of incarcerating people rather than executing them began to become popular in the UK in the 1830s and with it came a gradual reduction in the number of crimes people were hung for.  By the 1950s Britain only executed its citizens for murder and treason.  Although the British were no longer executing young children for stealing wallets or having “malicious characters” at seven years of age, the death penalty remained a well-respected institution in the UK and enjoyed broad public support.  That support eroded dramatically after the revelation that several men who had recently been executed had actually been innocent.  The most famous of these men was the Welshman Timothy Evans who was put on trial for the murder of his wife and daughter on January 11th 1950 in London, convicted after the jury deliberated for forty minutes in February and hung on March 9th of that same year.  He was just 25 years old.  Here is the now-iconic photo of the stunned Evans being arrested for the murder of his wife and child: 

The case would have probably been quickly forgotten had the man who actually butchered Evan’s family not gone on to become one of Britain’s most notorious serial-killers.  After being arrested for other crimes, John Christie confessed to having killed Beyrl Evans and by extension, her husband Timothy.  The British government granted Timothy Evans a posthumous pardon in 1966.   

The case garnered worldwide attention for several reasons.  The profound level of police incompetence (not noticing other bodies in the same yard where Timothy’s wife was found or a pattern of missing women in the immediate neighborhood and ignoring the serial killer who Timothy Evans correctly fingered for the crime) convinced many that being convicted of murder was not a guarantee of a person’s actual guilt.  Additionally, the fact that a young man suffered the loss of his wife and daughter and then died with the whole country blaming him for their deaths struck the public as being doubly cruel and Kafkaesque.  The case spawned a bestselling book and inspired Ewan McColl to write the ballad of Tim Evans which is probably the most well-known anti death-penalty song in the English language.  Here is Judy Collin’s version accompanied by Pete Seeger:
Paddy Reilly’s wonderful rendition is also worth hearing because he and Collins both sing verses that the other omits.  The detail in Reily’s version that the “screws” (prison guards) distracted Evans by playing draughts (checkers) with him so that he wouldn’t “brood upon the rope that would be his doom” is true.  Two of the guards in fact took a liking to Evans and tried to keep him from slipping into a depression so that he could focus on his final appeal.  The appeal would end up being denied within two weeks of being filed. 
     The Canadian Timothy Evans:  

The Canadian Timothy Evans, the man whose case is often cited as having led (in part) to the abandonment of capital punishment in Canada is thankfully still living.  Steven Truscott was just fourteen years old when on September 30th of 1959 he was convicted of murdering a girl.  His execution date was set for December 8th, giving Steven just over two months to live.  A picture of the boy in a magazine highlighting his youth (he looked young for his age) as well as the intervention of Canadian civil-society gave Steven an unexpected temporary reprieve so that he could launch an unusual last-ditch appeal which was not required by Canadian law.  Steven’s execution date was rescheduled for February 16th to allow for the appeal (which would be denied) but in the middle of January, amid growing public outrage and a well run publicity campaign headed by his mother a judge decided to spare Steven’s life.  This would not, however, be the end of the case.  Steven it turned out was innocent and although he won over much of the Canadian public in the 1960s it would take him 48 years to clear his name and be legally exonerated.  
Although the death penalty would not be abolished in Canada until 1976, not a single person was executed in the country after the rise of the anti-death penalty movement of the mid-1960s sparked in large part by the Truscott case.  Had Truscott been executed in December of 1960 as planned, the truth of his innocence would have almost certainly died with him and it’s not a stretch to imagine that without the negative publicity associated with his case that the death penalty would have continued in Canada unabated for another decade or two.   

Why have the American Timothy Evanses been ignored?  

All of this raises the question, why have there been no American Timothy Evanses or Steven Truscotts?  The sad truth is that there have been. In fact, 141 people have been exonerated from death row since the resumption of the death-penalty in 1976 and the last one was released only in October of last year. It’s just that the innocent people exonerated from death row are usually ignored by the American media and the public at large.  Since there have been so many cases in the USA that would have ended the death-penalty in other countries like the Evans case led (in part) to its abolition in the UK, I can only mention a few of them.  

If 1950s America had had a heart, George Stinney’s case  may have ended the death penalty or at least the death penalty in America for children.  But George Stinney was a black boy in the segregated state of South Carolina who had been convicted of murdering two white girls.  Never mind that like Truscott, Stinney was only 14 years old.  Never mind that Stinney was five foot one and weighed a mere 90 pounds, making him too small to have actually committed the murders for which he was accused.  On a single day in April of 1944 a jury was selected, a trial was held and by nightfall, after ten minutes of jury deliberation, George had been sentenced to die.
A mere two months later on June 16th George walked into the execution chamber holding a bible under his arm.  He was too small to be properly secured into the electric chair and as a result when the electric charge surged his small body convulsed violently and the ill-fitting mask covering his face that had been designed for an adult slipped off, giving witnesses a rare glimpse of the eyes of someone being electrocuted.  George Stinney would be dead within four minutes.  The dictionaries that had been placed underneath him as a booster so that his head could reach the electrodes were removed.  The books were noted to be warm to the touch.  Stinney’s bible was presented to the next condemned man so that he would focus on redeeming his soul before being cooked alive and the case was (and continues to be) largely forgotten.  An effort to change that was recently led by several lawyers in South Carolina who tried to earn Stinney a pardon by arguing that his confession was coerced and producing witnesses who placed him with his family at the time of the murders.  Here is a news report on the renewed interest in the case. 
The effort would eventually stall due to a lack of new evidence as any physical evidence that may have existed has long since been discarded. 

When I talk to someone who is in favor of the death-penalty and mention George Stinney they usually get annoyed with me.  They hear “black boy”, “south Carolina”, and “1944” and without knowing anything further usually agree with me that it was probably a miscarriage of justice and tell me that it is irrelevant since innocent people are no longer executed in America.  When I respond with the names of a dozen different people who were executed since 2000 whom I believe were likely innocent they get annoyed and ask me who the last person who was definitely innocent to have been executed was.  Although the last person to receive a posthumous exoneration after having been executed in the USA (i.e. according to the law she is now considered innocent, with the government saying she acted in self-defense) was Lena Baker who was executed in 1945 and exonerated in 2005, the last person who I’m absolutely certain was killed for a crime he didn’t commit was Jesse Tafero. Tafero’s case, as portrayed in this 2006 Guardian article, is an unimaginable nightmare.  In short, a common-law married couple traveling with their children got a ride from an acquaintance as part of a road-trip through Florida where the three adults, ex-cons who were hard on their luck, were looking for work off the books as farm-laborers or construction workers when they were stopped by the police.  The man they were traveling with, Walter Rhodes, had outstanding warrants and when the two officers found this out he shot them dead and kidnapped Jesse Tafero, his wife Sonia Jacobs and their children and drove them away in the police car.  After being caught Rhodes struck a deal with prosecutors and in exchange for a lighter sentence (life with the possibility of parole) blamed the crime on Jesse and Sonia. Both were subsequently convicted and sentenced to die by electrocution.  The couple communicated by letters and tried to continue to play a role in their children’s lives.  They were effectively severed from their children, however, when Sonia’s parents who had custody of the kids were killed in a plane crash. Another decade went by and on May 4th 1990, Jesse Tafero entered the death-chamber and was strapped into the electric chair.  What happened next remains a matter of extreme controversy and notoriety.  In short, without going into too many of the gruesome details, the execution was bungled and Trafero caught on fire as the machine malfunctioned and it took an astounding 13 and a half minutes for him to die. Fellow prisoners allege that “Old Sparky” had been tampered with in order to inflict maximum carnage.  Upon hearing of how her father was killed, Trafero’s 15 year old daughter attempted suicide.  

The notoriety of Trafero’s fiery-end brought additional attention to his initial conviction and lawyers trying to free Sonia Jacobs discovered that the actual killer had repeatedly confessed to being solely guilty for the crime as early as 1982 but that his confessions had been withheld by prosecutors.  In 1993, after 17 years in solitary confinement, Sonia Jacobs was granted another trial.  The state of Florida, not willing to risk losing in court and therefore being legally responsible for damages that it would have had to pay her, agreed to release Jacobs on an Alford plea The Alford plea, also known informally as the “I’m guilty but I didn’t do it” plea is a bizarre legal procedure by which a person can admit that they would probably be found guilty of a crime but maintain that they are innocent even though they are technically pleading guilty.  While it is usually used as a way to get someone to confess to a lesser charge in exchange for a lighter sentence (often manslaughter instead of murder), it is used most notoriously when a state has decided that someone is innocent of a crime and wants to release them but cannot afford to admit that a miscarriage of justice has occurred.  In this strange instance of a state covering its rear, the state maintains that the person is guilty but that it is in “the public interest” for the case not to go to trial and for the convict to be released.  In reality of course, no prosecutor would ever release a prisoner he or she felt had actually committed a murder so in effect it is a “wink-wink nod-nod” way to exonerate a person without actually clearing them of the crime.  This was the same legal procedure that allowed another famous innocent man on death row, Damien Echols, alongside his two fellow members of the West Memphis Three to walk free in 2011 after having served 18 years in jail for a crime he did not commit. 

Since the state of Florida released Sonia Jacobs from prison, something that would not have happened had prosecutors not come to believe in her innocence, and seeing as Sonia Jacobs was convicted of the same crime with the same evidence used to convict Jesse Tafero, I’m entirely convinced of Tafero’s innocence.  As such he is the last person executed in America who I can say with absolute certainty that he was innocent.  There are, as I mentioned previously, a dozen others that have been killed in recent years whom I believe were very likely to have been innocent.  

Like most cases of wrongful conviction for murder in the USA, the victims of this miscarriage of justice were not saints but rather career criminals.  Sympathetic portrayals of Sonia Jacobs describe her as a hippy while unsympathetic portrayals portray her as a drug-dealer and occasional prostitute while Jesse Tafero himself is usually described as a violent felon but is also sometimes described as a loving and devoted father.  All of these things are probably true.  Tafero was convicted of several armed robberies, admitted his guilt and served seven years in prison.  Tafero was also convicted of rape in 1967, something which he made a point of denying repeatedly even as he filed appeals in his many failed attempts to clear his name of the murder charge for which he would be executed.  Tafero once stated that he stole property and threatened people to do so but that he would never hurt anyone.  Life is not all black and white and just because Sonia Jacobs and Jesse Tafero were criminals does not mean they ever killed someone.  Jesse Tafero certainly never killed the men for whose death he was executed.  Here is an interview with Sonia Jacobs and her new husband Peter Pringle, an Irishman who was exonerated from death row whom she met through anti-death penalty activism.

Both are stunning, charming people and they were introduced by Steve Earle, who I cover in detail below.  
Many, and in some polls, most supporters of the death-penalty note that they would not support capital punishment if an innocent person were shown to have been executed.  When I mention Tafero’s case and the fact that it didn’t end the death penalty in America, such people mention that the execution took place 23 years ago.  When I mention the case of Ruben Cantu who was convicted of a crime he almost certainly did not commit when he was only seventeen years old and executed three years after Tafero as covered in this stunning article from the Houston Chronicle they note that such mistakes could not happen today because the Cantu case took place before the widespread use of DNA testing.  What this unfortunately false belief fails to consider is that as covered in this stunning documentary from Australian TV, defendants in death-row cases do not receive adequate legal counsel or the right to test materials from the crime scene unless they can hire a good lawyer and pay for such testing. While states have a very large budget to try people in capital cases and can test and retest evidence as they please, most defendants who get the death penalty in America are represented by lawyers whose salaries are paid by parking tickets and who are assigned to defendants by the very judges who are responsible for trying their cases. And even if DNA evidence is available defendants rarely have access to it unless the state finds that it proves their guilt.  The restrained but ever present tone of mild outrage and horror expressed by the filmmakers in this documentary reflects how much of the world sees the death penalty in America.

As the film notes, there is a joke that capital punishment is so-named because those without capital get the punishment.  And although issues of race are not covered in detail in this excerpt, it must be noted in any discussion of capital punishment in America that African-Americans make up a stunningly high and disproportionate percentage of those on death row.  Roughly half of those executed by the federal government are black and a person convicted of killing a white man is 6-8 times as likely to be executed as a person convicted of killing a black man.  In short, the issues of race and poverty that affect the American criminal justice system in general are not only present in death penalty cases but are heightened by the enormously high stakes for the defendant and, I’d argue, for American society itself. 

(In part two I cover the Troy Davis case and my involvement with it, the music of Steve Earle and what I think will eventually end the death penalty in America.)  

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