Strategies in the Anti-Dp Work|
The Anti-DP Movement Has Failed
By Andrew Hammel, defence attorney
I was prompted to reflect on the above topic after the National Coalition to Abolish the Death Penalty's annual meeting. Though it's obvious from that meeting that thousands of citizens are pouring incredible effort into the admirable task of abolishing the death penalty, it seems to me that the movement is making almost no headway.
Here are my blunt, but constructive criticisms, and my suggestions for refocussing the movement's message. The debt I owe to the critique developed by Herbert Haines in his invaluable history of the modern anti-death penalty movement is obvious, although everything I say here is my own personal opinion, and certainly should not be imputed to Mr. Haines or to anyone else, for that matter.
My underlying theme is this: opposing the death penalty will not regain its status as a "mainstream" position in American political life until the movement opposing it begins to look, act and think like mainstream Americans.
This is the first part of my critique. Those familiar with my long-windedness will doubtless not be surprised to know that I intend to add more parts - that is, if I'm not consumed by responding to the responses to this post. My language is direct, but that is because I believe it needs to be.
1. Admit failure, and take responsibility for it
As a social policy, the death penalty now enjoys unprecedented popularity among Americans. There is no longer any major demographic subgroup of Americans that, as a whole, opposes the death penalty. As the Sourcebook of Criminal Justice Statistics shows, it is gaining in popularity among groups, such as Jews (72%) and Democrats (67%), which used to lag significantly behind the population as a whole in terms of support for capital punishment.
The rate of support for the death penalty among African Americans in 1976 was 44%--it is now as high as 56%. The recent spate of executions in Texas will, I predict, not decrease support for the death penalty to any significant degree, and may even enhance it.
Even the fact that crime rates have been decreasing recently has not affected its popularity to any significant degree. More and more, it is a permanent fixture of American life.
It is so taken for granted that standup comedians can make jokes about it without fear of offending anybody.
The anti-death penalty movement has thus been a failure. I don't mean to belittle the efforts of those who have spent a great deal of time fighting capital punishment, but the inconvenient, unquestionable fact remains that the movement has not accomplished what absolutely must be accomplished.
The only measure of success that is relevant is whether the activities of anti-death penalty activists convince people to oppose, or at least not to actively support, the death penalty. This is the only relevant measure of success because it is the only measure that will ever indicate that American is coming anywhere close to abolishing the death penalty. Anyone who adopts another measure of success simply deludes herself.
By that sole measure of success, the movement is a resounding, cataclysmic failure.
Many people in the movement ascribe the failure to biased news reporting, to retributive pop-culture mythmaking, to political exploitation, rising crime rates, etc.
These factors certainly do play a part in the popularity of capital punishment, but there's very little the movement can do about them. The temptation to shift blame for the popularity of the death penalty away to impersonal institutional forces is strong, but it must not be allowed to prevail.
Blaming the death penalty on outside forces will inevitably distract attention from what I believe to be true: that the anti-death penalty movement's message, to the extent it has one, is at best unconvincing and is often actually offensive to the very people who must be convinced to oppose the death penalty.
I also believe that it can be vastly improved. With that in mind, I offer the following observations.
2. Avoid bogus claims of innocence
Here are two stark, unpleasant facts.
(1) Most death row inmates are guilty.
(2) Many of the inmates in group #1 will falsely protest their innocence.
Cases such as Willie Enoch, Joseph Roger O'Dell, and other inmates whose supporters earnestly proclaim their innocence (but who are later shown to have been guilty all along) do astounding damage to the credibility of death penalty opponents.
When these ugly, inconvenient cases are mentioned, death penalty opponents sometimes protest: "Well, you can't let yourself become cynical and jaded to claims of innocence, because the stakes are so high."
This is a nice ideal, but it totally disregards human nature.
Whether the public should become jaded to the innocence claims of death row inmates is irrelevant. The fact is, with repeated stories like O'Dell's and Enoch's, they most certainly will become jaded.
I've never seen anything to make me doubt the moral of "The Boy who Cried Wolf."
The more jaded the public becomes, the more apt they become to think that every innocence claim is nothing more than a manipulative ploy, and the greater becomes the danger that the honest claim of innocence will become lost among the static of false claims. This may explain the stunning results of a 1995 poll that demonstrated that, nationwide, 74% of Americans who favored the death penalty would still favor it even when told to assume that 1 of 100 death row inmates is actually innocent.
Many would chalk this figure up simply to cynicism, but I think part of the explanation is public weariness toward the repeated bogus claims of innocence that some (but, of course, not all) anti-death penalty supporters have put forward.
People in the anti-death penalty movement must begin to realize that many of the innocence claims of people on death row are false. There are extremely powerful psychological incentives that lead death row inmates falsely to claim they are innocent. By doing so, they can erase the judgment that attaches to their murder, instantly clear up the moral contradictions and difficulties of their appeal against execution, and, not unimportantly, increase the likelihood of getting penpals and financial assistance for their appeals. I have no doubt that many eventually convince themselves that they are in fact innocent of the crime that put them on death row.
Once they have convinced themselves, it is easy for them to convince others. If they turn out to be guilty, however, it is simply another cry of "Wolf," and another reason for the crime-weary, cynical public to give up on justice. Death penalty opponents who are seriously contemplating mounting a public campaign to oppose an inmate's execution based on his actual, literal innocence of any participation in the crime owe it to the movement to make sure they have a reliable factual basis for the claim. This certainly means more than reading a pamphlet or press release. It also means more than speaking to the attorney who is representing the inmate, since that lawyer will often be prevented by the attorney-client privilege from being completely open with outsiders.
I would suggest going to the court clerk's office and reading the actual transcript of the trial to see what evidence was put on against the inmate.
Alternatively, see if there was particularly thorough news coverage of the trial. You may well find that inmate X has complained about one genuinely questionable eyewitness identification, but has conveniently forgotten to mention three other eyewitness ID's, ballistics evidence, DNA matches, and the fact that he was found with items of the victim's property shortly after the crime. If you can't easily get access to the trial record, you might consider speaking to the district attorney who prosecuted the inmate.
If he is willing to talk to you, he might give you a run-down of the evidence that convinced a jury of twelve citizens to find the death row inmate guilty beyond a reasonable doubt, and will also probably be glad to fill you in on the often-sordid history of criminal activity that warranted the death sentence in this particular case.
To some, this will seem like "checking up on" a particular inmate. It is. The notion that you can trust an inmate's claim of innocence simply because he seems like a nice guy, or appears to have a complex, convincing story of how and why he was framed, is bankrupt. I'm not advocating ignoring claims of innocence. There are certainly innocent death row inmates out there. I am just suggesting the exercise of some independent scrutiny of the factual basis for an inmate's innocence claims. At least check them out before you trumpet them to the world. If you don't, you will often find yourself unwittingly perpetrating a fraud, and any social movement based on fraud will get nowhere, and will richly deserve to get nowhere.
3. Do not make martyrs or heroes out of row inmates death
Many death penalty opponents visit or correspond with death row inmates on a regular basis, and also spend a great deal of time in an activist milieu in which it is considered bad manners to explicitly judge death row inmates or explicitly pronounce them as morally blameworthy.
Often this arises from the notion that you shouldn't "kick them when they're down." This attitude often begins to taint the discourse of death penalty opponents with either (1) a selective blindness to inconvenient facts; or (2) a kind of deep-rooted moral permissiveness. Both of these traits are utterly corrosive to the credibility of the death penalty opponent's message. Implicit in the message of too many abolitionist tracts is the Manichean notion that condemning the depraved acts of a murderer automatically means endorsing the notion that the state is entitled to execute him. It is possible to do the former without at the same time doing the latter. In fact, it is not only possible, but absolutely necessary to do so.
History has shown that the death penalty is abolished when the influential decision makers and opinion leaders of society are convinced to oppose it.
These are politicians, academics, religious leaders, commentators, authors, members of the professions, and the like. It is instructive to note that a majority of the population in many abolitionist European countries and abolitionist American States favors the death penalty.
One important reason that the death penalty is not reinstated in those areas (to the extent it isn't) is that the affluent, well-educated opinion leaders don't particularly want it. This can be seen in the D.C. referendum to re-impose the death penalty, which has the least support in the affluent exurban areas.
The opinion of poorer residents of the nation's capital has, under the onslaught of a murder rate almost nine times the national average, actually shifted radically in favor of the death penalty since that punishment was last rejected in 1992. This fact alone probably explains why Marion Barry now endorses it.
If the death penalty is prevented from resurfacing in the nation's capital, it will be affluent professional "opinion leader" voters (of all races) who will deserve most of the credit. They are the crucial "wedge" voters who must be persuaded to oppose the death penalty. This can be seen in polling data. 69% of persons who have college postgraduate degrees favor the death penalty in the abstract.
When they are given the choice of the death penalty of absolute life without parole (LWOP), their support drops by 33 points, to 37%. By contrast, those who list "no college" favor the death penalty at 76%, but when LWOP is added as an option their support drops only 26 points, to 50%. Only voters with postgraduate education actually end up being more in favor of LWOP than death, if given a choice (37% would prefer death, 41% would prefer LWOP).
What these statistics begin to demonstrate is that affluent, well-educated voters, in addition to having disproportionate political power, are also the most receptive to anti-death penalty messages. It is precisely these voters who are the weakest when it comes to executing those who were teenagers when they committed their crime (only 52% in favor, with the numbers steadily climbing as the education level drops).
The necessity of getting them on board to oppose the death penalty is vital when the death penalty does not exist in a jurisdiction, and anti-death penalty forces are attempting to prevent its return. In the much more difficult context of trying to dislodge the entrenched death penalty, it is doubly vital.
In order to reach these people, it is necessary to provide them with a message that is (1) convincing; and (2) non-offensive. As polls reveal, most affluent professional voters (indeed, most voters) have relatively mainstream values, with a decided emphasis on personal responsibility.
They are also quite afraid of crime--disproportionately so, considering that they are vastly less likely to be victims of violent crime than poorer members of society. Any message that will have any hope of convincing them must, at the very least, avoid the appearance of sympathy toward criminals.
Death penalty opponents must make it perfectly clear that they condemn the terrible acts of death row inmates, and acknowledge the trauma the crimes have inflicted. Death penalty opponents who fail to do those things will be seen, fairly or not, as extremists who have a bizarre and morally bankrupt agenda, and whose views are thus not entitled to respect.
All too often death penalty opponents project a "moral equation" of the death penalty that is deeply flawed. James Q. Wilson has just published a book called "Moral Judgment" that makes the argument that one of the reasons so many Americans distrust the criminal justice system is because it so rarely seems to pronounce direct moral disapproval, condemnation, and judgment of those who break society's laws. Whatever one thinks of James Q. Wilson, it could not be clearer that he's right on this point. Americans want the criminal justice system to instill shame in the criminal offender.
So-called shame sentencing is popular not because it punishes the offender more severely--in terms of actual prison or probation time, prisoners who choose shame sentencing get a huge break - it is popular because it forces the offender to acknowledge not just that he has broken the law, but that his action was wrong, immoral, or evil.
Death penalty opponents often endorse a moral equation of the death penalty that includes societal neglect, police and prosecutorial misconduct, bureaucratized inhumanity, but does not include any moral judgment of the offender.
Because this "equation" is missing an element that the vast majority of Americans see as necessary, most of them will repudiate its results. After all, unreasonable pro-death penalty arguments customarily overlook the first three elements of the equation completely, concentrating exclusively on the fourth. Their "equation" is wrong because it overlooks necessary ingredients.
Death penalty opponents should not make the same mistake. A particular inmate may have had a horrible life, may have been subjected to a less-than-fair trial, and may suffer genuinely under the psychological hardships of death row confinement. However, unless there is a genuine doubt as to his guilt (see #2 above), he will also, at one point, have decided intentionally to take at least one human life.
Murder has always been considered the gravest of criminal offenses, and any death penalty opponent who appears to be trying to ignore or downplay its severity will instantly forfeit a huge chunk of credibility.
In order to avoid this appearance, death penalty opponents must go beyond using insulting euphemisms like "he made a terrible mistake" or cursory half-sentence lip-service pronouncements like "Although his crime was terrible, nothing excuses the trauma...etc."
Death penalty opponents are already good at expressing genuine moral outrage against the death penalty. They must become equally convincing in projecting genuine moral outrage at the terrible, devastating crime of murder, and they must understand that doing so does not for a single second equate to toleration of the death penalty.
I sometimes hear death penalty opponents describe death row inmates as the "rock," or the "vanguard," or the "leaders" of the anti-death penalty movement.
This is an extremely dangerous notion. Of course they are all individual human beings, and their irreducible, obvious humanity is a powerful intuitive argument against giving the state the right to dispose of their lives. However, they are for the most part human beings who have committed fearsome crimes--who have murdered other human beings--and few of them will have undergone the searching, fundamental, pervasive moral regeneration that might entitle them to any real sympathy from the average voter.
In order to maintain credibility with average Americans, death penalty opponents must avoid a surprisingly common fallacy - that the extreme "badness" of what the state is about to do to death row inmates somehow operates to invest them with an especial "goodness."
Death penalty opponents should admit that many death row inmates are flawed, corrupt, brutal individuals because (1) it is true; and (2) it has nothing to do with whether it is just for the state to kill them.
Except where a particular inmate has shown true remorse (not just "I'm sad about having committed this crime because look where it got me"), and has displayed extraordinary redeeming qualities, death penalty opponents should not place primary emphasis on trying to drum up support for individual death row inmates via attempts to portray them as good, worthy, or decent individuals. The words of Albert Camus come to mind:
[W]e cannot be too wary of the humanitarian ideology in dealing with a problem such as the death penalty.... I should like therefore to repeat that neither an illusion as to the natural goodness of the human being nor faith in a golden age to come motivates my opposition to the death penalty.... [L]et me repeat, I do not believe... that there is no responsibility in this world and that we must give way to that modern tendency to absolve everything, victim and murderer, in the same confusion.
Such purely sentimental confusion is made up of cowardice rather than of generosity and eventually justifies whatever is worst in this world.
It should not be forgotten that Camus' "Reflections on the Guillotine," from which the above excerpt is taken, were a significant part of a successful abolitionist movement.
An approach that tries to deny or downplay the cruel and ugly crimes most death row inmates have committed can only backfire. Their generic, common humanity--their individuality--should be stressed, but no attempt should be made to glamorize them or present them as martyrs.
The death penalty is wrong because it kills human beings - not because it kills good human beings. It may seem peculiar to say, as I do, that the plight of individual death row inmates should play a relatively minor role in the movement designed to save their lives.
However, the anti-death penalty movement must be interested only in what works, and what's right, not what makes people feel good. Making "compromises" with the (often very sensible) moral outlook of the average American - meeting them halfway by agreeing to join their utter, wholehearted moral condemnation of murders and the people who commit them - will reap a great reward in terms of the credibility of death penalty opponents. I have used the technique with great effect in conversations with death penalty supporters.
Once they see that you're not some wild-eyed radical, but that you're "reading from the same moral page" as they are, the more thoughtful ones actually begin listening. I think the strategy of not denying the obvious, but rather openly and forcefully judging murderers as morally blameworthy, has a much better chance of ending the death penalty than any other strategy.
4. De-emphasize demonstrations
Protest politics will not end the death penalty. The entire concept of political protests is little more than a cliche these days, and they are only truly effective when thousands participate.
The anti-death penalty movement doesn't have thousands. The tiny numbers that turn out for the average death penalty protest march/vigil send the message that the anti-death penalty movement is, well, tiny.
This is not healthy. Demonstrations should only be used to bring attention to a specific, compelling case or cause that significantly highlights an aspect of the death penalty that will prove troubling to the ordinary, reasonable American.
Even more devastatingly, demonstrations sometimes give rise to extremely unfortunate incidents, such as the recent demonstration in my state in which the speakers at the rally likened the state's death row to "Buchenwald" and "Auschwitz," and referred to prison guards as "mass murderers" and "serial killers."
This protest made the front page of the Metro section of the local paper under the headline "Protesters Liken [town in which death row is located] to WWII Nazi Death Camps." Virtually every Jewish person I know found this comparison sickeningly, outrageously offensive.
Many people also felt that the gratuitous insult of all prison guards was grossly unfair. The upshot is that very few respectable, somewhat liberal middle-class citizens, the very people who must be convinced to oppose the death penalty if the movement is to have the slightest chance of success, will want to be associated with pronouncements as offensive and radical-sounding as these.
The effort used to create demonstrations could be better channeled to more effective, pragmatic goals such as, for instance: (1) placing members of the organization in capital trials to take notes on what happens and to counterbalance the devastatingly effective presence of victims' rights groups; (2) developing an effective database of information about such important topics as the age, mental status, and representation of death row inmates, the relative costs of executions vs. life imprisonment, incidents of political exploitation of the death penalty, etc. (The Death Penalty Information Center has made outstanding contributions in this regard.); and (3) arranging for credible, persuasive lobbying efforts based on accurate information and a well-thought out program of "tough on crime, tough on the causes of crime, but easy on justice" legislative reform.
Here is Part II of my ongoing critique of the focus of the anti-death penalty movement. Once again, my language is blunt, in order to dispel the wishful thinking and fuzzy logic that often plagues debate about how to abolish capital punishment.
5. The Law Won't Save Anyone
In today's political and judicial climate, using the law to abolish the death penalty is like using a plastic spoon to carve a diamond. The fact that the death penalty is an entrenched part of the criminal justice system is merely a symptom of its overwhelming popularity.
The main focus of death penalty foes must be on changing public opinion first. Far down the list should come attempting to influence legal proceedings. This is so for two reasons: (1) the possibility of getting rid of the death penalty as a whole via creative legal strategies is now virtually nil; and (2) because many abolitionists seem not to understand that the chance of reversing a particular conviction or death sentence is by far the greatest before and during trial, and that it decreases exponentially thereafter, the efforts at mobilizing to prevent executions are often concentrated at the latest stages before an inmate is executed, precisely when they can do the least good.
A. Abolition through sweeping court is a thing of the past decisions
In the late 1960s and early 1970s, legal crusaders such as Anthony Amsterdam filed a blizzard of challenges to individual death sentences, and laid the groundwork for a broad challenge to the death penalty as being arbitrary and fundamentally inhumane. They focused primarily on federal courts, where judges who either were a part of or who shared the values of the Eastern establishment presided.
These judges, especially the ones of the Fifth Circuit, were often appalled at the open racial discrimination being practiced in the states from which they heard appeals, and were aware that the death penalty was being handed down in a deeply suspicious manner.
The vast majority of persons sentenced to death for rape, for instance, were African American men sentenced to death for raping white women in a trials dominated by a pervasive atmosphere of intimidation.
Further, in the late 1960s and early 1970s, public opinion (which affects every court, no matter how strenuously they deny it) was deeply split on the death penalty. These social forces, combined with aggressive lawyering, got the death penalty struck down as unconstitutional in the Supreme Court's 1972 decision in Furman v. Georgia. Some abolitionists pine for the day the Supreme Court will take up the mantle of moral leadership and once again can the death penalty.
They should not hold their breath. Virtually everything has changed since the days of Furman.
First, the crime rate has increased enormously. It started increasing in the early 1960s, and steadily continued into the early 1990s. The rate of virtually all violent crimes literally quadrupled in those 30 years.
A penalty which might seem excessive when rapes and murders are infrequent, aberrant occurrences will probably seem much less so when local news viewers are nightly assaulted with horrifying, vicious crimes.
In this sense, the greatest allies of the death penalty are criminals themselves, who regularly provide the viewing public with fresh outrages to fan their desire for retribution.
Second, criminal trials in state courts are now much fairer than they were in the 1950s and 1960s. In the early 1960s, the Supreme Court held that all of the criminal procedure protections contained in the Bill of Rights applied to the state courts, and expanded those protections considerably. As a result, the number of death penalty trials which contain gross, obvious injustices nowadays is smaller than the number which occurred in the early 1960s.
Injustices still occur, but they are generally more subtle and harder to explain to the public.
Third, the Supreme Court has narrowed the class of killings for which the death penalty is available significantly.
The Supreme Court told states to single out only the most "aggravated" murders for the death penalty, and, for the most part, they obliged. Every person on death row has been convicted beyond a reasonable doubt of an intentional killing.
Generally the only doubt raised about the intentionality of the killing is provided by the murderer's own self-serving statements, such as "I was only trying to scare him," or "I just closed my eyes and pulled the trigger--I had no idea whether I had hit her or not," or the classic "I just blacked out."
These statements are profoundly unconvincing, as can be seen by the fact that juries reject them on a daily basis. In many killings, such as contract murders, there is absolutely no doubt about intent. Therefore, unlike the situation in the 1960s, the numbers of people on death row for crimes that didn't involve the taking of a life, or who are on death row simply because they got "caught up" in a chaotic situation, are extremely small.
Another reason Furman will not happen again for a very long time is that Furman itself provoked a spectacular backlash.
The decision was seen in many quarters as nine unelected men in black robes in Washington, D.C. interfering with state criminal justice systems.
Public support for the death penalty went up by 10-20 points immediately after Furman. As the Woodward/Bernstein book "The Brethren" points out, the Supreme Court's experience in Furman, as well as in Roe v. Wade, made them extremely hesitant to hand down landmark decisions upon controversial social issues until after a general public consensus had emerged that one approach to a social problem was clearly better.
The desire to avoid provoking controversy that was present in the 1970s has been magnified a thousandfold with the Reagan/Bush appointments to the Supreme Court and the lower federal courts.
In the past four years, exactly two federal judges--Harry Blackmun of the Supreme Court and Judge Heaney of the Eighth Circuit Court of Appeals--have declared their belief that the death penalty is fundamentally unconstitutional.
Blackmun's now retired. That leaves a total of precisely one federal judge who is willing to publicly declare abolitionist tendencies. Death penalty cases and appeals are now commonplace and routine. Even the pronouncements from many 1980s cases about how the duty to search for constitutional error with painstaking care is never more compelling than in capital cases are virtually nonexistent.
To be sure, the law can still be used to get rid of individual death penalties. Until social conditions and, most importantly, public opinion change radically, the law will not be an effective way to get rid of the death penalty.
B. Too Much, Too Late
Many of the posts I read on the Abolish lists, as well as other abolitionist writings, seem to reflect ignorance, or naive hope, about the workings of the criminal justice system. The brutal fact is that once an inmate arrives on a state's death row, the likelihood is overwhelming that he or she will eventually be executed, and in virtually all cases, there will be nothing whatsoever lawyers or activists can do about that fact.
Plea negotiations and trial are the last time in death penalty proceedings that a to-be-condemned inmate can advance a personalized case in mitigation. After the trial on the merits has concluded, and the defendant has been convicted and sentenced to death, the show is over.
Although appeals are often lengthy, they almost never revolve around whether the particular inmate is "redeemable." They revolve instead only around whether the particular rules that govern American criminal trials were adequately followed. Especially after a convicted murderer's direct appeal has been decided, the standards he must meet to gain relief on a claim in further appeals are extremely, forbiddingly high.
Virtually all appellate issues are subject to what is called "harmless-error review."
What this means is that even if you prove that a constitutional error occurred at your trial (say the government failed to reveal to the defense that it had cut a deal with a particular witness), you must still prove that, had the error not occurred, the outcome of the trial would have been different. Prosecutors rarely charge cases as death penalty cases unless they are extremely confident of the quality of the proof.
Thus, there will often be multiple, overlapping layers of proof that a particular defendant committed the murder (and was worthy of the death sentence), and thus virtually all errors in appellate proceedings are declared harmless.
When the case finally gets into federal court on a habeas corpus petition, the standards are even higher. The scope of federal habeas appeals in death penalty cases, especially after the passage of the Antiterrorism Act, is incredibly restricted.
Only the most unusual and compelling cases will now have even the slightest chance of gaining relief. Only about 6-7% of criminal convictions are reversed on initial appeal, and the number reversed in federal habeas corpus proceedings will be even tinier. The days of the late 1970s and early 1980s, in which 30-40% of all convictions or sentences in death cases were overturned by federal courts, are long, long gone.
Finally, even assuming that a death row inmate gets relief in an appeal, the nature of the relief is extremely restricted. Probably at least half of all grants of relief apply only to the punishment phase - therefore, the inmate still stands convicted of capital murder, and gets a new hearing only as to whether he will be re-sentenced to death or will instead be given a life sentence without the opportunity for parole.
Even if the grant of relief applies to the entire trial, it is still not good news. Many capital crimes were shocking, gruesome events that left permanent memories in the minds of the people who lived in the neighborhood.
Therefore, when a sentence or conviction is reversed (often a highly publicized event), it is customary for prosecutors to pull out all the stops to reconvict the offender and get him back on death row, because that is where the overwhelming majority of the city or town's residents believe he belongs.
This explains the fact that, out of all the Texas death row inmates who had their sentences or convictions reversed in the 1970s and 1980s, fully seventy percent ended up back on death row. The paradox is usually that only after they arrive on death row do condemned inmates begin to draw attention to their cases and claims. This is the stage of the process during which many activists begin writing to the inmates and becoming interested in trying to help save their lives.
Unfortunately, is it almost always too late by this time.
Thus, the only point during the process when the help of activists will actually have any chance of averting a death sentence is during the very beginning of the legal proceedings against a defendant. Unfortunately, at this time, death penalty defendants are virtually anonymous.
The first, most crucial step is plea bargain negotiations.
An astounding number of death row inmates were offered plea bargains of life in prison, or a lengthy prison term.
Quite often, they reject these pleas, proceed to trial, and are sentenced to death. Usually their lawyers, who know full well what their chances at trial are, will virtually beg them to accept the prosecutor's plea bargain, all to no avail.
Inmates reject plea bargains for any number of reasons.
They believe that their lawyer will get them off, or that it's better to "die like a man" than waste away in prison (a perception they almost always revise when it dawns on them that the death sentence the judge pronounced against them will be carried out), or that their compelling showing of remorse will inspire the jury to spare them, or that the prosecutor's offer of life in prison is too "steep" a punishment for murder. They are virtually always wrong. Some members of the abolitionist movement have realized the compelling necessity of getting potential death penalty defendants to accept plea bargains.
I have heard of one person who is trying to put together a videotaped presentation to be shown to capital defendants before their trials. It advises them in no uncertain terms that they must expect to be sentenced to death, and that the sentence will certainly be carried out, probably within a very few years.
It also presents a picture of prison life that is at least tolerable, in order to defuse the feeling that a life sentence is nothing but unredeemed misery.
This seems like a very valuable approach. It has gotten one thing indisputably right - it is well-timed.
Another contribution anti-death penalty organizations can make that will actually avert death sentences is to help lawyers who are representing capital murder defendants at trial put together compelling cases in mitigation.
In many Southern states, the funding for indigent death penalty defense is scandalously low, and trial attorneys often have very limited funds, and limited time, in which to build a punishment phase case.
(This, of course, assumes that they will bother to do so in the first place, which is a whole different problem.) Subject to the guidance and control of the trial attorney, anti-death penalty volunteers could help to locate and interview family members, teachers, and other witnesses who might be able to present favorable evidence about the defendant, and to track down hospital, school, and military records that could prove helpful.
The volunteers would, of course, have to be very careful and circumspect in their dealings with members of the public. However, if they are suited to the task, they may be able to find a crucial piece of information that could convince a jury to spare the offender, or convince the prosecutor to offer a deal. A small amount of effort this early in the proceedings can potentially have a lifesaving impact. By contrast, even the hugest exertions - protests, letter-writing campaigns, appeals from religious figures, international condemnations - are utterly ineffective when they occur toward the end of the process.
Texas' recent experience provides ample proof of this.