The death penalty in the USA is more than just a right to life argument.

 I defend people facing the death penalty in the USA and elsewhere in the World and I work with people who are on Death Row in Florida. I don’t believe in the death penalty, but I respect the opinions of those who do.

This may seem to be a strange statement coming from someone who gives up time to work voluntarily on death penalty cases. However, as I spend around 6 months of the year working with people who are facing the death penalty I feel I am probably a lot more qualified to make such statements with regard to the death penalty in the USA than many abolitionists who oppose the principle but have never seen it in practice and have never had the opportunity to get to know those who are facing the death penalty.

I grew up in Europe. By the time I was born, the death penalty had been abolished in the UK and the European Union was coming close to taking an abolitionist stance. Hence, I grew up being told that to take a life was wrong, no matter under what circumstances that life was taken. In Countries where the death penalty is still in operation, the citizens have never grown up being educated that the death penalty is wrong. For them it is a fact of life, if you commit the most heinous of crimes you will be punished and that punishment may include death. Who am I to say that it is wrong for the citizens of Delaware (a State which I have never even visited) to recommend death in a murder case?  I receive a lot of communications from people who tell me that the Death Penalty is wrong and i should be doing more to campaign against it.

What I do believe very strongly is that everyone who is facing the death penalty should have the right to the best defence possible. This defence should include mitigation experts and lawyers, and they should work very hard to make sure that their client has the best possible chance of persuading the State or the Jury and the Judge, that the person in front of them should not be ordered to face the death penalty. This is about educating the State, Judge and Jury about the persons life, and perhaps find some answers which can explain why, if they have been found guilty, they did what they did. It is not finding excuses, it is not asking for sympathy for a poor upbringing or a bad lifestyle, but it is providing an explanation. I have worked on many cases where providing that explanation has been sufficient for the State to waive the death penalty (change the status of the case to a non-death case). This does not mean that the client is no longer facing a murder charge, but that they go to trial knowing that they face life, if convicted, not death. Merely telling people that the death penalty is wrong, will not persuade them that the death penalty should not be imposed, if they don’t agree with the death penalty they will not impose it anyway, and if they do agree with it, being preached at by an abolitionist is not going to change their view.

In the USA, many State Attorneys use the threat of the death penalty as a bargaining chip to force a client to plead guilty to murder on the basis that they will not face the death penalty when sentenced. This I believe to be wrong, it is a political game which is playing with people’s lives and is unfair. A person should have the right to make their own decision on whether they should plead guilty or not guilty, and the decision should not be enforced on them by pressure to keep high conviction rates for murder.

In my view education is the key. That is not to say that by educating a person they will automatically become a death penalty abolitionist or opposed to the death penalty, but it will allow them to make an informed decision. Looking at the pure economics of the death penalty, it is much more expensive to prosecute and defend a case where the potential punishment is death, than any other case. This is due to the amount of preparation work, including the mitigation, the fact that the jury selection will take longer, and most importantly the fact that there are many appeal processes that a person sentenced to death can activate. In addition, Death Row is a very expensive section of a prison, it requires more guards per 10 inmates than any other high security section, and each Death Row prisoner is placed in solitary confinement, so again there is the added cost of one prisoner to one cell.

In addition to the economics, there is the risk that there could have been a wrongful conviction. To say that murder convictions are never wrong, that the jury gets it right every time is a nonsense. Everyone makes mistakes in life, and the jury are being guided by police, prosecutors, forensic experts, defence lawyers, and judges, there is huge scope for a mistake to have been made by one of those parties and for that mistake to shape the jury’s decision. Once a person has been placed on Death Row and in solitary confinement, aware that at any stage they could be executed, the damage is done, both mentally and physically. Very few inmates are able to pull back from that and lead normal lives if they are later identified as being wrongfully convicted. But at least they may still have some semblance of life, whereas a mistake discovered after an execution can never be rectified.

Finally, in my experience many of the people I work with who are facing the death penalty are not necessarily what I would class as bad people. They may be innocent or guilty of the crime, and if guilty they should be punished for their crime, but for many the reason for the crime was circumstances outside of their control, or due to them not thinking about their actions. Mr X whose mother had him running drugs from the age of 10 to pay for her fix. The only kindness he received was from the drug dealer who, in return for him running drugs gave him a warm place to stay, pizza, and new sneakers and a coat. He grew up looking at this drug dealer as a father figure, and so when the dealer was gunned down in the street, X went to find the person who did this, and executed him. Don’t get me wrong, I don’t agree with either killing, but is this so far removed from the father who goes after the man who killed his daughter in a drink drive hit and run? In my experience the death penalty would never be mooted for the father of the drink drive victim.

Only through education can those who still have the power to impose the death penalty – the citizens of a state who vote on the Governor’s death penalty policy, the prosecutor who decides whether a case should be eligible for the death penalty, the defence lawyer who has to see the case not only from the client’s point of view but from the point of view of the victim’s family and friends and must be able to empathise with them, and also the jury who recommend life or death on a convicted defendant, and the judges who make the decision on the death penalty during sentencing and also those who hear the appeals of a person on death row – make an informed decision on whether the death penalty should remain in force. It is hoped in years to come that more States will abolish the death penalty, but until they do, preaching to them that they are wrong is not the answer, working with them is…

If you want to find out more about people who have been wrongfully convicted and placed on death row in the USA, watch these http://www.oneforten.com/films video short interviews.

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About gurdena

Social Justice Lawyer, interested in all things contentious. Specialising in criminal law, and anything criminal justice related, also employment law. Door tenant at 1 Grays Inn Square chambers. Find out more at www.alisongurden.com

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