Ronald Smith committed a terrible crime back in 1982, but the passage of 30 years has seen him evolve into an utterly different person.  This was not a legal development (he is still guilty), but is the kind of human transformation that clemency was designed to recognize.  Our courts can’t commute sentences based on changes in the hearts and minds of the convicted (that’s not their role), but our executive branch – our Governors and our pardon and parole boards – can.

At the May 2 clemency hearing, the Montana parole board heard all about Ronald Smith’s transformation:  from retired prison officials, a clinical psychologist, a Catholic priest and prison educator, a former probation officer and members of the Smith family.

The psychologist said that Ronald Smith: “has demonstrated significant change in attitude, thoughts and behavior. He is what would be considered a model prisoner in the modern setting.”

A former FBI agent who had interviewed prison officials said that Smith was “uniformly described as a model inmate, respectful and respected.”

A retired prison officer said that, based on his 22 years’ experience with Ronald Smith, his preference would be to commute the death sentence not to life without parole, but to life with the possibility of parole.

The parole board, unmoved by this testimony (and perhaps having already predetermined its decision), recommended to the Governor that clemency be denied… and so the purposeless execution of a changed man 30 years after the fact may still go forward.

Or it may not.  While the parole board argued that “justice is best served” by killing Ronald Smith, the Governor may think otherwise.  And he does not have to accept the board’s recommendation.  Montana Governor Brian Schweitzer can, and should, grant clemency for Ronald Smith.

Richard Miles was convicted of murder in Dallas in 1996 and released in 2009 after it was discovered prosecutors hid reports implicating other suspects. (Image via texasobserver.org)

Our criminal justice system is less than perfect, a non-controversial fact which is one of the reasons we oppose the use of an absolute and irreversible punishment like execution.

The new National Registry of Exonerations, produced by the University of Michigan and Northwestern University law schools, provides a glimpse of just how imperfect.  It lists almost 900 known exonerations since 1989.  Around 100 of those listed had been sent to death row; the remainder had been sent to prison for everything from homicide to white collar crimes.

The Registry’s accompanying report (p. 84, Table 18), documents another 1,170 exonerations from a group of major law enforcement scandals, mostly involving drug crimes.

This snapshot of known exonerations is revealing.  According to the report summary, the chief causes of the wrongful convictions were faulty or perjured witness testimony and official misconduct, though almost a quarter involved bad forensic science, and 16% of those exonerated had initially falsely confessed.

But the exonerated represent only a portion of the wrongfully convicted.  Plenty of other innocent prisoners are falling through the cracks.  Most counties and states in the U.S. do not dedicate themselves to uncovering convictions of the innocent.  As the report summary states plainly: “It is clear that there are many more false convictions than exonerations.”

Oversight at the same consistently high level nationally, rather than in just a handful of states and counties, would give us a truer picture of the scope of the wrongful conviction problem in our country, and would protect more innocent people from continued imprisonment or even execution.

But the picture painted by the National Registry of Exonerations is disturbing even without more complete information.  It is also not terribly surprising.  We make mistakes. And we will continue to do so.

Carlos DeLuna was executed by the state of Texas in 1989. A new study by Columbia University could prove his innocence.

The USA has almost certainly executed innocent men in the so called “modern” era of capital punishment, since the death penalty was reinstated in 1976. One of them may have been Carlos DeLuna, who was put to death in Texas in 1989 for the killing of gas station attendant Wanda Lopez in Corpus Christi.

Today, a comprehensive report and website by James Liebman and a team of students in the Columbia University Human Rights Law Review makes a compelling case for DeLuna’s innocence.

To explain how this wrongful conviction and execution could have happened Liebman et al. point to the

“failure of lawyers on the defense as well as the prosecution side to have the curiosity and gumption to look just an inch or two below the surface.”

This is an all-too common occurrence, argue the authors, when there is a general indifference to an “obscure” victim like Wanda Lopez, making such cases “ripe for miscarriage” of justice.

This report, Los Tocayos Carlos, follows on the heels of an investigation by the Chicago Tribune, amplified by the film At the Death House Door, which already made it fairly clear that Texas authorities had the wrong Carlos.

Carlos Hernandez was the other Carlos, the man Carlos DeLuna said had stabbed Wanda Lopez. At trial, prosecutors declared that Hernandez was a “phantom” made up by DeLuna, but this wasn’t true. He was in fact well-known to Corpus Christi law enforcement as a man with a propensity to frightening violence and a love of knives. A career criminal who was almost always out on parole, he continued to assault women after DeLuna was sent to prison.

In November 1983, Hernandez was arrested for attacking his wife with an axe handle. He got 30 days in jail for a misdemeanor, but his parole wasn’t revoked. The judge who issued this light sentence was the father of the lawyer who had inadequately represented Carlos DeLuna.

Carlos Hernandez repeatedly told others that he killed Wanda Lopez and that a tocayo (namesake) was paying for the crime. Hernandez also told people he was responsible for a 1979 murder for which he was indicted but never tried. A former detective admitted that tipsters had told him Carlos Hernandez was the real killer of Wanda Lopez, but that information was apparently never pursued.

The failure to investigate Carlos Hernandez for the killing of Wanda Lopez, or to adequately punish him for other crimes, suggests a cruel indifference to the people of the community he was terrorizing. As the authors put it:

Wanda Lopez’s worthy and unimpeachable life was dishonored not only by the inattention to her plight on the night of February 4, 1983, by everyone in a position to help her, but also by the nonchalance with which everyone in a position to find her killer carried out that responsibility.

The people in this Corpus Christi community paid the price for this nonchalance, and it appears Carlos DeLuna paid the ultimate price.

If you think the death penalty is wrong and the risk of executing the innocent is too high then do something about it by joining our fight to abolish the death penalty in every US state.

Michael Selsor

Oklahoma carries out more executions per capita than any other state in the USA (though things might slow down as the state is currently down to its last dose of pentobarbital, the anesthetic in its lethal injection cocktail).

In September 2010, Al Jazeera reporter Josh Rushing put together a video piece on the Oklahoma and U.S. death penalties. Now, he has supplemented that with his interview of Michael Selsor, who was first sent to Oklahoma’s death row in 1976, and a blow-by-blow description of Selsor’s execution on May 1, 2012 for the 1975 killing of convenience store clerk Clayton Chandler in Tulsa.

The interview with Selsor (which took place back in 2010 and was the only one he ever gave) is particularly interesting and reveals a man who was remorseful, reflective, somewhat resigned but also prideful.  He was sorry for his crime, but never reached out to the victim’s daughter:

“And really if I could say look I’m sorry for what I’ve done, I’m sorry I killed your dad, what the hell would that mean to her?”

Like Merle Haggard in the country classic Mama Tried (“That leaves only me to blame ‘cos Mama tried”), Michale Selsor didn’t fault others for his crime:

“No. It would have to be a different me. I don’t wanna blame my parents for my shortcomings.”

Selsor comes across as a plain-spoken man who accepted his guilt, and his punishment.  But he also observed that “…somewhere along the road there should be some kinda redemption.”

Sadly, there isn’t, not with the death penalty. There is only retribution.

Was the 57-year-old man put to death in Oklahoma’s execution chamber last week the same person who committed that terrible crime 36 years ago? From the article describing the execution we learn this:

“When school children visited the prison, Selsor played a regular part in the tour. From behind bars he shared his life lesson about the consequences of one’s actions with the children.”

This would seem to suggest that Oklahoma authorities believed Michael Selsor had become a better man. At his clemency hearing, corrections workers testifed that:

“Selsor was a model inmate who often looked out for younger men and helped them adjust to prison life.”

But whatever self-improvements Michael Selsor made were meaningless under a law that places no value on the human capacity for change.

His lawyer, who had never tried a death penalty case before, was no help. The Ninth Circuit Court of Appeals wrote that this lawyer “failed to investigate the facts of the crime, failed to investigate Smith’s mental state at the time of the crime, and failed to discuss possible defenses before Smith pled guilty.” (Bizarrely, and typically, this Court nonetheless ruled that the lawyer had not harmed his client enough to warrant any relief.)

Among other things, the lawyer’s litany of failures kept hidden the fact that, like so many men on death row, Ronald Smith was physically abused as a child and turned at a young age to a self-destructive life of drinking and drugs. One federal judge called him “semi-suicidal” at the time of his sentencing.

But that was 30 years ago. One of the problems with the death penalty is that it denies the possibility that people can reform. It denies the possibility of redemption. Ronald Smith now has a family of his own: a daughter and two grandchildren. In its 2010 ruling that rejected Smith’s last appeal, the Ninth Circuit took the unusual step of noting that, “by all accounts, Ronald Smith has reformed his life” but that such issues were not for the courts to consider but for “the wisdom of the executive branch” – hence, the clemency hearing.

Disturbingly, news reports have suggested that at the Montana Board of Pardons and Parole, which makes clemency recommendations to the Governor, wisdom  may be in short supply. Leaked documents suggest that it has already made up its mind to recommend against clemency even before the hearing has taken place.

But Governor Brian Schweitzer doesn’t have to abide by the Board’s recommendation, one way or the other. Regardless of the Board’s decision after this week’s hearing, he can and should recognize the possibility, and in this case the reality, of redemption and grant clemency for Ronald Smith.

With his signature, Connecticut Governor Dannel P. Malloy signed into law the repeal of Connecticut’s death penalty, making his state the 17th, and the 5th in the last 5 years, to do away with capital punishment.  The law is not retroactive, so 11 men remain on Connecticut’s death row.

It is surely a sign of progress for the death penalty abolition movement that such a success could occur in the midst of contentious and escalating election year politics.  Previous legislative repeal victories have occurred during the more sedate odd-numbered years (New Jersey, 2007; New Mexico, 2009, Illinois, 2011).

And Connecticut’s repeal may not be the only one that takes place in 2012; an initiative to replace California’s death penalty garnered 800,000 petition signatures and and has qualified to be on the November 6 ballot in our largest state.

Of course, 33 U.S. states still retain capital punishment. But actual use of the death penalty in many of these states is pretty rare, and even in capital punishment hotbeds like Texas or Ohio, sentences and executions are declining  and opposition is growing.

Objections to the death penalty vary: for some there is just no place for an irreversible punishment in a mistake-prone judicial system; for others, the death penalty harms victims’ families, turning killers into celebrities and making the families of victims wait years (usually decades) for a promised punishment that most likely will never be implemented; for others it wastes time and money that could be put to better use preventing crimes, or at least solving them (about one-third of homicides go unsolved each year).

For Amnesty International, the death penalty is, simply, a fundamental violation of human rights.  Protecting human rights means limiting government power.  Ceding to a government the power to kill a prisoner is every bit as wrong (and dangerous) as ceding that government the power to torture.  Proceeding with such an absolute punishment despite knowing how error-prone the system is makes the act of execution even more inhumane.  And continuing to dump massive amounts of money into the death penalty, when those funds are desperately needed for policies that could genuinely protect society and support crime victims is beyond wasteful.

During Connecticut’s experience with the death penalty there were over 4,000 murders and exactly one execution, of a man who voluntarily gave up his appeals.  During the same time, more than 1,000 murders went unsolved.  Nationally, in 2008, there were 16,272 murders but just 37 executions, while 5,858 murders went unsolved (more than 150 unsolved homicides for every execution).   In a world of shrinking budgets, for the sake of victims’ families and public safety, what should the priorities be?

In California, since 1978, $4 billion has been spent on the death penalty, or over $300 million for each one of that state’s 13 executions.  Meanwhile, 46% of the state’s homicides (and 56% of rapes) go unsolved, and due to budget cuts students (particularly students of color) are being locked out of the state’s universities.

Connecticut has done the right thing for human rights, not only by ending the practice of sentencing prisoners to death, but by freeing up resources that can now be focused on policies that may actually do some good.  Later this year, voters in California will get the chance to do the same.

Marcus Robinson will not be executed but instead spend the rest of his life in prison after a judge ruled that his death sentence was tainted by racial discrimination.

Our justice system has a racial bias problem, both in the way it treats suspects, and the way it treats victims.

The cases of Troy Davis and Trayvon Martin underscore this.  If the races were reversed would Troy Davis’ execution have been pursued so relentlessly, would he even have received a death sentence, would police have been so quick to ignore other potential suspects?

And, had the races been reversed, wouldn’t the reaction to Trayvon Martin’s killing have been … different?

But knowing there is racial bias and doing something about it are two different things.  In North Carolina, something is being done.

First, some background.  On April 22 twenty-five years ago, in a capital case out of Georgia called McClesky v. Kemp, the U.S. Supreme Court ruled that there were indeed racial disparities in who gets sentenced to death.  A study of Georgia’s death sentencing patterns, known as the Baldus study, did indicate “a discrepancy that appears to correlate with race” the Court held.

But, bizarrely, the High Court ruled that this evidence of systemic racial bias didn’t matter.  Unless discrimination could be proven in a specific case (McClesky’s), they would do nothing. System-wide bias was irrelevant.

The Court was concerned that if systemic biases were taken into account in death penalty cases, the contagion would naturally spread to other cases.  Justice Lewis Powell wrote fatalistically

“Apparent disparities in sentencing are an inevitable part of our criminal justice system.”

He worried that “we could soon be faced with similar claims as to other types of penalty.” If this wasn’t nipped in the bud, judges might have to do something about racial bias in ALL cases!

The 4 dissenters in the case wrote that this “seems to suggest a fear of too much justice.”

In 1987, Justices of our highest court prevented this outbreak of “too much justice” by turning their robed backs on claims of systemic racial bias.  Justice Powell later regretted this decision, but the damage was done. Today, racial bias continues to permeate every stage of our criminal justice system, a system that has exploded to now house one quarter of the world’s prisoners. There also continue to be racial disparities in terms of how victims are treated, and killings like that of Trayvon Martin where there seems to be a complete disconnect in the community along racial lines.

But in 2009 North Carolina tried to overcome the “fear of too much justice” by passing the Racial Justice Act, a law which allows courts to consider statistical evidence of racial bias when deciding whether death sentences are appropriate.

Today, that law was upheld, and Marcus Robinson was resentenced to life without parole due to the significant role race played in North Carolina capital cases at the time of his trial.  This decision, the first involving the new Racial Justice Act, is a major step in the right direction.

Twenty-five years ago, the Supreme Court had the chance to address fundamental questions about racial bias in our courts.  They punted.  Hopefully what is happening in North Carolina means that, 25 years later, we are finally ready to confront race and criminal justice in America.

With Connecticut set to join, there will soon be 17 states (plus Washington, D.C.) in the abolitionist club.  Five years ago, there were only 12.

And other states seem likely to follow in the near future.  Maryland already has a majority in its legislature that supports repeal.  Oregon now has a Governor-imposed moratorium on executions.  Montana and Colorado, with just two and four people on their respective death rows, have been close to ending their death penalties in recent years.  New Hampshire and Kansas have had no executions since 1939 and 1965 respectively.  And in California, some 800,000 citizens have endorsed a November 2012 ballot initiative that would replace their state’s incredibly expensive death penalty.

Governor Malloy is expected to sign Connecticut’s bill into law soon.

Connecticut would become the 17th state to abolish the death penalty, meaning that more than one-third of U.S. states would no longer have capital punishment.  Connecticut would also be the 5th state in 5 years to get rid of the death penalty.  In 2007, New York’s last death sentence was commuted, officially ending that state’s association with capital punishment.  In December 2007, New Jersey legislatively repealed its death penalty.  New Mexico did likewise in 2009, and Illinois in 2011.

As Amnesty International reported in March, two-thirds of the world’s countries no longer use capital punishment.  This vote in Connecticut is yet one more sign that the death penalty, both around the world and here in the U.S., is on its way out.

The Old Chain of Rocks Bridge

I have never been numb to the loss of human life in murder cases, though my work to end the death penalty has meant that I have spent most of my time trying to prevent the executions of those who are convicted of murder.  The story of the 1991 “Chain of Rocks Murder Case,” as it is known in St. Louis, is especially poignant to me not just because I am working to stop the execution of Reggie Clemons—a man convicted as an accomplice to the murders and given the death penalty—but because I also have much in common with the two young women who perished.

I am not a family member of a murder victim, and I have no real connection to Julie and Robin Kerry, the women who died twenty-one years ago.  So I am grateful to Jeanine Cummins, one of their cousins, for having written about Julie and Robin Kerry, and the terrible journey their family experienced.  Her writing has helped me build a larger picture of the meaning of this case and the people it has impacted.

If Julie Kerry were still alive, she and I would about the same age. Like her, I am a white, middle class kid from a decent family with deep spiritual roots.  Their grandfather studied to be a priest at one point; my father is a pastor.  Like both of them, I became a supporter of Amnesty International as a teenager and had posters and t-shirts in support of social justice causes.  And while I don’t think I am the gifted writer that Julie was, I have, like her, used writing to proclaim my ideals and urge people to work for a better world.

The loss of these two young women goes beyond adjectives like “tragic” or “terrible.”  It is my hope that in society’s quest for justice in murder cases that we will not compound the tragedy of the victim’s death by putting other families through the excruciating experience of having their loved ones killed.  It is also my sincere hope that we in the anti-death penalty movement do not lose sight of or fail to acknowledge the original victims in capital cases: the murder victims.

The death penalty is such a charged issue that it often moves the spotlight from murder victims to those sentenced to death for the crimes.  For this reason, family members of some murder victims support the abolition of the death penalty, arguing that a life sentence would actually have given them greater and more rapid closure than the controversy and often lengthy legal processes associated with death penalty cases.

In our campaign to stop Georgia from executing Troy Davis, we used the slogan, I am Troy Davis to emphasize the humanity of a man whom the state had written off as “a monster who deserved to be killed.”  We sought a way to express the principle that human rights are inalienable and belong to us all, and that we all must therefore be invested in each other’s dignity and rights.

This is true not just for the innocent but for those cases in which someone has done the unthinkable.  It is equally true for murder victims.  I could say “I am Reggie Clemons” to make the same point.  And really, I could say, “I am Julie and Robin Kerry,” too, because all three were born with the right to life.

On this day, the 21^st anniversary of the deaths of Julie and Robin Kerry, I would like to offer my deepest sympathy to their loved ones on behalf of an organization that was founded to decrease suffering and injustice.  And I continue to pray for a world where the human right to life is upheld by individuals and governments alike.