Saturday, December 25, 2010

Chicago Tribune: The decline of the death penalty - expensive, error-prone, and losing popularity

Steve Chapman, a member of the Chicago Tribune's editorial board has published the following opinion piece in Saturday's Chicago Tribune.

In the midst of the fall election campaign, Steven Hayes went on trial in New Haven, Conn., in one of the most horrific murder cases in memory. The killers invaded a home, beat a man with a baseball bat, sexually assaulted and strangled his wife and tied up their two daughters before setting a fire that killed them.

It was the sort of crime that could only increase support for the death penalty. This effect had some relevance for the Connecticut governor's race, because it pitted a supporter of capital punishment, Republican Thomas Foley, against Democrat Dannel Malloy, an opponent.
When they debated, Foley promised to veto any bill to abolish the death penalty, while Malloy said, "We know that the application of the death penalty has not always been equal and even." A tough sell, right? But Malloy won.

That's just one of the many indications that capital punishment is on the wane. The popular impulse to put people to death is just not what it used to be.

Executions have fallen by half since 1999. The number of new death sentences is about one-third what it was at the 1996 peak. Even in Texas, long the leading practitioner, death sentences are off by 80 percent. Several states that retain capital punishment have not administered a single lethal injection in the past five years.

The exoneration of 138 death row inmates has weakened public support for the ultimate sanction. In a recent Gallup poll, 64 percent of Americans endorsed it, down from 80 percent in 1994, while opposition has nearly doubled.

A survey commissioned by the Death Penalty Information Center found that 61 percent prefer that murderers get some sort of life sentence instead. As a budget priority, the death penalty was ranked seventh out of seven issues.

Did someone mention budgets? They are no friend of an option that requires expensive trials, costly appeals and pricey incarceration arrangements. Franklin Zimring, a law professor at the University of California at Berkeley, says capital punishment has become "an extreme luxury item."

Even the Neiman Marcus Christmas catalog, which this year offers a charm bracelet for $248,000, has nothing to compare. Maryland has spent $186 million on capital cases over the past 30 years — which comes to $37 million per execution.

The typical Texas death case carries a price tag of $2.3 million. A 2005 study pointed out that "New Jersey taxpayers over the last 23 years have paid more than a quarter billion dollars on a capital punishment system that has executed no one."

You might surmise that death sentences and executions have subsided because the homicide rate has dropped so much. But Zimring finds that the biggest decline has been among murders that aren't eligible for capital punishment. Capital murders have declined far less. There are thousands each year for prosecutors who want to pursue them.

Even among lawmakers, this remedy is losing ground. The New Jersey legislature repealed it in 2007 and New Mexico followed suit last year. New York's death penalty law was overturned in court, but legislators have refused to pass a new one.
Illinois Gov. George Ryan declared an execution moratorium in 2000, and his successors have maintained it. But the moratorium has been, in a sense, the worst of both worlds. While taxpayers continue to incur the costs of seeking death sentences, none is ever carried out.
The cost will disappear if the General Assembly abolishes capital punishment, which opponents intend to propose as soon as it convenes in January. "I really think we're going to get it done," Jim Covington, director of legislative affairs for the Illinois State Bar Association, told me.
That shouldn't be impossible in a state where death row inmates are more likely to be freed than executed. Given Illinois' horrendous budget problems, the point of keeping the death penalty on the books is mysterious. In the last seven years, taxpayers have spent more than $100 million on capital cases even though the death chamber has been turned into a Starbucks
If it is repealed, some people will cheer, some will be angry, and most will pay little attention. In the United States, the death penalty may never die, but its best days are past.

Wednesday, December 22, 2010

Philadelphia: Steve Earle Benefit Concert for Witness to Innocence

Steve Earle, one of America’s legendary singer-songwriters, will perform a benefit concert (solo, acoustic) for Witness to Innocence at Johnny Brenda’s, 1201 North Frankford Avenue in Philadelphia, on Sunday, February 27, 2011. The ticket price is $40.  Doors open at 6:00 p.m. – the show starts at 7:00 p.m.  All proceeds will go to Witness to Innocence to empower and support exonerated death row survivors living in communities across the United States. 
Concert Ticketing Link:
After the show, there will be an intimate reception with Steve Earle and several exonerated death row survivors at The Slingluff Gallery, 11 West Girard Avenue (1/2 block from Johnny Brenda’s).  The reception will be held from 9:00 p.m. to 10:00 p.m.  Hors d'oeuvres, wine, and non-alcoholic drinks will be served. The ticket price for the reception is $60 (this does not include admission to the concert).  Only 35 tickets are being sold for the post-concert reception, so purchase your tickets now!  All proceeds from the  reception will also benefit Witness to Innocence. 

Reception Event Page
Reception Ticketing Link:
For more info about Witness to Innocence:
For more info about Steve Earle:
For more info about Johnny Brenda’s:
For more info about The Slingluff Gallery:

Wednesday, December 15, 2010

Clarence Brandley: Lykos Was Wrong to Halt Hearing Into Death Penalty

Exonerated death-row inmate Clarence Brandley has published the following column in today's Houston Chronicle.
When Pat Lykos ran for the office of Harris County District Attorney, she promised that there would be a new day in the criminal justice system. However, she recently proved that she's just another part of the same good ol' boy system that wrongfully sentenced me to death.
I spent nine years, five months, and 23 days in prison, most of them on death row waiting for my date with the executioner. I went through two trials and received several execution dates before I was found to be innocent of the murder of Cheryl Ferguson, a 16-year-old high school student in Conroe. My story is similar to the stories of 137 other exonerated death-row prisoners across the country, including 12 Texans who were found to be guilty beyond a reasonable doubt before their exonerations.
I was one of the two suspects taken in for questioning in connection with Cheryl Ferguson's murder. The deputy looked at both of us, saying, "One of you two is going to hang for this," before pointing at me. He said, "Since you're the n——-, you're elected."
In my first trial I faced an all-white jury. One juror refused to convict, causing a hung jury. He was met with a constant barrage of harassment and threats after the trial ended, ridiculed for being a "n——- lover." It took a second all-white jury to finally convict and sentence me to death in 1981. A year later it was revealed that the majority of the murder investigation's physical evidence had mysteriously disappeared while under police control. Witnesses also recanted their testimony, and my attorneys found out that investigators had coerced their stories. Finally, when the blatant racism of my first two trials was discovered, the FBI decided to intervene.
Since my exoneration nearly 20 years ago, I've been waiting for a simple apology from the state of Texas.
Last week, Harris County state District Judge Kevin Fine began a historic hearing on a pretrial motion to declare the Texas death penalty statute unconstitutional as applied because of a substantial risk that innocent people have been, and will continue to be, sentenced to death and even executed. However, in a rare move, Lykos ordered the prosecutors to not participate and "stand mute" during the legal proceedings. They later successfully petitioned the Texas Court of Criminal Appeals to halt the hearing.
A thorough review of Texas' death penalty system is long overdue. Lykos is obviously apprehensive about the facts being presented in this hearing. She must know that they will show how easy it is to be wrongfully convicted.
For every nine people executed in the United States since the death penalty was reinstated, one person has been exonerated. The most recent death-row exoneration was Anthony Graves, who was released in October after spending 18 years in prison for a crime he did not commit.
I was one of the lucky ones. No one knows how many of the more than 300 people awaiting execution on Texas' death row are innocent of the crimes for which they were convicted. Even more disturbing, despite what Gov. Rick Perry and former Gov. George W. Bush might claim, no one can definitively say how many of the 464 people executed in Texas since 1982 were innocent. Some, like Cameron Todd Willingham, Carlos DeLuna and Claude Jones, did not get an adequate opportunity to prove their possible innocence. Unless we halt all executions and thoroughly review our broken capital punishment system, we will continue to convict — and possibly execute - innocent people.
Brandley is an exonerated death-row prisoner and a member of Witness to Innocence, a national organization of death row survivors and their loved ones. He lives in Conroe.

Tuesday, December 14, 2010

The Top Reasons Why the Death Penalty Is Just Plain AWESOME

For a moment last week Texas was actually going to hold a hearing on whether the death penalty was being carried out in an unbiased and constitutional way. Of course the state couldn't have that, and the proceedings were halted.

So I decided to go out on the street and ask one million average Americans why they support the death penalty. Here are the eleven most common answers.

Lee Camp is a stand-up comic. ...Sometimes people make him write things too. He's a contributor to The Onion and has performed stand-up comedy at events featuring Barack Obama, Hillary Clinton, and Al Gore. You can watch his stand-up HERE. He was recently on Showtime's series "The Green Room with Paul Provenza" along with Roseanne and Bob Saget - watch that HERE. He was called one of the best New Faces at the Montreal Comedy Festival; he ran for president on Comedy Central's "Fresh Debate '08"; and he's done comedic commentary on PBS, E! network, SpikeTV, MTV, and ABC's "Good Morning America." He's featured in the new bestseller "Satiristas!" with the likes of George Carlin, Bill Maher, and Stephen Colbert. Lee also provided a catharsis for millions of people when he went live on Fox News and called the network a "parade of propaganda and a festival of ignorance." Sign up for Lee's e-mails and check out his tour schedule, audio clips, and videos at

Friday, December 10, 2010

International Human Rights Day

Today is International Human Rights Day, the 62nd anniversary of the signing of the Universal Declaration of Human Rights and the 6th nniversary of the founding of Murder Victims' Families for Human Rights. I pass along a posting by my Susannah Sheffer that appears in today's For Victims, Against the Death Penalty, the blog of MVFHR.

Human Rights Day

Today is International Human Rights Day, marking the anniversary of the signing of the Universal Declaration of Human Rights (UNDR) in 1948.

I always like to quote Sister Helen Prejean's observation, in her book Death of Innocents, that initially there was some debate about whether abolition of the death penalty fell within the scope of the ideal that the Universal Declaration represented. Helen writes:

It was to be expected when Article 3 of the Universal Declaration of Human Rights was debated back in the 1940s that such a declaration, which granted everyone the right to life without qualification, would provoke debate, and one of the first proposed amendments was that an exception ought to be made in the case of criminals lawfully sentenced to death. Eleanor Roosevelt urged the committee to resist this amendment, arguing that their task was to draw up a truly universal charter of human rights toward which societies could strive. She foresaw a day when no government could kill its citizens for any reason.

We are, of course, still working toward that day, and although there is a great deal left to do, we can also appreciate that 62 years after Eleanor Roosevelt made her argument, the majority of the world's countries have abolished the death penalty.

Today is also the 6th anniversary of the founding of Murder Victims' Families for Human Rights. Six years ago, the founding group gathered at the UN Church Plaza in New York City, offered public testimony, and signed a document stating, "In the name of victims, we pledge to end the death penalty around the world."

In MVFHR's first public statement shortly thereafter, we said:

The Universal Declaration of Human Rights, a document that sets forth the most basic principles regarding the value of human life and the way human beings ought to treat one another, was inspired by victims, demanded by victims. It grew out of the suffering of millions of civilians murdered under the brutal regimes of the Second World War, and its adoption on December 10, 1948 was a way to honor the loss of these lives, and an attempt to give meaning to the loss, by asserting that such violations are neither moral nor permissible under any nation or regime.

Now is the time to raise our voices again and insist that violations of human life in the form of the death penalty or other state killings are not permissible under any nation or regime. It is time to call for the abolition of the death penalty because the only way to uphold human rights is to uphold them in all cases, universally.

We believe that survivors of homicide victims have a recognized stake in the debate over how societies respond to murder and have the moral authority to call for a consistent human rights ethic as part of that response. Murder Victims’ Families for Human Rights is the answer to that call.

Our deepest thanks today to all MVFHR's members and supporters who have helped answer that call and who have accomplished so much in these six years.
at 8:41 AM

Death Penalty Opponents Speak Out - Clarence Brandley

Clarence Brandley, an African American man who lost ten years of his life on Texas death row due to a wrongful conviction, addressed the media on Dec. 9 at 10:00 AM at a press conference at the S.H.A.P.E. Community Center in response to the Texas Court of Criminal Appeals shutting down a hearing on the unconstitutional use of the death penalty in Texas.

Brandley, a member of Witness to Innocence, responded to the unfounded charges of the Harris County District Attorneys' office who opposed the pretrial motion in the case of capital murder defendant John E. Green.

Arrested in 1980, Brandley and another Conroe High School janitor were questioned for the rape and murder of a 16-year-old high school volleyball player, Cheryl Ferguson. The deputy looked at the two men and pointed to Brandley, saying, "Well someone is going to hang for this and since you are the n * * * er, you're elected!" It was ten years and several execution dates later that Brandley finally won his freedom in 1990.

Also speaking was Lee Greenwood-Rollins whose son, Joseph Nichols, was wrongfully executed on March 7, 2007. She explained how Texas law and the Harris County District Attorney allowed her son to be convicted and executed for a murder he did not commit.

Click here to watch the Houston local2 coverage of the press conference on youtube.

Press conference pictures are posted on facebook.

Exonerated man speaks out about death penalty at community center

Protesters speak out against decision to shut down hearing on death penalty 

Click here to watch the full press conference video

Thursday, December 09, 2010

Nicholas Kristof on Kevin Cooper: Framed for Murder?

The following is a piece in support of California death-row inmate Kevin Cooper, by the New York Times Op-Ed columnist Nicholas Kristof.
“California may be about to execute an innocent man.”

That’s the view of five federal judges in a case involving Kevin Cooper, a black man in California who faces lethal injection next year for supposedly murdering a white family. The judges argue compellingly that he was framed by police.
Mr. Cooper’s impending execution is so outrageous that it has produced a mutiny among these federal circuit court judges, distinguished jurists just one notch below the United States Supreme Court. But the judicial process has run out for Mr. Cooper. Now it’s up to Gov. Arnold Schwarzenegger to decide whether to commute Mr. Cooper’s sentence before leaving office.
This case, an illuminating window into the pitfalls of capital punishment, dates to a horrific quadruple-murder in June 1983. Doug and Peggy Ryen were stabbed to death in their house, along with their 10-year-old daughter and an 11-year-old houseguest. The Ryens’ 8-year-old son, Josh, was left for dead but survived. They were all white.
Josh initially told investigators that the crime had been committed by three people, all white, although by the trial he suggested that he had seen just one person with an Afro. The first version made sense because the weapons included a hatchet, an ice pick and one or two knives. Could one intruder juggling several weapons overpower five victims, including a 200-pound former Marine like Doug Ryen, who also had a loaded rifle nearby?
But the police learned that Mr. Cooper had walked away from the minimum security prison where he was serving a burglary sentence and had hidden in an empty home 125 yards away from the crime scene. The police decided that he had committed the crime alone.
William A. Fletcher, a federal circuit judge, explained his view of what happens in such cases in a law school lecture at Gonzaga University, in which he added that Mr. Cooper is “probably” innocent: “The police are under heavy pressure to solve a high-profile crime. They know, or think they know, who did the crime. And they plant evidence to help their case along.”
Judge Fletcher wrote an extraordinary judicial opinion — more than 100 pages when it was released — dissenting from the refusal of the United States Court of Appeals for the Ninth Circuit to rehear the case. The opinion is a 21st-century version of Émile Zola’s famous “J’Accuse.”

Mr. Fletcher, a well-respected judge and former law professor, was joined in his “J’Accuse” by four other circuit judges. Six more wrote their own dissents calling for the full Ninth Circuit to rehear the case. But they fell just short of the votes needed for rehearing.

Judge Fletcher laid out countless anomalies in the case. Mr. Cooper’s blood showed up on a beige T-shirt apparently left by a murderer near the scene, but that blood turned out to have a preservative in it — the kind of preservative used by police when they keep blood in test tubes.
Then a forensic scientist found that a sample from the test tube of Mr. Cooper’s blood held by police actually contained blood from more than one person. That leads Mr. Cooper’s defense team and Judge Fletcher to believe that someone removed blood and then filled the tube back to the top with someone else’s blood.

The police also ignored other suspects. A woman and her sister told police that a housemate, a convicted murderer who had completed his sentence, had shown up with several other people late on the night of the murders, wearing blood-spattered overalls and driving a station wagon similar to the one stolen from the murdered family.

They said that the man was no longer wearing the beige T-shirt he had on earlier in the evening — the same kind as the one found near the scene. And his hatchet, which resembled the one found near the bodies, was missing from his tool area. The account was supported by a prison confession and by witnesses who said they saw a similar group in blood-spattered clothes in a nearby bar that night. The women gave the bloody overalls to the police for testing, but the police, by now focused on Mr. Cooper, threw the overalls in the trash.

This case is a travesty. It underscores the central pitfall of capital punishment: no system is fail-safe. How can we be about to execute a man when even some of America’s leading judges believe he has been framed?

Lanny Davis, who was the White House counsel for President Bill Clinton, is representing Mr. Cooper pro bono. He laments: “The media and the bar have gone deaf and silent on Kevin Cooper. My simple theory: heinous brutal murder of white family and black convict. Simple as that.”

That’s a disgrace that threatens not only the life of one man, but the honor of our judicial system. Governor Schwarzenegger, are you listening?
I invite you to visit my blog, On the Ground. Please also join me on Facebook, watch my YouTube videos and follow me on Twitter.

Wednesday, December 08, 2010

Houston: Death Penalty Activists to Counter the D.A.’s Charges at Dec. 9 Press Conference

If you are in Houston and are available Thursday morning, please join us at this important press conference to counter the lies of the Harris County D.A.'s office regarding the defense attorneys' motion in the case of John Edward Green, Jr., who is facing capital murder charges.  His attorneys are arguing that the way Texas uses the death penalty is unconstitutional because innocent people have been and will continue to be executed. 

The hearing that was shut down was historic and timely; it was putting one more nail in the coffin of the capital punishment.

December 8, 2010


Contact: Gloria Rubac   713-503-2633

Texas Court of Criminal Appeals Shuts Down Hearing on Constitutionality of Texas Use of the Death Penalty;
Death Penalty Activists to Counter the D.A.’s Charges at Dec. 9 Press Conference

Clarence Brandley, an African American man who lost ten years of his life on Texas death row due to a wrongful conviction, will address the media on Dec. 9 at 10:00 AM at a press conference at the S.H.A.P.E. Community Center in response to the Texas Court of Criminal Appeals shutting down a hearing on the unconstitutional use of the death penalty in Texas.

Brandley, a member of Witness to Innocence, ( will respond to the unfounded charges of the Harris County District Attorneys’ office who opposed the pretrial motion in the case of capital murder defendant John E. Green. 

Arrested in 1980, Brandley and another Conroe High School janitor were questioned for the rape and murder of a 16-year-old high school volleyball player, Cheryl Ferguson.  The deputy looked at the two men and pointed to Brandley, saying, “Well someone is going to hang for this and since you are the n * * * er, you’re elected!”  It was ten years and several execution dates later that Brandley finally won his freedom in 1990.

Also speaking will be Lee Greenwood-Rollins whose son, Joseph Nichols, was wrongfully executed on March 7, 2007.  She will explain how Texas law and the Harris County District Attorney allowed her son to be convicted and executed for a murder he did not commit. 

“The D.A. is obviously afraid of the facts being presented in this hearing that show how easy it is to be wrongfully convicted in Texas.  People should know that for every nine people executed in the U.S., one person is exonerated.  Out of 138 exonerations from death row in the U.S., 12 of them have been right here in Texas,” said Abolition Movement activist Njeri Shakur.

The SHAPE Center is located at 3815 Live Oak at Alabama in Third Ward.  The press conference is being organized by the Texas Death Penalty Abolition Movement.   ( 

Tuesday, December 07, 2010

Texas Court of Criminal Appeals Halts Houston Hearing about Death Penalty

From Texas Moratorium Network:

The Texas Court of Criminal Appeals decided tonight to halt a Houston hearing about the death penalty.

A second day of testimony in the hearing was held today. Lawyers for accused killer John Green argue that Texas executes innocent people and does not follow the constitution. Lawyers for the District Attorney's Office say arguments against the use of the death penalty in other cases should not apply to green's case.

The appeals court wants both sides to submit legal briefs with their stated positions within the next 15 days.

Thursday, December 02, 2010

Text of Motion to Declare Texas' Death Penalty Unconstitutional (Hearing set for Monday, Dec 6)

From Texas Moratorium Network:

Motion to Declare Texas Death Penalty Unconstitutional as Applied

A hearing on the constitutionality of the Texas death penalty will be held in Judge Kevin Fine's courtroom in Houston on Monday, December 6, at 9 AM. Read more at the Texas Tribune.

If you live in Houston or can be there, there will be a demonstration against the Texas death penalty outside the courthouse at 8 AM on Monday (RSVP on the Facebook event page) We will go inside for the hearing at 9 AM.

Location: Harris County Criminal Justice Center
               1201 Franklin, 19th Floor
               Houston, Texas  77002

Texas' use of capital punishment will undergo legal scrutiny at this hearing. Evidence and arguments will likely be presented that there is substantial risk that the state's death penalty law does not adequately protect against the execution of an innocent person.

John Edward Green, Jr., the defendant in Texas v. Green, is charged in the fatal shooting of a 34-year-old Houston woman during a 2008 robbery. Green’s defense attorneys will argue that a number of factors in Texas' death penalty system increase the risk of wrongful executions in Texas, including a lack of safeguards to protect against mistaken eyewitness identification, faulty forensic evidence, incompetent lawyers at the appellate level, failures to guard against false confessions and a history of racial discrimination in jury selection.

Events are building in Texas that are similar to events in Illinois that led to a moratorium on executions there in 2000. In 1999, Illinois created a couple of commissions to study the death penalty, the Task Force on the Death Penalty was created by the Illinois legislature and the Illinois Supreme Court established a study committee on the death penalty. Then in 2000, a moratorium was declared in Illinois and the governor established the Commission on Capital Punishment to study flaws in the administration of the Illinois death penalty and recommend reform.

The Texas Legislature should also enact a moratorium on executions in the upcoming session and create a commission to study the death penalty.

DMN: Debate over capital punishment

"Debate over capital punishment" is the title of Dallas Morning News' recent editorial on the death penalty.
Former Supreme Court Justice John Paul Stevens and author David Garland have both dived into the national discussion over the death penalty this fall, with the bigger waves being kicked up by the recently retired jurist.
Writing in the New York Times Review of Books, Stevens convincingly challenges the underpinnings of capital punishment in a probing critique of Garland's new book, Peculiar Institution: American's Death Penalty in the Age of Abolition. Doing so, Stevens sheds light on why he began his career as a supporter of capital punishment, under the right conditions, and ended his career an opponent.

Stevens' metamorphosis tracks the conversion of many others – including this newspaper – as they analyze how and why some people are selected for the ultimate punishment.
Quoting his own opinion in a 1977 death penalty case out of Florida, Stevens summed up his previous views: "It is of vital importance ... that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice and emotion."
At the time, states were pushing back against a court decision that essentially imposed a moratorium on executions. What followed was a movement toward narrowly crafted laws intended to root out emotion, build in safeguards and apply capital punishment fairly.
Stevens now writes candidly about a more recent and "regrettable judicial activism" that has loosened restrictions on capital punishment and opened the door once again to abrogation of justice. Prosecutors have a clarified freedom, for example, to root out potential jurors who have qualms about the death penalty and to seek it for non-triggermen. 
Stevens now believes the death penalty represents "the pointless and needless extinction of life with only marginal contribution to any discernible social or public purposes."
Stevens and Garland point out one benefit that is glaringly evident in Texas: support for the death penalty "wins votes," the justice says. An NYU law and sociology professor, Garland wrote recently in the Houston Chronicle that "politicians give voters what they want by enacting capital punishment statues even when they will never be enforced."

A deterrent to crime is one supposed benefit for the death penalty, but its imposition is not associated with lower murder rates in the 35 states that allow it. Further, consider this from Garland: Out of 14,000 homicides in the U.S. last year, juries imposed death sentences in only 106 cases. Death is far from a sure punishment for taking a life, nor is it swift. Some death row inmates have been there for decades.

Just in Texas, the sentence is far from evenly imposed. Of the 316 people on Texas' death row, more than a third are from Harris County.

In what should be particularly disturbing in Texas – for obvious reasons – Stevens mentions the "execution of innocents" as if a given. Perhaps that, more than anything, has caused prominent Texans, from a former governor to former prosecutors, to adjust their thinking, as has Stevens, and advocate a saner justice system that guards against a flawed but irrevocable sentence.

Wednesday, December 01, 2010

New Hampshire Death Penalty Study Commission Report

Final Report:
Individual Statement of Commissioner Renny Cushing

There were a number of family members of murder victims who appeared before the Commission to share their personal experiences with homicide and the criminal justice system. They expressed their opposition, as victims, to the death penalty. As I listened to their testimony, and as I do when I listen to the experiences of any family member of a murder victim, whether they support, oppose, or have no opinion on the death penalty, I felt a sense of shared experience, empathy, and solidarity. My father, Robert Cushing, Sr., was shotgunned to death in front of my mother in our family home two decades ago. For me, thinking about what should be done after a murder happens is not just an intellectual exercise; it’s part of my life. The pain that is difficult to give words to, the emptiness and trauma, are part of my personal reality that I brought to the work of the Commission.

I served on the Commission with two other family members of murder victims: Bob Charron, whose son Officer Jeremy Charron was murdered in Epsom in 1997, and Brad Whitney, whose father Eli Whitney was murdered in 2001. Although we ended up disagreeing about the death penalty, their presence on the Commission was important to me. At times when a witness or a member of the Commission would embark on an explanation of legal intricacies or the theories and arcane points about statistical analysis, I would get a sense that somehow the reality of the murder of real people was getting lost in the process. It was good to know I was not the only person in the room who felt in his gut that this was not just a theoretical discussion. I thank both Bob and Brad.

The courageous voices of family members of murder victims the Commission heard from came from diverse backgrounds, and the details of their tragedies and losses were illustrative of the complexity of murder. They shared in common a belief as co-victims/survivors that the death penalty system is not something they embraced, and recommended its repeal. They differed in their reasons for opposing capital punishment, and the process by which they came their position was unique to each person. Among the voices the Commission members heard from were:

• Bud Welch, whose daughter Julie was killed in the bombing of the Murrah Federal Building in Oklahoma City, who opposed the execution of terrorist Timothy Mc Veigh;

• Gail Rice, whose brother Bruce VanderJagt was a Denver police officer killed in the line of duty, who spoke of her experience as a law enforcement family member opposed to the death penalty;

• Nancy Filiault, whose sister Kitty, her daughter Rachel and son Kyle were murdered during a brutal home invasion;

• Arnie Alpert, whose grandfather Charlie Alpert was murdered with a claw hammer in his hardware store;

• Andrea LeBlanc, whose husband Robert Le Blanc was killed in the World Trade Center during the September 11th terrorist attack;

• Carol Stamatakis, whose father Emmanuel “Mike” Stamatakis was murdered in his store in 1997, a murder which remains unsolved;

• Sandra Place, whose mother Mildred Place was murdered in New Jersey, who shared the nightmare her family experienced as the death penalty elevated the killer in the media into a notorious prisoner;

• Laura Bonk, whose mother Laura Hardy was murdered and whose sister, who was shot at the same time as her mother, years later still struggles to recover from years of surgery she underwent as a result of the shooting;

• Ann Lyczak, whose husband Richard Lyczak was murdered, and she and her son injured when attacked while riding in their car;

• Bess Klassen- Landis, whose mother was murdered when Bess was 13, and the killer never apprehended;

• Bob Curley, whose son Jeffrey was kidnapped by pedophiles, sexually defiled and abused and murdered and then his body was tossed in a river on the Maine-NH border. Bob shared the story of how after his son’s killing he led the effort to reinstate the death penalty in Massachusetts, but now opposes capital punishment;

• Margaret Hawthorne, whose daughter Molly Hawthorne MacDougall was murdered in Henniker on April 29th of this year, who, even as she awaits the trial of the man accused of killing Molly, found a way in her pain to bear witness in her daughter’s memory to ask the Commission to recommend abolition of the death penalty.

Clearly it must be recognized and acknowledged that those witnesses, and all family members of murder victims, are stakeholders in the discussion and public policy debate about what should be done, by society and individuals, in the aftermath of murder.

The presence of those family members and their sharing of their experiences was a gift to the Commission. It was, therefore, disappointing to me that when it came time for the Commission to deliberate about what we had learned over our year of work together and what our findings and recommendations should be, we failed to discuss or explore in any depth as a group the complicated and painful experiences of people who have had family members murdered, and the individual and family journeys of survivors after lives had been shattered by a homicide.

I’d like to think that, despite the best efforts of Judge Murphy and all of us to keep on schedule, maybe we as a Commission just ran out of time for such a complicated discussion. In hindsight, perhaps it would have been more useful and appropriate for the legislature to direct the Commission to begin an examination of the death penalty by asking and answering this fundamental question:

“What are the needs of the surviving family members of murder victims?”

From my perspective, I believe there needs to be what Victim Advocate Susan Herman has identified as a parallel system of justice for victims of crime, including co-victims of homicide. Parallel Justice seeks to identify those who have been hurt by criminal acts, asks what the harm is the victim has suffered, and strives to take actions that mitigate and repair the harm that has been done to victims. This process need not be dependent upon the actions or status of the criminal offender, but is done out of a recognition of community responsibility and solidarity.

The two general areas that have the greatest impact upon victims of crime are the impunity of criminals and reparations for victims. Impunity means “exemption from punishment or loss.” Victims’ concerns about impunity focus on the actions of criminals, stopping those who engage in murder and criminal activities from committing further crime and holding them accountable for the crimes they have committed. Reparations for victims of crime focus upon those who have been harmed by homicide and other crimes, and attempt to address the harm to mitigate and repair the damage. Prioritizing ending the impunity of murderers and providing help and support to victims are important to the healing process a survivor of a murder victim must go through.

Testimony before the Commission demonstrated that, whether one supported or opposed capital punishment in theory, the reality of the death penalty system in practice is it just doesn’t work. It doesn’t make the public or police safer, it is prone to mistakes that snare innocent people, and it is not a good use of scarce public resources. And rather than being some kind of a balm for the pain for murder victims family members, it is both a perception and a reality that the death penalty is a distraction from meeting the overall needs of survivors of homicide victims.

It is clear from a look at our past that New Hampshire dislikes the death penalty. In the 380-year history of New Hampshire there have only been 24 executions, the last one being in 1939. Two of those executions are reminders of current concerns about the death penalty: wrongful convictions and race. Ruth Blay, put to death in 1768, was the last woman executed in the state, and was, according to some historical accounts, “wrongly” executed. Thomas Powers, executed for rape in 1796, was an African-American man who is the only person ever executed in the state for a crime that did not involve the murder of another person.

Capital punishment involves only a tiny fraction of murders committed in New Hampshire, and when the state decides to seek a death penalty it is a radical departure from the norm. As a rare event, seeking a death penalty in a murder case signals that, from the perspective of the state, all victims are not of equal value. The willingness to devote a disproportionate amount of resources to prosecute a death penalty case in comparison to other murder cases, calls into question the government’s commitment to all victims. No matter what the Attorney General or the legislature or the media believe to be or attempt to designate as the most heinous homicide that demands a ritual killing of the murderer by the state, for every person who has had a family member murdered, the worst, the most painful, the most awful and heinous murder is the murder of their loved one. Whether intended or not, implicit in the decision to mobilize resources to seek a death penalty is the message to family members of murder victims where the death penalty is not sought that the life of their parent or child or sibling or spouse is somehow of less value than the life of the person for whose murder the state seeks an execution. There is a perception among many victims that this creation by government policy of a hierarchy of victims in some way damages to the memory of their murdered loved one.

The state of New Hampshire has demonstrated the willingness and resolve to spend millions of dollars from the state’s general fund on both the prosecution and defense of a single killer charged with a capital murder. As the Commission met, the state has been in the midst of a severe budget crisis that has impacted justice and public safety--- police and prison guards are being laid off, courthouses are shuttered on some days, and crime victims calling the victims assistance commission are greeted with a voice message instead of a human being. And, at the same time the state has focused limited resources in pursuit of a death penalty, the state spends no general fund money to fund compensation for victims of crime, including surviving family members of homicide victims, and no general fund money on the investigation of cold case homicides.

The Commission heard testimony of how, just days after the arrest of Michael Addison for the murder Officer Michael Briggs, the Attorney General went before the Fiscal Committee and Governor and Council to request and be granted $400,000 for the prosecution of that one homicide. This request was made under a little known provision of state law, RSA 7-12, which permits the Attorney General to obtain funds outside the regular budget process of appropriating state general fund dollars. In contrast to this, during the 2009 session of the legislature, the Attorney General’s office opposed proposed legislation that would enable the Attorney General to obtain funds under RSA 7-12 for the Victims Assistance Commission to provide financial support for crime victims.

This raises the question: Why is it more important to the legislature and Attorney General of the state of New Hampshire to fund a death penalty prosecution than it is to provide compensation and assistance for the families of murder victims and other victims of crime?

Instead of making it a priority to spend millions of dollars to pursue executing a prisoner, the legislature should prioritize policies of parallel justice for crime victims, with the funds being spent to pursue the death penalty and other resources redirected to focus on meeting the needs of murder victims’ families.

To that end I make the following suggestions for action by the legislature to help further secure justice for crime victims:

1) Remove the sunset provision from the law that set up the Cold Case Homicide Unit and, by statute, establish the unit as a permanent operation, with its own line item in the state budget. It is currently scheduled to go out of existence on June 30, 2011.

2) As part of the state’s commitment to find justice for all homicide victims, the legislature should provide an annual appropriation from the state’s general fund equivalent to $15,000 for each outstanding unsolved murder to support the work of the Cold Case Homicide Unit. Based upon the current list of approximately 115 unsolved murders, this would amount to an appropriation of $1,725,000. a year, a fraction of the cost of a single death penalty case. I note that this figure is also less than the $1,778,000. “to construct a lethal injection chamber to address the potential of future capital crime convictions” that is included Department of Corrections Comprehensive Master Plan of July 10, 2008 that was provided to the Commission.

3) Raise or eliminate the cap on the amount of money surviving family of homicide victims are eligible to receive from the Victims Assistance Fund. With a limit of $25,000 on the amount of assistance a victim can receive, New Hampshire ranks near the bottom of states in their support for victims. The state of Washington, for example, caps compensation at $100,000, while the state of New York has no cap on medical expenses.

4) End the 2-year statute of limitations on when a survivor of a homicide victim must apply for assistance from the Victims Assistance Commission. The impact of homicide is long lasting, and sometimes needs of a victim, such as counseling for PTSD, do not manifest themselves until years after a murder. There is not a statute of limitations for prosecution for murder; there should not be a statute of limitations on providing help for survivors of murder victims.

5) Establish, fund and provide sustaining support for a support group for survivors of homicide victims. At the present time there is no existing group or network in the state where those who have been harmed by homicide can find peer support and interaction. It is incredibly isolating to go through the experience of the murder of a family member, and the inevitable retraumatization that victims experience though the criminal justice system. It is axiomatic that the only person who can truly understand what that process is like is someone who has shared a similar experience.

6) Enact victims’ leave law to require employers to give unpaid leave to their employees who are survivors of homicide victims to attend trials and other legal proceedings-- similar to the way we treat jurors. It is often important to a victim’s effort to reclaim control over their life that victim gain information about the murder of their loved one and to bear witness by observing trials. Public policy should recognize this need for victims.

7) Recognize the impact of murder on families is long lasting and multi-generational and establish a fund to provide post secondary education to the children and spouses of murder victims.

8) Amend RSA 7-12 to authorize the Attorney General, when necessary to meet the needs of victims of crime, to seek and obtain funds outside the regular budget and appropriations process. As a matter of fairness and justice, it should be equally as important to ensure that crime victims receive assistance as it is to see that criminals are prosecuted.

In addition to diverting attention from the needs of victims, the death penalty system can sometimes operate ways that does some victims harm.

The death penalty can divide and damage families. Because “death is different”, and because individuals have deeply held beliefs about the morality and utility of executions, unlike any other punishment the death penalty sometimes creates irreconcilable conflict amongst the surviving family members of murder victims. At a time when mutual support to weather a shared loss is so important, disagreement over the death penalty, instead of helping bring families together, creates fissures and compounds the tragedy of murder.

The death penalty fosters a hierarchy of victims. Depending upon one’s perspective, family members of murder victims are often judged by others on their position on the death penalty, and get divided into categories of ‘good victims” and “bad victims.” Sometimes family members of murder victims who oppose the death penalty have their love for their murdered family member challenged—opposition to the death penalty is taken as sign that that they really didn’t love parent/sibling/child. Or, opposition the death penalty is taken as an implication that somehow the victim must be responsible for his or her own murder. Or, opponents of the death penalty are dismissed as either psychos or saints—crazy for not wanting to see the person who killed their loved one executed, or uncommonly holy for this earth. In some instances opposition to the death penalty results in denial of status and rights under victims rights laws. Fortunately New Hampshire recently amended it Victims Bill of Rights to guarantee equality of treatment for all victims irrespective of their position the death penalty, but subtle prejudices against some victims based upon either their support or opposition to the death penalty remain.

The death penalty puts the media spotlight on murderers and makes rock stars out of killers. Efforts to seek and carry out the death penalty draw attention to the person facing execution. In the process, the life and good work of the victim can be ignored or impugned. In the minds of the pubic, executions turn offenders into victims, and they gain celebrity in their death. Everyone knows the name of Tim McVeigh, but far fewer people know the name of Julie Welch or any of the other 167 victims of his crime.

The death penalty creates additional victims. When a prisoner is executed, that person is often someone’s parent, someone’s child. The Commission gave no consideration to the impact the death penalty has upon the family of the condemned, but when the state carries out an execution his or her surviving family member become family of a homicide victim. The faces of that family are hidden by silence and shame, but we cannot ignore the reality that the innocent children of killers put to death are impacted in ways society, as a whole, has never examined.

The death penalty is a false promise to victims. Proponents of the death penalty put forth the notion that an execution can be a solution to the pain experienced by a survivor of a murder victim. Offering up this promise of a ritual event represents a fundamental misunderstanding of a victim’s journey. Healing is a process, not an event. When public employees take a killer from a prison cell, strap him on a gurney, putting a needle in his vein and pump him full of poison to kill him, that is not, as my retentionist colleagues on the Commission assert, and act consistent with a standard of decency, it is an act of despair. Executions do not accomplish the thing that victims want above all else—they do not bring back their murdered loved one.

The hardest thing for a victim to do is accept that they cannot change the past. But what they can do, what they need to do, is make decisions about the future, about how they live their lives in the future. Sometimes victims get so fixated on how their loved one died that they almost forget how their loved one lived. Our broken death penalty system, with its years of delays and other problems, holds a victim’s focus, and society’s focus, on the killer, anticipating and expecting an event, the event, the killer’s execution. If and when an execution occurs, another coffin is filled and another family grieves a killing, but, sadly, very little changes for the victim. Their loved one is still dead. What sometimes ends up happening is the murder claims two victims: the person killed by the murderer, and the person who is the survivor of that person who was killed, whose life gets claimed by a system that is a set up for failure.

At the end of the day the death penalty is not about those who kill, it is about us. We, as a society, become what we say we abhor, killers. I don’t want the state killing in my name.

As a citizen, as member of this Commission, and as the son of murder victim Robert Cushing, I view the death penalty not as a criminal justice sanction, but as a human rights violation. I aspire to live in a society, in a world where human life is cherished and the dignity of all is respected. As a parent I choose hope and optimism for the future, for my children and the world in which they will live, and I believe that history is on the side of those of us on the Commission who support repeal of the death penalty. New Hampshire can live without the death penalty, and I know the day will come when capital punishment is abolished.

December 1, 2010

Renny Cushing, Executive Director
Murder Victims' Families for Human Rights

Hearing on Constitutionality of Texas Death Penalty - Monday Dec. 6 in Houston Judge Fine's Courtroom

From Texas Moratorium Network:

A hearing on the constitutionality of the Texas death penalty will be held in Judge Kevin Fine's courtroom in Houston on Monday, December 6, at 9 AM. If you live in Houston or can be there, there will be a demonstration against the Texas death penalty outside the courthouse at 8 AM on Monday (RSVP on the Facebook event page) We will go inside for the hearing at 9 AM.

Location: Harris County Criminal Justice Center
               1201 Franklin, 19th Floor
               Houston, Texas  77002

Texas' use of capital punishment will undergo legal scrutiny at this hearing. Evidence and arguments will likely be presented that there is substantial risk that the state's death penalty law does not adequately protect against the execution of an innocent person.

John Edward Green, Jr., the defendant in Texas v. Green, is charged in the fatal shooting of a 34-year-old Houston woman during a 2008 robbery. Green’s defense attorneys will argue that a number of factors in Texas' death penalty system increase the risk of wrongful executions in Texas, including a lack of safeguards to protect against mistaken eyewitness identification, faulty forensic evidence, incompetent lawyers at the appellate level, failures to guard against false confessions and a history of racial discrimination in jury selection.

State District Judge Kevin Fine of the 177th Criminal Court in Harris County (Houston) set the hearing for Dec. 6 as part of a pretrial motion in which two defense attorneys for a Houston man facing a possible death sentence asked that Texas' death penalty statute be declared unconstitutional.

In March, on a motion filed by attorneys for John Edward Green Jr. (facing death for the 2008 robbery and murder of Huong Thien Nguyen in Houston), Fine ruled that capital punishment as practiced in Texas is unconstitutional for failing to adequately protect the innocent. Fine quickly rescinded that original order, but he has granted Green's attorneys the right to a hearing on the matter. Green's attorney Casey Keirnan told the Associated Press that he expects the hearing could last up to two weeks and that death penalty experts from around the country will likely testify. "I think everybody in the United States would agree that the possibility exists" that an innocent person has already been executed, he said.