Finally Ending The Death Penalty

crossposted at docudharma

On Thursday, the New Jersey legislature voted to end capital punishment in that state. I was delighted by the breaking news, and posted an essay. Yesterday, I learned that around the world, death penalty abolitionists were rejoicing and that in Italy the Coliseum was being illuminated in celebration. I was delighted, and posted an essay. Today my happiness continued. The New York Times has an editorial about the death penalty. It begins:

It took 31 years, but the moral bankruptcy, social imbalance, legal impracticality and ultimate futility of the death penalty has finally penetrated the consciences of lawmakers in one of the 37 states that arrogates to itself the right to execute human beings.

This week, the New Jersey Assembly and Senate passed a law abolishing the death penalty, and Gov. Jon Corzine, a staunch opponent of execution, promised to sign the measure very soon. That will make New Jersey the first state to strike the death penalty from its books since the Supreme Court set guidelines for the nation’s system of capital punishment three decades ago.

Some lawmakers voted out of principled opposition to the death penalty. Others felt that having the law on the books without enforcing it (New Jersey has had a moratorium on executions since 2006) made a mockery of their argument that it has deterrent value. Whatever the motivation of individual legislators, by forsaking a barbaric practice that grievously hurts the global reputation of the United States without advancing public safety, New Jersey has set a worthy example for the federal government, and for other states that have yet to abandon the creaky, error-prone machinery of death.

I hope that the ripples from the Times editorial travel far and wide. I hope that NJ's action is the beginning of the end of state killing in the US and the rest of the world. I would like to see an end to state killing in my lifetime. I believe that's possible.

I have always been opposed to the death penalty. I remember from when I was a small child the executions of Julius and Ethel Rosenberg. Their execution was particularly important because like me, they were Jews, and like my parents to some extent, they believed in the promises of 1930's Socialism. I remember the execution of Caryl Chessman in California. I remember other executions as well. All those executions seemed to me to be state murder and barbarian acts of vengeance. All of them seemed wrong and unprincipled.

Later, when I went to law school, I was fascinated by the intricacies criminal law. I was delighted when the US Supreme Court initially stopped all executions in the United States. And I was devastated when the Supreme Court permitted the death penalty to be resurrected from the ashes and for the killing to continue. I wasn't doing death penalty work then. I was working on civil rights cases in Mississippi in behalf of prisoners at Parchman and the State Hospital at Whitfield. I remember distinctly an intoxicated conversation with a colleague in which it emerged that it would be a whole lot easier for us to do something for people before they were incarcerated than it was to change conditions of confinement afterwards. I think that was when I finally committed to working in criminal defense.

Eventually, I left Mississippi and I went to work for the Federal Defender in NYC, and then into private practice as a criminal defense lawyer. I still do that work. As I am writing this diary, I am in the middle of a murder trial in Hudson, New York. I have practiced law for more than 30 years. I hope I have mastered my vocation.

In 1982, some friends who were involved in death penalty, appellate work and I went out with wives and girlfriends to a lavish Italian dinner in the Village. They had a plan. After a few bottles of excellent wine and entirely too much food, I agreed that I would handle a death penalty appeal in Mississippi pro bono. The case involved a direct appeal to the Mississippi Supreme Court from a death penalty imposed in Gulfport, Mississippi. My friends wanted to make sure I wouldn't forget what I agreed to, that I would keep my promise. The next morning before my hangover had even started to abate, they delivered the files to my office. That helped my memory. It didn't help my headache. But I was lucky. Very lucky. The Mississippi Supreme Court reversed the conviction and ultimately in 1984 my client was released from prison. I remember the day the Court called my office with the good news. When I heard who was on the phone, my heart started pounding and my mind was racing: would I have to seek a stay right then? would I have to apply for cert? would I have to go to federal court? What was the next step? The Clerk, after pausing for an unimaginably long period, said that the court had reversed the conviction, but one judge wrote a dissent arguing that my client should be killed. My relief was enormous. My client was reduced to tears.

That case began a long involvement with the death penalty. Since then, Congress has done whatever it can to thwart state prisoners' appeals to the federal courts. And the states have done whatever they can to limit state prisoners' collateral attacks on their convictions. These steps have made death penalty appeals a procedural rats' nest. Many death penalty cases have substantive issues that cannot be presented to a court. Prisoners on death row are routinely told that their arguments are foreclosed, that their arguments have been procedurally barred. Persistent efforts by legisltures and congress to make killing prisoners easier for the state by cutting off prisoners' appeals impaired the prisoners' rights to access to the courts. With a few exceptions, only large firms with thick wallets can now take on pro bono representation of death row prisoners.

Mostly, I now try to support others in their cases. I continue to write extensively about the Death Penalty and to blog about it when there is a development. I have tried to support abolition however I can. I continue to do that.

I celebrate the New Jersey law. To me the New Jersey legislature's decision to abolish the death penalty seems to be the beginning of the end for state killing. It's the opening of a new, positive front widening the battle for abolition. There is some good news. All lethal injection executions are now on a stay until the US Supreme Court decides the Kentucky lethal injection case. There will be no more executions as a result of those stays until Spring, 2008 at the earliest. Here in NY the death penalty was rendered useless by the Court of Appeals. There have been so many exonerations. The economy is in trouble and the cost of death penalty cases is so very high.

I hope all of this adds up to an end to state killing. And I hope it happens in my lifetime.

Right now, the sweetness of the victory in New Jersey lifts me up. And I hope it inspires others across the country to end the death penalty once and for all.