Seven Years Of Writing About State Killing

To be completely honest, when I began, I never expected that over the course of the next seven years I would write more than 200 essays about ending state killing in America. But today I noticed-- I usually miss the date-- that March 18, 2009, is the seventh Anniversary of my starting a listserv about ending the death penalty. And I see that I've written more than 200 essays about the topic.

When I started the listserv I described it like this:

The views and opinions of an experienced criminal defense lawyer who is also a buddhist. About pending executions, legal developments, the media, the abolition movement, contemplation, prayer, and engaged, nonviolent activism. Sent sporadically. Only for those who value all lives and are opposed to the death penalty. Not for debate.

I have pretty much stayed on point for the whole way. And I've written virtually every month for the whole way. And now, what was "cutting edge" technology, the listserv, is the poor step cousin of blogs and flogs and tweets. But I persist using the now antique machinery.

There is something bittersweet about commemorating seven years of writing advocacy. It's a nice milestone, but I wish state killing had been abolished so that I couldn't get to this point. I do want, however, to mark the date, and wonder, openly and aloud, how many more essays it will take before state killing actually ends.

What better way of commemorating this milestone, especially in light of Friday's historic and optimistic vote in New Mexico to abolish state killing (now awaiting Governor Richardson's signature) than to republish one of the early posts from March, 2002, noting the 100th Death Row Exoneration:

100th Death Row Inmate Exonerated

I bet you didn't read much about this news item in your local newspaper or hear about it on the TV news. And the odds are pretty good that the requisite editorial calling for abolition or a moratorium wasn't there either. You should have seen something at the top of the editorial page that said, "Now that 100 innocent people have been released from death row, maybe it's been adequately demonstrated that innocent people might be executed and might have already been killed. It's time for a moratorium, and it's time to end the death penalty." At least the New York Times had it correct.

Think about this: these 100 people haven't been released on the "technicalities." They weren't released because their trials were unfair, or they suffered from prosecutorial misconduct. They weren't released because they were discriminated against because of race or the region of the country where they were charged, or because they were retarded or the mentally ill. These weren't cases in which courts ruled that constitutional principles were offended by a judge's jury charge or evidence that should not have been admitted or other trial or appeal defects. This is nothing like that. This is about being released because the convicted person is proven actually to be innocent.

It's mind boggling. The 100th case is as good an example as any. After being in prison for a decade, and spending part of the time on death row, a DNA test comes back and says to someone whose conviction has been consistently upheld by the courts, "You're innocent. This other guy did the crime. Go home and be free." The DA apologizes. Surprisingly, this does not set off a national riot. It does not trigger a legislative convulsion and a sudden moratorium on killing people. Congress does not rise up in indignation an enact the Innocence Protection Act. Nobody jams a screwdriver into the gears of the machinery of death. Instead we shake our heads and scratch our heads and read the following article:

Former death row inmate Ray Krone was released from prison on Monday in Arizona after DNA testing showed that he did not commit the murder for which he was convicted 10 years ago. Maricopa County Attorney Rick Romley and Phoenix Police Chief Harold Hurtt announced at a news conference on Monday that new DNA tests vindicated Krone and that they would seek his release pending a hearing next month to vacate the murder conviction. Romley stated, "[Krone] deserves an apology from us, that's for sure. A mistake was made here. . . . What do you say to him? An injustice was done and we will try to do better. And we're sorry."

Krone was first convicted in 1992, based largely on circumstantial evidence and testimony that bite marks on the victim matched Krone's teeth. He was sentenced to death. Three years later he received a new trial, but was again found guilty and sentenced to life in prison in 1996.

Krone's post-conviction defense attorney, Alan Simpson, obtained a court order for DNA tests. The results not only exculpated Krone, but they pointed to another man, Kenneth Phillips, as the assailant. Prosecutor William Culbertson told Maricopa County Superior Court Judge Alfred Fenzel that the chances are 1.3 quadrillion to one that DNA found in saliva on the victim's tank top came from Phillips. (The Arizona Republic, 4/9/02)

Krone is the 100th inmate freed from death row since 1973 and the 12th in which DNA testing played a substantial factor. In all, the 100 inmates freed from death row due to actual innocence spent a combined total of approximately 800 years on death row.

The state of Florida leads the nation in wrongful convictions, with
22 innocent people released from death row since 1973. Illinois
is second with 13; Oklahoma and Texas are tied for third with 7,
followed by Arizona and Georgia, with six each.

(sources: DPIC, NCADP, Rick Halperin, Arizona Republic)

How do we understand this? Right this minute the 101st person to be exonerated is sitting somewhere on death row. S/he didn't commit the crime, and the courts have determined over the past 10 or 12 or 15 years of appeals and motions that s/he had a fair trial, and reasonable assistance from counsel, and a complete appeal, and full access to the courts. And the courts are all saying that it is OK to execute him/her. There's just one small problem. Sometime in the next weeks we're going to discover that, guess what!, this person who was convicted by a jury and whose appeals have been denied is actually innocent. We might discover this because of DNA. We might discover it several other ways. Rest assured: it will be discovered. Then the 101st person will be released. And the 101st person will receive an apology and go home and maybe eat steak and maybe drink margaritas and maybe swim in a swimming pool for the first time in a decade (see, Arizona Republic, 4/10/02).

But wait a minute. What happens if we don't discover this proof of innocence in time? What if the 101st person is actually executed before anyone proves that this person is actually innocent? What then? What if the person who should have been the 100th person, or the 23rd, or the 73rd wasn't able to be released because he was killed instead?

Meanwhile, what is happening to the 101st and the 102nd and the 103rd persons, who are surely on death row awaiting their release as I write this? They are floating and nearly drowning in a vast sea of great suffering. As Ray Krone told the Arizona Republic about how guards reacted as he was taken to death row 10 years ago: "I was something they looked at on the bottom of their shoes, that they were trying to scrape off," he said. And they are not suffering alone. Those thought to be their victims, their victims' families, those who guard them, those who prosecute them, those who are their judges and juries, those who defend them and their families, those who report their stories, those who read their stories, all of these, and those they talk to, and those who think about any of these, and those who try to prove them innocent, on and on and on, all find themselves immersed in this ocean of unnecessary suffering.

I pray that all on death row will be spared. May all beings affirm the preciousness of every single life. May all beings refrain from killing and prevent others from killing. May all beings have happiness and the causes of happiness. May all beings be free from danger. May all beings be free from suffering and the causes of suffering. May all beings have equanimity, so they have neither too much grasping nor too much aversion, so they may dwell in the perfection of each successive moment. May all beings have abundant love, prosperity, comfort, healing, delight. May all beings have peace. May all beings realize their enlightenment. May all beings have the spiritual bliss that is beyond sorrow. Om tara tuttare ture svaha! peace, david

Things have changed in the past 7 years. There have been even more death row exonerations. States have voted to abolish the death penalty. Other states have abolition statutes before their legislatures. Public approval for state killing is down. Economic concerns may lead to a view that the death penalty is a wanton luxury: states cannot afford it because it gives them nothing valuable. But sadly, state killing persists in all its barbarousness.

Meanwhile, I hope that I don't have to commemorate the tenth anniversary of my listserv because state killing will have come to an end. I hope that in my lifetime it ends. My plan then is to have an enormous party and invite everyone I know to celebrate. I'm optimistic that I will actually have this party, and I hope you, dear reader, can come to it.