UNDERSTANDING THE DEATH PENALTY Updated May 2012 Tips for presenting this slide show: -think about who your audience is so you can anticipate which slides you may want to spend more time on, what questions you think may come up and be prepared for the level of learning and how much debate you may encounter. -establish a good environment before starting to let folks know where you are coming from, that questions and differences of opinions are welcome. If you have a limited amount of time, let folks know whether there really is time for in depth discussion or not (better not to come off as disingenuous about entertaining a lot of discussion and debate if you really don’t have the time for it). -avoid polarizing discussions and prod people to look for common ground. Don’t be afraid of disagreement or strong opinions, just ask people to offer their comments respectfully and to not personalize their points. -if you have a largely anti-death penalty audience, encourage them to look for understanding of why proponents believe it is important/necessary. -this presentation is somewhat objective, but it is not neutral. You should be upfront with your participants that you want to have an honest look at the death penalty, entertaining questions and different opinions, but that AI has a clear position on the death penalty and that will be apparent in this presentation. -this presentation is by no means a comprehensive look at the death penalty – there is a vast amount of information and arguments that aren’t covered; however, this presentation provides a decent overview of many of the main issues. -we recommend you make the presentation interactive (ask questions, entertain questions and ideas), where possible, but note that more interactivity will require more time. -There are 29 slides, 7 are title slides; therefore, think about how much time you have to present this slide show and divide those minutes by 22 so you have a sense of about how much you can give to each slide. -it would be ideal to know at least double the amount of info on each slide so that you can provide a little depth to the presentation and be prepared to answer some questions. The AI fact sheets on the death penalty are a great source of information http://www.amnestyusa.org/death-penalty/death-penalty-facts/page.do?id=1101088 and the Death Penalty Information Center’s 4-page fact sheet is a wonderful overview of many issues in a very condensed and illustrated form (http://www.deathpenaltyinfo.org/documents/FactSheet.pdf) -feel free to offer people handouts of the presentation, but you may want to give them out after your presentation to prevent people from jumping ahead or not following you.

Presentation Overview Where the Death Penalty is Used The Impact of Murder Justifications for the Death Penalty The Case against the Death Penalty Yes, There is a Better Way! What You Can Do

A) WHERE THE DEATH PENALTY is used

The Death Penalty Worldwide You’ll see that Europe is DP-free except for Belarus. In fact, you can’t join the EU if you have the DP. Latin America is almost DP-free and much of Africa has stopped using the DP Dark blue = abolitionist Brown = DP only for times of war Orange = DP for adult offenders Red = DP for adult and juvenile offenders Light blue = no DP in 10 yrs

Where Countries Stand Total abolitionist in law or practice: 140 for all crimes: 97 for ordinary crimes only: 8 in practice: 35 Retentionist: 58 Top five executors in 2011: China, Iran, Saudi Arabia, Iraq, and the USA

The Death Penalty in the US Recent changes: 2012- CT repealed its death penalty 2011 – IL repealed its death penalty 2009 – NM repealed its death penalty 2007 – NJ repealed its death penalty 2004 – NY’s highest court declared its death penalty statute unconstitutional. The legislature has not revived its death penalty with a new statute to “fix” it. NY thus joined the abolitionist states. Currently, the votes for passage of abolition are there in Maryland; Montana and Colorado have passed repeal bills through one legislative house, but not the second. A ballot initiative will determine whether California keeps or repeals its death penalty in November 2012. DP jurisdictions: 33 states, federal govt., military

US Executions and Death Sentences -Executions peaked in 1999 and sentences in 1998 -many point to the growing body of information about problems with the death penalty, especially the discovery of innocent people on death row, as a major reason for the decline. -Note: most US death penalty stats are measured from 1976, which marks the modern death penalty era. In 1972 in Furman v. Georgia, the US Supreme Court ruled that, as practiced, the death penalty was cruel and unusual punishment, pointing to its “arbitrary and capricious” nature. In 1976, after states passed new statutes to “fix” these problems in application, the court reinstated the death penalty with the Gregg v. Georgia decision. Source: Death Penalty Information Center

B) THE impact of murder

Murder’s Impact, Society’s Needs About 17,000 are murdered/year in the US Each murder violates the right to life Murder is cruel and inhuman Each murder damages many lives Society has a duty to provide public safety Perpetrators must be held accountable Victims’ communities have a right to justice and support Note: more time can be spent on this in slide 25 Feel free to ask participants if they can think of other impacts and needs

C) JUSTIFICATIONS FOR THE DEATH PENALTY

What have you heard? It’s justice: just deserts, “eye for an eye” (retribution) It brings closure for the victim’s family It’s less expensive than permanent imprisonment It deters murder It shows society’s disgust for the crime It prevents offenders from murdering again Some crimes require the “ultimate penalty” Ask participants what justifications for the death penalty they’ve heard before revealing these points. No need to provide refutations or entertain them from participants – that comes later. Just allow folks to list as many reasons as they can think of and let that fill the space, whether people agree or disagree. Note: “permanent imprisonment” is a phrase some use instead of “life without parole” (LWOP). Focus group studies show that many in the US don’t understand “life without parole” and aren’t sure that it really means “without parole” – i.e. the prisoner will never leave prison so long as they are alive. Also, note that AI has no position on whether life without parole is an appropriate alternative to the death penalty. References to LWOP are only to show the next most costly form of punishment in US laws. Also, while LWOP could be seen to be more humane that the death penalty, note that the possibility of over-using it is very real and it is often part of a mentality that rehabilitation is not the highest goal of incarceration/punishment.

d) THE CASE AGAINST THE DEATH PENALTY

1) Human Rights Violated Twice Rather than upholding society’s highest values, the death penalty imitates the crime it condemns. Everyone has the right to life, liberty and security of person No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment (The Universal Declaration of Human Rights, Articles 3, 5) -These are the two rights of the Universal Declaration of Human Rights (UDHR) that the death penalty violates in principle. Other rights are violated in the way that the death penalty is applied (they come next). -Make sure participants know what the UDHR is. Provide copies of the UDHR. -These are the fundamental reasons why AI is opposed to the death penalty, whether the death penalty was administered fairly or not. -Human rights are inalienable. Whatever someone does, even if they break the law or commit an outrageously horrible act, they always have basic rights. They can only be limited to protect others’ enjoyment of their rights. -The UDHR does not expressly forbid the death penalty, but these two rights have been interpreted as barring the death penalty in subsequent human rights treaties and UN resolutions that call for a reduction in use of the death penalty toward its eventual abandonment. The community of nations rejection of the death penalty, with about 3 countries per year ending its use, is also a sign of the growing consensus against the death penalty. -”The right to life” in most associated with the issue of abortion in the US. It would be easy to go off onto this tangent. However, given that the issue is controversial and emotional for many, it would be better to ask participants to keep the topics separate for the sake of time and focus. For a quick answer to AI’s position on the right to life as it pertains to abortion, we frame the issue more as a matter of women’s reproductive rights and are against the criminalization of abortion. We are, though, against any forced abortions. -A useful way to elaborate on the reason for the right to life: human rights are designed to create limits on the state’s power over its citizens. Preventing the power of the state over life helps protect against abuse of power or error that, in the case of the death penalty, once executed, is irreversible and would be an unspeakable tragedy. If asked about “cruel and unusual”: -Cruel and unusual punishment is not about the punishment in comparison to the graphicness of the crime. It is a standard that stands alone – it is set by what society considers humane treatment. While lethal injection may seem to be a painless, safe and sanitized way to perform an execution, it is certainly psychologically torturous. Because most jurisdictions use three drugs, including one that paralyses the body, it is impossible to know what pain is being experienced by the subject. Botched executions are certainly a source of enormous psychological and physical pain. (Interestingly, lethal injection was devised by Adolf Hitler’s personal physician.) 2 wrongs don’t make 1 right!

2) Equal Justice before the Law? Everyone has the right to recognition everywhere as a person before the law. All are equal before the law and are entitled without any discrimination to equal protection of the law. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. (The Universal Declaration of Human Rights, Articles 6, 7, 8)

2) Equal Justice? a) Socio-economic Bias One of the most pivotal determinants of whether a defendant will receive the death penalty is the quality of their legal representation. Almost all death row prisoners could not afford their own attorney. Appointed attorneys are often overworked, underpaid, or lacking the trial experience required for death penalty cases. More from the Death Penalty Information Center: “Other appointed attorneys have slept through parts of the trial, or arrived at the court under the influence of alcohol. The right to an attorney is a vital hallmark of the American judicial system. It is essential that the attorney be experienced in capital cases, be adequately compensated, and have access to the resources needed to fulfill his or her obligations to the client and the court.” According to an investigation by the Chicago Tribune, 12% of those sentenced to death from 1976-1999 were represented by, “an attorney who had been, or was later, disbarred or suspended--disciplinary sanctions reserved for conduct so incompetent, unethical or even criminal that the state believes an attorney's license should be taken away.” An additional 9.5% inmates, “have received a new trial or sentencing because their attorneys' incompetence rendered the verdict or sentence unfair, court records show.” (Ken Armstrong and Steve Mills, “Inept Defenses Cloud Verdict,”Chicago Tribune, November 15, 1999) Note: it’s impossible to separate race and class in the US, especially as people of color (especially African American and Latinos) are disproportionately less wealthy than Whites.

2) Equal Justice? b) Racial Bias Race of Defendants Executed Race of Victim in Death Penalty Cases -While people of color are over-represented in the number of people executed, compared to their numbers in the general population, racial bias is most dramatically demonstrated by an analysis of the race of the victims in death row cases. -racial bias against people of color is often evident in many stages of the death penalty process, including in the racial composition of judges, prosecutors and juries, not to mention the composition of law enforcement personnel and leadership. -racial bias is a thread throughout the criminal justice system, where people of color are over-represented in the number of people incarcerated. -the death penalty is not stand alone issue, it is part of an over-reliance on the prison system; the US has the highest number of people and highest per capita rate of incarceration of any nation in the world. It is a system that has increasingly turned away from a philosophy of rehabilitation. Tough sentencing laws have led to long prison terms, which is very costly, especially with an aging prison population and a situation of overcrowding in many places. In some, especially rural, communities, the prison system is a primary source of jobs. -it is interesting to note that the death penalty is most heavily used in the Southern states and that every state that had slavery, where lynching was also most prevalent, also has the death penalty. -racial bias in the criminal justice system in the US is prevalent in all US states. -generally only about 50% of murder victims are white, but almost 80% of murder victims in cases that resulted in execution were white Source: Death Penalty Information Center

2) Equal Justice? c) Arbitrary Application Only about 2% of known murderers are sentenced to death Prosecutors (elected) have discretion in seeking a death sentence Suburban, predominantly white and affluent jurisdictions tend to have prosecutors who are more eager (and better resourced) to seek the death penalty. In Alabama, Florida and Delaware, elected judges can override a jury’s decision to sentence someone to life or death. Examples: Maryland Urban Baltimore City had only one person on Maryland’s death row, but suburban Baltimore County, with one tenth as many murders as the city, has had nine times the number on death row Georgia Baldwin County is a county in a more rural part of the state with about 2 murders per year. Fulton County is the most urban of all counties (it holds Atlanta, the biggest city in the state) and has a couple hundred murders per year. Both counties had sent five people to death row as of 2001. Prosecutors in suburban counties around Atlanta much more frequently seek the death penalty in murder cases than Atlanta’s two urban counties. Source: Death Penalty Information Center

3) System Failure a) Error-Riddled 70% of all death sentences are reversed due to serious error such as: incompetent defense lawyers police or prosecutorial misconduct Capital trials produce so many mistakes that it takes three judicial inspections to catch them Of the 2,370 death sentences thrown out due to serious error, 90% were overturned by state judges—many were the same ones who imposed the death sentence in the first place (Liebman Study – Columbia Univ.) 70% of all death sentences are reversed due to serious error such as: (1) incompetent defense lawyers who didn't even look for evidence that the defendant was innocent or shouldn’t qualify for the DP (2) police or prosecutors who did discover that kind of evidence but suppressed it, keeping it from the jury Capital trials produce so many mistakes that it takes three judicial inspections to catch them—leaving grave doubt whether we do catch them all. So, while there are a series of appeals at the state and federal levels intended to create a fair and accurate system, especially because death is final, many cases just move through the process despite having legitimate concerns. Various decisions and laws have also restricted this process. The Anti-Terrorism and Effective Death Penalty Act, for example, makes it very difficult to introduce new evidence after a conviction by introducing time limits in federal courts – even barring evidence of innocence. The US Supreme Court in Herrera v. Collins established that a defendant has the right to the process, but that executing an innocent person wouldn’t technically be unconstitutional if they’d gone through the process. A substantial number of the capital judgments they let through to the federal stage are still seriously flawed. Of the 2,370 death sentences thrown out due to serious error, 90% were overturned by state judges—many of whom were the very judges who imposed the death sentence in the first place. For a summary of the Liebman study, see: http://www.deathpenaltyinfo.org/summary-columbia-university-study-prof-james-s-liebman …

3) System Failure b) Wrongful Convictions 140 people have been released from death row due to evidence of their innocence since 1973 (including one in 2012). Source: Death Penalty Information Center

3) System Failure c) Deterrence Of the top US academic criminological society presidents, 88% reject the notion that the death penalty acts as a deterrent to murder. In a poll released in 2009 of the nation’s police chiefs, most ranked the death penalty at the bottom of a list of 9 things that would help law enforcement. Most people who commit murder do not weigh the penalties they could face – they don’t plan to be caught. Further, most murders are not pre-meditated and are committed in the heat of passion and/or while one is intoxicated or has been abusing drugs. There have a been a couple studies to demonstrate the death penalty has some deterrent value, but the overwhelming majority of studies conclude that it has no impact. It is impossible to know how many people may have contemplated committing murder, but did not murder because of an awareness of the death penalty.

3) System Failure d) Millions Wasted The entire process for capital vs. non-capital cases is far more costly: The average death penalty case costs $1.26 million vs. $740,000 (permanent incarceration) Maryland: The average death penalty case costs approx. $3M ($1.9M more than non-death penalty case) Florida: The death penalty costs $51M/yr beyond cost of permanent imprisonment. California: The death penalty costs $137M/yr beyond cost of permanent imprisonment. Kansas: costs of death penalty vs. non-death penalty cases: investigation - 3x more; trial - 16x more; appeals - 21x more •California: Taxpayers have paid more than $250 million for each of the state’s executions. (L.A. Times, March 6, 2005) • In Kansas, the costs of capital cases are 70% more expensive than comparable non-capital cases, including the costs of incarceration. (Kansas Performance Audit Report, December 2003). • In Maryland, an average death penalty case resulting in a death sentence costs approximately $3 million. The eventual costs to Maryland taxpayers for cases pursued 1978-1999 will be $186 million. Five executions have resulted. (Urban Institute 2008). • The most comprehensive study in the country found that the death penalty costs North Carolina $2.16 million per execution over the costs of sentencing murderers to life imprisonment. The majority of those costs occur at the trial level. (Duke University, May 1993). • Enforcing the death penalty costs Florida $51 million a year above what it would cost to punish all first-degree murderers with life in prison without parole. Based on the 44 executions Florida had carried out since 1976, that amounts to a cost of $24 million for each execution. (Palm Beach Post, January 4, 2000). • In Texas, a death penalty case costs an average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years. (Dallas Morning News, March 8, 1992). Source: Death Penalty Information Center

e) Yes, There is a Better Way!

1) Refuting the Justifications It’s less expensive than permanent imprisonment It deters murder Review with/remind participants of the information from earlier slides about cost and deterrence.

2) Alternative Perspectives It prevents offenders from murdering again It shows society’s disgust for the crime Some crimes require the “ultimate penalty” It’s justice – just deserts, “eye for an eye” (retribution) It brings closure for the victim’s family -Preventing offenders from murdering again: this can obviously be achieved by a life sentence too. Given that most death row inmates spend at least 10 years on death row in order to go through their appeals processes, the death penalty is not as speedy in the US as the recidivism argument suggests. Cutting the appeals process would violate human rights and would be dangerous given the possibility of executing someone who is innocent. -society can show its disgust for a heinous crime in many different ways besides killing one who has killed. -society sets the “ultimate penalty”. Society could set out to kill someone who has killed in as close to the way they killed their victim as possible. Society could torture and kill perpetrators in a gruesome way in public. The ultimate penalty for those convicted of crimes against humanity at the International Criminal Court is imprisonment (not even permanent!). -”Just deserts” (“they deserve it”): one could argue that a person deserves what they have done to another, but this goes back to the question of whether society wants to follow the standard set by a depraved act or follow a higher one. How would this impact correctional employees who would be tasked with carrying out the punishments? Some of those who administer an execution and work on death row have spoken to the trauma they endure being part of a system that puts people to death. -”eye for an eye” – this law from the Code of Hammurabi, also found in Jewish and Christian scriptures, was intended to limit the brutality of punishment, not justify it. Hammurabi wanted to see that an eye taken would be not returned by an endless blood feud where acts of violence are greater than the initial crime. Also, the logic of “eye for an eye” (which Gandhi said “leaves the whole world blind”) creates a slippery slope. Why are those who commit murder killed, but those who commit arson or rape not paid back with those acts against them? Society doesn’t seem to find that palatable (again – who sets the standards? The perpetrator or society based on its own ethics?) -there is no factual argument against a retributive approach to justice. One can only offer a different approach to justice that is more constructive. Retributive justice imagines a set of scales that are knocked off balance by a crime and repaying the perpetrator with a similar act will restore the balance. Another view of retribution (or revenge) is that violence spirals downward. Repaying violence with violence doesn’t restore peace, it perpetuates a cycle of violence. -victims’ families are diverse. They have different views of the death penalty and what they believe will bring them justice. It is important not to speak universally for victims’ families. One cannot say whether they would find closure or not find it with an execution. It is true that the death penalty appeals process, which can last at least 10 years, can drag out a victim’s families’ suffering. Some families prefer permanent imprisonment, where the sentence is imposed immediately, not after years of appeals, to find closure. It is also true that whether a perpetrator is put to death or not, the loss experienced by the victim’s loved ones does not change and their many needs in the wake of the murder continue. There are some vocal victims’ rights organizations that argue for a harsh type of justice, including use of the death penalty. But, there are also some groups like Murder Victims’ Families for Human Rights and Murder Victims’ Families for Reconciliation that advocate against the death penalty.

3) Preventing Murder How would you spend tens of millions of $/year ? Prevention policy: violence, drug/alcohol abuse, treatment for the mentally ill Public Safety: resources for community policing and other social services -If 141 countries don’t use the death penalty, couldn’t the US also live without it? -Remind folks of the cost slide – Florida spends $51 million/year over what they would have spent on permanent incarceration and California - $137 million/year!! -What could $51 million to $137 million/year be used for instead of the death penalty? -do not reveal any of the ideas here initially. Click to pop up each question, then give some time to get folks to try to provide their own ideas. There are no right/wrong answers. Try not to judge or correct people’s answers, even if you don’t like them. If they say something extreme, you may want to ask a question (even if it’s rhetorical), but let people offer ideas freely. -Note: AI doesn’t have an official position on any of these solutions, nor an official statement on alternatives, but clearly many of these solutions are human rights friendly as they focus on human needs. -Notes about the slide’s suggested solutions: Under “Prevention”, note that many who commit murder have been subjected to violence themselves, including child abuse when they were children or may have come from communities where violence was prevalent. Many murders have also been committed while people have been under serious alcohol and drug impairment. Mental illness is not a bar to receiving the death penalty in the US. It’s important not to misinform people that most people on death row are mentally ill, but this is a serious problem with many offenders – some of whom may not have committed murder had they had access to adequate mental health services. -Graph (text from Death Penalty Information Center): Police Chiefs Poll The poll was commissioned by the Death Penalty Information Center and conducted by R.T. Strategies of Washington, D.C., surveying a national sample of 500 randomly selected police chiefs in the United States. The police chiefs had the opportunity to identify what they believe is most effective in fighting crime. As leaders in law enforcement, they were asked where the death penalty fit in their priorities. The poll found: • When asked to name one area as “most important for reducing violent crime,” greater use of the death penalty ranked last among the police chiefs, with only 1% listing it as the best way to reduce violence. Instead, increasing the number of police officers, reducing drug abuse, and creating a better economy and more jobs all ranked much higher than the death penalty. • The death penalty was considered the least efficient use of taxpayers’ money. Police chiefs ranked expanded training for police officers, community policing, programs to control drug and alcohol abuse, and neighborhood watch programs as more cost-effective ways to use taxpayers’ money.

2) What needs are created by murder? Victims/loved ones: psychological services (anger, grief, depression) financial support (possible loss to family income) information about the crime/perpetrator accountability of the offender sense of concrete pro-active steps (safety, prevention) restoration of control/power Offenders: opportunity for accountability, remorse, restitution, rehabilitation Community: protection from the offender sense of safety and justice education -note about “What are the needs” – this question is at the heart of a philosophy that is a wonderful contrast to retributive justice. It’s called restorative justice. It is a victims-centered (our system now is offender-centered) approach that focuses on the human need left in the wake of murder. It asks, “What do people need to find restoration?”

f) What You Can Do

How will we achieve abolition? Chip away at the block! Leaflet, table, set up a display, organize a panel discussion, host a speaker, present to a class/civic/ religious group, wear abolition button/shirt, etc. Get involved with your state’s policy campaigns Action for Abolition Public Education: provide info and engage dialogue If you are presenting to folks from a particular state with the death penalty, please research what the state’s advocacy focus is and give concrete examples of what folks can do to take action. Please provide them with handouts and other tools. Note: tools for doing public education and taking action on Urgent Actions can all be found at our website. A good place to start is our DP page: www.amnestyusa.org/abolish (provided on the final slide) Also note for presenters: we do not recommend writing on behalf of death row prisoners that do not have an AI UA. Each case has it’s own legal strategy and sensitivities. All UA’s are written in consultation with a prisoner’s legal team and have been properly checked out. Write /organize on AI Urgent Actions

Your Regional Office: 1-866-A REGION Join Us Today! Become a member Join a local or student group Become an on-line activist Become a volunteer leader 1-800-AMNESTY www.amnestyusa.org Your Regional Office: 1-866-A REGION

THANK YOU! For more information or to provide feedback: www.amnestyusa.org/abolish DPIntern2@aiusa.org or call 202-544-0200 Sources: Various Amnesty International reports The Death Penalty Information Center: www.deathpenaltyinfo.org US Department of Justice, Federal Bureau of Investigation, "Crime in the United States". “A Broken System: Error Rates in Capital Cases, 1973-1995” by Dr. James Liebman (Columbia University)

Note to presenters: be sure to catch the notes connected with many of the slides. Adjust your view of PowerPoint to see the notes. You can also print yourself a copy of the slides with the notes pages under each slide.