EJUSA Reframes the Debate About the Death Penalty

Not long after Troy Davis was executed following a controversial decision this past September, I sat down and had a conversation with Shari Silberstein, the Executive Director of Equal Justice USA. I confess that I walked into the interview with a number of preconceptions about her and the organization. I assumed that they were a typical leftist group, fighting an uphill battle against a conservative, right wing pro-death-penalty lobby. What I found instead was a thoughtful approach to re-framing the entire discussion about crime and punishment, one that included reforming the criminal justice system with an eye towards providing services to victims and their families, as well as more fair and equitable treatment for those accused of committing what we currently term capital crimes.

According to their website: Equal Justice USA (EJUSA) is a national, grassroots organization working to build a criminal justice system that is fair, effective, and humane, starting with repeal of the death penalty and increased services to families of homicide victims.

Imagine a dialog that does not pit anti-death penalty advocates against victims and their families. Imagine a conversation that focuses on prevention rather than punishment. This is the vision that EJUSA is putting forth. Here are some excerpts from my in-depth conversation with Shari:

DOP: So Shari, tell me about EJUSA.

SS: SS – EJUSA was founded in 1990 as a program of another organization, and it’s always been about criminal justice issues in the USA. We spun off and became independent about three and a half years ago, and we’ve been working I would say almost exclusively on the death penalty for the last ten years, but our mission is broader. It’s really to remake the criminal justice system into something that actually works, since it’s completely dysfunctional… with more of an emphasis on prevention – preventing violence from happening in the first place, and when it does happen, making sure that the responses to violence help rebuild communities instead of tearing them further apart.

Right now you really have almost a zero sum game within the criminal justice system that pits these different sides against each other. Somebody has to win and somebody has to lose, and what we’ve learned just from working with all of the different parties, whether it’s law enforcement that are trying to keep the public safe, or victims and crime survivors who are trying to rebuild their lives or defendants who are trying to not only get due process and fairness within the system but also rebuild their lives, as well, is that none of them are actually gaining from this system, and the only way we’re going to have a system that really works is when we recognize that it’s not one vs. the other, but that actually, we all have to benefit from the system.

So, we do a lot of work on the death penalty, because that is in a lot of ways this microcosm for what’s wrong with the whole system. It’s this sort of uber-visible, high profile little tip of the iceberg for what is happening across the board. With this incredible emphasis on after the crime occurs, there’s already someone dead, there’s already a grieving victim’s family member, we’ve already failed to stop the crime, and now we’re going to pour millions and millions and millions of dollars to spend twenty years chasing down one execution at the benefit of absolutely no one.

Most of the murders don’t get prosecuted as death penalty cases, it’s less than 1% in the country, so they’re usually these cherry picked cases in certain counties that seek the death penalty and the rest of them don’t even use it, and… they say, oh, it’s for the victims, or, you need the death penalty for deterrence and public safety. So, it’s not a deterrent… every study has either shown it’s not a deterrent, or the few that have shown that it is a deterrent are really flawed scientifically and have been discredited. And then in terms of the victims’ families, if you need it for the victims, then what do you say about the fact that 99% of victims’ families don’t get it, and the other 1% that do, most of those cases at some point get reversed and then resentenced to something else?

Then you have this whole class of victim’s family members that are promised, ‘you will feel better when this execution happens,’ and then they wait around for twenty years in limbo, and they never get the execution, and the waiting has wrought emotionally havoc, and in the meantime, nobody is getting grief counseling and trauma response and things that will really help them rebuild their lives and cope with the loss. Funeral expenses covered, you know, you have a sudden death in your family and you gotta pay thousands of dollars just to bury them… there’s all these ways in which the victims are ignored by the system and end up feeling powerless and abused by the process of seeking these executions…

And I think a lot of people are well intentioned when they say this is for the victims, they’re sort of channeling an outrage that is very legitimate when horrible crime happens, so I don’t think it’s all about manipulation, but if you really break it down and you look at what does this actually do for the victims, it does mostly damage.

DOP – So what I hear you saying sounds really thoughtful and really sensible and I see no problem with any of that, but I would imagine that you guys will often get pigeonholed as a certain type of organization. What kind of obstacles do you guys feel that you face in terms of getting that message out?

SS – To answer your first part, I would say we’ve worked really hard not to be pigeonholed. We are completely non-partisan, we work with people on all sides of the political spectrum. Just yesterday we had a meeting with a national conservative leader, talking about how we get the conservative voice on this issue out more. So we have a lot of conservative allies, of course liberal allies and we really work across the spectrum. We do a lot of building bridges with law enforcement, with the victims community…

You know I think for a long time there was this assumption that if you’re against the death penalty, that you are an offender-focused organization, and where we’ve come down is this isn’t about pro-offender or anti-victim or pro-victim and anti-offender, it’s about stopping violence and helping people rebuild their lives… and in my view in a lot of ways, that’s very much a pro-victim and a victim-centric kind of orientation towards thinking about the criminal justice system.

The truth is, you look at a lot of people who are committing crimes, and they were once crime victims – abused, raped, assaulted, lost a loved one to homicide – any number of things, and they didn’t get any help. So what would it look like if we had a criminal justice system that really took care of people at the moment that they were victimized by violence? Would that in and of itself start to reduce crime because you wouldn’t have these traumas sitting in people and repeating out? You know there’s obviously a lot more reasons that people commit crimes, and a lot of crime survivors do not go on to commit violence, so there are a lot of other factors that go into crime beyond that. I’m not trying to minimize it or oversimplify it…

The biggest obstacle when it comes to the death penalty [is that] a lot of time the perception on this issue is more emotional than it is rational. When you talk about the death penalty in a rational way, more and more people are sort of like, this isn’t working, this is dumb, this is stupid, let’s give it up. But, when you just ask people straight up do you support or oppose the death penalty, they answer from a very emotional place, from a more theoretical place… and from a theoretical place, lots of people believe that it’s ok for the government to kill people who commit murder. They don’t think it’s wrong. But they don’t have to think it’s wrong in order to think it’s a failed policy, which is really what it is, and which is where we come from. Some people think it’s wrong, some people think it’s right, but we all can agree it’s a failed policy.

But what happens is that, I think, particularly the perception of lawmakers and political candidates and the people who are actually making these decisions, is that they respond to this theoretical position that people have and they assume that’s the whole story. When really, when you look at the policy side of it, people also are ready to let it go.

DOP – Sounds like they don’t feel like they can respond any other way. It almost sounds like they’re afraid to not respond in that way because that’s the popular way that people are thinking about it. Ya know there’s that knee jerk process I would imagine for politicians to think about things in terms of popular sentiment. And votes and all that…

SS – But the point is that it’s old. That perception is old, and this issue has evolved so much. A, you’re not going to be voted out of office if you oppose the death penalty. There has been poll after poll after poll done… something like over 90% of people wouldn’t vote you out of office if they agree with you on other issues, so this is not an issue that will set you apart from your voters… so for one thing, lawmakers really should feel free to vote the way they think is a sane and logical choice – which means getting rid of the death penalty – because they’ll be safe in doing so… but they don’t necessarily see that, because the 1980’s still haunts people, and people still mention the Dukakis thing…

DOP – Was that Willie Horton?

SS – No, he was asked when he was running for president, what if your wife was raped and murdered, would you still oppose the death penalty, and he gave this very non-emotional academic response, and people say that really hurt him, and that was a different time… The peak year of executions in this country was in the 90’s, so 80’s and 90’s was when there was a real rise in support for the death penalty, and it’s completely gone down the other way since then…

DOP – How do you measure your progress? How do your gauge your success?

SS – Well, when you’re talking about the death penalty system, it’s, How many states have the death penalty? How many of these people are being sentenced to death? It’s all very measurable… The first state that ended the death penalty in this country in the modern era was New York in 2005, which was a campaign that we led in conjunction with the local group here in New York, New Yorkers for Alternatives to the Death Penalty… and the next one was New Jersey two years later which we also were sort of the leading national partner in, and a lot of the strategies that we developed in those campaigns now have kind of spread across the movement, and a lot of those messages are sort of becoming more the norm nationally… bottom line, both states have ended the death penalty in the last few years, and before that no state had ended the death penalty in over fifty years, so NY, NJ, New Mexico and Illinois have all ended it since then.

DOP – I remember Chicago, I remember that…

SS – Yeah, so that right there is a huge indication of a sea change and the fact that a lot of other states have gotten really close – Montana, and Colorado.

  RECENT HISTORY OF THE DEATH PENALTY IN THE US

 

  1972 – The Supreme Court strikes down the death penalty nationally.

 

  1976 – States are allowed to bring back the death penalty.

 

   1976 – 1995 – 38 states bring back the death penalty – the last one was NY in 1995.

 

  12 States Never Had It – Vermont, Mass, RI, Maine, Minnesota, Michigan, Wisconsin, Iowa,                  North Dakota, West Virginia, Hawaii and Alaska

 

  4 States Have Gone Back the Other Way and Abolished It – New York, New Jersey, New Mexico      and Illinois

 


DOP – What you’re talking about sounds like you probably have… a lot of what people think of as unlikely allies… So, I’m interested in what you’re doing, because to me it’s real communication.
SS – It’s one of the main hallmarks of our organization – this idea of sort of cutting through the polarization and recognizing that if the system doesn’t work for everyone, it doesn’t work…

There are ways in which the different movements are very entrenched in kind of old ways of thinking, and in particular I think there’s been a huge divide between, these are the movements that try to get longer sentences and are seen as pro-victim and right-wing, and these movements that try to get lighter sentences are seen as pro-offender and left wing, and never the twain shall meet. But this division is a completely false dichotomy. Those groups that identify with offenders and with the left care about the poor, the disenfranchised, people of color – well those are many of the same people who are also the victims of crimes. So thinking about the needs of crime victims – their real needs to rebuild their lives and reduce violence – should not be a different agenda for those groups.

For EJUSA, we just see the whole debate – more sentences or less sentences and pro-victim or pro-offender – as the completely wrong debate. Crime tears people’s lives apart and the criminal justice system should provide some positive intervention, and instead it just tears them even further apart, including the lives of crime survivors. So I think that that’s less about confronting power than it is about breaking down false assumptions that have created entrenched divisions between people who want the same thing – safer and healthier communities for everyone.

I’m not trying to put down other organizations, but I think the biggest thing that I’ve seen is this polarization that I think happens in the criminal justice system is also happening among the reformers of the criminal justice system… the way that the reform movement has broken down into these camps is basically just buoying the same exact entrenchment and polarization that’s not working for anybody.

DOP -Yes, I agree…

SS – [With] criminal justice issues, I just think the wrong conversation has been happening for 30 years. The conversation has been should we increase sentences or should we reduce sentences? And when you start talking about sentencing, you’ve already missed the boat, because the crime’s already happened, and there’s already a victim. So if the debate stays in that place of more time in jail, less time in jail, where are you solving the problem about violence?

Because the truth is… we’ve seen that the growth of the prison system and this mass warehousing of people doesn’t actually reduce crime and isn’t helping people and is ineffective, so there’s good reasons to not have that be the solution, but when all you can talk about is less sentences, where is the conversation about the fact that when violence happens, people’s lives are really torn apart? And that has to still be part of the conversation, and what’s the response going to be to that, and the people whose lives are torn apart, who are victims of crime, end up becoming the other side instead of being collaborators in what the system should look like. And I think that’s sort of the piece we as an organization have really tried to look at differently than I think the way a lot of other organizations have looked at it over the last few decades…

DOP – Talk to me about the Troy Davis case.

SS – Well, it was huge.  I have never in all of my years working on this, I’ve never seen the death penalty covered to the extent that it was covered around this case. I mean you had live coverage the night of the execution the way that they have live coverage when there’s a war, or a natural disaster. Like I’ve never seen around a death penalty case.

DOP – I don’t have cable anymore…

SS – It was on CNN, MSNBC, I mean my mother watched it. My mother watched live coverage of the Troy Davis execution – several hours waiting to see if Troy Davis was going to be executed that night on CNN, I think.

DOP – That’s huge.

SS – I mean it was really unbelievable -

DOP – I know Amy Goodman was covering it –

SS – But it was mainstream cable stations too, and they had a lot of time to fill, so there really was this kind of airing of a lot of issues that you know, we’ve gotten out locally in different campaigns, but haven’t necessarily become big national conversations, like for example, there was a group of corrections officials who signed a letter saying that the experience of carrying out an execution is traumatizing to you later in your life, and a lot of these people who’ve carried out executions, they’re just doing their job… There’s one guy… named Ron McAndrew, who oversaw 8 executions as a warden, and he said the men that he executed, he sees them sitting at the foot of his bed at night when he goes to sleep. They come and they haunt him.

And a lot of them, you know, they have nervous breakdowns, or they become alcoholics… You know, it’s a very hard job, and I think a lot of people just think they do it, because it’s their job and they’re following their job, but it has serious real impact on real human beings that had nothing to do with the crime or anything in the system, and so this is a very real message that hasn’t gotten out very far… So that letter was sent during the Troy Davis execution, I think 6 or 7 corrections officers had signed onto it, and I think that it was read on the air, and then one of them, Dean Ault, who carried out executions in Georgia and another state which I don’t remember, he was then on the Rachel Maddow show the next night… There’s been an elevation of some of the lesser publicized problems with the death penalty. [They’ve] really started to come to the surface, because there’s just been this space for all this attention, and people are ready to hear it in a way that they weren’t before. Not that it’s necessarily new information, but there’s not been the receptivity to it before.

DOP – Interesting…

SS – It was a devastating night for a lot of people, for sure, and I think millions of people really saw what the death penalty is about for the first time that night, and a lot of people are fired up now that were not fired up before.

DOP – Wow.

SS – And I think that makes a huge difference.

SOP – So have you been working with that, I mean has it made a difference to you strategy wise and program wise working with that now?

SS – Yeah, I just think it expands the number of constituencies we can work with and a lot of groups that you think might’ve taken the death penalty on before, but they hadn’t, and now they’re much more interested.

DOP – Like what kinds of groups? I mean do you get a lot of faith based groups?

SS – Yes, definitely, always. Always have… And I don’t want to say that groups didn’t care about the death penalty before, you know a lot of them did… I mean the NAACP for example, which has always played a role in the movement, especially in certain states has been very, very active, but I think now, they got REALLY, really involved in this case, and I think that they now kind of want to carry that energy forward that came from their base and from their membership. I think the leadership always cared about that, it’s an issue, it wasn’t like it wasn’t important to them…

DOP – Do you think their base got energized?

SS – Their base got really energized around this case, and so I think there’s a real energy and real excitement there, and other groups like that are more excited now.

DOP – That is exciting.

SS – I think we’ve seen more, even Move On for example, which has never put anything out on the Death Penalty, has now put out one of their petitions around Troy Davis.

DOP – I think I signed it.

SS – You just see a little more energy and interest from some of the more natural progressive allies that could have always been there, but it ratcheted up the interest level. It’s not so much about, did it convert these groups? Because they were already there, but it definitely put the issue on the radar in a way that it wasn’t before.

DOP – Do you think there were any conversions?

SS – Oh yeah, definitely… I mean in fact – this is a very very minor, minor story, but… we’re hiring an organizer… and she was telling us the day after the Troy Davis execution, she just facilitated a discussion at her school, her college, and she said a lot of people said that they changed their minds about the death penalty after the execution… that was just in this little group at her school… I just think a lot of people have stories like that, I feel like a lot of people have been talking to me about this case who hadn’t ever talked to me about this issue before, even though I’ve worked on it for 11 years, you know, just people in my life… I think it’s just opened up a lot of eyes, and people who didn’t think that this happened, that somebody with so much doubt about whether they’re actually guilty and so much attention and almost a million people signing petitions and sending letters, and they still go ahead with an execution.

DOP – Because, why? People’s careers are made on it or what do you think?

SS – You know, I think part of it is the system and the way that it’s set up, I mean, I think there’s a real misperception when you hear that for example someone like Troy Davis, you know is on death row for twenty some odd years, and you think wow, 20 years worth of appeals, a lot of courts have looked at this case, clearly everything’s OK, right? What’s happening, what people don’t understand is what’s happening in those 20 years of appeals is not that the courts are actually looking at the case most of the time… what they’re doing is they’re arguing amongst each other about which court should look at it, and under which provisions should it be looked at and which component should come into this argument… so you can have all of these different levels of appeal where you’re just arguing whether or not the court will look at the case, before the court actually looks at the case.

DOP – And it’s never ever being argued on its merits during that whole time.

SS – A lot of those appeals are not really looking at meritorious issues. They’re procedural debates, basically between different courts, you know should this get kicked back to that level, should it move forward to this level, is it under this case law or that rule, you know it’s not the kind of review that the mainstream general public thinks is happening. And so the court system I don’t think is really set up to deal with these kinds of issues. You know you’re innocent until you’re proven guilty, but once you’ve been “proven guilty,” you have to prove that you’re innocent, which is pretty impossible most of the time, I mean if you don’t have DNA, which is not available in most cases, then it’s like proving a negative, it can’t be done, so you end up with a court process that isn’t really designed to catch mistakes like the Troy Davis case, because doubt isn’t the issue, it’s just have you proven innocence?

So then you have this kind of final step in the process which is the clemency process, and the parole board’s supposed to then be like the fail safe… once the courts have looked, if there’s still problems, there’s an opportunity either for mercy or for sort of a failsafe to catch mistakes that got through the system, and I mean at the end of the day, it comes down to a couple of votes… There were 5 people on the board and they vote in secret ballot and a majority of the five – it could be as little as 3, said go ahead.

DOP – That was the parole board.

SS – That was the parole board.

DOP – And that’s who voted this thing.

SS – Yeah.

DOP – It was just amongst those 5 people.

SS – Yes.

DOP – That’s frightening. Also he was accused of killing a cop, right?

SS – Mmhm…

DOP – That adds a whole other level to it.

SS – Sure.

DOP – That makes it very emotional for a lot of people. It’s like Mumia.

SS – Mm hm.

DOP – You know what I mean. He’s a “cop killer.” So, ya know…

SS – Right. Yeah…

______________________________________________________________________________________________________________

The argument over the death penalty continues to be quite emotional and heated. The execution of Troy Davis ignited public debate in a way that is sure to result in additional policy changes over the coming years. This article by CBS News offers some  in-depth coverage of the responses.

Here’s another in-depth perspective from Nathan Thornburgh at Time US, examining the concept of “closure.”

In a related story, Troy Davis’ sister, who had been battling cancer, died a little over two months after he was executed. See story here.

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