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Closing Remarks of Professor Anthony G. Amsterdam
Professor Anthony G. Amsterdam
10/14/1999
We have come to this conference for many different reasons.
Some of us are here because we believe that every human life is sacred, and that in killing any human being the state commits an outrage against the providential gift of life.
Some of us believe that life and death are mysteries beyond all human understanding, and we are appalled at the arrogance and irresponsibility of the state presuming to commit an act whose nature and whose consequences it cannot pretend to know.
Some of us regard the death penalty as a sin against intelligence ' as a perverse lashing out in fear and rage against a few scapegoats whom the public imagination makes the monstrous effigies of its own clandestine love affair with violence ' a stupid, futile ritual of bloodletting that distracts society and diverts its scarce resources from the vital work of finding real, effective ways to control violent crime.
Some of us have seen the death penalty used as an instrument of oppression of groups or castes of people deemed dangerous to those in power, or have seen the death penalty exploited by self-serving demagogues who seek to rise to power by promoting popular hysteria about crime and pandering to that hysteria with blood and circuses.
Some of us believe that the policy-makers and public officials who administer the death penalty are making a genuine, conscientious effort to do it fairly and evenhandedly, but that very belief leaves us troubled by the inability of these sincere and dedicated professionals to change the fact that capital punishment everywhere and always continues to fall with unequal harshness upon racial and ethnic minorities, the poor and the unpopular, outcasts and pariahs ' people who have never had a chance to make a place in the society that is so quick to seize on them to kill when they commit crimes punished less severely on the part of others who were able to form stronger roots in the community because they were more welcome to it in the first place.
Some of us are worried about the execution of innocent people through mistake, given the fallibility of human judgment; the recondite issues of truth and probability that have to be resolved in the trial of capital prosecutions; the competitive, steeplechase atmosphere that surrounds the investigation and prosecution of community-arousing crimes of violence; and the fact that 81 cases of capital convictions of innocent men and women have been documented in the United States alone in recent years ' although this number does not reflect an increase in the phenomenon, but only a recent increase in our attention to it.
And some of us are concerned with what the death penalty does to societies and systems of law that use it ' with how it distorts and erodes the fabric of our moral and our legal norms as those must be twisted and emptied of meaning in an effort to justify taking human life on the basis of procedures that we know to be fallible, error-prone, and inescapably responsive to the urgings of vengeance, prejudice, and primal rage. Some of us are here simply because we are sick of the insidious hypocrisy that is the necessary price of pretending that imperfect human institutions are good enough to make decisions about who should live and who should die and get them right.
If any of these reasons finds an echo in your soul, then there is room for you in the house of the moratorium movement. There is a role for you in the counsels of the moratorium movement. There is a need for you among the workers of the moratorium movement.
We can have a global moratorium on the death penalty if we come together and we join together and we work together. We can have it soon if we begin to work together now. But it will be hard work; and, though the moratorium can be accomplished soon, it will not be accomplished immediately. We will have to stick together, and persevere together, and continue to work together until the killing stops. And even then we will have to work together, and keep on working together, very hard, to prevent a backlash from happening ' like the backlash that happened in the United States after our last 10-year moratorium. We will have to keep the killing from resuming until the world has had a chance to pause and catch its breath, and see what it has done, and think about what it should do next.
As for what will happen after that, we cannot say. We are not all of one mind about what should happen in the longer-range future; and we need not be. Some of us believe that the human race should put the death penalty behind it forever. Some of us want to preserve at least the possibility of turning to the death penalty under extraordinary and unforeseeable future conditions. Some of us want to see the death penalty restored to use if and when sufficient safeguards have been put around it to assure that it will not be applied arbitrarily and discriminatorily or with too much risk of error or procedural unfairness.
But those are questions for tomorrow; and today is today; and the people who are being put to death today are not the products of a capital punishment system that has been purged of arbitrariness and discrimination and error-proneness and unfairness. The people who are being put to death today in this country include children ' and mentally retarded persons ' and persons who never had a decent trial with a competent lawyer or adequate resources to defend them ' and persons whom there is overwhelming evidence to believe are innocent ' and persons whom there is overwhelming evidence to believe were sentenced to death as a result of race prejudice. These are the people who are being killed today ' with the United States, having executed 76 persons already this year, the highest number in any year since 1954. And whatever else we can agree or disagree about for the future, we can all agree that the killing of these people has to stop and it has got to stop now.
Stopping the killings is the aim of the Moratorium Movement and of the several, not-yet-fully-united organizations, groups and governments that compose it. I hope that in they wake of this conference, they will become more fully united and will stand together in a common effort to stop the killings. What I want to say now ' if you will forgive me for addressing myself principally to the abolitionists among you ' is how very important I believe the Moratorium Movement is, and why I hope that all abolitionist organizations will devote a substantial portion of their efforts and resources to supporting it. I recognize that there is other important work that also needs a portion of those resources, and that the resources are slim. As a litigator with clients on death row, I am not about to forget that the work of defending death-sentenced inmates in the courts and representing them in clemency proceedings urgently needs to go on and to receive a share of the resources of the abolitionist community. And we also need to give a portion of our efforts and resources, even now, to our ultimate goal ' which is not simply a moratorium on executions, not simply the eradication of the death penalty, but, for most of us, the securing of the universal recognition of the dignity and worth of every human being, and of the right of every person on this earth to demand of his or her government fair, respectful, and humane treatment, decency, equality and justice.
Having said that a Moratorium is not everything that we could wish for, nor even everything that we must work for, let me go on and say why I think that it would be a great step forward ' why I believe that nothing else we could accomplish in the near future would contribute so much to the ultimate abolition of the penalty of death. I want to describe, first, why we need a moratorium; second, why we can get a moratorium; and third, why a moratorium would serve the cause of long-range abolition.
We need a moratorium to end the trench war in which the struggle for abolition is now bogged down. At least in countries like the United States, where the death penalty has become deeply entrenched not simply as an institution but as a competition sport for prosecutors and a mandatory loyalty oath for politicians, nothing more or less than a moratorium is likely to reanimate the abolition movement in the foreseeable future. It is important to be realistic about the role that the death penalty plays in the culture of the United States if we want to change it. To say that the death penalty is accepted, even popular, today is only half the story. The other half is that the death penalty is accepted and popular in the way that professional baseball and professional football are accepted and popular: as a spectator sport to the fans and a competitive ago to the players and a symbol of the American way to everybody. Capital prosecutions and the countdown dramas that precede executions are a perennial Olympiad in which prosecutors strive to win their laurels and to take their places beside John Wayne and the Marlboro Man on the billboards of the American soul. Capital defense lawyers and abolitionist advocates in this country can no more defeat capital punishment by winning cases or winning legislative debates than the New York Yankees can put baseball out of business by winning the pennant. It's a game, folks; and after playing it nonstop for more than a third of a century, let me tell you that it is a game that feeds on itself and feeds on itself and ceases to have any rationality or any meaning except to win and prove that you can win ' and can win big by killing somebody or stopping somebody from being killed. It is game that trivializes human life by turning the awesomeness of death into a prime-time advertisement that the game is being played for the highest possible stakes, in order to increase the spectators' thrills and the competitor s' motivation.
This is not a game that abolitionists can win by invoking rights or rules. We tried that and we failed. The way we failed was instructive. For as long as the United States tried to play the death-penalty game by the rules ' by respecting due process of law and taking seriously the equal protection of the laws; by demanding the observance of constitutional rights; by insisting on fair trials and competent lawyers for capitally-charged defendants, and on full and fair hearings of the appeals of capitally-sentenced inmates ' no death sentences could be carried out in this country. That's how the United States got its 10-year, judicially-imposed moratorium, between 1967 and 1977.
So, because death-sentenced inmates and their lawyers were consistently beating prosecutors and political proponents of the death penalty in a high-stakes competition played according to the rules, the prosecutors and the politicians and the judges changed the rules. The prosecutors and the politicians began berating the judges in the public media, and there were some judges, including Justices of the Supreme Court of the United States, who were only too happy to agree that the rules had to be changed to make room for capital punishment. One characteristic of the American legal system needs to be kept in mind here, although our conferees from outside the United States will find it too bizarre to believe, while those from inside the United States will find it too trite to notice. So contentious is the American process of constitutional adjudication that the dissenting judges on multi-judge courts regard themselves as the losers in a competition and resent it; they spend t heir summers like last-place finishers in the National Football League, figuring out how to make a comeback next season. Some judges ' like former Supreme Court Justice Harry Blackmun ' have enough ego-control to escape this mindset, but they are very few. And new judges are appointed or elected through procedures that are sensitive to a public temper which it is quite easy for disgruntled prosecutors and aspiring politicians to inflame by harping on the public's fear of violent crime, decrying realistic crime-prevention methods as too costly, and peddling capital punishment as the universal panacea for what ails these United States. Thus the courts in the United States, while continuing to say that capital punishment could be exacted only if it was administered with equality and rationality and fairness, soon began to change the definitions of "equality" and "rationality" and "fairness" so that these concepts were diminished to the measure of whatever death-sentencing procedure any state legislature chose to enact. And when that alone start executions up again ' because too many death-sentenced inmates were still able to come to court with tenable claims of constitutional injustice based on aberrant proceedings in their individual cases that could not be squared with fairness or equality or rationality even as these concepts had been watered down to accommodate the states' capital sentencing procedures in general ' then the courts and the legislatures changed the rules again so that these claims of constitutional injustice could not heard in court at all.
Just as one example, take the case of Tony Mackall, who was executed by Virginia on February 10 of last year. Before his execution , Mr. Mackall filed a petition in federal court asserting that his federal constitutional right to an attorney had been violated because he had been convicted of murder and sentenced to death without EVER having had a competent lawyer.His trial lawyer was incompetent, but the claim of incompetence on the part of his trial lawyer could not be raised on appeal because Virginia does not allow claims of ineffective assistance of counsel to be raised on appeal. In state postconviction proceedings the Virginia courts appointed ANOTHER incompetent lawyer to represent Mr. Mackall. This lawyer, by HIS incompetence, managed to forfeit Mr. Mackall's claim that his trial lawyer had botched his case. So Mr. Mackall tried to go to federal court.
The federal district court threw Mr. Mackall out without a hearing. It held that Mr. Mackall's second state-appointed lawyer had waived Mr. Mackall's right to complain about the incompetence of his first, and that a federal court could not consider the incompetence of Mr. Mackall's SECOND lawyer because there is no federal constitutional right to have a lawyer at all in state postconviction proceedings. In a rare moment of enlightenment, a three-judge panel of the federal court of appeals reversed, holding that a defendant with his life at stake is entitled to one competent lawyer SOMEWHERE in the proceedings leading to his execution, and that if ALL of the lawyers who had represented Mackall were incompetent, Mackall could, by demonstrating their successive incompetence, obtain relief in federal court. However, the entire court of appeals then reheard this decision and decided by a vote of 10-to-2 that the district court was right: Because of the technical doctrine that state postconviction proceedings are not a part of the criminal case, a death-sentenced inmate has no right to competent counsel in such proceedings; so Mackall's claim that the only lawyers Virginia ever gave him were a succession of incompetents had been forfeited by the final, terminal incompetent. The Supreme Court of the United States denied Mr. Mackall's petition for review, and he was executed. So much for the right to counsel, due process, equal protection of the laws and rationality alike.
With the courts of the United States behaving this way, you can see why I say that nothing less than a moratorium is likely to make much difference. Judicial remedies for even the worst defects of the death-penalty machinery in this country are not going to be restored unless and until there is a major change in climate. Judges who have permitted not only one or two but dozens of people like Tony Mackall to be put to death are not about to turn around tomorrow and say, "No, we were wrong; we will make amends and accord greater respect to due process and the right to counsel in the future." They have too many corpses already weighing on their consciences to admit that there is anything wrong or in need of change about the state of the law they have created or condoned.
But why did I also say that nothing more than a moratorium is likely to make much difference either? That's pretty obvious. Nothing more than a moratorium ' nothing in the nature of abolition or even a broad-scale cut-back in the number of crimes for which the death penalty can be imposed ' is going to happen in a country like the United States in the short-run future. Not with the public-opinion polls still running at over 70 percent in favor of capital punishment, and with the political advisors to candidates of every stripe and party mouthing the established political wisdom that an anti-death-penalty stance is political suicide.
So then, you may ask, why do I have any hope that a moratorium can be brought about, or will work if it is brought about? Why will it not be promptly overturned, in the same way that the late, great, 10-year moratorium in the United States was overturned? And why would the political agencies of government to whom abolition is anathema have any greater reason to support a moratorium?
The answer to first question ' why a new moratorium would not simply prompt the same backlash that undid its predecessor ' is that there is a crucial difference between the kind of judicially imposed moratorium that the United States had in the 1960's and 70's and the kind of legislatively adopted or gubernatorially endorsed moratorium that the new moratorium movements are seeking. The judicially imposed moratorium was a day-by-day declaration of defeat for prosecutors, a standing insult to their adversarial capability, a crying challenge to them to demonstrate their competitive superiority by knocking it over. It incensed them to ever-greater efforts to upset it; and those efforts quickly broke it down. By contrast, a politically enjoined moratorium needs not be ' and, if we are wise, we will try to cast it in a form that is not ' a challenge or a goad to anyone's competitive instincts. If it is proposed and adopted in a tone that says "let us pause for a while, and take e stock of where we are, and then decide where to go from here" ' not "you have no legal right to do what you are doing and we defy you to try and get away with it" ' there will be a lot fewer folks with a lot less incentive and with vastly fewer occasions to undo the moratorium than there were last time. To be sure, any moratorium that is adopted will be adopted over the opposition of political adversaries, and those adversaries will be motivated to rebound and overturn it. But politicians are less prone than litigating lawyers or even dissenting judges to regard a loss on an issue of policy as a personal affront to their adversarial prowess or their reasoning ability; and politicians are more prone to bide their time and to make new prudential calculations after a setback. If and when we achieve a moratorium, of course we will have to keep a constant watch out for recurrent movements and motivations to attack it. But we have a better chance to head these off than we ever did on the frantic litigative battlefields of the 1970's and 80's.
As for the question how we can hope to garner the necessary political support for a moratorium in the first place, if the dominant players in the political arena are unapproachable on the subject of abolition, the answer is that a moratorium differs in important ways from abolition, even though it tends in the same direction. In adopting a moratorium, government does not have to give up the power to kill or concede that it lacks the power to kill. A major allure of capital punishment to the popular mind and politicians alike is that it is the highest prerogative of sovereignty and the ultimate symbol of strength: the last surviving attribute of the divine right of kings. Public support for the death penalty results more from attachment to the symbol of capital punishment as a defense against insecurity and a response to frustration than from any practical penological objective or desire to actually use the penalty. A moratorium can be proposed on grounds and supported by arguments that do not challenge this sacred symbol or engage the resistance of those who revere it.
Moreover, in adopting a moratorium, government does not even have to give up the possibility of reinstating the actual use of capital punishment in the future. This is important because, to some extent, capital punishment represents a psychological reserve of the ultimate social defense against the ultimate-imaginable- threat: a response to the worst possible crime from imagination's horror chamber of the future. By preserving the potential for this response, a moratorium avoids the appearance of rendering society defenseless. Indeed, in adopting a moratorium, government does not have to give up anything forever. Please do not forget what an awesome, frightening word "forever" is. It imposes a nearly unbearable burden on those who appear to be urging irreversible action. Proponents of abolition have always been saddled with that burden, and it is little surprise that they have failed to carry it in countries like the United States, where, as Margaret Mead observed, our national credo is "Keep Your Powder Dry." This is a burden that proponents of a moratorium need not carry.
Finally, and crucially, a moratorium can enlist the support of a multitude of people who are not abolitionists, for a multitude of good reasons that do not depend on being convinced that the death penalty itself is an evil or that it should be abolished. I have spoken of those reasons, which include concern that the death penalty, as presently administered in this country, is applied in an arbitrary, uneven, and racially discriminatory manner under conditions that render it extraordinarily susceptible to the risk of killing innocent people through a variety of mistakes, often without the safeguards that could prevent or correct the grossest of those mistakes and assure some minimal fairness in the process ' such as an assurance of competent defense counsel and adequate resources to prepare a defense at trial, and the maintenance of satisfactory postconviction procedures for hearing claims that a condemned inmate's trial was conducted in disregard of his or her constitution n al rights. The American Bar Association has, of course, found these and other reasons sufficient to warrant a moratorium, while taking no position on the death penalty as such. And all of us know good people who are or can be moved by the concerns that moved the ABA, even though they are not yet convinced that the death penalty is inherently and irretrievably wrong.
Which brings me to my final question and my closing point. If we get a moratorium, particularly with the support of many folks who are not committed to eventual abolition, how will that advance the cause of ultimate abolition? It will do so in at least three ways.
First, a moratorium will give abolitionists the benefit of the normative power of the actual. It will show doubters that we can do without the death penalty and survive. It will provide a laboratory test ' indeed, as many laboratory tests as there are moratorium jurisdictions ' of the question whether or not the death penalty serves any useful penological purpose. Abolitionists will have to continue to work ' and to work hard, as I have emphasized ' to monitor post-moratorium conditions and to collect and preserve post-moratorium factual data for comparison with pre-moratorium data about murder rates and other relevant facts. They will also have to work hard ' and to work with law-enforcement officials and others concerned with stopping violent crime ' to find more effective methods of crime prevention and to demonstrate that these can be employed efficiently with a moratorium in effect. But if abolitionists are right ' and I believe they are ' that the death penalty is a useless tool for crime control, and that other crime-control strategies hold a better prospect of success, a moratorium will give them a chance to prove these things.
Second, moratoria are likely to be accompanied by governmental studies of how the death penalty has been administered in the past, as well as how alternatives to capital punishment can and do work. Such investigations, like the ones authorized by the Nebraska legislature and underway in Illinois, can provide an unprecedented public forum for the presentation of the case against the death penalty. Governmental bodies in the United States have long been remiss in studying the functioning of the capital punishment system ' or any other issues having to do with capital punishment ' by contrast, for example, with governmental agencies in Canada, Great Britain, and elsewhere. And the general public in the United States is notoriously ill-informed about almost everything relating to the subject. For example, many people say in response to opinion polling that if the law allowed a convicted murderer to be sentenced to life imprisonment without parole and forbade any lesser punishment, they would reconsider their support for the death penalty; but these same people reveal, astoundingly, that they are unaware that the law of their States already makes life imprisonment without parole the only available alternative to a death sentence. The governmental studies that accompany moratoria can serve to publicize accurate, pertinent information of this sort. And they can serve to expose the worst abuses of the capital punishment system as it actually operates, which is to say, horribly. So, if abolitionists are right ' and, again, I believe they are ' that the more one knows about the realities of capital punishment, the uglier and more unfair it looks, then these moratorium-centered investigations offer an uncommon opportunity to begin creating a climate favorable to long-run abolition.
Finally, a moratorium would take the death penalty, for at least a time, out of the realm of competitive athletics. It would suspend the agonistic ethos that, at present, fires the fighting instincts of every ambitious prosecutor and politician and makes them blood-mad to trounce defense lawyers and bleeding-heart liberals and to vie with one another to win the grand sweepstakes of death. I have fought against these people bitterly for upwards of 35 years but I tell you that I have more faith in their capacity for decency and humanity and wisdom than they themselves can have in themselves, under the blindingly savage competitive conditions in which they now function. Stop the killings, give them space and time for reflection, and I think that we will find some supporters for abolition among them.
How many? I don't know. How long will it take? I don't know. Can we keep the killings stopped for that long? I don't know. But I do know that we have got to stop the killings, and to stop them now.
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The
Moratorium Campaign
P.O. Box 13727 New Orleans, LA 70185-3727 Tel: (504) 864 - 1071 Fax: (504) 864 - 1654 info@moratoriumcampaign.org Copyright 2001 The Moratorium Campaign privacy statement |