Our broken death penalty

Last week, Troy Davis was executed by the state of Georgia. This tragic event, despite the longevity of the events leading up to its conclusion and the focus it has drawn from the media and pop culture, is not by definition an unusual one.

Despite the fact that most Americans like to think of our justice system as being very thorough, especially when it comes to something as final as the death penalty, the fact is that there are too many who have slipped through the cracks. Nationwide, 138 people have been exonerated after being sentenced to death, including six in Pennsylvania, and some have been exonerated after their executions.

During the prosecution process there are too many outside elements that can interfere with the jury’s understanding of the case, leading to wrongful conviction. The largest of these interferences is eyewitness misidentification, which accounts for 75% of the wrongful convictions overturned through DNA testing, and played a major part in Troy Davis’ prosecution. Social science research has proven that the human brain does not have the ability to record events like a camera and is often quite malleable. Thus eyewitness testimony is often extremely inaccurate.

Playing a smaller, though no-less important, part in wrongful conviction is that of Forensic Science misconduct, which, though less talked-about, is slightly more nefarious. Though DNA evaluation has been examined again and again to prove its truthfulness, many other techniques used in the crime lab, such as hair microscopy, bite mark comparisons, fire arm tool mark analysis and shoe print analysis, have received no such examination and are therefore subject to occasional tampering. Other tampering, such as contamination of a crime scene and the planting of evidence can play a part.

Another factor, which may come as a surprise, but plays a no less substantial role, is that of false confessions. People who are being interrogated may in fact have many reasons to confess to a crime that they did not commit, which for mentally-incapable adults may include extreme interrogation lengths and being placed under other forms of duress by law enforcement. However, children and those who are mentally ill are often more likely to falsely confess due to a misunderstanding of the situation or an attempt to please authority figures.

Aside from the transgressions that can occur during the prosecution process, there are several large issues outside the courtroom that must be addressed. The common thought is that it is less expensive to put a prisoner to death than it is to keep them in prison. Contrary to this thought, recent studies seem to show that the death penalty is much more expensive than even life without parole. The lengthy conviction process, the cost of keeping prisoners on death row, as well as that of taxpayer-funded public defenders, all add up to a hefty bill. In fact, the majority of prisoners on death row are among the population too destitute to afford a private attorney, which in addition to the cost to the taxpayer for a public defender, often adds up to a poor defense.

Finally, the last issue at hand is the toughest; that of race. In the state I live, Pennsylvania, nearly 70% of those sentenced to die are members of a racial or ethnic minority. Sadly, this is the case across the country. This is not a reflection of which races are more likely to commit violent crime. It is unfortunately a reflection of which races our justice system are more willing to prosecute and which races our juries are willing to sentence to die.

In a society oriented toward retribution, advocating for the abolishment of the death penalty can be extremely difficult. When presented with these facts, however, more way be willing to reevaluate their views and be ready to accept an end to this still-instinctive aspect of our justice system.

Evan Stultz, ACLU-PA volunteer, Harrisburg

How innocent people are sentenced to death

Like so many things in life, the average American probably assumes that they or someone they love couldn't be wrongly sentenced to death. The Innocence Project explains how innocent people are convicted of crimes. In the aftermath of the execution of Troy Davis in Georgia this week, it's worth considering how it could happen to you.

While the ACLU of PA takes no position on the innocence or guilt of anyone currently before the courts, we know shady circumstances when we see them.

Your children die in a house fire. Dennis Counterman of Allentown, Daniel Dougherty of Philadelphia, and Cameron Todd Willingham of Texas all lost children tragically in house fires.

Counterman spent 18 years in prison, including 11 on death row, after prosecutors withheld evidence that cast doubt over his guilt and even cast doubt over the cause of the fire. He pled guilty to lesser charges after winning a new trial.

Willingham was executed in 2004. Forensic experts say that not only was he not guilty but the fire wasn't even arson. It was an accident.

Dougherty wasn't a suspect in the house fire that killed his sons until 14 years later when he and his wife went through a messy divorce. Dougherty is on death row today. The evidence in the Dougherty case is eerily similar to that in the Willingham case.

Someone you know is killed. Ray Krone, a native of York County who was a mailman in Arizona, was a regular at the bar where Kim Anacona was a bartender. In December, 1991, Kim was killed at the bar after closing. She had confided in a friend that she was romantically interested in Ray and that he would help her clean up that night. Ray was convicted largely on bite mark evidence, but it was discovered later that five dental experts told the district attorney that the bite mark on the victim did not match Ray. A sixth expert told the DA it did match, and the case moved forward.

Ray spent ten years in prison, including more than three on death row. His appeals options were largely exhausted when he was freed by DNA evidence in 2002. Krone's case was featured in the book The Death Penalty on Trial: Crisis in American Justice by A&E television personality Bill Kurtis.

Acquaintances of William Nieves (pdf) and Harold Wilson were murdered in Philadelphia in separate cases, and both Nieves and Wilson were sentenced to death. Nieves was acquitted at retrial when it was discovered that witnesses had identified the perpetrator as someone of a different race, and Wilson was acquitted at retrial, in part by DNA evidence from someone other than the victims and Wilson.

Walter Ogrod of Philadelphia is on death row today for the murder of a young girl from his neighborhood. No physical evidence ties Walter to the case, and he was convicted only on a questionable confession he gave after 30 hours at the police station and on testimony from a jailhouse snitch who made a career of testifying against fellow inmates. In 2004, City Paper of Philadelphia published a two part series on the case.

You're standing there with a crowd when someone is killed. That's what happened to Troy Davis.

The Davis case has brought energy around the death penalty that I have not seen in 11 years of abolition activism. National ACLU has an action page where you can do more to support the effort to end capital punishment.

Why is this controversial?

It is hard to believe that preventing the incarceration of innocent people is controversial. But that is the state of justice in Pennsylvania.

Today the advisory committee on wrongful convictions released its report. Committee chair Professor John Rago of Duquesne University School of Law and committee member Judge William Carpenter of Montgomery County presented the report to the Senate Judiciary Committee.

I have yet to read the report (it's available here), but Professor Rago and Judge Carpenter talked about some of their recommendations, including blind photo lineups, in which the officer presiding over a witness with a photo lineup does not know who the suspected perpetrator is, and audio and video recording of confessions.

This sounds like common sense. Who in their right mind would accept the incarceration of innocent people? Well, an independent response to the committee's report has been issued by prosecutors, police, and victims' advocates. I have not yet seen that report either, but a reporter tells me that the independent report claims that passing the committee's recommendations will give defense attorneys more room for shenanigans. (Update, 5:50pm: This Associated Press story further explains the position of those who oppose the study and its recommendations.)

Senator Stewart Greenleaf, the chairman of the Senate Judiciary Committee and the primary sponsor of the 2006 resolution that formed the advisory committee, pre-empted that argument in today's meeting, noting that recording confessions will make it more difficult for defense attorneys to challenge the legitimacy of confessions. He also said that implementing checks to stop wrongful convictions will give appeals attorneys less avenues and will keep guilty people from walking free on the streets.

Opponents of these recommendations need to explain why they fear accountability in the system and why they prefer a system that risks the incarceration of innocent people.

Looming over this, of course, is the imminent execution of Troy Davis in Georgia. No physical evidence links Davis to the murder of Savannah police officer Mark MacPhail in 1989. Seven of the nine witnesses against him have recanted, with some saying that they were coerced by police to identify Davis. Of the remaining two witnesses, one is a possible suspect in the killing.

This morning the Georgia Board of Pardons and Paroles denied Davis's request for clemency. Davis's execution is scheduled for tomorrow, and the governor has no clemency powers. The state of Georgia is willing to execute a man on no physical evidence and extremely flimsy witness testimony, at a time when the reliability of eyewitness testimony is increasingly called into question.

National ACLU has suggested action steps in response to the board's decision on its blog.

This problem is not isolated to Georgia. There are cases in Pennsylvania that are as weak as Davis's case and as questionable as the case of Cameron Todd Willingham in Texas.

The ACLU of Pennsylvania opposes the incarceration of innocent people. Apparently in Pennsylvania, that's a controversial statement.

When abortion was illegal....

Cross-posted at We've Had Enough.

I had the incredible privilege of speaking with Linn Duvall Harwell, one of the founders of the Clara Bell Duvall Reproductive Freedom Project at the ACLU about the recent legislative attacks on reproductive rights. During our conversation, Linn shared with me that her husband is in hospice care and doesn’t have long to live. The fact that she wanted to take time to speak with me during such a difficult moment points to her steadfast, lifelong commitment to the issue of reproductive freedom for women.

Linn Harwell’s mother, Clara Bell Duvall was the victim of an unsafe abortion in the 1920s, well before abortion was legalized under Roe V. Wade in 1973. This tragic event stayed with her and became the catalyst for her career and commitment to women’s reproductive rights activism.

During our conversation, she shared her disgust with proposed Senate Bill 732 and said, “I am appalledto witness the continuity of that effort from many years ago to reinstate those kinds of restrictions. For me, it all equals restrictions for women.”

She believes that supporters of the anti-abortion movement lack knowledge of the conditions that existed before Roe V. Wade and “do not know the history that preceded Roe v. Wade and why Roe v. Wade came to be.”

She urges Pennsylvanians to open their eyes to the gravity of the issue and reminds us of a time when things were not so easy, a time that could become a reality once again if we do not take action. “Please don’t take these things for granted. Call your representative and tell them where you are and what you need to prevent tragedies in the public health of our nation,” she said.

She stressed the importance of men’s participation in the effort and believes that educating men about reproductive health and preventative medicine would provide them with a basis to take action. “The relationship of the man who is relating to the woman in need is essential and we are neglecting educating men on this issue,” she said. She believes that her husband’s unwavering support has been a strong presence in her career as an activist and in her role as a mother.

Linn believes "We've Had Enough" could transform the movement:“All my life I have regretted the nature of my mother’s death and so I have worked for women I have never known and I would love to see Pennsylvania pick up and care about people that they don’t know.”

Katherine in Philly

Without English as the official language, the terrorists win

I just noticed another nugget from yesterday's House State Government Committee hearing on making English the official language of Pennsylvania, thanks to an ally who pointed it out.

In his opening remarks, Rep. Scott Perry, who is the primary sponsor of HB 888, said this:

From a state security viewpoint, the common acceptance of alternate languages allows individuals adept at them to hide in plain sight and communicate freely while avoiding detection or suspicion.

That's right. If English doesn't become the official language of Pennsylvania, terrorists will plan their attacks while sitting in Rittenhouse Square, speaking a foreign language and surrounded by street musicians and Cliff Lee playing wiffle ball with his kids.

Honestly, you cannot make this stuff up.

I like the George Lopez line: "We speak English. We speak Spanish because we don't want to talk to you."

Protecting English from extinction

The House State Government Committee today debated making English the official language of Pennsylvania. You really just read that. That's what passes for urgent matters at the state General Assembly. Former Speaker Benjamin Franklin would be proud. (Actually, he would. He once worried that German immigrants in Pennsylvania would "Germanize us.")

Our press release questions the need and priority of this issue. You can check that here. There were several things said at the hearing that are also worth noting.

Representative Scott Perry is the primary sponsor of House Bill 888, and as is custom, he had the opportunity to give some comments at the start of the hearing. On the one hand, Rep. Perry said that "language is the tie that binds our society together" and he said, "If you want to become and/or be a part of our society, learn our language."

Ok. Fine. Later Rep. Perry noted the cost of educating the average student is $8950 while the cost of educating an English language learner (ELL) is at least $13,246. Then came the whopper when he said:

Pennsylvania taxpayers simply cannot afford and should not continue to be required to pay the bill(.)

Rep. Perry wants people to learn English because it is "the tie that binds" and he complains about paying for ELL classes. Which teach English.

The other whopper that jolted me out of my seat came from Suzanne Bibby of ProEnglish. Ms. Bibby complained about the federal government's "unfunded mandate" that requires non-English ballot access in voting districts with a minimum percentage of non-English speakers. She worried about the costs counties bear for providing these ballots.

The "unfunded mandate" she complained about is the Voting Rights Act, one of the most important laws ever enacted in U.S. history.

Clearly, the legislature has better things to do with its time than debate this nonsense.

Fraud in the voter ID debate

On August 23, Pennsylvania Secretary of State Carol Aichele announced her support and the Corbett administration's support for House Bill 934, legislation mandating all voters in Pennsylvania to show unexpired, government-issued photo identification at all elections. In the statement, Aichele claimed that just one percent of eligible voters don't have such ID.

Wait, one percent? I sense something, a presence I have not felt since...

...Ohio debated its voter ID bill. Sure enough, as soon as the secretary made the statement, our voting rights partners in Washington told us that supporters of voter ID floated the one percent number in Ohio, too. The problem? The Ohio number included suspended licenses, people who had moved out of state, and dead people.

And lo and behold, after a little digging by a reporter, it turns out that Aichele's number is probably not quite accurate either. A PennDOT official acknowledged that the number of license holders it gave to the department of state could have included more than just eligible voters.

Here at the ACLU of PA, we're not surprised to find Secretary Aichele on the wrong side of a voting rights controversy. Last year the ACLU of Pennsylvania sued Chester County over inadequate polling services for Lincoln University students during the 2008 election. In the 1990s, the polling place was located at Lincoln, and when students petitioned to move it back, the county actually moved it further away from campus.

One of the defendants in that case was Chester County Commissioner Carol Aichele. Lincoln University, meanwhile, is a historically black university.

Of course, the secretary's boss, Governor Corbett, is no stranger to voting rights controversies. In the closing days of the 2010 campaign, Corbett said of voter turnout in Philadelphia, "We want to make sure that they don't get 50 percent. Keep that down."

Without question, HB 934 would lead to some eligible voters losing the franchise. Those without ID are disproportionately the elderly, racial minorities, the poor, people with disabilities, former inmates, and students. There's one way to keep that vote down: Pass a voter ID law in Pennsylvania.

With HB 934 already passed in the House, the state Senate will have to decide this fall if it is going to embrace the agenda of Representative Daryl Metcalfe or protect the franchise for all Pennsylvania citizens. The Senate can't have it both ways.

"I want to pick the crops"

“National Security Begins at Home”, but what do these 14 bills before the state House have to do with national security?

On Tuesday, August 29^th, the General Assembly met to hear testimony regarding the 14-bill package entitled, “National Security Begins at Home”, which Representative Metcalfe (R-12), introduced this session.  Included in this horrendous package are bills such as, HB 738 and HB 801, which require police officers to check the immigration status of those who are stopped if the officer “suspects” the person/people of being in the US unlawfully (a sure recipe for racial profiling), HB 858, which mandates that all private businesses use the imperfect E-Verify system, and HB 474 and HB 857, which directly evade the 14^th Amendment’s constitutional citizenship provision, guaranteeing citizenship to children born in the United States.

These are just five of the 14 bills introduced. Many of the bills have eerily similar text as the Arizona, “papers please” legislation that is currently being appealed in federal court.

Some members of the legislature want Pennsylvania  to become the sixth state to pass legislation like Arizona’s “papers, please” law that limits the rights of immigrants and PA citizens alike, and the previous five states are currently in court defending their laws.  None of the five states have been able to implement their laws.

In fact, most of these issues are not for the state to legislate, but rather, they are the federal government’s responsibility.

Prior to the hearings, a press conference was held with a variety of speakers who adamantly oppose this bill package.  Representative Tony Payton of Philadelphia finished his speech by stating, “If you don’t have any ideas to help the economy, say so.  Don’t keep using distractions, such as this.”  The many who opposed the bills stood in the background holding signs, as different men and women spoke against the bills.  Representative Eddie Day Pashinski ofLuzerne County also spoke in opposition of the legislative package.  He commented on the necessity of immigration in our nation’s history and concluded with, “I stand with you for fairness.”

Although the two-day House State Government Committee hearings had an unequal amount of representation from those opposing (Chairman Metcalfe allowed four pro-immigration speakers and nine anti-immigration speakers), the hearings were chocked-full with extremely unscientific data against the bills with the occasional question from legislators of why illegal immigration was even a topic that needed to be discussed by the PA General Assembly.

Former Pennsylvania State Representative John Stahl spoke on behalf of the legislation package representing the Tea Party.  Stahl began his presentation (I cannot bring myself to call his words testimony) by stating that illegal immigration is “destroying every institution of our nation”.  Most, if not all, of his statements were based on self-admitted “guesses” and the individuals that he interviewed.  Stahl claimed that “illegal aliens collect more than I do on Social Security,” illegal immigrants take “$40 to 65 billion” out of the Pennsylvania economy, and mentioned a store owner who based his opinions on whether his customers were illegal or not on their mastering of the English language (not to mention that his written testimony puts customer in quotation marks, as if people who do not speak English could not be given the same title as others who use this particular person’s services).

Directly after Stahl’s performance, Pamela Linares told her story about the immigration process she had to go through in the US.  Linares spoke about coming from Bolivia when she was only eight months old, and her struggle growing up without papers.  Her story was incredibly moving and the room was intently listening to a storythat is common among immigrants.  Linares’ parents went to a lawyer while on their Visa.  The lawyer took the money but did not deliver any of the proper documents to the government.  It was only years later that the family found out about this, and because of the error, they were denied legal status for years.

Kay Hollabaugh represented Hollabaugh Bros. Fruit Farm and Market in Biglerville, Pennsylvania.  Hollabaugh explained that she would not have any workers if this legislative package were passed, due to the problems with E-Verify, and the need for immigrant workers.  She mentioned one of the farmers she had spoken with in Arizona who is now paying workers in cash because of the difficulties of E-Verify.  As a small business owner, the Members asked her plenty of questions about her farm and the actual use of immigrant workers.  Hollabaugh ended her testimony stating, “I want legal workers, and I want to pick the crops”.

Jessica Wood, ACLU-PA communications intern, Harrisburg

If you don't get it, you must be high

Of the many hot-button issues that are bouncing around the rhetoric filled rooms of the state Capitol as of late, one that caught my attention as being particularly egregious is that of the roadblocks being placed in the way of the legalization of medical marijuana via House Bill 1653 and  Senate Bill 1003.  This is, unfortunately, another case of our legislators, including those  in leadership positions, being completely blind to the interests of the public. A nationwide Gallup poll in November of 2005 showed that 78 percent of Americans believe in the legalization of the drug for medical purposes, and a 2010 poll from Franklin and Marshall College found that 80 percent of Pennsylvanians support allowing medical authorization of marijuana.

Numerous medical organizations support the access to medical marijuana for the ill, including the American College of Physicians, the American Public Health Association, and the Leukemia and Lymphoma Society. The benefits to legalizing the drug far outweigh the minimal risks, which are, in most cases, overblown and anecdotal, with very little basis in fact. Many substances which are otherwise highly illegal, such as cocaine and morphine, are used regularly in hospitals, so why not marijuana?  Allowing those who are suffering from cancer, glaucoma, chronic pain, epilepsy, or many other diseases access to this drug would be a great boon. Chemotherapy patients who are too sick to eat or swallow pills sometimes find marijuana an effective treatment.  Studies have shown that marijuana relieves nausea, appetite loss, and severe pain. It also has been shown to increase the chances that HIV/AIDS and hepatitis C patients will stay on life-saving medications.

This is personal for me because I have dealt with epilepsy and would have considered medical marijuana, were it a legal option. Many of the opponents to legalization attempt to propose legal alternatives but do not take into account the fact that these alternatives are too expensive, too addictive, and have difficult side effects.

Many of the issues raised by opponents of legalization have, as per usual, very little basis in fact. It has been shown, time and again, that marijuana is actually a very safe drug, safer in fact than our old friend Tylenol: there are no medically documented cases of overdose deaths from marijuana, while over 500 overdose deaths from Tylenol are registered per year.

The old bugaboo, “marijuana as gateway drug” has also been gradually undermined. A new studyfrom the University of New Hampshire seems to show that teenagers who smoke pot and move on to other, harmful drugs has more to do with outside factors such as employment status and stress. It appears that those students who do not finish high school, do not attend college, and do not seek gainful employment are more likely to pursue more…sundry activities to fill their time. Interestingly, age also seems to close this “gateway”, with these effects subsiding in most people by the age of 21.

  

In the end, our legislature will have to realize that this is an issue of compassionate action. There are many people who are suffering with horrible conditions much worse than mine that could be relieved by the simple administration of this drug. Just like my decision on what medicine to take for my seizures, it is a private issue, one that should be decided between a person and their physician, not their government.

Evan Stultz, ACLU-PA volunteer, Harrisburg