Monday, December 09, 2013

Help Stop the Hastening of Death in Tennessee

I was recently asked by a colleague, Dr. Lisa Guenther (Philosophy, Vanderbilt University), to add my signature to an open letter to Tennessee Governor Bill Haslam, petitioning him to suspend the scheduled execution of 10 inmates beginning in January.  I agreed to lend my name to the petition alongside several others in a coalition named "Tennessee Students and Educators for Social Justice."  For a long time now, I have believed that capital punishment represents a great injustice, both in principle and in practice.

Tennessee has put six human beings to death since 1960, though none since 2009.  The reasons behind the state's recent push to hasten executions are as many and as varied as they are mysterious. Only five years ago, an American Bar Association report on Tennessee's death penalty laws, procedures and practices determined that "the state of Tennessee fails to comply or is only in partial compliance" with its basic recommendations.  None of those noncompliance issues have been corrected since the report, and just in the last year three different men on Tennessee's death row (Ndume Olatushani, Timothy McKinney and Michael Rimmer) had their convictions overturned. 

Dr. Geunther, both a theorist of and an activist for prisoners' justice and fair treatment, has worked tirelessly to shine light into this unfortunately dark corner of our polis.  I urge you to read and seriously consider signing the Open Letter to Governor Bill Haslam.  (If you are not a Tennessee student or educator, but would still like to show your support, there is a separate petition you can sign here.)  There is strength in numbers, and every extra signature demonstrates that our numbers are too great to dismiss without attention.

As a philosopher, I can understand, even if not sympathize with, the fact that many still believe the death penalty to be just another form of punishment, differing from other legal penalties in degree but not in kind.  I believe the difference is a difference in kind, and that any Court or any State that exercises its authority in this way is the weaker for it.  Even if I could find some way to relieve my moral objections to capital punishment, I would still find it impossible to sanction its current application and practice. There is an ever-widening gulf that separates those with access to adequate legal counsel from those without it, those who the court system considers without prejudice and those who it exercises prejudice against, offenders who we treat as if they can be reformed and offenders who we treat as if they are best discarded.  Until that gulf is eliminated, justice and fairness remain but a charade. 

For your consideration, I am copying the Open Letter to Governor Bill Haslam below.  I do hope you can find your way to signing it.

Tennessee Students and Educators for Social Justice
Open Letter to Governor Bill Haslam

 As students and educators, we seek to understand the world and to share our understanding with others through a practice of critical thinking and responsible action.  Therefore, we cannot remain silent as Tennessee plans to execute people in the name of justice.
We call upon Governor Bill Haslam to suspend all scheduled executions immediately, and to commission a full and transparent review of capital punishment in Tennessee.
A 2007 American Bar Association report on Tennessee’s death penalty laws, procedures, and practices found that “the State of Tennessee fails to comply or is only in partial compliance” with its basic recommendations.  These include the following areas for reform:

  • Inadequate Procedures to Address Innocence Claims
  • Geographical Disparities in Tennessee’s Capital Sentencing
  • Excessive Caseloads of Defense Counsel
  • Racial Disparities in Tennessee’s Capital Sentencing
These issues have not been resolved in the current system.  For example:

  • Since 2012, three men on Tennessee’s death row have had their convictions overturned: Ndume Olatushani (Nashville Scene), Timothy McKinney (Democracy Now), Michael Rimmer (USA Today).  The state has officially exonerated three people: Michael McCormick (2007, after 20 years on death row), Paul House (2009, after 23 years on death row), and Gussie Vann (2011, after 17 years on death row) (DPIC).
  • There are persistent geographical disparities in capital sentencing.  For example, more than a third of all death sentences in Tennessee arise in just one county: Shelby County (Memphis – only 14% of the population of Tennessee) (The Nation).
  • In Shelby County, public defenders have caseloads that are 3 to 4 times higher than the national average (ACLU).
  • African Americans make up approximately 43% of Tennessee’s death row population but only 17% of the state’s total population (TADP).
In addition to these ongoing structural flaws in Tennessee’s death penalty, we now face new issues concerning the method of execution:

  • In 2011, Tennessee and several other states had to turn over their supplies of sodium thiopental, one of the drugs in the three-drug execution protocol, because of the circumstances under which it was acquired (New York Times).
  • A lawsuit was brought against the FDA for allowing the drug to be imported by state corrections departments without proper inspection and approval (Death Penalty Info).
  • This year, Tennessee switched from a three-drug protocol (involving sodium thiopental) to a new one-drug protocol (pentobarbital).  But it is not clear how the state intends to secure a supply of the new execution drug.  Neither drug is manufactured in the US, and pharmaceutical companies based in the European Union have banned the use of their products for state execution (The Tennessean).
  • This year, Tennessee legislators passed a law that allows compounding pharmacies to mix drugs without a prescription (NPR).  This law would permit the state to order execution drugs directly from a compounding pharmacy in Tennessee, bypassing EU trade restrictions.
  • In April 2013, Tennessee legislators amended a law guaranteeing confidentiality to any “person or entity involved in the procurement or provision of chemicals, equipment, supplies and other items for use in carrying out a sentence of death” (TCA Section 10-7-504(h)(1)).  This means that a compounding pharmacy in Tennessee could accept a contract to produce execution drugs without disclosing its name to the public.
This series of events raises many ethical, political, and practical questions: How can we be sure that execution drugs prepared by a compounding pharmacy would not produce unconstitutional pain and suffering?  Doesn’t the public have a right to know who is making the drugs used to execute people in our name?  And why are we using drugs otherwise meant to heal people in order to kill them?
There are also enduring ethical, political, religious, and practical reasons to oppose state execution:

  • Those of us who identify as people of faith demand the suspension or the abolition of the death penalty in Tennessee because our faith in the God of life compels us to seek justice that is truly equitable and that restores to life that which has been broken. As people who bear witness to the power of healing, we call upon the Governor to set about healing the demonstrably wounded and wounding death penalty system in Tennessee.  Because Governor Haslam is also a person of faith who believes in the God who fosters life and who asks us to do the same, we ask that he halt and address the problems in this current system that foster neither justice nor life.
  • Since 1976, over 140 people have been exonerated and freed from death row in the US.  That’s one innocent person for every ten people who have been executed.  How many more innocent people have we executed, and how many are still slated for execution?  (One For Ten)
  • 88% of leading criminologists in the US do not believe that the death penalty is an effective means of deterrence.  This view is supported by empirical evidence; for example, the murder rate in death penalty states is consistently higher than the murder rate in non-death penalty states (Death Penalty Information Center).
  • Many people across the political spectrum believe that the death penalty fails to provide closure for the family members of murder victims (Conservatives Concerned about the Death Penalty, Murder Victims’ Families for Human Rights, TADP).  Some Tennesseans, such as Hector Black, have found peace through restorative justice after the loss of a beloved member to murder (NPR).
  • No one knows how much the death penalty costs in Tennessee because a full study has never been conducted in this state.  But in other states, death sentences have proven to be far more expensive than other sentences for first degree murder, and we have no reason to believe that our state expenditures would be significantly different.  For example, a 2008 study in Maryland showed that a death penalty case (including investigation, trial, appeals, and incarceration) cost an average of $3 million; that’s $1.9 million more expensive than non-death penalty cases (TADP and Death Penalty Information Center).  Taxpayers in Tennessee have the right to know how much it costs to maintain the death penalty.  Couldn’t we use money saved from stopping executions to open cold cases and to address the social conditions that drive violence and crime?
For these and other reasons, we call upon the Governor to halt executions until we can be sure that the system is working in the service of justice rather than against it.
As students and educators who seek to foster critical thinking and responsible action, some of us believe the death penalty should be abolished, while others believe it should be suspended until systemic flaws are fully addressed.  But we stand united in our critical opposition to the death penalty as it is currently practiced in Tennessee.

1 comment:

Patrick Harris said...

I've been a RMWRTMBM lurker for a good while, but this caught my attention enough to warrant a comment:

"African Americans make up approximately 43% of Tennessee’s death row population but only 17% of the state’s total population."

This is listed as an issue that should be resolved before TN's current system of capital punishment could be considered sound or just. My curiosity piqued, I checked the crime statistics for Tennessee for 2012. While I couldn't find much about capital crimes in particular, I did find the figures for murder arrests, which can be taken as a (admittedly rough) proxy.

I found that there were 161 African Americans and 96 whites arrested for murder last year. That would seem to indicate that a disproportionately small share of African Americans charged with murder are eventually sentenced to death. Naturally there are a couple of objections to this reasoning: first that arrests are not the same as convictions, and secondly that racism may skew who gets arrested and who gets convicted. So to account for that, I assumed that only about half of the 161 African Americans charged with murder were actually guilty, whereas all of the 96 whites were. That would mean that there were 80 African Americans and 96 whites justly arrested for murder in 2012. That would put the share of Tennessee murders committed by black individuals at 45%, still higher than the proportion of African Americans on death row.

The point of all this is not to sound pendantic or nitpicky. Rather, it seems to me that citing the 43% figure as a reason to suspend the death penalty must be a consequence of one of two factors:

1) The death penalty opponents believe that social justice is only served when the racial makeup of executed persons exactly mirrors the population as a whole, irrespective of the what the pool of individuals charged with capital crimes looks like.

2) Death penalty opponents are less interested in what those statistics actually indicate then they are in using them as a rhetorical bludgeon.

It's not that the current practice of capital punishment isn't racially discriminatory to some extent (I'm confident that it is). It's that issues like that are ultimately a distraction from the central question of whether executions as such can be just. If you think they can be, then any racial disparities that *do* exist might just easily be an argument for executing more white murderers. The use of statistics like these bothers me because it propagates the dubious assumption that the existence of a statistical disparity between groups is prima facie evidence of racism. To the extent that murder rates *do* reflect racism, it's the broader historical trends and social structures that have left far too many African Americans in poverty-stricken environments where violence is commonplace. But however great an injustice that is, it says nothing about whether the death penalty per se is just.

I'm confident that there could be no sufficiently egalitarian distribution of executions that would convince you that they're morally A-OK. I suspect many or most death penalty opponents feel the same way. My point is simply that they should *own* that moral judgement (which you clearly do, of course), rather than soft-pedal it with arguments about proportionality.