In a biased justice system, who gets locked up and who gets killed?
There are those who speak of the “garbage fire” that is the United States criminal justice system. To many of these people, the death penalty is considered the lid on that trash can. And when the lid is lifted, we are exposed to some uncomfortable realities about a government system that brutalizes everyone around it. A system that entraps and kills innocent people. A system that is racist and classist in application. A system that walks over the innocent to kill the guilty.
On January 7, the Park City Institute hosted a near-capacity crowd at the George S. and Dolores Doré Eccles Theater for a brief and rare look into this issue. The Institute’s guest panel included CNN commentator, attorney and former advisor to President Obama, Anthony Kapel “Van” Jones; Kirk Bloodsworth, the first person in the United States to be exonerated from Death Row by DNA testing; and lifelong anti-death penalty advocate Actor Mike Farrell.
Bloodsworth: When justice won’t listen
After being honorably discharged from the Marine Corps, Bloodsworth was initially convicted in 1984 of a brutal child rape and murder, based on the testimony of five eye- witnesses testifying for the prosecution who placed him with, or in the vicinity of nine-year-old victim Dawn Hamilton.
Despite the fact that two witnesses, two young boys, stated clearly that the person they saw had blond, not red hair, like Bloodsworth, the prosecution was relentless. Numerous other discrepancies were noted in the descriptions by the eyewitnesses, including his weight and height, but as Bloodsworth said, prosecutors never went back to look at it; as far as they were concerned, they had their guy. He was sentenced to death in Baltimore County, Maryland in 1985.
His conviction was overturned by the Maryland Court of Appeals in 1986, citing the withholding of evidence by the prosecution. He was retried and re-convicted, this time sentenced to two life terms. He described the hell he lived through, including being locked up in a cell that, wall-to-wall, barely exceeded his arm span and could be traversed in six steps. He described being heckled and threatened by arresting officers and inmates and being referred to as a “monster” by the prosecuting attorney. He broke down as he related the pain of losing his mother five months before his release and being taken to the funeral for a brief time in shackles and chains.
Bloodsworth worked as the prison librarian and in 1992 he was mailed a book titled The Blooding, by Joseph Wambaugh. The book described a forensic technique invented in 1984 by British geneticist Sir Alec Jeffreys called DNA fingerprinting which had solved the killings of two young English girls.
Bloodsworth successfully lobbied to have evidence from the crime scene examined using this method. The tests proved his innocence and he was released eight years and 10 months after his imprisonment, in June of 1993.
Jones: No justice for all
Anthony Kapel “Van” Jones, born in 1968, opened the evening’s civil discussion with a sobering fact in the context of American history: Although Jones is a “ninth generation” American, he and his twin sister have been the first in their family born with the ability to exercise all of their rights.
Jones describes himself as the quintessential nerd. He says that while a student at Yale he never had a glass of wine, never did drugs, and was studious and intellectual. He was shocked and dismayed by the prolific use of drugs on campus.
Yet, what he said bothered him more was that the police officers would drive right past the drug activity at Skull and Bones, an exclusive and secretive club on Yale’s campus, and would instead go to the housing projects to arrest the poor, mostly black, and ultimately, poorly defended drug users.
After consulting with his “Big Mama,” a southern term of endearment for his grandmother, he turned to his law school dean to discuss the issue, which he viewed as a grave injustice. To his disappointment, the dean dismissed his concerns, asserting that the kids from the community projects were “drug dealers,” while the Yale students were just “experimenting.” Jones retorted that the Constitution makes no such distinction. From that moment, he said he moved about as far left politically as he could.
During his talk, Jones emphasized that criminal justice problems are not isolated to private prisons, although there is a tendency for the discussion to focus only there. He explained that both public and private prison systems are driven by profit motives and powerful unions.
The problem raised by prison reform advocates is that the United States’ system is a bloated government bureaucracy with zero incentive to reduce costs or improve their quality of service to the community. The collateral damage to society is significant, real, and often ignored.
The Prison Policy Initiative, a criminal justice and public policy think tank, cites statistics showing that “the American criminal justice system holds people in 1,719 state prisons, 102 federal prisons, 942 juvenile correctional facilities, 3,283 local jails, and 79 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers and prisons in the U.S. territories.” These places hold more than 2.3 million prisoners and of those prisoners about 2,905 are currently on death row. (According to the Death Penalty Information Center, Utah has nine inmates on death row).
Lack of support from extremely limited evidence testing is enough to make many innocent plead guilty — currently, only 6% of criminal convictions had evidence tested and used during the trial.
According to the Innocence Project, a national nonprofit legal organization committed to prison reform, there have been 347 post-conviction DNA exonerations and 149 alternative perpetrators identified in the United States since the first exoneration took place in 1989. Of the exonerated, about 10% pled guilty during their trials in order to minimize their sentences. Exonerations have been won in 37 states. Jennifer Springer of The Rocky Mountain Innocence Center, working in Utah, Nevada and Wyoming, estimates 4-6% of the inmates on death row are innocent.
Death penalty: Where are we headed in the Trump Era?
The elimination of the death penalty is often referred to as a bi-partisan issue, but Van Jones stresses the deliberate effort required to combat the “tough on crime” mentality that exists among mostly, but not limited to, Republican lawmakers.
Congress missed an opportunity last September to address reform because, while the issue has considerable bipartisan support including from Republican lawmakers and policymakers such as Paul Ryan and Newt Gingrich, it still faces considerable opposition.
One opponent is Trump’s Attorney General pick, Alabama Senator Jeff Sessions. Sessions personally blocked bipartisan legislation supported by Senate Judiciary Committee Chair Chuck Grassley and House Speaker Ryan that would have reduced what they perceive to be unnecessarily long sentences for nonviolent crimes.
Forty percent of Sessions’ convictions when he was U.S. Attorney for the Southern District of Alabama (1981-1993) were drug convictions, double the rate of other Alabama prosecutors. His tenure is riddled with accusations of racial injustice and an indifference or complete opposition to prison reform.
While Trump has consistently stoked the fears of his followers, capitalizing on a recent uptick in violent crime driven primarily by only three cities in the country, the Brennan Center for Justice, a non-partisan law and policy institute, responded that violent crime has, in reality, decreased 26% in the last decade.
The National Law Enforcement Memorial Fund reports that it has also been safer for law enforcement over the same period. They point out that “on average, about 50 police officers have been fatally shot each year over the past decade, a number that has fallen by more than half since the 1970s.”
A Department of Justice led by Jeff Sessions could have significant consequences in everything from police oversight, sentencing reform, immigration, local grants for forensics and body cameras, the federal shield law protecting journalists, federal drug prosecutions and counsel to the poor. Most prison reform advocates are looking to state and local lawmakers in the absence of federal leadership.
Moving forward: Can we change the system?
In terms of winning over public and policymaker opinions, different arguments work for different people. For instance, some people respond to the economic justification for eliminating the death penalty. Actor Mike Farrell, who also spoke during the January event, describes himself as “morally motivated.” He said the economic justification makes him sick but, he concludes, “you use whatever works.”
Van Jones gave an animated and enthusiastic explanation of how House Speaker Paul Ryan was, in part, motivated to act on criminal justice reform because of a public, yet very personal, Valentine sent by famed musician Alicia Keyes. Keyes turns on the tease and asks if he could “maybe be her valentine?” if he would just “spread some love” by “reuniting those who have been unjustly torn apart by excessive incarceration.” (The Grammy winner invites others to join her in sending a love note to Speaker Ryan, to put pressure on him and other members of Congress to act on prison reform.)
Nationally, over half of U.S. citizens support capital punishment (61%) though many (44%) believe it is not applied fairly, according to a September 2016 Gallup poll. Here in Utah, voters are largely supportive of the death penalty in capital murder cases. The Salt Lake Tribune reports that Utah men tend to be more supportive (75%) than women (67%), with Republican respondents overwhelmingly supporting it (84%).
Utah’s Republican super-majority has run the gamut in terms of capital punishment legislation. In 2001, Utah State Senator Lyle Hillyard sponsored legislation, SB 172, “Post-conviction DNA Testing,” that unanimously passed the legislature. The law created a mechanism for people wrongfully convicted of felonies to seek exoneration through DNA technology. Then, in 2015, Governor Gary Herbert signed a bill, “Death Penalty Procedure Amendments,” bringing back the firing squad as an authorized method of execution in the event of the anticipated unavailability of lethal injection drugs (Utah had previously abandoned firing squads in 2004 and is now the only U.S. state that authorizes execution by firing squad). Another turn of heart came last year when former Senator Steve Urquhart (R-Washington) proposed SB 189, “Death Penalty Amendments,” that sought to end the death penalty in Utah. The Senate passed and sent the bill to the House where procedural opposition killed the effort. That same year Rep. Paul Ray (R-Clearfield) sponsored legislation to expand the application of the death penalty in offenses which involve human trafficking. The legislation passed the full House (44-28) but was defeated by inaction in the Senate.
Coming up in the 2017 session, Anna Thomas, ACLU-Utah strategic communication manager, said, “It is expected that the same coalition of death penalty abolitionists intend to propose same or similar legislation to what Senator Urquhart presented last year. Paul Ray will also carry his Death Penalty Amendments legislation intended to expand the practice of capital punishment.”
The Park City Institute’s event closed with a highly emotional description of Jones’s visit to the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, the day after the massacre of nine people. He was distressed at seeing the bullet holes on the otherwise immaculate walls and the shattered marble floor where the last attempts at escape were terminated.
Acknowledging the human appetite for revenge, Jones said, “No doubt there are people who deserve to be buried under the prison.” Jones described his own hatred and anger while visiting the site of the massacre, but also recalled when those angry thoughts were interrupted by the sound of the choir singing Hallelujah in the room upstairs. He wondered, “How can they be happy at this time?”
But, he soon realized, it wasn’t the sound of happiness he was listening to, it was the sound of joy. “Joy, that they had found forgiveness,” said Jones. “Joy that they had found something greater than the worst in us.”
Elisabeth Luntz studied Social Ecology and Cognitive Science at the University of California. She is a member of the Investigative Reporters and Editors organization as well as the Society of Professional Journalists.