Extremists for the extension of justice

By: Marlene Martin

Our approach to activism in the Campaign to End the Death Penalty is two-pronged. We fight both around individual cases as well as make the general case for abolition. In this approach, there exists a built-in tension.

We want good lawyers to fight in the courtroom--to make the very best case they can that their client should win a new trail or not get the death penalty. But at the same time, we know that to leave the fight there is inadequate.We have to push forward and make public campaigns around cases if we are to continue to advance the cause of abolition. 

Over the years, we have encountered various instances when lawyers and other activists have been overly cautious or outright reluctant about building outward campaigns that focus on a particular case. 

To take one recent example involving a case in Tennessee, when activists were considering an action in support of a death row prisoner, a lawyer wrote, "The appellate judges reviewing this post-conviction case need to be persuaded, not popped in the face with banners, chants and T-shirt slogans." If activists did want to "do" something, the lawyer said, they should come to court "in their Sunday best...Then we can legitimately draw the judge's attention to the fact that all these fine people came to the courthouse to support [the accused] (and inferentially observe the fairness of the proceeding)...Any public campaign to help a death row inmate must be smart, well thought out, media savvy, coordinated with the legal team, and, most importantly, done at the right time and the right manner." 

The first problem here is the assumption made about "the fairness of the proceeding." Ninety-nine percent of people facing the death penalty are too poor to afford their own lawyer. This fact, in and of itself, means the scales of justice are tipped against those who are poor. 

So what is being "observed" is a long history of un-fairness because the accused can't afford to hire experts, conduct a proper investigation, or hire a top-notch attorney. Why shouldn't that injustice be "popped in the face" of judges and the public? 

The further issue is whether we should trust that the only "persuading" that is effective is done in a legal brief or a courtroom argument. Our experience in the Campaign is that death row prisoners who were able to gain some measure of justice spoke out on their own behalf and had supporters making noise on the outside, too. 

Lawyers are trained in using the tools of the law to help their clients, and generally reject the idea of going outside the courtroom. Yet we know some who came to understand that arguing for clients in front of a judge won't, in and of itself, end the death penalty. Keith Hampton, the lawyer for Kenneth Foster Jr. in Texas, credited the public fight for Kenny as the essential aspect of winning commutation of his death sentence in 2007. "We were all thrown together with a singular eye toward the same goal: Save Kenneth," he wrote. "A small group worked up a strategy that linked the legal strategy with your efforts...[I] hope the remarkable confluence we've experienced in this campaign can be reproduced in future cases with just a much success." 

Lanny Davis, Kevin Cooper's lawyer in California, also spoke about coming up against what he was taught in law school after Kevin came within hours of being executed before a stay was granted. "This isn't something you're taught in law school," he said. "In fact, this is the opposite of what most lawyers are taught, and the opposite of what most lawyers do. We recognized that by getting our message out, we are winning both the battle in the courtroom and the battle outside the courtroom." 

It can be argued there is a "right time" and "right manner" to protest. But we should also remember that it isn't up to the lawyers alone to decide when that time is and what the manner should be. Isn't it better for the prisoner, family members, their supporters and the lawyers to work together on a strategy? 

For example, in Texas, Rodney Reed's lawyers are open to activists working on building a very public campaign, while they focus on building the very best fight they can inside the courtroom. The same can be said for lawyers at the People's Law Office in Chicago who work around the Jon Burge torture cases. Furthermore, we have to make sure that the "right time" isn't permanently postponed to "another time." 

When Rev. Martin Luther King Jr. was sent to jail for defying a court order not to demonstrate against segregation, he wrote his famous "Letter from Birmingham Jail." In it, he addressed several ministers who had called into question the timeliness of the demonstrations. King responded in part, "Frankly, I have yet to engage in a direct action campaign that was 'well timed' in the view of those who have not suffered unduly from the disease of segregation. For years now, I have heard the word 'WAIT!' It rings in the ear of every Negro with piercing familiarity. This 'WAIT' has almost always meant 'NEVER.' We must come to see, with one of our distinguished jurists, that 'justice too long delayed is justice denied.'" 

Good lawyers arguing respectfully for their client's innocence will undoubtedly win freedom for some innocent people. But by itself, this won't change the law. The death penalty can't be abolished this way. Activists need to organize outside the confines of the courtroom, and we have to be extreme fighters for justice. As King also wrote after being accused of being an "extremist": "So the question is not whether we will be extremists, but what kind of extremist will we be? Will we be extremists for hate or for love? Will we be extremists for the preservation of injustice or for the extension of justice?" 

The ongoing fight for justice for Troy Davis, for Mumia Abu-Jamal, for the Burge torture victims, for Rodney Reed, for Kevin Cooper, and for an end to the death penalty has been best served when we haven't been quiet, when we haven't settled for a "respectful" denial from the courts, when we haven't given in. Like the struggle for civil rights, for workers' rights and for gay rights, the struggle to abolish the death penalty will move forward not by focusing on what might happen if we become strident in our demands, but would happen if we aren't.