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For Christmas, the Poor Get Death

Brian Stull,
Senior Staff Attorney ,
ACLU Capital Punishment Project
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December 24, 2008

Especially at this time of year, my mother taught me, we should not forget the poor. We should not forget those who cannot afford a place to sleep or food to eat, much less the holiday trimmings many people take for granted. There are some injustices that result from poverty that don’t always come to mind, but that also need attention. One is the erroneous imposition of the death penalty for defendants who are poor and cannot afford effective lawyers. While never appropriate, the use of the death penalty should certainly not depend on how much money the accused possesses, and our government should not wrongly execute people because they lack the means to adequately defend themselves.

Empirical studies have repeatedly found that erroneous death sentences most often result from incompetent lawyering, which disproportionately affects the poor. Under Supreme Court rulings, a death sentence cannot be upheld unless the jury imposing it has had an opportunity to consider all pertinent “compassionate or mitigating factors stemming from the diverse frailties of humankind.” But most often, death sentences result because unprepared and under-funded defense attorneys utterly fail to learn of and present to the jury such mitigating and compassionate factors.

For example, a Tennessee jury sentenced Gaile Owens to death for having her husband murdered without the jury ever having heard that the husband brutally sexually abused her over a period of thirteen years. In one incident during one of her pregnancies, his brutality caused her placenta to detach partially, resulting in an emergency C-section. The jury heard none of this evidence due to defense counsel’s failure to investigate, a key issue in Ms. Owens’ pending appeal. Appointed counsel for Ms. Owens completed time sheets stating that counsel conducted a scant two-hour investigation in preparation for the mitigation or sentencing phase of Ms. Owens’ trial. That is not justice.

This year, poor people receive an extra lump of coal in their stockings. In one of its final moves before it leaves office, the Department of Justice under the Bush administration recently promulgated final regulations that will speed the path to execution for people like Ms. Owens. Under these regulations, promulgated pursuant to President Bush’s Patriot Act II, states will be permitted to radically shorten the amount of time that many death penalty prisoners have to seek federal habeas corpus review of their cases, if the states can meet requirements for adequate representation of poor death-row inmates that many experts have called a “a sham and a ruse.”

Unless the new Patriot Act regulations are reversed, our government may execute poor death-row inmates like Ms. Owens without providing them a crucial federal review of egregious errors in their cases such as their attorneys’ woefully inadequate representation. One day, like Mr. Scrooge viewing the ghosts of Christmas past, Americans will look back with shame on this period in which poverty played a decisive role in determining who lives and who dies.