By Sania Anwar
It begins with hope. As it often does for those who believe in its elusive power.[1]
“This is a historic moment,” began Professor Bernard E. Harcourt, “The first full day of a new presidential administration . . . the first time in American history that a president of the United States has declared himself to be an abolitionist.”[2]
The seminar’s discussion highlighted the trauma experienced by the loved ones of those on death row, and it also revealed the burden on those who diagnose and treat this trauma, those who report on it and give it a platform, and those whose advocacy stands between their clients and the sentence of death. All who spoke on this day sought the acknowledgement and validation of this collective humanity, invoked by state-sponsored death. They came together to identify and mark the “most harrowing aspect of the death penalty” – the trauma it inflicts on all who come within the radius of harm from the state-mandated and -administered execution: the emotional and psychological toll on the accused and every life connected to their lived existence in waiting for the axe to pause, to be hurled away, but held aloft, and then to fall.[3]
Codifying Abolition
“Dismantle the execution chamber.”
House Representative Adriano Espaillat, who had recently introduced legislation to abolish the federal death penalty, built on the initial message of hope with his words. Representative Espaillat shared his own abolitionist journey by going back to his pre-politics college days: researching the history of death penalty and reading Albion’s Fatal Tree, realizing the gratuitous, discriminatory, and racist scope and impact of the death penalty, and working with The Innocence Project.
Representative Espaillat stated that with the “traction in Congress to abolish [the federal death penalty],” the goal is to pass legislation which will abolish it “once and for all.”
Representative Espaillat pointed out that this iron-clad abolition legislation will require political strategies and leadership, and a “common practice” of rejection of the death penalty: from dinner table conversation to Church and community groups. He sought the support of academia and grassroots’ activists to work in harmony and “bring forward all of the best practices” to erase the possibility of killings as undertaken by Trump administration in its spree of federal executions.
Representative Espaillat suggested the symbolic abolishment of the death penalty by physically demolishing the literal machinery of death: “We should ask for the dismantlement of the execution chamber,” he concluded, “so they won’t ever be able to execute anybody again.”
Grief, Denied
“If prison exiles a person from society, execution does so even more profoundly both literally and symbolically. It can exile the surviving family members emotionally as well. So, the call today is for the opposite of exile, for inclusion and recognition.”
Susannah Sheffer, trauma psychotherapist and Access to Treatment coordinator at the Texas After Violence Project, shed light on one of the most hidden and unacknowledged aspect of the death penalty: that it “harms a whole range of people who have not been accused or convicted of any crime.” Ms. Sheffer described her important work focusing on three groups: (i) families of murder victims, who are told the death penalty will help them and who face discrimination and denial of legal rights if they oppose it; (ii) capital defense attorneys, for whom loss on a case is loss of their client’s life and who suffer and “feel themselves to be standing between their clients and the execution;” and (iii) family members of persons sentenced to death and/or executed.
“Trauma is a public health issue,” stated Ms. Sheffer. She described how one of the diagnostic criteria for PTSD is the witnessing or just learning about the actual or threatened violent death of a family member – a description that not only describes execution by death penalty but requires recognizing the “singular aspect of this experience and particular kind of loss and sorrow unlike any other.” This is trauma experienced in repeated cycles of executions “almost happening and then not happening.” This is trauma brought on by the death – “publicly and actively desired by others” – of a loved one and recorded as ‘homicide’ in some death certificates. This is trauma marked by a denied right to grieve, a phenomenon known as “disenfranchised grief.”[4]
In noting that this trauma is internationally recognized as a humanitarian and human rights issue, Ms. Sheffer called for formal recognition and inclusion of this group’s trauma and the “commonality of their suffering.” She recalled the words of a sister of an executed person: “you want other people to know that you are human and your people were human and you love them too.”
Professor Harcourt recalled witnessing the trauma inflicted on Phillip Tomlin’s daughter, Joy. Philip Tomlin was sentenced to death and had three judicial overrides from unanimous life verdicts. In his post, “27 Years on death Row,” Tomlin describes the process as “hell” on his daughter, Joy.
Love, Denied
“We are all human and we can only stand so much.”
Ms. Lee Greenwood is the mother of Joseph Nichols who was executed by the state of Texas in 2007. “This is something you live with daily,” began Ms. Greenwood, “You find a place in your heart and mind to put it so you’re able to function from day to day and live with the heartache that it brings.” She talked about drawing strength from Joseph and having to remain strong for the sake of her other children and their own trauma. She talked about staying in touch with other similarly situated mothers and how some have been ostracized from their own communities. She described the value of offering to “listen without prejudice” to family members like herself, for whom no formal support exists.
Ms. Greenwood talked about the particularly “heart-wrenching” loss of a “child []lost in this manner;” a manner experienced by few parents around the world. Ms. Greenwood called it a “predicament” because “you never think of yourself being in that position, . . . you []think it won’t happen to me, to my family. You need to understand that it will and it can.”
“Predicament,” accurately describes the vortex of inhumanity created and perpetuated by our punitive society, a vortex that is indiscriminate in its dehumanizing pull on all of society, and yet captures and drags under those closest to its center, as determined mostly by the color line.[5]
Life, Denied
“It is time to be bold. That means it is time to ask for abolition, not just a moratorium.”
Kelley Henry represented Lisa Montgomery who was executed on January 13, 2021.
“Lisa had a calendar,” began Ms. Henry, “which she kept while on suicide watch and which ended on January 20th.” “The fact that we could not get her eight more days is something that haunts me.”
Ms. Henry shared the tragic account of the days leading up to Lisa Montgomery’s execution and her own relentless pursuit for reprieve on behalf of her client. She talked about how the smallest of delays would have constituted the difference between life and death, and yet even the pandemic did not slow down the process. Ms. Sheffer had earlier described the emotional and psychological toll on capital defense attorneys from their role in standing between their clients and death. The health-related consequences were compounded in Ms. Henry’s representation of Lisa Montgomery. Because the government provided no exception for a pandemic, Ms. Henry and her co-counsel contracted COVID-19. The government then attempted to cast doubt on the fact of their illness.
Ms. Henry described not only Lisa’s ordeal – as a gang rape survivor being further traumatized by the conditions of her incarceration and on suicide watch[6] – but also the anguish and trauma of Lisa’s sister, Diane, who tore apart the protections she had built around her own childhood trauma of rape in order to share it for Lisa’s sake, “only to be told her story did not matter.”
Story, Denied
“This whole experience has been trying to learn the rules of a system that is making it up as it goes along.”
For Liliana Segura, journalist at The Intercept covering federal executions, her work had a two-fold purpose: she reported on each federal execution under the previous administration’s killing spree, and she did so by not only listening to the stories of those who were killed and those for whom the deceased matter, but by also giving their stories a rare platform.
Ms. Sequara talked about her prescient realization about the return to federal executions upon Trump’s election and her work in anticipation of that time in light of the absence of a clear process for a media witness.
The executions began in Terre Haute in July 2020, with three executions in one week.
Ms. Sequara described the “bizarre set-up” and how only victim’s family had the chance to address the press following the execution. No such platform or space was provided to the deceased’s family, save for a Dollar General across from the penitentiary where family members gathered. She recounted the execution of Orlando Hall – whose execution marked the first lame-duck federal execution in over a century – through the eyes of his six children: “[In] this dehumanizing process . . . they come to [] the killing of their loved ones. They are expected to abide by this protocol and submit politely to the process. You have to do all these things. Your loved one is being killed.” She described the anguish in the cries of Dustin Higg’s sister, Alexa, which could be heard in the upper room throughout her brother’s execution.
Professor Harcourt highlighted the Dollar General reference and the “horrific aspects in which the machinery of death is like handyman work” and shared his own experience of being told by a warden to wait at the nearby BP station, as if the process and its haphazard components were “put together with squash tape and gum.” In choosing the word, “tinker,”[7] for his famed stance-reversal on death penalty, Justice Blackmun could not have been more accurate. Merriam-Webster defines “tinker” as “working with something in an unskilled or experimental manner.”
In addition to depicting the makeshift nature of the death penalty process, the references – a Dollar General and a petrol station – are appropriate symbolic stand-ins for the capitalism perpetuating the racialized carceral system. In her book, “Are Prisons Obsolete?” Angela Davis denotes prison as the “black hole into which the detritus of contemporary capitalism is deposited.”[8] Prisons are the topic under discussion for the next Abolition Democracy seminar, “Prison Abolition,” on February 4th, 2021 at 6:15 P.M.
Humanity, Denied
“The question . . . should not be, do these people that have engaged in aggravated acts deserve to die? It is do we as a society deserve to kill? The answer is no.”
Professor Alexis Hoag, death penalty attorney and the inaugural Practitioner-in-Residence at the Eric H. Holder Jr. Initiative for Civil and Political Rights at Columbia Law School, began her comments with noting that the executed were “worth more than the worst act they were convicted of.[9]” She then identified four areas of need: the need to eradicate the possibility of the use of the federal death penalty as a political tool, the need to return a semblance of credibility to the U.S. Supreme Court and the Department of Justice, and the need to encourage the states to follow suit and abolish the death penalty.
Professor Hoag spoke of the pervasive anti-black racism that runs through the entire system leading up to the death penalty, a system where the black race of the defendant serves as the driving force for “local district attorneys [in prosecuting], the federal government in seeking death, and the juror in sentencing individuals to death.”
Professor Hoag referenced a study undertaken by Jennifer Eberhardt at Stanford which found that the more phenotypically black an inmate looks, the more likely the jury is to send that person to death, and this trend is heightened in cross-racial crime with a white victim. She also identified the recent research undertaken by Scott Phillips and Justin Marcea which showed that defendants were four times as likely to be sentenced to death if the murder victim was white than if the victim was Black. It is no coincidence, noted Professor Hoag, that the same counties which historically had the highest rates of lynching against black people today see the highest rates of capital punishment. She referenced Equal Justice Initiative’s (EJI) Reconstruction in America Report which documents more than 2,000 lynchings of Black people during Reconstruction, and EJI’s Lynching in America Report which finds more than 4,400 lynchings between Reconstruction and Word War II. With few exceptions, no one was held accountable for those murders. A 100 years later, the “stain of slavery and anti-black terrorism is with us today.”
Professor Hoag ended her comments with caution in seeking and framing life without opportunity of parole as the next best alternative to abolishing the death penalty because such framing perpetuates the embedded racial inequality by condemning one to a “bloodless, invisible death.” In moving away from the carceral-focused paradigm, the death penalty should be eradicated and not simply replaced.
“Loving, Living, and Doing”
The death penalty robs from all who come within its glancing vicinity but its toll on the family members of those executed remains one of the worst types of trauma: one that is both unacknowledged and also denied. This denial of human experiential complexity lies at the core of a carceral-focused paradigm.[10] It is the same reductive frame which is applied to persons ‘condemned’ to be executed and to their loved ones as targets of condemnation-by-association.
Susannah Sheffer narrated the account of the young man whose father killed his mother when he was fourteen. No victim advocate came to help him as he stood outside the prison when his father was executed, unlike the support provided to the families of murdered victims. As she notes, “it is as if we can’t wrap our minds around the idea that someone can be both.” In her writings, Professor Hoag notes how the “legal system recognizes two types of people when criminal conduct occurs: victims and Black people.”[11]
“Key aspects of carceral law enforcement — police, prisons, and the death penalty — can be traced back to slavery and the white supremacist regime that replaced slavery after white terror nullified Reconstruction. Criminal punishment has been instrumental in reinstating the subjugated status of black people and preserving a racial capitalist power structure.” —- Dorothy Roberts[12]
The racial context of the denial and diminution of grief and trauma of family members is echoed through all systems entangled in policing and punishing individuals and families. Scholars and activists have called for abolition of child welfare systems (sometimes referred to as ‘family policing systems’) by identifying the anti-black racism in child removals from Black families. Dorothy Roberts will discuss Abolishing Family Policing on February 25, 2021 at 6:15 PM.
In the book, ‘Killing the Black body,’ Dorothy Roberts notes that “slavery could only exist by nullifying Black parents’ moral claim to their children.” Love precedes mourning. The carceral system, of which death penalty is a component, is perpetuated by invalidating Black families’ emotional claim of love for their disproportionately impacted family members. Validation of one’s grief for their loved ones requires acknowledgment of the very heart of humanity: the capacity to love. The unreckoned legacy of the anguish of Black families at The Weeping Time (also called The Great Slave Auction)[13] looms over the continued disregard of Black familial bonds of love – at birth and in childhood,[14] in life, and as here, at death.
“Herein the longing of black men must have respect: the rich and bitter depth of their experience, the unknown treasures of their inner life, the strange rendings of nature they have seen, may give the world new points of view and make their loving, living, and doing precious to all human hearts.” —- W.E.B. Du Bois[15]
Bringing the seminar to a close, Ms. Greenwood empathized with all those affected by the death penalty along with family members and noted that she would continue her efforts for abolition “because it is a lifelong burden that [she] carr[ies].” In an earlier interview, Ms. Greenwood had described how she convinced Joseph to agree to her presence at his execution: “He did not want anyone to witness, but I maintain that it had been he and I in the delivery room and it was going to be he and I at the end.”
Movements for abolition and transformative justice imagine a society where, at a minimum, a mother no longer receives a notice of the date and time of her child’s planned execution at the hands of the state.
By imagining it and calling for it, the process for abolition is underway.
But it begins with hope.
Notes
[1] See, e.g., W.E.B. Du Bois’s relentless hope in the promise of democracy. Chad Williams, W.E.B. Du Bois and the Fight for American Democracy (Aug. 27, 2018), https://www.washingtonpost.com/news/made-by-history/wp/2018/08/27/w-e-b-du-bois-and-the-fight-for-american-democracy/
[2] See ‘The Biden Plan for Strengthening America’s Commitment to Justice’ (“We cannot ensure we get death penalty cases right every time . . . [and] [t]hese individuals should instead serve life sentences without probation or parole.”). Although this language represents arguably the most palatable abolitionist framework, that of the ‘wrongfully convicted man from the Clapham omnibus,’ it remains historic as a significant step towards abolition of the federal death penalty.
[3] A phenomenon known to most who encounter the injustices in the criminal law system and captured by the soul and jazz poet, Gil Scott-Heron, from his own experiences in New York State Prison: Waiting for the axe to fall \ Sometimes, Lord I think that’s all \ When your head is in the noose \ And won’t nobody turn you loose \ You’re waiting for the axe to fall.
[4] See Kenneth J. Doka, Disenfranchised Grief: Recognizing Hidden Sorrow 15 (1989).
[5] The phrase ‘color line’ is attributed to W.E.B. Du Bois from his 1903 book, The Souls of Black Folk, and references race division.
[6] The American Civil Liberties Union had previously filed for a preliminary injunction seeking to end the torturous death row conditions for Lisa Montgomery, conditions which paralleled the years of her sexual abuse. ACLU, Death Row Conditions Retraumatize Woman Who was Sexually Terrorized for Decades (Nov. 16, 2020), https://www.aclu.org/press-releases/aclu-files-preliminary-injunction-end-conditions-re-torture-lisa-montgomery
[7] Callins v. Collins, 510 US 1141 (1994) (“From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored–indeed, I have struggled–along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. [n.1] Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.”) (Blackmun, J., dissenting).
[8] Angela Davis, Are Prisons Obsolete? 10 (2003).
[9] A nod to Bryan Stevenson’s message that “Each of us is more than the worst thing we’ve ever done.” See Bryan Stevenson, Just Mercy 17 (2014).
[10] See n. 9.
[11] Alexis Hoag, Abolition as the Solution: Redress for Victims of Excessive Police Force (citing Stephen L. Carter, When Victims Happen to Be Black, 97 Y ALE L.J. 420, 447 (1988)) (on file with author).
[12] Dorothy Roberts, Abolition Constitutionalism, 133 Harv. L. Rev. 1 (2019).
[13] Kristopher Monroe, The Weeping Time: A Forgotten History of the Largest Slave Auction Ever on American Soil, The Atlantic (July 10, 2014), https://www.theatlantic.com/business/archive/2014/07/the-weeping-time/374159/
[14] See Dorothy Roberts, Shattered Bonds 31, 17 (2001) (“Once removed from their homes, Black children remain in foster care longer, are moved more often, receive fewer services, and are less likely to be either returned home or adopted than other children. . . . . Put another way, most white children who enter the system are permitted to stay with their families, whereas most Black children are taken away from theirs. . . . . Child welfare for Black children usually means shattering the bonds with their parents.”).
[15] W.E.B. Du Bois, The Souls of Black Folk 129 (1903)(Emphasis added).
