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Reprieve Newsletter Autumn 2005

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					                                      ReprieveAustralia Notes
    Volume 4, Issue 4
    ReprieveAustralia Notes

    Autumn 2005




 Of Interest
                                      President’s Column
 • According to a new report                                      Indonesians that should        the production was
   issued by Amnesty                  The Bali “Nine” and the
                                                                  the provision of               extraordinary – there
   International, the United          AFP
   States is among four                                           information lead to the        were 13 reviews and
   countries that carried out the     Nine Australians have       arrest and charge of           barely a criticism. The
   vast majority of the 3,797         been arrested in Bali for   Australian nationals, the      show received Critics’
   executions around the world        alleged drug trafficking    death penalty would not        Choice in Time Out and
   in 2004.
                                      activities. Four of them    be sought? To the extent       attracted the likes of the
 • Amnesty's Annual Death             may face the death          the laws of Indonesia          following from major
   Penalty Report states that         penalty. As an              comply with recognised         reviewers:
   the nations carrying out the
   most executions last year
                                      organisation, we have       international human rights
   were China (3,400), Iran           no argument with            standards, they are to be      “An extraordinary
   (159), Vietnam (64), United        Australian law              respected. However, the        evening”: The Guardian
   States (59), Saudi Arabia          enforcement authorities     Australian Government
   (33), Pakistan (15), Kuwait        co-operating with
   (9), Bangladesh (7), Egypt
                                                                  should not, and must not,      “A tour de force of
   (6), Singapore (6), and            international agencies      be complicit in the            restraint … an absorbing
   Yemen (6).                         in the fight against        practice of state-             60 minutes”: The Times
 • The report notes that the          organised crime.            sponsored execution.
   increase in executions in          However, we do object                                      The season sold out and
   China is partly due to a new       to the Australian           Lorilei in London              was an enormous
   way of estimating the              Federal Police                                             success.
   number of executions, as the       effectively handing over    I have recently returned
   government does not
   publicly release this              Australians to their        from London after a very       This success in London
   information.                       Indonesian                  successful staging of the      was largely the result of
                                      counterparts, knowing       theatrical production,         the exceptional efforts of
In this issue                         that their prosecution in   developed with the             Annabel Harris from
                                      that country would raise    assistance of this             ReprieveUK to organise
                                      the spectre of the death    organisation in 2003,          and produce the show
President’s Column               1    penalty.                    Lorilei – A Meditation on      from the London end,
                                                                  Loss. As the director, I was   ably assisted by Amanda
Intern Update                    2    The Australian              in London briefly to           Telfer. Special thanks
                                      Government defends          oversee rehearsals,            must also go to Anna
                                      the actions of the AFP      staging and the opening        Galvin and Raul Sanchez
Humanity Has a Greater           3
Weight Than Violence –                on the grounds that co-     nights of the work. It was     Inglis who travelled from
Roper v Simmons                       operation between           extremely gratifying to see    Canada (with baby
Why Do a Volunteer Internship?   7
                                      nation states in the        the full houses over the       Bianca) to stage the work.
                                      global fight against        first four nights at the Old
                                      drugs is imperative. And    Red Lion theatre in            The production has
Meeting the Houston Challenge    9    so it is. However, that     Islington. Of greater          subsequently been
                                      defence does not            inspiration was the quality    offered a space at the
The Death Penalty and            11   broach, nor answer, a       of after-show speakers         Pleasance in Edinburgh
International Law in the US -         more important              and the enthusiasm from        for the Edinburgh Fringe
Medellin v. Dretke
                                      question: why didn’t the    the assembled English          later this year.
                                      AFP or Australian           public.
                                      Government obtain an                                       Playing co-producer with
                                      undertaking from the        The critical response to       Annabel in London made
Volume 4, Issue 4                                                                                       Page 2
ReprieveAustralia Notes




The President’s Column (cont’d)
(Continued from page 1)                death penalty work in the             the US Supreme Court in Roper v
                                       southern USA.                         Simmons is cause for
me realise that the various                                                  celebration. By majority, the
‘Reprieves’ should be working          Our intern program continues to       Court ruled the execution of a
closer together to get our message     grow. By the time you have read       person who committed a capital
out. We look forward to even closer    this, Rachel Walsh will have          offence when a juvenile
ties with ReprieveUK in the future.    addressed university students in      constitutes cruel and unusual
                                       Sydney about the intern program,      punishment in breach of the
Returned Interns                       and we will have interviewed 6        eighth amendment of the US
                                       more applicants. So many              Constitution. The test of the
Another batch of interns have          interviews so early in the year is    evolving standards of decency
recently returned from a three-        unheard of. We hope for a             was applied, as it was in the
month tour of duty – inspired,         bumper crop of interns to leave       Atkins decision in 2002. The US
weary, more informed, less             our shores this November 2005.        Constitution has once again
innocent. We recognise and             If you are interested, or know        proved an effective shield against
applaud the generous contribution      people who are interested, please     barbarism. I commend to you the
made by them all – Lucy Spencer,       contact us. The offices in the US     article discussing Roper in this
Claire Gallagher, Angie Wong,          remain under-resourced and            newsletter by Mimi Marcus.
Nicholas Chandler and Mark             overloaded with work.
Gibson. The reports from the offices                                         Nick Harrington
in Louisiana and Texas have been       Roper v Simmons                       President
positive. Each intern has made an
invaluable contribution to anti-       And finally, the recent decision of




Intern Update
Last summer’s crop of interns have     a public interest lawyer.             handy over the next few months.
made it safely home, after a                                                 In recent years, she has also
challenging three months in                                                  done volunteer work at the
Louisiana and Texas. You hear                                                Asylum Seeker Resource Centre
from two of them, Angie Wong and                                             in Melbourne.
Nick Chandler, in this newsletter.
                                                                             As always, our thanks go to those
Slightly out of season, an ‘autumn                                           who’ve just returned from their
2005’ intern, Nadia Harrison, has                                            tour of duty - along with Angie
just started a three month stint at                                          and Nick, there was Lucy
the Gulf Region Advocacy Center           Nadia Harrison, our new-           Spencer, Claire Gallagher and
(GRACE) in Houston, Texas.                 est volunteer intern at           Mark Gibson. The work they did
                                                  GRACE                      and the time and effort they’ve
Nadia is an Arts/Law student at the                                          put in makes an enormous
University of Melbourne, with a                                              difference.
keen interest in both international    Nadia speaks Spanish, which,
law and international systems of       given Houston’s proximity to          Pia Di Mattina
justice, and an ambition to work as    Mexico, could come in rather
Volume 4, Issue 4                                                                                              Page 3
ReprieveAustralia Notes




Humanity Has a Greater Weight Than Violence – Roper v Simmons

On 1 March 2005 the Supreme           practice with the cruelty standard       Governor."
Court of the United States, by a      is to consider it against “evolving
vote of 5-4, handed down a            standards of decency that mark           The dissenters, in an opinion
landmark decision in Roper v          the progress of a maturing               written by Judge Price, deferred to
Simmons, finding that executing       society,” as Chief Justice Warren        the higher court’s 1989 ruling in
child offenders violates the Eighth   first put it in 1958 in Trop v Dulles.   Stanford, saying:
and Fourteenth Amendments of
the US Constitution. The              In 1989, in Standford v Kentucky,             “The United States Supreme
immediate consequence of the          the Supreme Court last examined               Court has not overruled
Court’s decision has been to end      those standards of decency                    Stanford, even in the light of
the execution of juveniles            regarding juvenile execution. Then            its decision in Atkins v
throughout the US, regardless of      the Court, by a 5-4 vote, affirmed            Virginia. This court is bound
state law.                            execution in the case of a 16-year-           by the United States Supreme
                                      old Kentucky youth convicted of               Court decision in Stanford v
The Eighth Amendment provides:        murder. The majority                          Kentucky and simply has no
"Excessive bail shall not be          acknowledged age as a mitigating              authority to overrule that
required, nor excessive fines         factor in considering the death               decision.”
imposed, nor cruel and unusual        sentence, but, in the opinion
punishments inflicted." This          written by Justice Scalia, said the      This was the crux of the Missouri
provision is applicable to the        national climate did not rule out        Attorney General’s argument
States through the Fourteenth         the death penalty simply because         when he sought review from the
Amendment.                            of the age of the offender.              US Supreme Court by way of
                                      Previously, the Court had already        certiorari.
As the Court explained in Atkins,     ruled in Thompson v Oklahoma
"the Eighth Amendment                 that executions of offenders aged        The State had charged Simmons
guarantees individuals the right      15 and younger at the time of their      with burglary, kidnapping,
not to be subjected to excessive      crime was prohibited by the Eighth       stealing, and murder in the first
sanctions. The right flows from       Amendment to the US Constitution.        degree. He was tried as an adult,
the basic "precept of justice that                                             and the State sought the death
punishment for crime should be        On 23 August 2003, the Missouri          penalty. As aggravating factors,
graduated and proportioned to         Supreme Court reopened the               the State submitted that the
[the]                                 inquiry into society's evolving          murder was committed for the
offense. By protecting even those     standards of decency. Using              purpose of:
convicted of heinous crimes, the      Simmons’ case, the state’s highest
Eighth Amendment                      court found “a national consensus        1.      receiving money;
reaffirms the duty of the             had developed against the                2.     avoiding, interfering with, or
government to respect the dignity     execution of juvenile offenders”.               preventing lawful arrest of
of all persons".                      The 6-3 majority opinion, written by            the defendant; and
                                      Judge Smith, cited 12 state laws         3.     involved depravity of mind
At issue was whether 16-17 year       banning all executions, five laws               and was outrageously and
olds who commit capital offences      creating a minimum age of 18 for                wantonly vile, horrible, and
may be executed, or whether this      the death penalty and a number of               inhuman.
would be cruel and unusual            statistics that speak to the rarity of
punishment banned by the              such a sentence in this day and          It is convenient at this point to
Constitution’s Eighth Amendment.      age. The Missouri Supreme Court          quote the majority in their
The US Supreme Court has long         set aside Simmons' death                 opening joint judgment in relation
recognised that the definition of     sentence and re-sentenced him to         to the proceeding at the State
cruel and unusual punishment is       "life imprisonment without               trial:
not static, but rather moves with     eligibility for probation, parole, or                       (Continued on page 4)
the times. The constitutional         release except by act of the
Volume 4, Issue 4                                                                                              Page 4
ReprieveAustralia Notes




Humanity Has a Greater Weight Than Violence – Roper v Simmons (cont’d)
(Continued from page 3)                      environment and dramatic               some of the most basic
                                             changes in behavior,                   liberties, but the State cannot
                                             accompanied by poor school             extinguish his life and his
     "During closing arguments,              performance in adolescence.            potential to attain a mature
     both the prosecutor and                 Simmons was absent from                understanding of his own
     defense counsel addressed               home for long periods,                 humanity.
     Simmons' age, which the trial           spending time using alcohol
     judge had instructed the jurors         and drugs with other              Evolving Standards of Decency
     they could consider as a                teenagers or young adults.
     mitigating factor. Defense              The contention by Simmons'        The Court relied on the reasoning
     counsel reminded the jurors             post-conviction counsel was       articulated in Atkins as its basis
     that juveniles of Simmons' age          that these matters should         for its findings in relation to the
     cannot drink, serve on juries,          have been established in the      constitutionality of executing
     or even see certain movies,             sentencing proceeding."           juveniles.
     because "the legislatures have
     wisely decided that individuals    The Decision                           The Court had to determine
     of a certain age aren't                                                   whether a particular punishment
     responsible enough". Defense       The majority (Kennedy, Breyer,         violates society’s evolving
     counsel argued that Simmons'       Ginsburg, Souter and Stevens JJ)       standards of decency by referring
     age should make "a huge            rested its decision on three           to objective evidence of a national
     difference to [the jurors] in      rationales:                            consensus as expressed by
     deciding just exactly what sort                                           statutory enactments and jury
     of punishment to make." In         1.    that 'evolving standards of      practices. To that end, the
     rebuttal, the prosecutor gave            decency' which led the Court     majority found:
     the following response: "Age,            in 2002 to ban the execution
     he says. Think about age.                of mentally retarded people      1.     30 States had prohibited
     Seventeen years old. Isn't'              in the Atkins decision are              the juvenile death penalty,
     that scary? Doesn't that scare           similar with respect to                 including 12 that had
     you? Mitigating? Quite the               juveniles;                              rejected it altogether;
     contrary I submit. Quite the       2.    that the brutality of a          2.     18 States had maintained
     contrary.”                               juvenile’s crime makes it all           the juvenile death penalty,
                                              too likely that mitigating              but by express provision or
     The jury recommended the                 factors based on youth, such            judicial interpretation,
     death penalty after finding the          vulnerability and immaturity,           excluded juveniles from its
     State had proved each of the             would be overlooked; and                reach; and
     three aggravating factors          3.    that the overwhelming            3.     of those 20 States without
     submitted to it. Accepting the           weight of international                 a formal prohibition, the
     jury's recommendation, the               opinion against the juvenile            execution of juveniles was
     trial judge imposed the death            death penalty provides                  infrequent.
     penalty. Simmons obtained                confirmation that the penalty
     new counsel, who moved in                is disproportionate              The Court did note that the rate of
     the trial court to set aside the         punishment for juveniles.        change reducing the incidence of
     conviction and sentence. Part                                             juvenile death penalty, or in
     of the submission was that         In writing for the majority, Justice   taking specific steps to abolish it
     Simmons was "very                  Kennedy stated at page 20 of the       had been less dramatic than in
     immature", "very impulsive",       joint judgment:                        Atkins. The slower pace was
     and "very susceptible to being                                            explained by the fact that the
     manipulated or influenced".              When a juvenile offender         impropriety of executing juveniles
     The experts testified about             commits a heinous crime, the      between 16 – 18 years old
     Simmons' background                     State can exact forfeiture of                        (Continued on page 5)
     including a difficult home
Volume 4, Issue 4                                                                                               Page 5
ReprieveAustralia Notes




Humanity Has a Greater Weight Than Violence – Roper v Simmons (cont’d)
(Continued from page 4)                         not as well formed as that of    executing child offenders and to
                                                an adult. The personality        claim for itself the right to do so.
gained wide recognition earlier                 traits of juveniles are more     In the last ten years, the US has
than the impropriety of executing               transitory, less fixed.          executed more juvenile offenders
the mentally retarded.                                                           (17 in total) than all other nations
                                          Furthermore the Court concluded        combined (9 in total), and with
At page 13 of the majority                that:                                  greater frequency. Juvenile
judgment, the Court opined:                                                      executions comprise
                                             …neither retribution nor            approximately 4% of all
     In the words of the Missouri            deterrence provides adequate        executions in the US in the last
     Supreme Court: "It would be the         justification for imposing the      10 years. However, juvenile
     ultimate in irony if the very fact      death penalty on juvenile           executions comprise
     that the inappropriateness of           offenders.                          approximately .04% of all
     the death penalty for juveniles                                             executions in the rest of the world
     was broadly recognized sooner        Ultimately as in Atkins, the Court     during the same time. Since
     than it was recognized for the       found:                                 2000, four other nations in the
     mentally retarded were to                                                   world are known to have executed
     become a reason to continue             The objective indicia of national   juveniles: China, Democratic
     the execution of juveniles now          consensus here – the rejection      Republic of Congo, Iran and
     that the execution of the               of juvenile death penalty in the    Pakistan. However, China's law
     mentally retarded has been              majority of states; the             forbids executing juveniles,
     barred." 112 S. W. 3d, at 408,          infrequency of its use even         Pakistan recently abolished the
     n. 10.                                  where it remains on the books;      death penalty for juvenile
                                             and the consistency in the          offenders, and Iran has publicly
In addition to considering the               trend toward abolition of the       stated that it does not use the
evidence of a national consensus,            practice – provides sufficient      punishment and intends to outlaw
the Court applied its own                    evidence that today society         it.
independent judgment, ruling that            views juveniles, in the words
juvenile offenders “cannot with              Atkins used respecting the          Naturally the Court noted that the
reliability be classified as among           mentally retarded, as               execution of juvenile offenders
the worst offenders”. It therefore           “categorically less culpable        violated several international
recognised the diminished                    than the average criminal”.         treaties, including the United
culpability of juveniles and by                                                  Nations Convention of the Rights
doing so differentiated between                                                  of the Child and the International
juveniles and adults, as follows:         International Confirmation             Covenant on Civil and Political
                                                                                 Rights. Specifically the Court said
1.       Juveniles lack maturity and      The Court also relied on the weight    at page 21 of the ruling:
        have an underdeveloped            of international treaties and
        sense of responsibility,          opinion opposing capital                   "Our determination that the
        which often results in            punishment for juveniles as                death penalty is
        impetuous and ill-                confirmation of the Court’s own            disproportionate punishment
        considered actions and            conclusion that the death penalty          for offenders under 18 finds
        decisions.                        is a disproportionate punishment           confirmation in the stark
2.      Juveniles are more                for juveniles between the ages of          reality that the United States
        vulnerable and susceptible        16-18.                                     is the only country in the
        to negative influences and                                                   world that continues to give
        outside pressures, including      In recent years, the USA had               official sanction to the
        peer pressure.                    become the only country in the             juvenile death penalty."
3.      The character of a juvenile is    world to openly acknowledge                              (Continued on page 6)
 Volume 4, Issue 4                                                                                                               Page 6
 ReprieveAustralia Notes


Humanity Has a Greater Weight Than Violence – Roper v Simmons (cont’d)
(Continued from page 5)                            are not allowed to vote, to                people. It’s a good day for us
                                                   marry or to determine their                here. I hope all of y'all can
Conclusion                                         own destiny in any legally                 share our happiness."
                                                   recognized way being
The result of this long overdue and                subject to the harshest               Mimi Marcus
groundbreaking decision has been                   penalty our government can            Mimi is a former Reprieve
to finally bring the United States                 conceive. This is about               Volunteer Intern who spent the
into line with international law                   children whose only crime             summer of 2002/2003 working
prohibiting the execution of                       was being born poor being             at the Louisiana Capital
children for crimes they committed                 shuffled into foster care and         Assistance Center in New
when they were juveniles.                          then pipelined directly into          Orleans. Mimi is now a member
                                                   the prison system and                 of the Reprieve Executive and is
The Court's ruling has affected 72                 labeled monsters before               a solicitor at Maddocks.
juveniles in 12 states. To quote a                 their voices even change.
good friend of mine, Ursula Price                  This is about the rights of
(who works at the Louisiana                        our children and the content
Capital Assistance Centre in New                   of a national character that,
Orleans, fighting the death penalty                thank the Lord, has finally
and providing effective legal                      joined the rest of the world
representation to the                              in recognizing that
impoverished accused):                             HUMANITY has a greater
                                                   weight than violence.
                                                                                                       Mimi Marcus
     "And I just have to add. This is              Seriously y'all, I'm all choked      If you would like to receive a version of
     not just about cruelty y'all.                 up. No news this good has            this casenote with footnote references,
     This is about fairness. This is               come down since they                 please email us at
     about a class of citizens that                stopped executing retarded           contact@reprieve.org.au

US Conservatives Have Their Say...
Conservative leaders who recently met in Washington for a
                                                                    not, here it is: "Death solves all problems: no man, no problem."
conference on "Confronting the Judicial War on Faith" have
                                                                    Reprieve would like to think that Vieira had in mind something less
decided that Supreme Court Justice Anthony Kennedy, who
                                                                    extreme than Stalin’s approach and was not actually inciting the
delivered the decision for the majority in Roper V. Simmons,
                                                                    murder of Justice Kennedy…
should be impeached, or worse.
                                                                    The conference was organized by the Judeo-Christian Council for
To cheers and applause from the gathered conservative throng,
                                                                    Constitutional Restoration. It is a little concerning that this is no
doyenne Phyllis Schlafly proclaimed Kennedy's opinion outlawing     collection of fringe dwellers. The two-day program listed two House
capital punishment for juveniles "is a good ground for
                                                                    members; aides to two senators; representatives from the Family
impeachment." Schlafly said that Kennedy had not met the "good
                                                                    Research Council and Concerned Women for America;
behaviour" requirement for office and that "Congress ought to
                                                                    conservative activists Alan Keyes and Morton C. Blackwell;
talk about impeachment."
                                                                    Alabama's "Ten Commandments" judge, Roy Moore; and House
                                                                    Majority Leader Tom DeLay (a Republican from Texas), who
Next, Michael P. Farris, chairman of the Home School Legal
                                                                    cancelled at the last minute to attend the Pope's funeral.
Defense Association, said Kennedy, a Ronald Reagan appointee,
"should be the poster boy for impeachment" for citing
                                                                    Vieira, a constitutional lawyer who wrote "How to Dethrone the
international norms in his opinions. "If our congressmen and
                                                                    Imperial Judiciary," turned up the heat, saying a Politburo of "five
senators do not have the courage to impeach and remove him
                                                                    people on the Supreme Court" has a "revolutionary agenda" rooted
from office, they ought to be impeached as well."
                                                                    in foreign law and situational ethics. Vieira, his eyeglasses
                                                                    strapped to his head with black elastic, decried the "primordial
But there’s more.
                                                                    illogic" of the courts.
Another lawyer told the group that Justice Kennedy should be
                                                                    Vieira delivered Stalin’s "no man, no problem" line twice for
impeached because his philosophy, evidenced in his opinion
                                                                    emphasis. "This is not a structural problem we have; this is a
striking down legislation that criminalized homosexuality,
                                                                    problem of personnel," he said. "We are in this mess because we
"upholds Marxist, Leninist, satanic principles drawn from foreign
                                                                    have the wrong people as judges."
law." Ominously, Edwin Vieira continued by saying his "bottom
line" for dealing with the Supreme Court comes from Joseph
                                                                    But let’s allow Ms Schlafly to have the last word: "The Constitution
Stalin. "He had a slogan, and it worked very well for him,
                                                                    is not what the Supreme Court says it is," she cried, apparently to
whenever he ran into difficulty: 'no man, no problem,' " Vieira
                                                                    wild applause…
said.
                                                                    Pia Di Mattina
  Whether his neglect to call on the full quote was deliberate or
 Volume 4, Issue 4                                                                                                Page 7
 ReprieveAustralia Notes




Why Do a Volunteer Internship?
I had to really justify to myself       if the black-and-white portrait of      defendants are having their
why I should apply for a Reprieve       America that I imagined has turned      appeals denied by US Supreme
internship. I would have to             into a three-dimensional color          Court Judges who legitimise the
sacrifice my entire summer              animation.                              use of the death sentence taking
holiday so that I could spend 3                                                 into their own hands an ‘eye-for-
months as a pleb in a law office,       I now see that the elements that        an-eye’ whilst conveniently
as well as lose a bucket of money       comprise the death penalty are          ignoring the same religion’s
just living in the USA without          mutually enforcing, and together        doctrines of forgiveness.
earning a cent. But these               they create an almost omnipresent
practical considerations didn’t         web. They can be experienced by         It is abundantly clear that the
bother me so much as the                walking to work each morning and        death penalty cannot be fought
opportunity cost. And I don’t           saying “mornin” to the scores of        solely within the legal system,
mean the economic kind. Sure,           homeless (predominantly African         because its preservation has
the use of the death penalty is         Americans) on the street; or            utility in controlling an entire
heinous, but aren’t there people        hearing that medical costs are the      population by maintaining and
in the world more needy of              largest cause of bankruptcy for         legitimising the most insidious
assistance? Doesn’t the USA             Americans; or learning that if I walk   aspects of capitalism, racism,
have enough resources to ensure         a few blocks to the right down my       and gaping holes in the state’s
that every citizen’s civil rights are   street there is an affluent             provision of public education,
equally protected under their           neighborhood full of glorious           heath and welfare.
constitution?                           houses, but walking a few blocks to
                                        the left lands me in a dangerous        So, here is the essence of my
                                        and poor district.                      opposition to the death penalty.
                                                                                In a Liberal Democratic system of
                                        Or noticing the blatantly obvious       rights and responsibilities, can a
                                        racial segregation between private      society (a) totally shift culpability
                                        and public schools, as if the           onto an individual who has
                                        ‘separate but equal’ doctrine had       murdered and thus grossly
                                        been legally overturned 50 years        breached their responsibility to
                                        ago in Brown but is still upheld by     that society, whilst (b) not
            Angie Wong                  economic forces; or knowing that        acknowledging that often these
                                        the minimum wage is $5.15 per           individuals have themselves
                                        hour yet university tuition fees can    been the subject of rights abuses
Two months into my internship           set you back tens of thousands of       – the right to equal protection
with the Capital Post Conviction        dollars; or being surprised that if     and freedom from racial
Project of Louisiana (“CPCPL”) in       you go to buy a sleeping-bag at the     discrimination, freedom from
New Orleans, I still stand by           local Wal-Mart, you walk past the       child abuse, freedom from
reasons that originally compelled       brightly lit display where guns can     poverty and neglect, and access
me to apply. In my (rather              be purchased under your                 to the basic conditions necessary
portentous) application, I said         constitutional right to defend          to the “pursuit of happiness” as
“the use of the death penalty           yourself; or seeing that a large        enshrined in the Declaration of
represents perhaps the most             statue commemorating the                Independence?
heinous intersection of three           Confederates who fought to retain
aspects of the state: society,          slavery in the South stands outside     Between society and the typically
politics, and the justice system”.      a Parish court house, whilst inside     indigent and horribly maltreated
Having never been to USA, I             that same courthouse,                   individual who is convicted of a
realized this was an assumption         predominantly poor and young            horrible crime, how should
when I wrote it; an educated            African Americans are                   culpability for the crime be
assumption, but an assumption           systematically sentenced to death -     distributed, and is a fair
nonetheless. But having lived in        many using guns such as those           distribution of culpability
New Orleans for three months            sold at Wal-Mart.                       reflected in the imposition of the
now, I’ve seen this assumption                                                  death penalty? To me, the
morph into an everyday reality, as      Or hearing that these poor                                 (Continued on page 8)
 Volume 4, Issue 4                                                                                              Page 8
 ReprieveAustralia Notes




Why Do a Volunteer Internship? (cont’d)
(Continued from page 7)                My first visit to death row in Angola   any of them were to be executed,
glaringly obvious answer is no.       was so surreal – it made me feel         the state would be killing
                                      angry, joyous, distressed,               rehabilitated people. You just
I do not believe that certain         frustrated and useless. But most         cannot ignore the totality of a
people are born ‘evil’ with an        of all (and this is quite selfish), I    person’s experiences,
innate predisposition to murder –     felt relieved. I felt relieved           contributions to the world and
if I did, then I would also have to   because the fundamental basis of         potential, and then reduce the
believe that evil is a synonym for    my beliefs had been confirmed -          worth of their life to the crime for
‘black’ and ‘poor’. (The              that in spite of anything, each          which they have been convicted.
arbitrariness of the imposition of    person is an individual and we all
the death penalty makes it a          share inviolable human feelings          Working on a client’s case and
perfect tool of discrimination,       and dignity. Despite the fact that       finding out about their lives is so
something like ‘legal lynching’.)     we had absolutely nothing in             absorbing, so I can see how it
Instead, I choose to believe that     common – class, race, nationality,       would be easy to sometimes
such crimes are predominantly a       gender - I got along with every guy I    forget that there is a real victim.
symptom of a neglectful society,      saw that day, which goes to show         I was struck by this the other day,
rather than an act of a person        that all those boundaries are            while photocopying some graphic
with real and substantive choices     socially imposed. When all sense         pictures of a hideous crime
in life.                              of normality is stripped away and        scene and the young mutilated
                                      you are placed in two rooms              victim. I was lucky I hadn’t eaten
The finality and totality of the      divided by a mesh screen, you            lunch yet, because I was retching
death penalty, rendering              have the choice to either talk like      in front of the copying machine.
someone incapable of                  one human being with another, or         It was just so visceral, and at that
rehabilitation and so un-human        sit in silence for the next 1 ½          moment I felt like I understood
that they don’t deserve life, does    hours. I found that really               the instinctive desire for
not acknowledge this, and shifts      liberating, and I feel so privileged     retribution against the convicted
total blameworthiness to the          to have met them. For me, they           killer.
accused. Aside from the highly        were like a window to another
dubious morality of a state killing   world, and vice versa.                   To this end, one would think that
its own citizens, the vacuum of                                                prosecutors enjoy a natural
hope and compassion intrinsic to      I’m still amazed by how young they       rapport with the victim’s loved
the death penalty is corrosive to     are – two are only 26 both have          ones, but when I was observing a
the legal and social system in        been on death row for eight or nine      2nd degree murder trial one day, I
which it is used. And I think         years. One guy has taught himself        realized that this is not
these principles are relevant         mathematics, astronomy and               necessarily the case. The
everywhere in the world,              Hebrew in pursuit of his religious       prosecutor interrogated the
particularly in countries like        studies. Another, whose best             victim’s fiancée callously without
Australia that are so influenced in   friend on death row was executed         empathy, and for it had no
many ways by USA policies.            in 2002, devoted his time to             probative value whatsoever,
                                      learning French, practicing Wicca        proceeded to wave the victim’s
All this theorizing about the death   and helping a fellow inmate study        still-bloody clothes in front of his
penalty makes great pseudo-           for the equivalent of a high school      mother.
intellectual conversation at          certificate.
dinner parties, but the reality for                                            So, not only are the victim’s
those who have been sentenced         They were each so unique in their        family also victims of the
to death is more mundane - the        interests, but none of them found        perpetrator’s acts, they are then
tremendous gravity of what has        these pursuits futile just because       made victims of opportunistic
happened is normalised to them        they were on death row. It goes to       prosecutors who derive
after years of being incarcerated     show that everybody strives to           legitimacy for their
for 23 hours a day, many still        maintain self-respect, autonomy          bloodthirstiness and political
waiting for legal representation      and dignity, regardless of what          ambition. A prosecutor’s
for their appeals.                    kind of adversities one                  assumed entitlement to
                                      experiences. I am certain that if                          (Continued on page 9)
 Volume 4, Issue 4                                                                                                 Page 9
 ReprieveAustralia Notes


Why Do a Volunteer Internship? (cont’d)
(Continued from page 8)               why the work of excellent,                as complex as I believe the world
monopolize cooperation from the       experienced, creative and doggedly        to be, I’ve also seen that suffering
victim’s loved ones is, as I came     tenacious lawyers is vital - the truth    caused by a failing justice system
to realize, an unhealthy              is rarely self-evident in a criminal      is not some kind of metaphysical
assumption for everyone except        trial – that’s why a trial is conducted   abstraction over which you can
the prosecution. The extensive        in the first place.                       debate its existence. Every life, as
appeals that usually take place                                                 piddling as it may seem on the
after a death sentence must           The integrity of procedures that          grand scale, is of enormous
continually re-victimize the          comprise the law is premised on a         consequence to its owner. This is
victim’s families and friends over    healthy adversarial system, where         something that this world forgets
and over again, allowing the state    competing theories and stories are        far too often.
to feed off their festering wounds    advocated. Without a half-decent
in the name of ‘justice’.             lawyer with adequate resources, an        Angie Wong
Ultimately, what I’ve learnt during   accused stands very little chance of      Angie spent the summer as a
my stint as a Reprieve intern at      a favorable verdict, no matter how        Reprieve Volunteer Intern at the
CPCPL is that nothing is simple –     innocent or undeserving of the            Capital Post Conviction Project of
justice is a relative concept, no     death penalty. I’ve seen the work of      Louisiana, in New Orleans.
person is entirely good or evil,      many passionate and brilliant
and everyone is driven by a           lawyers in CPCPL and The Justice
complex combination of social         Center in Louisiana, but I know that      Notes
                                                                                1. In Louisiana, the death penalty can
influences and unique personal        that is not enough to take on the            also be imposed on a person convicted
experiences. But the law is           tremendous resources and power of            of rape of a child 12 yrs and under.
pulled in two usually opposite        the state, as evidenced by the large      2. Of the 195 people who had their death
directions- to be rational, clear     numbers of people still on death row         sentences finally resolved in Louisiana
                                                                                   since 1976, 7% were exonerated, 63%
and uniform on one hand, and a        and who continue to be sentenced             had their convictions and/or death
reflection of a society filled with   to death.                                    sentence reversed or remanded and
irrationalities on the other.                                                      subsequently received a lesser
In order to appear impartial, the     In fact, for the most disadvantaged          sentence on retrial or through the
law is fundamentally a collection     and indigent people of USA, the              agreement of the State. 2% died of
                                                                                   natural causes whilst on death row
of procedures and rules, which        justice system is so fragile that it         and only 28% were executed. Finally
on closer inspection can be social    often relies on the whims of rag-tag         resolved means that there are no
prejudices and hidden interests       university students and volunteers.          further legal proceedings that can be
masquerading as justice. That is      The effect of this is devastating, and       pursued by the defendant relating to
                                                                                   the death sentence.


Meeting the Houston Challenge
It is really difficult to sum up a     defence service embraced the             preparing a report that applied the
Reprieve Internship in a few           professional, ethical and personal       Illinois Commission’s
hundred words; like a shot of          aspects of the law in a way that         recommendations on capital
Southern Bourbon it was short,         both brought home its importance         punishment to the Texas legal
but what it lacked in length it        and contested its effectiveness.         system.
made up for in punch. The three
months I spent working at the           During my time in Houston I was          Working with the Texas Defender
Texas Defender Service in              involved in a little of everything       attorneys was an education and a
Houston were amazing. I                that happens in a capital defence        privilege in itself. Jim Marcus was
expected to be challenged in           office preparing Federal and State       a complete inspiration, someone
different ways by the experience       Habeas Writs. This included              who works hard to express the
but could not have foreseen            preparing summaries and indexes          highest aspirations of the law
how enriching it turned out be.        of case material, drafting petitions,    within a hostile and difficult
                                       preparing investigative memos,           environment. As well as being a
Unlike any other type of legal         visiting inmates, case related State     fantastic lawyer, Jim always
work I can think of that might be      archival investigation and witness       encouraged the interns to have
available to a law student,            location. I was also involved in                              (Continued on page 10)
working in a non-profit capital
 Volume 4, Issue 4                                                                                           Page 10
 ReprieveAustralia Notes




Meeting the Houston Challenge (cont’d)
(Continued from page 9)               this:                                    internship was waiting in the
                                                                               Polunsky Unit visiting area to visit
fun when we had some free time.       Working with the sort of material        Thomas Miller-El, whose case I
With his constant refrain that the    we were exposed to on a daily            had been working on, and
thirties were the best years of his   basis gave me an almost visceral         watching Dennis Bagwell who
life he sent us off to various bars   hatred and resentment of the             was scheduled for execution a
to sample the local nightlife, a      criminal act. Sifting through case       few hours later saying goodbye to
highlight being Ma Farelly’s,         after case brought home its futility,    his father. The quiet, tenderness
where we sat spellbound in            its irrationality and its selfishness.   with which this man parted from
almost complete darkness as           Often watching the dedicated             his son, a son who had killed his
various senior citizens pawed         attorneys at the service working         mother, half-sister, four year old
each other on the couches and         themselves to the point of illness, I    niece, and killed and sexually
dusted off seductive moves that       could not help but feel that their       assaulted his fourteen year old
must have been pre-war.               altruism was necessary to balance        niece, after his mother refused to
                                      society’s ledger against the narrow,     lend him money, came from a
As well as being able to work for     all consuming egocentricity of their     depth of forgiveness that I found
some amazing people, the              client.                                  almost unfathomable. How we
Reprieve and Amicus programs                                                   would react as victims of capital
also bring together a group of                                                 crime was something that we
remarkable fellow interns. I really                                            discussed as interns (it was also
didn’t expect there to be a                                                    something that was frequently
tremendous social aspect to the                                                asked of us by those who
experience, since I was the only                                               supported capital punishment)
Australian being sent to Texas,                                                and it is a question that I am still
but I had the opportunity to make                                              unable to answer.
some fantastic friends during my
stay. Working within such an                                                   At the intern Reunion a few days
environment is a real bonding                   Nick Chandler                  ago Rachel Walsh said that she
experience and it would be wrong                                               couldn’t see how the entire
to portray the internship program                                              experience could be anything but
as satisfying only from a             However, the same material               life changing. I really have to
professional perspective. Holed       paradoxically reinforced my belief       agree. In fact so ‘real’ is it, that
up in the swampy shambles of          in society’s responsibility for          returning to the hypothetical
the intern house, in The Heights      criminal acts. This is perhaps what      legality of university study has an
or Rice Village, or simply down at    I found most frustrating about the       almost surreal feel to it. Still I
our local ice-house, the interns      American legal and political             look forward to keeping involved
always seemed to have a blast. I      system, its almost complete refusal      with Reprieve Australia.
would especially like to thank        to contextualise crime within a
Paddy, who shared a room, an          social framework that included           Finally, I would really like to
office, a gym, a car and two          poverty, drug and alcohol abuse,         thank everyone who I had the
holidays with me without              violence, social alienation and lack     privilege of working with, or for,
complaint.                            of social and educational services.      the people I lived with, or who
                                      After immersing oneself through          helped me get over there in the
Looking back I wish I could say       casework in the history of an            first place, as well as all the kind
that I had fully digested the         individual inmate the feeling that       Texans who took pity on me
experience, but even after having     remained could never be less than        when I was looking a little lost.
been back for almost two months       a sense of pity at the waste and
the issues raised by my time in       neglect that accompanied                 Nick Chandler
Texas have still not subsided in      whatever crime they had                  Nick spent the summer working
my mind.                              committed.                               at the Texas Defender Service in
                                                                               Houston. He is studying law at
If I jotted them down some of the     One of the most pathetic                 Melbourne University.
most important would look like        experiences I had during my
                                                     ReprieveAustralia was founded in Melbourne in April 2001 by a
                                                     group of Melbourne lawyers with the intention of assisting in the
                                                     provision of effective legal representation and humanitarian
                                                     assistance to impoverished people facing the death penalty at the
        ReprieveAustralia—A0040981A                  hands of the state.

              GPO Box 4296
                                                     It is a sister organisation of Reprieve (UK), a UK based
         Melbourne Victoria 3001                     international human rights charity which was launched in
          contact@reprieve.org.au                    December 1999 by Clive Stafford Smith OBE. Reprieve (US) was
                                                     also established in 2001 to assist in the placement of volunteer
                                                     interns supplied by ReprieveAustralia and Reprieve (UK).

    PLEASE VISIT           OUR                       ReprieveAustralia’s primary objective is to provide effective legal
                                                     representation to impoverished people facing the death penalty
        W E B S I T E AT
                                                     at the hands of the state, by assisting a body of volunteers from
W W W . R E P R I E V E . O RG . AU                  Australia to travel overseas to work on death penalty cases and
                                                     issues.

The Death Penalty and International Law in the US - Medellin v. Dretke
In a dispute testing the effect of inter-   The administration has argued that it is       European Union.
national law in US death penalty            a president's decision - and not the role      According to Amnesty
cases, the US Supreme Court is con-         of the judiciary - to determine whether        International, the Mexi-
sidering whether Texas and other            the United States should comply with           cans on death row af-
states can execute 51 Mexicans who          international law. Apparently, it is the       fected by the ICJ ruling
claim they were improperly denied           administration that has, seemingly of          are held in nine states,
legal help from their consulates.           its own motion, decided that new state         although some of their
In 2004 in The Hague, the Interna-          hearings were appropriate.                     sentences have been
tional Court of Justice ruled that 51       In a document before the court, acting         recently commuted to life
convictions of the US Supreme Court         Solicitor General Paul Clement has             in prison. There are 27
violated the 1963 Vienna Convention.        stated that "Compliance serves to pro-         affected prisoners in Cali-
The case of Jose Medellin, who was          tect the interest of United States citi-       fornia, 15 in Texas, 3 in Illinois, and
tried and sentenced to death by a           zens abroad, promotes the effective            1 each in Nevada, Ohio, Oklahoma,
Texas court in 1994 without having          conduct of foreign relations and under-        Oregon, Arizona and Arkansas.
had consular access, is seen as a test      scores the United States' commitment           A total of 118 foreigners from 32
of how much weight the Supreme              in the international community to the          countries are on death rows across
Court will give in domestic death pen-      rule of law".                                  the United States.
alty cases to the ICJ.                      Citing a 1998 Supreme Court case that          A ruling in the Medellin case is ex-
In recent times, divisions have             suggested treaties were subject to each        pected by late June.
emerged from within the Supreme             country's procedural rules, the New            Pia Di Mattina
Court over the role of international        Orleans-based 5th US Circuit Court of
opinion in interpreting the US Consti-      Appeals last year sided with Texas, and
tution. In March, the Court ruled 5-4 to    ruled that federal relief for Medellin         Life Without Parole ruled out as a
outlaw the death penalty for juveniles,     was barred because he failed at trial to       Sentencing Option by the Texas Senate
relying in part on the strength of inter-   raise objections that Mexico was not
                                                                                           Legislation that would have allowed those
national views against the practice.        told of his arrest.                            convicted of capital murder to be
The Vienna Convention, which re-            Medellin was one of five gang members          sentenced to life in prison without parole
quires consular access for Americans        sentenced to death for raping and mur-         recently failed to win a key procedural vote
detained abroad and foreigners ar-          dering two teenage girls in Houston in         in the Texas Senate, following significant
rested in the United States, was rati-      1993.                                          opposition from prosecutors and pro-death
fied by the US Senate in 1969. The US       The court was told that Medellin's             penalty organizations who claimed it
Constitution states that US treaties        court-appointed lawyer was suspended           would result in fewer death sentences.
"shall be the supreme law of the land,"     from practising law for ethics violations
but does not make clear who inter-          during the case, and he failed to call          Notwithstanding the support of a strong
                                                                                           majority of the senators and the people of
prets them.                                 any witnesses during the guilt phase of
                                                                                           Texas, the legislation needed a 2/3
The Medellin case also sets the au-         the trial. Lawyers for the Mexican Gov-        majority in order to be debated.
thority of state courts against the         ernment say the country would have
Bush administration, which, uncharac-       made sure Medellin had a competent              The Senate's failure to pass the bill
teristically, recently ordered states to    lawyer had it known about the 1994             means that Texas and New Mexico remain
comply with the ICJ ruling and hold         trial at the time.                             the only two states in the US, among those
new hearings. At the same time, the         Medellin is supported in his appeal by         that still have the death penalty, to not
administration said it was withdrawing      dozens of countries, legal groups and          offer life without parole as an alternative
from a section of the treaty so that the    human rights organisations, as well as         sentencing option to the death penalty.
ICJ could no longer hear US disputes.       former American diplomats and the
                                                                                            Pia Di Mattina

				
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Description: Reprieve Newsletter Autumn 2005