Dying Twice: Incarceration on Death Row

• Pages: 853-882

A Symposium Held at the Association of the Bar of the City of New York June 17, 2002

Page 853

Panelists

Norman L. Greene¹

William D. Buckley ²

Russell Stetler ³

Craig Haney ⁴

Page 854

Joseph Ingle ⁵

Michael B. Mushlin ⁶

Norman L Greene

Welcome to our program on death row, Dying Twice: Incarceration on Death Row. I am Norman Greene, Chair of the Committee on Capital Punishment of the Association of the Bar of the City of New York. After my introduction I will turn over the program to Bill Buckley, our moderator, and a member of the Committee, to provide an overview of New York's Death Row and then introduce the panel.

I would like to make a few points, and then I will mention the names of a number of people who helped to create this project.

The reality of the death penalty

As lawyers, we talk about decisions in habeas corpus cases and philosophically about whether people deserve to die or not. Some would even assign certain convicted killers to a quick and painless death or worse. From our offices and desks, our work is often bloodless. I sat through the entire Harris appeal.⁷ I did not get the sense from the appellate argument and from the judge's questions that a man's life was at stake. It was somewhat unreal. There was a good deal of talk about procedure and stare decisis.

Death row brings us closer to what is real. The prisoner lies for years in his cell with a very real possibility hanging over him, every single day, that he will be killed. One day people will come to his cell and tell him that "it is time."⁸ I do not know why they say that when they come to kill a man, but wardens reportedly do that regularly. Then they take him, dragPage 855 him, or do whatever is necessary to bring him to the death chamber. They strap him down so he cannot move and is helpless, and then they poison him; make him stop breathing, hearing, feeling, smelling, remembering, recognizing and knowing anything at all ever again. Nothing and no one he loves, nothing he hates. If today is Monday and the execution will happen on Tuesday, then today he is here and we talk to him like we talk to anyone else, and then he is "gone," as they might say euphemistically. They kill him and then bury him in the ground to decompose. Our death penalty, which was once in view on public scaffolds, is now indoors and bloodless but with the same result.

Why have I become so interested in death row and why is it important that people care about conditions on death row? To begin with, the people on death row are not dead yet. They may never be executed. Some may go back to the general prison population. Some may be exonerated. There is no basis for putting a prisoner into a situation where he is driven half or completely insane, if the thought that he was going to be executed was not enough to do that already. We simply should not torture people.

Professor Robert Johnson, in his classic depiction of the death row population and guards in Death Work: A Study of The Modern Execution Process,⁹ found that death row can be torture. Johnson said that the notion that torture must involve overt physical violence is needlessly narrow. The pain and torture may take any form, physical, psychological, or both. Worse yet, according to Johnson, some contend that prisoners come to hunger for execution as an escape from the life they suffer on death row. The first edition of this book was written in 1990, and even at that point he was discussing individuals (termed volunteers) who gave up their right to appeals.

Studying death row is also part of recognizing the humanity of the inmate. When we look at death row we say that this is a man, and we ask how we will treat him. Perhaps if we take another step we will next recognize that this is a man, and then we will ask: why are we executing him?

Common ground

If the death penalty is to be abolished, present death penalty opponents and supporters must work together. This is a political process, and people of diverse views must reach a mutual understanding. A project on death row is a perfect area for death penalty opponents and supporters to work together. Death row is a common ground. The study regarding death row is about prison conditions. Individuals do not need to agree on the death penalty in order to agree on death row conditions or other prisonPage 856 conditions. As time goes on, perhaps the coalition will remain, as people seek general criminal justice reform over excessively long sentences or prison conditions other than on death row and even address crime prevention. Perhaps the coalition will split apart.

There are so many people to thank for this program. I would like to thank Betsy Wilson of the Committee on Capital Punishment, who believed in the importance of the subject and who ran our project in its early stages, including working with us on the important outline of the project. Art Cody, a Committee on Capital Punishment member who named the project "Dying Twice" after a line from Albert Camus¹⁰ and who co-chaired the subcommittee on the project. Mike Mushlin, a speaker tonight who will be introduced by Bill Buckley. Mike saw our outline of the project and shared our interest and more importantly sparked interest in the report from the Committee on Corrections, which he chaired. Dave Hammer, now Chair of the Committee on Corrections at the Association of the Bar of the City of New York, for his editorial skill, which made the report a reality. Dr. Arthur Zitrin, Professor of Psychology, New York University School of Medicine, and Richard Wolf, members of the Committee on Capital Punishment and Committee on Corrections, respectively, who worked on the report and visited the Clinton Correctional Facility in Dannemora, N.Y., with us in August 2000 in preparation for the report. Risa Gerson, for her work on the report with the Committee on Corrections. Martin Leahy, who fresh from a successful program on May 22, 2002, jumped into this program as a one-person public relations firm to help build an audience. Finally, Bill Buckley, the chair of tonight's program.

We should thank other people who are not here but may see the tape or publication. Professor Robert Johnson, the author of Death Work, a tiny classic about death row, who inspired my interest. Donald Cabana, who has done his share to humanize death row with stories in his book Death at Midnight,¹¹ a book about his friend on death row, Connie Ray Evans, who he executed. The quiet dignity of Edward Earl Johnson, so effectively shown in the movie about Donald Cabana and himself and about Johnson's execution, "Fourteen Days in May." Finally, Pace Law Review, especially their editors Kara Bonitatibus and Michelle Snow, for publishing our City Bar Association death row report, Dying Twice, in an updated form.

I want to give a quick introduction of the panel, on which Bill Buckley will elaborate. This is a group that some people speak of with awe. FirstPage 857 Craig Haney, who was Tony Amsterdam's¹² single response to my question: "who is an expert on the psychological effects of death row?" Tony also recommended to us Joseph Ingle as our Chaplain on the panel tonight. I first came to know of Joe while researching a law review article that I was writing on how it feels to be on death row and executed.¹³ We did not need references to Russell Stetler of the New York Capital Defender's Office and Professor Michael Mushlin of Pace Law School. They are well known here. We have had some well known speakers here, including Governor Ryan, Pat Robertson and others. Tonight's program will match those programs in all respects.

Let me introduce our moderator Bill Buckley. As a member of the Committee on Capital Punishment and program chair for tonight's program, he has devoted countless hours to this project. He is appellate counsel at Garbarini & Scher, New York, N.Y. He was a death penalty law clerk to the Supreme Court of New Jersey in 1988 under Associate Justice Alan B. Handler. At the time he began his clerkship, New Jersey had reinstated the death penalty and the court was overwhelmed with death cases. It needed to create special law clerks just for that purpose.

William D Buckley

Back in the early 1960's the curriculum of my fourth and fifth grade class offered a study of United States history. I clearly recount learning in those days, 40 years ago, about social reform movements in the United States that had taken place in the 19th and early 20th centuries.

While you may not recall specific accomplishments, I am sure many of us remember an endless list of great American reformers like Horace Mann, Henry Ward Stowe and, of course, his daughter Harriett Beecher Stowe, Dorothea Dix, Jane Addams, Jacob Riis, and the Muckrakers.

Among other things, these people called for such reforms as an end to slavery, universal education for all Americans regardless of class, humane treatment of the mentally ill, sanitary conditions and adequate housing in our cities and the eradication of slums. These American reformers also sought an end to both debtor's prison and the incarceration of the mentally ill or the insane, recognizing discoveries in developmental and education psychology. We later saw the establishment of juvenile courts as an acknowledgement that children are fundamentally different from adults in their capacity to intentionally commit a crime. I also learned as a child that more than 100 years ago Americans had undertaken to reform the conditions in which the country incarcerated prisoners. I was led to believe that Americans, with the Eighth Amendment of the nation'sPage 858 Constitution in hand condemning cruel and unusual punishment, had become enlightened during the past two centuries and had moved on from the days when...