Defending Death Row Inmates

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October 1, 2002
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by Stephen R. Greenwald

Mid-afternoon on Thursday, May 17, 2001, found me in a small visitors’ room at Cen-tral Prison in Raleigh, North Carolina, with my client Robert Bacon. Two armed prison guards sat with us.

I had represented Robert for six years in state and federal courts trying to overturn the death sentence he received in 1993. But time was running out; Robert was to be executed in about ten hours, at 1:00 A.M. on May 18th. My co-counsel and I had exhausted all standard legal options and strategies. In the past week we had filed a claim in state court seeking to delay Robert’s execution on somewhat novel and previously untested grounds. The claim had reached the North Carolina Supreme Court two days earlier, but, with the clock winding down, no decision had been announced. Robert seemed calm, at peace with whatever was to come. I was tense, nervous, and tired, unsure of what to say that would not seem banal or contrived. Then I was called out to the phone. It was my co-counsel, saying that the North Carolina Supreme Court had granted an indefinite stay of execution to consider our claim. I returned to the visitors’ room with the news that Robert would not die that night, and, as we embraced, I felt a sense of pride and satisfaction that I was a lawyer, able to use whatever skills I had to save a life; a pride and satisfaction I had never experienced before. (Robert’s sentence was commuted to life imprisonment by Governor Michael Easley in September 2001.)

But I have not described Robert’s crime, nor told of his victim and the victim’s family. Don’t they matter? Was my pride merely hubris, my satisfaction only that of “winning”? For Robert did kill; he took a life that should not have been taken. His guilt was never in doubt. Why use my talents, why devote years of effort (with little or no compensation) to save Robert’s life? And if I must do this, why his case, when there are other defendants whose actual guilt may be in doubt? Would I – could I – represent an Osama bin Laden, a Timothy McVeigh, a Zacarias Moussaoui? And if I were to declare that the crime and the criminal are irrelevant to me, that it is only a matter of principle that I represent them, what does that say about my humanity, my priorities?

In doing pro bono capital defense work for over ten years, I have had to confront these questions and their implications. Some of the questions have come from within – doubts about the wisdom or value of this work. Some have come from others: Why are you wasting your time? What about the victims? What about the “bin Ladens” and “Eichmanns”?

I have never doubted my premises. It is morally wrong for the state to take a life; the death penalty is not a deterrent. As applied in the United States, capital punishment is unfair, is racially biased, and creates an impermissible risk of killing the innocent. The death penalty contributes by example to a culture of violence – the state resorting to the ultimate violence as a solution to social problems. And capital punishment, grounded as it is solely in retribution, undergirds an overly harsh and punitive system of criminal justice in America, which leads the Western world in rates of incarceration. Nor have I doubted the larger social value of this work. I believe the death penalty, in its symbolic and representational role, has a profoundly wider effect on our culture and society than its immediate effect on a few thousand capital defendants. These premises help me answer questions about the value and wisdom of doing these cases – and help me conclude that it is right as a matter of principle.

But I struggle with more mundane issues, primarily issues focused on clients that I represent. Some, like Robert Bacon, make it easy. Robert did kill; he committed a terrible crime for which he is being punished. But in acknowledging his wrong-doing, in his desire to help and mentor other, younger, convicts, which he is now doing, in his love of reading and learning (Robert enrolled in college while on death row), a love we share, in all this and more, I found a core of humanity and a life worth saving. Robert affirmed my belief that there is something worth saving in almost everyone. It is perhaps only a “monster,” a “Hitler” or a “Stalin,” of whom it can be said – “he is no better than the worst thing he has ever done.” Other clients test me. They deny, not acknowledge, responsibility. Their concerns are solely with themselves and not their victims (including their own families). They are manipulative and disdainful of those who would help them, including me – seeming to believe that the fact that someone would help them (and for free) makes that person a “sucker,” to be used. Working with such a client, as I now am, tries my conviction and patience. I find it necessary to return to my basic premises, to remind myself that I do this first and foremost as a matter of principle.

About a year ago I began studying Talmud. I began with Tractate Sanhedrin, since my interest in Talmud came directly from my death penalty work. Could Jewish law inform my premises, beliefs, and work? And indeed, I have found in the edict “Justice, justice shall you pursue,” and in the elaborate procedural structure the Mishna mandated to ensure the utmost fairness and absence of doubt before society could take a life, affirmation that this cause is just and right and worth the effort.

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Stephen R. Greenwald is President of Metropolitan College of New York. He has represented capital defendants in post-conviction proceedings in North Carolina and Alabama for over ten years. Mr. Greenwald is a member of the Board of Governors of the American Association of Jewish Lawyers and Jurists, and is a Trustee of the Council of Independent Colleges and Universities in New York.

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