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August 4, 2016
Thank you for inviting me here today. I’ll admit that when LeDayne asked me to do this today, I was a bit hesitant because this isn’t my usual venue. But when LeDayne and I talked, she suggested that I talk about what I’m most passionate about. So that I can do and that’s where we’ll start.
My research for the past 15 years or so has focused on the wrongful conviction and incarceration of innocent people within our criminal justice system. At that time early on, very little was known about wrongful conviction cases. The public was not as aware of these types of failures in our system and often responded to the one-off case here and there with deep distrust and skepticism. My interest in wrongful conviction cases emerged, unbeknownst to me, right on the cusp of the DNA revolution that would fundamentally alter public perception of the likelihood of wrongful conviction cases in our system. Most people today, much opposed to back then, recognize that this does happen and that it likely happens more than we think it does.
Early on, the primary focus on these cases revolved around the mistakes and sometimes outright abuses that have led to innocent people being convicted and incarcerated for crimes they did not commit. It is during this time that we learned, for example, that eyewitnesses aren’t as accurate as we thought they were, that people really do confess to crimes they didn’t commit, that a lot of science (like bite mark evidence and microscopic hair analysis) is not really science at all, that there are a few police and prosecutors who knowingly break the rules to ‘get their man,’ and that not all defense attorneys are Matlock.
My colleague Kim Cook, a professor at UNC Wilmington, and I, however, decided to focus on a different aspect of the stories of innocence that began to surface more and more during the early 2000s. We chose to focus on what happens to wrongly convicted people when they get out of prison and return to society ready to restart their lives. What is life like for exonerees – innocent people who have been wrongly convicted and released – when they go home? At that time, the assumption was that what you see on the day of exoneration and release is the end of their story – exonerees with arms raised in victory, tears running down their faces, embraced by loved ones. The life that follows is all roses and butterflies…case closed. So Kim and I wanted to find out if this was true.
To uncover this part of the story, Kim and I completed in-depth interviews with 18 death row exonerees around the country. These are all individuals who have been convicted of capital crimes (mostly homicides or rape/homicides), sentenced to death, sent to death row, and then eventually exonerated and released based on evidence of their actual innocence for those crimes. To date, there are 156 such individuals in the United States. Death row exonerees are a small sub-group of the larger group of 1,800 or so people exonerated for a variety of non-capital charges, but we wanted to focus on death row exonerees because we thought that these cases likely represented the worst failures that our criminal justice system had to offer, short of those innocent individuals who are actually executed.
Kim and I were recently asked to write a chapter for a friend of ours who is putting together a book called “Living on Death Row” so the stories of a few of our research participants have been on my mind. I thought I’d tell you a little about a couple of them and then let them tell you a little bit about what it’s like to hear you are going to be killed for something you didn’t do.
So…for example, I’ll start with Perry Cobb. Perry, a 35 year old black man and former doo-wop singer from Illinois, was arrested for robbing the owner of a local hot dog stand and killing the owner as well as a customer. Cobb and his co-defendant Darby Tillis hold the record for the most times tried for the same crime in all of American jurisprudence – five times in total. They were tried three times before being convicted, the first two trials ending in hung juries. The conviction obtained in the third trial was then overturned when evidence surfaced that the primary eyewitness had been coerced by police to change his story and an alleged co-conspirator had been paid by prosecutors to implicate Perry. They went to a fourth trial that ended in a hung jury, and then finally earned an acquittal in the fifth trial when an Illinois assistant state attorney came forward to explain that during his college days while working at a local factory, the co-conspirator who was paid by the prosecution had bragged about committing the crime with her boyfriend and how she had dropped the dime on someone else.
Perry did not take to death row well. Let’s just say that he was not complicit in his own incarceration…he fought everyone tooth and nail all the time. He struggled mightily when he was released because of the anger he felt, and because of significant symptoms of what we now would call PTSD…disorientation, disconnection, lack of affect, depression. He was not compensated by the state of Illinois until 14 years after his exoneration when the state finally agreed to give him $140,000 for his 7 years in prison, 4 of which he spent on death row. In the 14 years prior to that compensation, he received nothing from the state to assist with his reintegration. And to be clear, Perry is one of the few death row exonerees to receive compensation of any kind from the state.
Perry is an artist, a singer, and so his words were often so poetic in describing what had happened to him. We asked him to try to explain what it was like to hear that he would be executed for a crime he did not commit. This is what he said:
“It’s a little hard to describe...in words how you really feel when [you hear you are sentenced to death]. See two things was happening to me at the same time. This is the first time I ever experienced fear….But now, it’s for everything. It’s for my life….I guess it’s like a mother giving birth and the child dies at birth. I don’t know. I really don’t know. But I do know that it’s a pain that no artist can draw if a person’s able to give it to him in words. I don’t believe that they can put it on a, a canvas….you talking about self. And…you know, I thought about my children. I really thought about them. I wanted to see my children real bad. I thought when would I have a chance to see them….your mother, your dad and grandparents, sisters, and especially your children. You’ll never be able to see them, do anything….It’s like a, a dry, rotten weed in the wind. It’s gone. It’s a dusting, and you’ll never see ‘em again….It’s really hard to give you that. I can’t give it to you….That moment was my whole life. That was my life.”
We talked to Sabrina Butler, who at the time was the only female death row exoneree in the United States. Now, we have two as Debra Milke from Arizona joined Sabrina about two years ago. Both Sabrina and Debra were wrongly convicted and sentenced to death for killing their child. Sabrina, an African American woman, was an 18 year old mother of two in Columbus Mississippi during the height of the ‘welfare queen’ era of the 1990s. Sabrina found her 9 month old, Walter Dean, unresponsive in his crib one night and in desperation took him door to door in her apartment complex, knocking on doors to get help. She and a neighbor tried to administer CPR, adult CPR, while awaiting for the emergency personnel. At the hospital after his death, it didn’t take hospital staff long to question her story. While she held her dead son in her arms in the hospital room, they began to accuse her of physical abuse, attributing the bruises on the child’s body to abuse in spite of her continued insistence on the CPR that she and the neighbor had administered. Sabrina was interrogated that night by a police detective who threw away every statement she wrote and eventually wrote his own version of events, forcing her to sign. Sabrina was convicted by an all-white jury and spent 5 ½ years in prison (2 ½ on death row) before the medical examiner in the case came forward to recant his earlier testimony and substantiate that the child had a hereditary kidney disease that lead to his death, just as Sabrina had claimed all along. Sabrina was compensated for her wrongful conviction almost 20 years after the exoneration because at the time of her exoneration, Mississippi did not have a compensation statute for exonerees. During those 20 years, she was not able to get a job because everyone in her small town knew her. She fought to regain custody of her other children, which took four years.
While we did have participants who came within hours of their own executions, Sabrina did not…but she thought she did. On the day of her sentencing, she heard the judge give her death date. What she did not know was that those dates are immediately stayed pending appeal. No one told her this. So when that original death day came close as she sat on Mississippi’s death row, she thought she was going to be taken to her death:
“When that day came, I was the scaredest person in the world. That is a feelin’ that I wouldn’t wish on my worst enemy. I stood there at the little old door…the slot in it…And I thought, by me watchin’ TV and stuff, that they was gonna come and get you, and you was gonna have this ball and chain on. And these people gonna be walkin’ beside you. You goin’ down this long hall….And I was scared to death, and the girl [next to me] kept tellin’ me, ‘Sabrina, they’re not gonna do nothin’.…’ You know, I was standin’ there cryin’. I kept telling her, ‘Yeah, they gonna kill me. They gonna kill me. Somebody call my mama, or somethin’ and tell ‘em that,’ you know, ‘I love ‘em.’…That whole day, I just sat in my room. I couldn’t sleep. I couldn’t eat. That is the most humiliating, scary thing that any person could ever go through. I was scared to death because I thought that they was gonna kill me for somethin’ that I didn’t do.”
And the stories go on and on. I could take up this entire talk just telling you stories like these. LeDayne said to me that she recently visited with some folks at a prison where the word that came most to mind about their experiences was TRAUMA. If living in prison is traumatic, add to that the trauma of being convicted for something you didn’t do, being told you are going to be killed for something you didn’t do, being kept in a cage for years on end for something you didn’t do, and then, in some cases, being taken to the brink of death only to be snatched back in the nick of time and possibly dangled there again weeks or months later…all for something you didn’t do. If incarceration is trauma, then death row exonerees experience trauma on steroids.
Alfred Rivera, North Carolina death row exoneree, sums up life on death row as follows:
“Life on death row is stressful as one should imagine. Dealing with the possibility of being executed is a heavy burden that causes psychological trauma and emotional damage. I remember one guy on death row jump over a rail about 2 stories up trying to cause his death. I remember a guy who did not want to continue litigation of his appeals because he was tired of continually having to live in the condition of a sitting duck. I remember a guy who would not touch his legal material or read anything about his case because he believed the chips were already stacked against him. These are some of the realities of death row and the psychological effects that death row has on ones psyche. The hardest thing on death row for me was visits from loved ones I couldn't stand to see them leave me and me not be able to embrace them. It was hard for me because everyone knew this wasn’t my place and I should not have been there. It's hard on death row knowing that the day your appeals are exhausted you’re doomed to execution. It's hard on death row becoming intimate friends with a guy and then seeing him be led out to await his death the next 48 hrs. It's hard to look at a guy and see how he may be executed for something he may not have done. There’s nothing easy psychologically/mentally about death row, it's pure pain and suffering.”
So, as you can imagine and as we found, you don’t just bounce back from this experience. While the day of exoneration is certainly a joyous one, the journey yet to come is rife with obstacles and setbacks and, in fact, more trauma. The typical pathway after exoneration for death row exonerees (and really exonerees of all kinds) is one characterized by a lack of support or resources to help them start their new lives. While some have family members who try to assist and provide them with a place to live in those first days out, many do not. In some cases, family members were used against them by police and prosecutors and thus those relationships have been ruptured. More often is the case that family members simply do not have the resources to assist them—they are themselves struggling to get by or they have expended all of their resources in trying to secure the release of the exoneree. They have sold their house, their car, used their retirement funds and all of their savings, leaving them with very little to offer.
It’s important to remember that in most cases exonerees are provided with no resources by the state to assist them in restarting their lives. Only 30 states and the District of Columbia have compensation statutes for exonerees, and they vary widely. Even in those states that do say they provide compensation, the obstacles in the way to actually receiving it are numerable, such that very few actually get compensation. Even fewer states provide any other type of meaningful assistance when they get out. Mostly, exonerees receive no temporary startup funds to help them find temporary housing until they can develop a long term plan (and of course they are not allowed into federal section 8 housing because of their felony records which are often not expunged). They receive no assistance with their medical or dental needs, which as you can imagine are significant. They receive no assistance in finding employment or learning new job skills. They receive no mental health services. The only way they get assistance with any of these is if, by chance, they have a friend who can hook them up with a job, or an attorney willing to file the expungement paperwork for free, or volunteers willing to provide them with a free medical or dental check up. In other words, the system—the state—does not take it upon itself to provide any of these resources to people wrongly convicted. The state does provide some of these resources to parolees—the rightly convicted—when they are released, but exonerees are not provided with any of the resources provided to parolees. Exonerees for the most part are simply ‘cut loose’ and left to their own devices or the goodwill of others.
If you’d like to know more about how your state handles this situation, you can visit the Innocence Project website and click on your state to read about what it provides.
So…you asked me to say a bit about what I was passionate about. This is it. So much so that I now volunteer for an organization that works with death row exonerees. For many years, I have served on the Board of Directors of an organization called Witness to Innocence (WTI). And this is the organization that I’ve asked my honorarium be donated to…thanks to LeDayne. WTI is the nation’s only advocacy organization comprised solely of death row exonerees. Our mission is two-fold: the abolition of the death penalty and the support of our members (death row exonerees) and their loved ones. In our pursuit of the first of these, we work with state abolition organizations and national organizations, such as People of Faith Against the Death Penalty, the 8th Amendment Project, and the National Coalition to Abolish the Death Penalty. Typically this means sending one or more death row exonerees to events to speak about their experiences with the death penalty – how they were wrongly convicted, what it’s like to live on death row, and how they’ve been treated since. National polls have recently shown that the single most powerful and effective argument against the death penalty that resonates most with the public at this time is innocence. This makes our members living, breathing testimonies to the dangers of the death penalty and thus makes them very influential and effective speakers.
Towards our second mission of supporting exonerees and their families, we do several things. First, we hold a gathering of death row exonerees once a year in a different location every year. This is a long weekend within which any death row exoneree who is interested is brought in along with one loved one/support person, and we provide some programming on trauma management, speaker education, and some time just to be together. WTI pays for their transportation and lodging and provides a per diem to ensure that anyone who wants to come can. More recently, we have begun to pursue this second mission of support in direct conversation with the Obama Administration through the Department of Justice to construct better policies, with federal support, to address the needs of exonerees after they are released.
This is the injustice within our criminal justice system that I am most passionate about. I guess I should put my biases out there in case you haven’t figured them out already – I believe that our criminal justice system is rife with inequalities and injustices of all kinds. I believe this because I see this in the lives of those with whom I work and because a vast store of empirical evidence shows me that. I also believe that one reason this inequality and injustice is allowed to continue in the face of overwhelming evidence that it exists is because we think of those within the criminal justice system – those arrested, convicted, jailed, imprisoned and executed – as different ‘kinds’ of people, if people at all. They are ‘offenders,’ ‘perpetrators,’ ‘inmates,’ ‘murderers,’ ‘rapists,’ ‘thieves,’ ‘monsters.’ We have decontextualized them and taken them out of the context in which they grew up and were shaped, and we have turned a blind-eye to their humanity. By doing that, we then can do anything to them, justify any cruelty, any inhumane treatment, because they are ‘other’ than us.
For a nation that claims to be a ‘Christian’ nation, I have always found our policies and practices in the criminal justice system to be completely antithetical to everything it means to be Christian. When I think of Christ, I think …. forgiveness, mercy, grace, humility, and a reticence to reduce anyone to the worst thing they have ever done. But, I think it’s safe to say that you’d be hard-pressed to find these qualities at work in our current system of justice.
When LeDayne first emailed me about talking here today about social justice and our criminal justice/prison system, I sat down and jotted off a list of practices at play, or only recently abandoned, in our criminal justice system that I consider to be unjust. If you are interested in getting involved in social justice work within our current system and innocence issues aren’t your thing, then you can likely choose from any of the following:
In Matthew 25:31-40 (New Revised Standard Version), the story of The Sheep and the Goats goes like this:
31 “When the Son of Man comes in his glory, and all the angels with him, then he will sit on the throne of his glory. 32 All the nations will be gathered before him, and he will separate people one from another as a shepherd separates the sheep from the goats, 33 and he will put the sheep at his right hand and the goats at the left. 34 Then the king will say to those at his right hand, ‘Come, you that are blessed by my Father, inherit the kingdom prepared for you from the foundation of the world; 35 for I was hungry and you gave me food, I was thirsty and you gave me something to drink, I was a stranger and you welcomed me, 36 I was naked and you gave me clothing, I was sick and you took care of me, I was in prison and you visited me.’ 37 Then the righteous will answer him, ‘Lord, when was it that we saw you hungry and gave you food, or thirsty and gave you something to drink? 38 And when was it that we saw you a stranger and welcomed you, or naked and gave you clothing? 39 And when was it that we saw you sick or in prison and visited you?’ 40 And the king will answer them, ‘Truly I tell you, just as you did it to one of the least of these who are members of my family,[a] you did it to me.’
I often think that as Christians the last group – those in prison – get short changed. So, as we move forward, I would encourage us, as people of faith who strive to be Christ-like, not to be afraid to reach out to ‘the least of these’ in whatever way you are able. I know that here at College Park Baptist Church we are in the beginning stages of a new prison ministry to provide reading material and possibly visits to those in prison. This is a great step. Certainly, if you are interested in learning more about Witness to Innocence and our efforts either to abolish the death penalty by using exoneree voices or provide support for exonerees, I’m happy to talk with you. We often work with faith communities/churches to bring in exonerees to talk with congregations and to tell their stories. We of course are happy to take financial assistance for exonerees to support the gathering or support our emergency fund for exonerees in need.
I would recommend focusing on the injustice you are most compelled by…Incarceration? Juveniles in the system? Solitary confinement? Death penalty? Better legal assistance for poor people in the system? Whatever it is, reach out to organizations in your community, your state, or the nation that address these issues. Those organizations are usually treasure troves of information on how to help.
In closing, I’d like to share the words of a colleague who also is one of my personal heroes, Bryan Stevenson. Bryan runs an organization in Alabama called Equal Justice Initiative. He has worked over the last 30 years to help those in the system who are least able to help themselves. He has won about every award you can name, including the MacArthur ‘genius’ award. He most recently has written a book about his efforts in the criminal justice system called Just Mercy (Spiegel & Grau pubs). If you haven’t read it, you should put it atop your summer reading list. The book revolves around his work with death row exoneree Walter McMillian whom Bryan helped save from death row many years ago. Bryan helped Kim and me make contact with Walter when doing the research for our own book. I’d like to leave you with a few of Bryan’s words in how we should change our way of thinking about the criminal justice system (Just Mercy, p. 18):
“I’ve come to believe that the true measure of our commitment to justice, the character of our society, our commitment to the rule of law, fairness, and equality cannot be measured by how we treat the rich, the powerful, the privileged, and the respected among us. The true measure of our character is how we treat the poor, the disfavored, the accused, the incarcerated, and the condemned.
We are all implicated when we allow other people to be mistreated. An absence of compassion can corrupt the decency of a community, a state, a nation. Fear and anger can make us vindictive and abusive, unjust and unfair, until we all suffer from the absence of mercy and we condemn ourselves as much as we victimize others. The closer we get to mass incarceration and extreme levels of punishment, the more I believe it’s necessary to recognize that we all need mercy, we all need justice, and—perhaps—we all need some measure of unmerited grace.”
"Because this piece was originally delivered as a conference address, citations to academic materials were not included. Supporting citations are available from the author at [email protected], if requested. To get more information about death row exonerees, their stories, and additional research on this topic, please refer to Saundra Westervelt and Kimberly Cook's book Life after Death Row: Exonerees' Search for Community and Identity (Rutgers University Press, 2012). All proceeds from the sale of the book are donated to two organizations that assist exonerees, Witness to Innocence and Centurion Ministries."