Megaphone: Shari Silberstein, Equal Justice USA

From the Autumn, 2011 issue of Jewish Currents SHARI SILBERSTEIN is the executive director of Equal Justice USA, a Brooklyn-based organization that gives training and assistance to anti-death penalty groups across the country. Founded in 1990, EJUSA has been a key force in moving the public to have doubt about the fundamental fairness of death penalty prosecutions and in gaining the abolition of capital punishment in Illinois, New Jersey, New Mexico, and New York. Silberstein is a graduate of New York University and has a master’s degree from the University of Texas at Austin. She worked as an independent filmmaker in New York City in the mid-1990s. Jewish Currents: Is there a certain kind of community base from which anti-death penalty activism tends to arise? Shari Silberstein: This movement consists of a lot of strange bedfellows, which I find really exciting. People of faith are a huge bedrock of opposition to the death penalty, but they’re not from one side of the aisle or another. Catholics play a big role, but so do the United Methodist Church, the Presbyterians, really, denominations across the board. We’re talking more to evangelicals and others who are not traditionally associated with progressive politics. There are progressive activists, of course, and then you have the pro-life community, often Catholic but not always, and conservatives who don’t trust the government to fill our potholes, so they certainly don’t trust government to take a life! Then there’s the community of victims’ families. Their experience with the death penalty shows more and more that it is not helpful to them and actually can be really harmful. Law enforcement professionals are also starting to question the death penalty — so our work involves a fascinating cross-section of the country. JC: Once it became known that one out of seven people receiving a death sentence is later exonerated — most often through the intervention of groups outside the criminal justice system — a lot of death penalty advocates had to pause... SS: There’s a shift beginning to happen. In reality, although there are thirty-four states with the death penalty still on their books, very few counties in most states are actually using it. Ten years of wrongful convictions and DNA exonerations have put death-penalty advocates more on the defensive and made them more tired. Those of us who want to get rid of the death penalty tend to be more passionate about it than the people who support it, most of whom don’t have that strong a conviction, the way people did in past decades. JC: Some people take a principled stand against the death penalty, while others base their opposition on the fact that mistakes are unavoidable, that innocents will inevitably die. What is Equal Justice USA’s position? SS: The criminal justice system is supposed to be about keeping the public safe, taking care of victims when they’ve been harmed, and having fairness and due process for people when they’ve committed harm. For us, assuring that the criminal justice system is doing those three tasks effectively is a moral issue. The death penalty fails to accomplish every one of those things: It doesn’t deter, it drags victims through a twenty-year process that retraumatizes them, and it is biased and flawed in its treatment of people who’ve committed harm. We have a vision for a criminal justice system that moves away from revenge and punishment towards prevention and healing — so even if the death penalty system never made mistakes, never took the wrong person, it wouldn’t fit that model. If you’re going to be tough on crime after the crime’s already happened, you’ve missed the boat. We want most crimes not to happen in the first place. That’s what everybody wants. The death penalty is the most extreme example of the opposite of what an effective system would be. Within the next year we’ll have the capacity to work not only on the death penalty but on helping crime victims in the most underserved communities to get what they need to rebuild their lives. Right now victims’ families don’t have access to traumatic grief counseling, they don’t have help with funeral expenses, they don’t have anybody to help navigate the very complicated compensation process. Part of the abolition campaign in New Jersey was to make clear that the savings from abolishing the death penalty should be used to improve services for victims’ families. That has not happened yet. We’re working on it. JC: One of the obstacles to abolition is that prosecutors or police who make mistakes (giving them the benefit of the doubt) tend to cover their tracks because they’re afraid of consequences, lawsuits, being fired, and the like. Is there anything that can be done for such folks to enable them to come clean? SS: There are members of law enforcement who come forward and say they’ve made these mistakes, and are horrified at the consequences of those mistakes, and sometimes they become outspoken advocates for change. The more we can lift up those voices, the more space it will give for other people in that same position to come forward. Is there never a crooked police officer or prosecutor who’s intentionally hiding evidence? Of course that happens. Are they the majority? I don’t believe so. There are review boards that look at these issues, but unfortunately they don’t often come down very hard on people who cheat intentionally, withhold evidence and so on. There should be more consequences, rather than immunity, for intentional misconduct, because those with ill intentions taint the whole law enforcement community. Overall, we need to shift the criminal justice culture from one of “conviction” to one of “truth.” It would help, too, if the millions we spend as a society on death penalty cases could be redirected to crime investigation. There are unsolved homicides in every state, and not enough resources available to solve those cases. That might take a little pressure off the police and prosecutors, who now are driven to close a case as quickly as possible, even though that might mean more mistakes along the way. JC: Have the racial disparities in capital sentences begun to lessen, or is racism still a huge factor? SS: It’s a huge factor, but people are paying more and more attention to it. Last year, for example, a “Racial Justice Act” was signed into law in North Carolina that for the first time gave people sentenced to death the ability to challenge their sentence if there was evidence of systemic racial bias. In the past, you had to prove that your case involved racial discrimination, but now you can use statistical evidence. JC: What is the status of the federal death penalty? SS: It’s still there, and it’s bucking the national trend. Death sentences had gone down in almost every single state, while the Bush Administration aggressively pursued death sentences at the federal level. Unfortunately, there hasn’t been a dramatic shift under the Obama Administration — but I will say that Attorney General Eric Holder is paying real attention to the importance of indigent defense, providing meaningful defense to people who can’t afford an attorney. JC: Is there a gender factor in death penalty activism? SS: Polls suggest they say that women are more likely to support repealing the death penalty than men. I think those polls have some value but I wouldn’t call them determinative. JC: What about within the various state committees with which you work? SS: When we’re doing a vote count in a state legislature, we don’t focus on gender. Black caucuses, on the other hand, have been very strong supporters within legislatures. JC: Organizations of victims must be the most critical influence, for better and for worse. SS: In a lot of states there have been statements signed by dozens of families of murder victims saying that the capital punishment system isn’t working for them. In Connecticut this year, eighty-two victims’ families signed such a letter and were the major force behind the campaign for repeal, appearing at press conferences, testifying, and walking the halls of the capital talking to lawmakers. So victims’ families have become a really important voice for repealing the death penalty, and our organization has been lifting them up to be heard. JC: Part of the problem for victims’ families, as you noted, is that the U.S. takes a notably long time to execute people, compared to countries in which people are killed shortly after their trial. So victims have to endure a lengthy ordeal. On the other hand, we wouldn’t want to speed up that process! SS: I think what you’re describing hits the nail on the head — and is the Catch-22 that makes the death penalty unworkable. It also reveals the ambivalence we feel about the death penalty in this country. We want to have it on the one hand, but we don’t really want to use it that much; we give lip service to due process, but this long time period between sentencing and execution usually isn’t really about due process, it’s mostly about different courts arguing with each other about jurisdiction and other bureaucratic issues. There are a lot of cases that go through ten years of appeals and you think, Wow, this case has been heard ten times — but most often those ten times were simply arguments about which court should hear the case or if a court should hear it at all. Ambivalence about the death penalty is definitely growing. If you ask, Do you support the death penalty? a majority of people in the U.S. say yes, but that’s just in theory. As soon as you dig just a little bit — such as, Would you prefer life without parole? If you knew that imprisonment costs a lot less than the death penalty, would you still support it? Do you support it even though well over a hundred people on death row have been vindicated in just the nick of time? — the support for the death penalty just plunges. That’s why, with such a small staff of eight, we’re able to do effective work. Editorial Note: Amnesty International is campaigning to prevent the execution of Troy Davis in Georgia for a crime he may well have not committed. Please visit Amnesty International to sign their petition.