Rosenberg Fund for Children

I'm a Human Rights Absolutist

December 10th marked the 61st anniversary of the adoption of the Universal Declaration of Human Rights (Declaration) by the United Nations. It was celebrated locally and world wide as Human Rights Day.

The Declaration is a compilation of humanity’s greatest aspirations. I’ve found reading all of its 30 articles uplifting. The first two Articles of the Declaration set forth general principles: 1. “All human beings are born free and equal in dignity and rights.” 2. “Everyone is entitled to all the rights and freedoms set forth in this Declaration.” I’ve focused most of my attention during the last decade on Article 3: “Everyone has the right to life, liberty and security of person.”

Article 3 contains the first specific enumeration of particular rights. It makes sense that the first right articulated in the Declaration is the right of every person to life. After all, if you are killed none of the other rights are worth much. Although some might argue with me about this, I don’t believe Article 3 is an anti-abortion statement. Article 3 only attaches when someone becomes a “person,” and I do not believe a fetus is a person during the early stages of pregnancy.

I believe, however, that Article 3 outlaws capital punishment and as such it makes any nation’s death penalty a human rights abuse. In fact, during the debate over the Declaration’s adoption some urged that an exception to Article 3 be carved out for lawful executions carried out by nations. Eleanor Roosevelt argued that the Declaration should look forward to a time when there would be no executions, and her argument carried the day.

If the death penalty is a human rights abuse, then it is never acceptable. I don’t know how many times I’ve read or heard someone say the following: “I’m against capital punishment, but it would be OK for Hitler, or Khalid Shaikh Mohammed (as at least one person wrote in response to my recent blog posting about him), or…” you can fill-in the blank. You can’t be a little pregnant here. You are not really against the death penalty unless you are against it for everyone in all circumstances.

I’ve thought a lot about the simple statement; “A human rights abuse is never acceptable.” This goes well beyond the death penalty. This understanding has sparked my realization that I’m not always the relativist I thought I was. I’ve become a human rights absolutist.

It occurs to me that neither my birth parents, nor my adoptive parents, would agree with me about this. Abel and Anne and Ethel and Julius were communists. They believed in working class solidarity. They believed in human rights for all workers, their families, and oppressed people everywhere. From their point of view they believed in complete and equal human rights for the vast majority of humanity. But I don’t think they necessarily believed in full human rights for class enemies, for the oppressors. While I can understand their position, I’ve come to disagree with it. It is quite a realization for his year’s Human Rights Day.

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Good News about the Death Penalty and Human Rights

Last night I received an email from a fellow anti-death penalty activist who shared good news from California. The 2010 California Democratic Party Convention included the following in its platform: "The California Democratic Party believes in the human rights of all people, and has taken a position opposing the death penalty in this year's platform."

At first glance this may not seem like a significant departure. Other State Democratic Parties, including my home Commonwealth of Massachusetts, have anti-death penalty planks in their platforms. The California plank, however, is a very important development because it places the issue of capital punishment within a human rights framework.

The death penalty abolition movement has been reluctant to focus on capital punishment as a human rights issue. Various state and national organizations have instead emphasized one of two arguments.

1. The perfection argument. If you have executions, you can’t afford to make a mistake, but since human beings can’t create perfect systems, mistakes are inevitable, and so we will execute an innocent person. This fear of executing innocent people has gained strength because DNA evidence has cleared so many death row inmates.
2. The expense argument. The death penalty costs so much and finances are tight. For instance, the fact that New York State spent $140 million on capital prosecutions over a 12-year period after reinstituting its death penalty and executed no one, is, perhaps, the principle reason why New York State no longer has the death penalty.

It is not my intent to criticize these reasons. I will support any argument that cuts down or eliminates executions, even though the first argument is vulnerable to the claim that it is OK to execute someone we know is guilty, and the second one produces the correct result for the wrong reason. The problem is that these strategic or technical arguments do not hold up well whenever a particularly heinous crime inflames public sentiment and opportunistic politicians clamor for the death penalty in response.

Viewing the death penalty as a human rights abuse changes the equation. Article Three of the Universal Declaration of Human Rights, signed by all members of the United Nations states in part: “Everyone has the right to life…” These are the first words in the declaration that enumerate a specific right. This makes sense because if you don’t have this paramount right, none of the others mean much.

That executing someone would violate this most basic of all rights seems so obvious, but anti-death penalty activists have been reluctant to embrace it because most Americans (as opposed to Europeans) don’t view capital punishment in this manner. But we are never going to convince people if we are unwilling to make the argument. And the power of seeing executions as human rights abuses is that - Guantánamo, Bagram and Fox News notwithstanding - people are much less likely to tolerate human rights abuses under any circumstances.

Congratulations, California.
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Japan, Taiwan and the Death Penalty

Although being the Executive Director of the Rosenberg Fund for Children is a full-time job, I engage in extra-curricular activities as well. In one such activity I am Vice-Chair of the Board of Directors of Murder Victims’ Families for Human Rights (MVFHR). MVHFR is an anti-capital punishment organization composed of people who have had immediate family members murdered, executed or disappeared, and who view capital punishment not as a criminal justice issue, but as a human rights abuse.

From June 21st to July 5th I am joining a half dozen other members on a speaking tour to the cities of Tokyo, Kyoto and Hiroshima in Japan, and Taipei, Hsin-chu and Tai-chung in Taiwan. Many people are surprised to learn that Japan still has capital punishment. While they have carried out very few executions during the last decade, they still, on occasion, execute people who have been convicted of murder.

In Japan, as in many countries, it is assumed that the family members of murder victims unanimously support the execution of their loved-ones’ murderers. Few have even considered the possibility that family members of murder victims might abhor further violence and chose a more constructive response. We have made contact with murder victims family members in Japan who believe as we do, but because there is a stigma attached to this position, many are afraid to come forward without additional support. We hope to provide that support and will be speaking at press conferences, bar association forums, universities and at the Hiroshima memorial.

Some of my presentations will focus on the children of those who are executed. Many proponents of the death penalty have never considered the impact the execution of a parent might have on a young child. But I will also be speaking in Hiroshima about my parents, two more victims of the atom bomb, half a world away from where it was dropped. This will be the highlight of the trip for me.

Politics in Taiwan are very complicated. The native Taiwanese tried to maintain their autonomy against the Nationalist Chinese forces who established their central government in Taipei after being forced from the mainland by the Communist Chinese Army in 1949. This led to brutal repression (referred to as the White Terror) that lasted for decades. Thousands of native Taiwanese who were accused of being Communist subversives were jailed, tortured and executed. When the Native Taiwanese political party gained power several years ago, the government moved toward abolishing capital punishment. However, the Nationalists won the last election, and the government executed four people last month.

I will be meeting many Taiwanese who, like me, had family members executed in the 1940’s and 50’s for being communists. I find it ironic that a few decades later I will be speaking in Taiwan, while not too far away, China the country that claims dominion over Taiwan, is executing more people than any other in the world. Instead of people being executed because they are communists, they are being executed by people who claim to be communists.

Capital punishment isn’t a communist, anti-communist, or nationalist issue. The death penalty is a human rights issue. Article Three of the Universal Declaration of Human Rights, signed by all the members of the United Nations, sets forth the first specific right listed in that document. It starts: “Everyone has the right to life….” It makes sense that this right would be the first one listed, because it is the most important right of all. If your life is terminated, none of the other rights matter to you.

Presenting these ideas in Japan and Taiwan will be stimulating, challenging and edifying. I look forward to sharing what I have learned upon my return.

(While I am gone, my daughter, Jenn – who eventually will take over as the RFC’s Executive Director – will guest blog for me. Look for her posts here the weeks of June 21st and June 28th)

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Keep the Death Penalty to Encourage Prison Reform?

Ross Douthat concluded his Op Ed piece about Troy Davis’s execution in The New York Times on September 24, 2011 as follows:

“Abolishing capital punishment in a kind of despair over its fallibility would ... tell the public that our laws and courts and juries are fundamentally incapable of delivering what most Americans consider genuine justice. It could encourage a more cynical and utilitarian view of why police forces and prisons exist, and what moral standards we should hold them to. And while it would put an end to wrongful executions, it might well lead to more overall injustice.”

Perhaps the Times published this piece so it could respond to it obliquely with an excellent editorial it published two days later which stated: “The death penalty is grotesque and immoral and should be repealed.”

Lest some find the paragraph I quote above unclear, Mr. Douthat appears to argue that rather than abolish the death penalty because we can’t apply it fairly, we should take greater pains to apply it and other criminal penalties in a more just fashion.

I find Mr. Douthat’s logic strained, even perverse. Is he saying it is worth risking a few unjust executions in order to improve the public’s perception of our criminal justice system?

But in a way Mr. Douthat’s analysis is not an unreasonable response to the tactics of much of the domestic anti-capital punishment movement, which is engaged primarily in case-by-case demonstrations that we might execute innocent defendants. This strategy is being applied on a state-by-state basis in those locales where anti-death penalty sentiment is strongest. Abolitionists employing these tactics supplement their arguments with proof of the system’s unfairness and excessive cost.

I applaud any effort that reduces the number of executions and this strategy appears to be making some headway. It fails, however, to address the core problems of the death penalty and our criminal justice system. Even if we could guarantee without bias that the state would execute only those guilty of premeditated killing, these executions would still be wrong.

The initial words of Article 3 of the Universal Declaration of Human Rights as adopted by the United Nations, which is the first to enumerate a specific right, read: “Everyone has the right to life….” Simply put, the death penalty is a human rights abuse. This makes sense because if our government has the right to extinguish our lives, it has the power to deny us access to every other right listed in the Declaration. The rights set forth in Articles 4 through 30 won’t do you much good if you aren’t alive to enjoy them. While the domestic anti-capital punishment movement is reluctant to make this argument because most Americans don’t agree with it, it is the one we must ultimately make and win if we wish to permanently rid our nation of the death penalty.

We must also consider the larger context capital punishment inhabits. Our system disproportionately imprisons far too many people for far too long. Mr. Douthat exposed a basic truth, although he backed into it. Race and class discrimination permeates our entire criminal justice system. Mr. Douthat poses this as an either/or proposition. Either we eliminate capital punishment to avoid a wrongful execution or we reform our system to make it fairer. Instead, we must do both, although I think the word “reform” understates what is needed. Commuting Troy Davis’ death sentence - or that of any other wrongfully convicted death row defendant - to life imprisonment without the possibility of parole is not a just solution, but it is a result many in the mainstream anti-death penalty movement in our country appear to be promoting.

Let us use Troy Davis’s wrongful execution as a rallying cry to reassert our common humanity by demanding that our government stop its cold-blooded extermination of our fellow human beings. But we must also demand the end of the wholesale warehousing of over two million people in the degrading conditions of our bloated prison industrial complex.

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30 Years!!

On December 9th, Mumia Abu-Jamal, arguably the world’s most famous death row prisoner, will have been incarcerated for 30 years. As I’ve written here before, I’ve read the entire transcript of Mumia’s trial, and am convinced that it was unfair and that Mumia should be freed. I feel well qualified to make this determination because while serving two one-year judicial clerkships for the Justices of the Massachusetts Appeals Court it was my job to read trial transcripts and judge the fairness of those trials.

Mumia, who I believe was wrongfully convicted of killing a police officer, remains on Pennsylvania’s death row. However, it now appears likely that the State of Pennsylvania will mount no further appeals of the Federal Court’s ruling overturning his death sentence. In other words, while he will no longer face execution, Mumia will remain in prison for life without the possibility of parole.

I met Mumia in the 1970’s when he gave me a platform on his radio program to discuss the effort to reopen my parents’ case. I’ve also had some brief correspondence with him, but I’ve never visited him in prison. The last time I visited death row was during the last week of my parents’ lives when I was six years old, and I’ve decided - even almost 60 years later - not to put myself through another death row visit. But I’ve spoken with many who have visited him and read a lot of his writing. He is a remarkable human being.

Confined to a small cell 23 hours a day with limited access to the outside world, he has written a half-dozen books, produced hundreds of commentaries and had a world-wide impact on the movements to abolish capital punishment and protect the human rights of the more than two million people locked away in the American Gulag. Despite his circumstances he has been a true champion of the rights of others.

There are those who claim that Mumia’s case has been an impediment to eliminating capital punishment in America. They argue that death penalty proponents will cite this outspoken and politically articulate, radical, African-American man, convicted of killing a white police officer, as an example of why we must retain capital punishment. Trying to hide cases like Mumia’s from the undecided will not cajole them into opposing the death penalty. Focusing only on the most pitiful or palatable inhabitants of death row will never eradicate executions. It would be a strategic disaster for the anti-capital punishment movement to silence one of our most powerful voices in pursuit of such a flawed approach.

Moreover, Mumia has never written about his own case, but rather addressed and organized as best he could on behalf of other inmates. Mumia should be commended, not blamed, for speaking up for others, and those who advocate for Mumia should be applauded for their tireless efforts to achieve justice for him. I agree that not enough attention is paid to other death row inmates. Instead of attempting to silence Mumia, the solution is for everyone in the anti-death penalty movement to speak up more forcefully for all death row inmates.

Mumia’s accomplishments provide inspiration for thousands on both sides of the prison walls, as well as within and beyond our nation’s borders. He is a rock of resistance, and I am sure I am just one among countless others who salute him on this sad anniversary of his unjust incarceration.

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