Monday, 22 February 2010
Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009
I join with previous speakers in congratulating the Attorney-General for introducing this legislation. As people have indicated, the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 accords with the United Nations pressure regarding torture and capital punishment, and Australia’s actions support that. At the outset, I noticed some comments by the Leader of the Opposition in the past week and I will give him the benefit of the doubt and say that he was thinking of moral issues out loud. He made the point that, whilst historically he had a firm opposition on capital punishment, he thought that for some terrorist acts perhaps it is very hard to hold that position. Once we go down that road, we have people whose families have been very affected by horrific murders, the emotions of those circumstances, the intensity of their feelings, and we can go on and on. Once we start making an exception to a position on this matter, we are going down a very dangerous road.
On the question of terrorism and the question of outrage, the Leader of the Opposition should remember New South Wales history and Henry Parkes. Parkes was on other fronts a great statesman and a person who gave this country one of the things for which it can be most admired—public education. But, when the heir to the British throne was shot at Clontarf on the northern beaches in Sydney, Parkes—in a very ruthless fashion—used that attempted murder to create an anti-Fenian, anti-Catholic hysteria in Sydney by saying that it was Fenian terrorism. The person was found, as I recall, to be rather deranged and had no political motivations whatsoever. It is an example that we must be careful about what we regard as terrorism and heinous. We might find the Iranian regime saying that it is justified in incarcerating people for 30 years and executing them over political demonstrations since the elections there. Equally, we know that in the Middle East—we might not be able to contemplate this—many of the people that carry out these acts see Western intervention in that region, whether it is the question of having US forces in Saudi Arabia or the question of Palestine, as a form of international terrorism. So you have got to be very careful with the kinds of exceptions that we might consider. I, for one, far more admire the statements of the former Liberal Party Premier of New South Wales, Nick Greiner. I recall what he said when I was still, I think, in state parliament. He said that, if the Liberal Party ever adopted a position that supported capital punishment, he would resign as leader of the Liberal Party. I think that is the kind of approach we take in regard to this matter.
I have a habit of giving books to public libraries when people die, rather than flowers. The other day I was flicking through a book I purchased for someone—a book called Killing Time by David R Dow. It traces the author’s involvement in a Texas court case, and it looks at some of the problems with capital punishment in the United States. He looks into the performance of Jack Gatling, the counsel for the accused, who is a person renowned for his ineptitude and whose job is to defend many of these people as they go down towards their deaths. He comments on the case on page 192:
Nor did he—
That is, Gatling—
challenge the state’s expert who single-handedly persuaded the jury to sentence Quaker to death. James Grigson is known as Dr. Death. He was expelled from the American Psychiatric Association as well as the Texas Society of Psychiatric Physicians, but that did not stop him from testifying in hundreds of trials. Grigson claimed to have examined somewhere between two hundred and four hundred capital-murder defendants—the number varied from case to case, because Grigson could not keep his answer straight from one trial to the next. But that did not stop juries from believing him. Sometimes he would not interview the defendants at all; other times he would visit with them for fifteen minutes or so in the county jail, asking them what they saw when they looked at ink blots. He would then sit on the witness stand for as much as five hours, telling jurors that the defendant before them would undoubtedly be dangerous in the future if not speedily put to death.
His flamboyant predictions were spectacularly wrong. By some estimates, he was wrong more than 95 per cent of the time. But that too did not stop juries from believing him. Juries would even sentence people to death who had not committed any crime. In one famous case, Grigson testified that Randall Dale Adams would commit more violence if not executed. Adams had been convicted of murdering a state trooper outside of Dallas. Errol Morris made a documentary about the debacle of the trial. As it happened, Adams did not actually kill the officer; someone else did. Adams was released from prison after his innocence was established. He had not committed any crimes prior to his wrongful conviction, and he has not committed any since.
This brings me to the concern about erroneous convictions, whether it is due to ineptitude with regard to the defence of these people who are convicted erroneously; whether it is due to informants whose evidence is unreliable and who are actually making sentencing deals for themselves; whether it is due to coercion by authorities, theory before evidence, or whatever. On all these grounds, there is grave concern in such a crucial matter of life and death. With respect to the emergence of DNA evidence in the United States, it is interesting to note that in the period 1973 to 2005, 123 people in 25 states were released from death row—123 people who could have been killed if this evidence had not been provided. It is also said that this is a severe understatement of the reality, because after a person has been killed there is a lack of motivation by the family, and the person is obviously not on the job in regard to exonerating themselves. People lack money to drive home these issues, after people have been killed. This is an understatement, and we all know that the strength of DNA evidence is growing as time goes by. So 123 people, at the very least, would have been killed but for the emergence of DNA evidence.
It is also a reality that capital punishment is a very random practice. Less than one per cent of all murderers are condemned to death. Of those people on death row, only two per cent are actually executed. In 2005 there were 75 people who had been waiting for 20 years or more—day after day—to know the situation for them. It is also a reality that there is a race factor in sentencing and those on death row in the United States. Forty-one per cent of death row inmates in the United States are black. Thirty-four per cent of those executed are black—and yet only 12 per cent of the population are black. Of course, people will say in defence of the system, ‘There is a propensity to offend.’ But obviously a part of that is the reality of the interrelationship of socioeconomic circumstances in the commission of crime. The situation is that there is severe overrepresentation of black offenders among those who are eventually sentenced and killed by the state in the United States. As well, at least 25 states in the US allow the execution of people who are mentally retarded. At least 35 have gone down that road between the years 1976 and 2005.
There is also a very strong question mark over the degree to which capital punishment dissuades people from offending. Anyone who has studied the area of gun homicides knows that most people who are killed with guns in this country, or any other country in the world, are not killed by criminals. They are not killed by people who have waited months on end to commit the offence. They are killed on the spur of the moment by a family member, a neighbour or a friend. To think that having capital punishment is going to prevent those kinds of events is illusory.
Another worrying development is the privatisation of the penal system, which really puts a question mark over the legitimacy of the system. Last year, two judges in the United States were jailed for very lengthy periods after they had conspired with private prison owners to give them enough people for their jails. There were young people being sentenced without legal representation when they should have had it, people under age, et cetera—large numbers of people over a very lengthy period were basically sentenced just so they could keep the numbers up for private prisons. We saw a situation in the United States—I referred to this in a previous speech—where professors, academics, who were purportedly unbiased and disinterested with respect to the effectiveness of a private prison system in the US, were found to have had significant shareholdings in these institutions, using the justifications to basically settle their self-interest.
There are, of course, so many reasons besides the moral question of whether the state should take away life. Referring to Australia again, there was the famous case of the New South Wales justice minister, JT Ley, who refused clemency to someone despite the fact that the person was totally insane. The man was hanged. It was another example of someone sent to their death because it was politically expedient not to show mercy. Fortunately for Mr Ley, when he himself was sentenced to death after murdering six people, he was given the benefit of the defence of insanity and finished up in Broadmoor mental institution in Britain.
In the United States, not only is there a disproportionate number of black and poor people amongst those who are executed but studies in the United States time after time have shown that it is also a regional lottery—it depends on the attitudes of judges and of jurisdictions within a state as to who actually has their life terminated. In New York, although upstate counties experience 19 per cent of the state’s homicides, they nonetheless account for 61 per cent of all capital prosecutions. In 2001, three counties out of 62 in the state accounted for over one-third of all cases in which a death sentence was filed. In another survey, in Indiana in 2001, newspapers found that the death penalty depended on factors such as the views of individual prosecutors and the financial resources of the county. You will find that, time after time, there is a correlation not with the nature of the offence and how it might affect the general public’s attitude, not with how macabre the murder is, but with the things that were just specified—that is, the nature of the prosecutor, the nature of the judge, the nature of the society.
In conclusion, I very strongly support this measure. On both sides of politics this has been a matter of virtually unanimous support, and that has been largely reflected in the speeches within this debate.