Conversation: Ty Alper, UC Berkeley’s Boalt School of Law, on the death penalty

September 14, 2006 in Montana

Before joining Boalt Hall as a visiting faculty member in the Death Penalty Clinic, Ty Alper was a staff attorney at the Southern Center for Human Rights in Atlanta. A former law clerk to Chief Judge Harry T. Edwards on the U.S. Court of Appeals for the D.C. Circuit, Alper served as senior articles editor of the New York University Law Review.

At the Southern Center, Alper represented Alabama and Georgia death row inmates in all stages of state and federal post-conviction proceedings. He also represented hundreds of Alabama prisoners in federal class-action litigation concerning unconstitutional conditions of confinement.

Alper previously served as an E. Barrett Prettyman Fellow at Georgetown University Law Center’s Criminal Justice Clinic, where he received an LL.M. in Trial Advocacy. As a Prettyman Fellow, he represented indigent criminal defendants charged with felonies in Washington, D.C., Superior Court, and trained and supervised third-year law students who represented clients charged with misdemeanors.

At Boalt Hall’s Death Penalty Clinic, Alper, along with Clinic Director Elisabeth Semel, represents death row inmates in their appellate and post-conviction proceedings in several states, including California, Alabama, and Georgia. Boalt law students enroll in the Clinic for a year (typically their third year in law school) and participate in all aspects of the representation of the Clinic’s clients, under the close supervision of the Clinic faculty.

Why do you oppose the death penalty?

It’s no secret to anyone who knows me well that I do, in fact, oppose the death penalty, but I should emphasize that the Boalt Hall Death Penalty Clinic does not take a position on the death penalty per se. Nor do we need to in order to represent death row inmates in their appeals and in post-conviction proceedings. One certainly need not be morally opposed to the death penalty in all instances to conclude that its administration in this country is fraught with high risk of error, racial disparities, and abysmal lawyering. And that’s not even to mention the expense involved in putting people to death, an expense that dwarfs that of other severe punishments such as life in prison without the possibility of parole.

I happen to believe that it is barbaric for State officials, in the name of their citizens, to take people out of their prison cells in the middle of the night and kill them. But even if I didn’t have a problem with that practice, I’d still be opposed to the death penalty because of the way it is administered in this country.

How did you get interested in the subject?

I first started working on behalf of poor people charged with crimes as an intern investigator one summer during college at the Public Defender Service for the District of Columbia, also known as PDS. The previous summer I had interned, for some reason, at the U.S. Treasury Department, and my then-girlfriend (now wife) was interning at PDS. My summer consisted of fiddling with my air conditioner and trying to get a glimpse of Secretary Lloyd Bentsen walking the halls; her summer consisted of investigating crime scenes, meeting clients at D.C. Jail, and watching criminal trials. I realized what I was missing, and interned at PDS the next summer.

At PDS, I was exposed for the first time to lawyers who were absolutely dedicated to providing the highest quality representation to indigent people facing the power of the government and the loss of their liberty. I was hooked, and I went to law school knowing that that was the kind of lawyer I wanted to be.

You mentioned that the death penalty is “fraught with..racial disparities and abysmal lawyering…” Could you go into more detail about this? Which race or races are more likely to be put to death, and by what proportions? And why are death penalty cases affected by “abysmal lawyering”? Is this particular to the death penalty, poverty, or region, or all three?

Those are similar questions, in that it is the racial disparities, quality of representation, and expense of the system that bother me about the way the death penalty is administered.

The studies on race are quite clear: if you are black and commit a death penalty-eligible crime you are more likely to be executed than if you are white. (A fascinating new study (pdf) suggests that even among black defendants, those that have more stereotypical “black” features are more likely to be sentenced to death.)

An even greater predictor than race of the defendant, however, is race of the victim. In this country, if the victim is white, the defendant is much more likely to get the death penalty than if the victim is black. Nationwide, victims of murder are roughly 50% black. But the victims in cases that result in executions are 80% white. Consider that the district attorneys making the decisions about whom to seek to execute are overwhelmingly white. 98% of chief district attorneys in death penalty states are white. (For more info, check out the source document [pdf].)

So there is little doubt that race plays a significant role in our capital punishment system and injects into that system a particularly noxious element of arbitrariness.The starting point for any proponent of the death penalty should be that we only kill the “worst of the worst.” Given that only about 1% of people convicted of murder end up on death row, proponents of the death penalty should be asking, “are we getting the right 1%?” When arbitrary factors such as the race of the victim and race of the defendant are more determinative of who gets the death penalty than the “heinousness” of the crime committed, the system is broken.

In answer to your question, another factor that determines who ends up on death row is the quality of the defendant’s legal representation. Until very recently, just to give you one example, the fees for trial attorneys in Alabama representing clients charged with capital murder was capped at $1000, which is about 100 times less than what is typically required to try a capital case. I’ve had clients on appeal whose death penalty trials lasted only several hours – from opening statement to death sentence. The political constituency lobbying for greater compensation for indigent defense ranges, in various states, from non-existent to small and marginalized. As a result of a lack of resources, lawyers who are willing to take on these cases at trial are often under-qualified, untrained, and woefully under-compensated. The resources for appeal are no better. Again using Alabama as an example, the state does not provide lawyers for death row inmates in their post-conviction appeals and the courts have said they are not required to do so. There are dozens of inmates on Alabama’s death row right now without lawyers and their time limits for filing appeals are running out.

It’s one thing to decide we are going to have the death penalty. But to make that decision – to inflict upon a very small group of offenders the most serious and irreversible punishment known to man – and to do so in an almost random way, without adequate safeguards, and without providing legal representation, is unconscionable.

What was your experience working for the Southern Center for Human Rights? What is their mission and what did you do for them?

The mission of the Southern Center for Human Rights (www.schr.org) is to provide high-quality representation to indigent prisoners in the deep South. Some lawyers at SCHR represent inmates in prisons and jails, primarily in Georgia and Alabama, in class-action lawsuits seeking to improve their often horrific conditions of confinement.

When I was at SCHR, a colleague and I represented hundreds of inmates at an Alabama prison who were forced to work at the prison recycling facility, sorting through medical waste with their bare hands. Until we filed a lawsuit, inmates were stuck almost daily with used hypodermic needles and were denied medical treatment when such injuries would occur.

Other lawyers at SCHR represent death row inmates in their appeals, as well as indigent defendants facing capital charges at the trial level. During my time at SCHR, I worked primarily on these kinds of cases, and I represented primarily Alabama death row inmates.

Could you give us some details of the kind of problems you faced while working for the SCHR?

There’s always a problem with resources in capital cases, particularly in the South. SCHR is a non-profit with very limited resources, and the organization attempts to represent as many people as possible with those scarce resources. There are still dozens of men on Alabama’s death row, however, who have no lawyers. Their time limits for filing appeals are running out, and they have no lawyers to file appeals on their behalf. It is a true crisis and, in my opinion, an outrage. Whatever your opinion is about the death penalty, I would hope you believe that people whom the State is seeking to execute should at least be provided lawyers for their appeals. Most of us would want a lawyer if we were facing the most minor misdemeanor charges, or engaging in the most simple of real estate transactions. Yet these inmates, many of whom suffer from severe cognitive deficiencies or mental illness, are left to fend for themselves, and either file “pro se” appeals or somehow manage to find a lawyer to take the case for free. So, to me, the biggest challenge of working at SCHR was that I was exposed to far, far more injustice than I, or anyone else in the office, could even begin to fight.

Wasn’t there a case in California where doctors said they were unable to administer lethal injections or oversee executions because their professional ethics forbade them? How has this affected the legality of the death penalty?

Executions in California have currently been halted, while a federal judge evaluates the constitutionality of California’s lethal injection procedures. A serious question has been raised in numerous cases about whether inmates are properly anesthetized before being injected with poison that induces cardiac arrest and, ultimately, death. This poison would cause excruciating and intolerable pain without anesthesia. But because states also inject inmates with a paralyzing agent, which prohibits the inmate from making even involuntary movement, there is no way for anyone to know, just by looking, whether the inmate is essentially being tortured to death. The only purpose of the paralyzing agent is to make the procedure appear peaceful. But there is growing evidence that this drug is in fact masking what could be a more horrific death than the gas chamber, the electric chair, or the guillotine. Again, whatever your position is on the death penalty, I would hope that you do not believe a civilized society should engage in wanton torture as a means of execution.

This same issue was raised in a recent Montana case (pdf) as well, but the courts deemed the issue moot because the inmate, David Dawson, did not want to go through with his appeals and sought his own execution. The judge in the Montana case, Chief U.S. District Judge Donald Molloy in Missoula, essentially said his hands were tied because Mr. Dawson did not want to proceed with the appeal. But in a very interesting order, Judge Molloy did question “why the State would proceed with a State-sanctioned homicide despite serious constitutional issues that ultimately cannot be avoided.”