A broken legal system.

AP photo of Troy Davis

Todays execution of Troy Davis illustrates just how rotten, unjust and broken the US legal system is. It’s a system that can convict a man to be executed, who is by no means clearly guilty. A system still prejudiced by race. A system seemingly too broken to be fixed.

It’s amazing to think that this morning while I leisurely sipped my flat white and perused the daily papers in the warm spring sunshine, another man half a world away was, in extraordinarily cruel circumstances, awaiting his execution.

Troy Davis was convicted for the 1989 murder of off duty police officer Mark MacPhail. The Georgian justice system sentenced him to execution by lethal injection which after three attempts, was to finally be carried out today.
Davis has been in a state of limbo, lasting almost 15 years, during which he was granted three stays in his execution. He was at one stage only two hours from his death before a delay was granted. His last few hours were no less dramatic with his planned 7pm execution delayed three and a half hours for a final ruling by the Supreme Court. But in a controversial decision, the Supreme Court rejected his appeal. He was executed at 11.08pm (local time).

The case has been so controversial because of its glaring inconsistencies and the lack of solid evidence. There has never been any video footage, DNA evidence or even a weapon linked to Davis. Seven out of the nine witnesses changed their original testimonies after the trial and there were claims of police witness coercion.

In an editorial, The New York Times said:

The grievous errors in the Davis case were numerous, and many arose out of eyewitness identification. The Savannah police contaminated the memories of four witnesses by re-enacting the crime with them present so that their individual perceptions were turned into a group one. The police showed some of the witnesses Mr. Davis’s photograph even before the lineup. His lineup picture was set apart by a different background. The lineup was also administered by a police officer involved in the investigation, increasing the potential for influencing the witnesses.

Davis claimed his innocence to the very end. In his final statement, he addressed the MacPhail family saying: “Despite the situation you’re in, I’m not the one who did it,”.
Witnesses quoted him saying that while he was sorry for their loss, he “did not take their son, father and brother”. He said that ‘the incident that night was not my fault, I did not have a gun”.

Madison MacPhail, sister of murdered cop Mark MacPhail, speaks about her brother.

To me, at least, it’s clear. Troy Davis should never have been executed. Davis may have been guilty, but what is more important is that he may not have been. The serious lack of evidence and disputed witnesses seriously undermined the case. The fact is that a case so clearly muddied should never have resulted in a conviction – let alone a death sentence.

His execution seriously undermines American legal institutions and raises uncomfortable questions about the death penalty. And it undermines the campaign to stop death sentences used in other countries, like Iran.

I just hope that Troy Davis did not die in vain. While his death sheds light on a terrible and antiquated practice, I wonder how long the outrage will last. Thirty four people have been executed this year – almost a third of them in Texas – and it’s very hard to summon the energy to care because the fact is that generally they’ve committed horrible, heinous crimes. But whether it’s Lawrence Brewer being executed or Troy Davis, it’s an unnecessary and evil practice that needs to end.

I don’t have any illusions about much change coming from Davis’ death. And like most of the interwebz, I’m one of the fleeting indignants: here today, gone tomorrow. But something should change… and I hope it does.

What does everyone out there think? Does anyone deserve the death penalty? Should it remain in place? Is it ever justifiable?

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The Malaysia Solution… or something.

Almost daily it seems we are confronted with powerful images of dingy, barely seaworthy fishing boats filled to capacity with a human cargo. We are assailed with aerial views of dirty, tired, seasick men, women and children crowded on a boat’s tiny deck, rocking stationary somewhere between Indonesia and Australia. But these poor refugees hoping – and risking everything – for better lives are trapped not only by the Australian navy but by a political and mass media storm.

We are continually warned about the dangers of ‘boat people’ and politicians argue that we must “send a strong message” to people smugglers. The alternative, they imply, is an Australia overwhelmed by a never ending and growing wave of underprivileged, queue jumping aliens.

It’s no wonder people are confused. It’s no wonder that people are scared. The fact is that in Australia asylum seekers – especially those arriving by boat – are a very sensitive issue. We’ve seen every policy fix in the book; and yet it doesn’t seem to change anything. We still see the same images weekly and the ‘boat people’, the ‘illegal aliens’ still come.

The most recent policy fix was the Gillard governments Malaysia Solution. For those who aren’t sure, the Malaysia Solution was the federal governments bold new plan to, for once and for all, turn back the boats and toughen border security – heard that before? It was a key policy for Gillard, as she believed border protection was a significant factor in the fall of Rudd. The idea behind her plan was that asylum seekers arriving by boat would – before being processed (ie, before the government decided if they were genuine refugees or not) – be sent to Malaysia. In return for up to 800 asylum seekers, Malaysia would send up to 4000 refugees.

On first glance, it looks like Australia has the raw end of the deal. 800 for 4000? Doesn’t seem to stack up, does it? But the idea was to completely disrupt the way people smugglers do business. Why would someone deplete their savings and risk their lives getting to Australia if there was a very good chance they’d end up in Malaysia?

More than disrupting the business model of people smugglers, however, the Gillard government hoped the plan would neutralise the toxic ‘boat people’ issue. The public would see boats being stopped and wouldn’t think about the 4000 flying into Australia under the agreement.

On Wednesday, however, the high court of Australia voted that the deal with Malaysia was unlawful. They believe that the Gillard government was overreaching its federal powers by making a deal that circumvented our obligations to international treaties on the treatment of refugees and asylum seekers. The policy’s downfall was that we would be sending asylum seekers (whose refugee status had not yet been processed) to Malaysia, a country who hasn’t signed the same international conventions and treaties regarding asylum seekers we have. Australia can not, the High Court argues, send refugees to a country that can’t guarantee that they will be treated humanely.

But as I watched a feisty Julia Gillard and visibly disappointed Minister for Immigration Chris Bowen field questions from the media on Thursday, I wasn’t sure how I was supposed to feel. Gillard told us that it was a ‘missed opportunity’ (she actually said that about 50 times during her press conference). But human rights activists told us that the plan was morally wrong.

It’s very messy, either way. The issue became even more clouded in my mind after watching a human-interest report by the ABC’s Zoe Daniel. She interviewed a family that would be one of the first transferred to Australia under the deal. I found it particularly moving and i guess it reminded me that these policies effect real people, real families and that every time they are stalled or stopped or altered peoples lives are drastically changed.

On the other end of the spectrum, Julian Burnside believes that the Malaysia solution would only encourage more asylum seekers to arrive by boat in an article he wrote for The Drum:

The reason for this is that Malaysia does not allow refugees to work. The deal with Malaysia would have notionally allowed transferees to work. Refugees currently living in Malaysia waiting for resettlement would have had a powerful incentive to try to get to Australia in order to be transferred back to Malaysia and receive work rights. For a person who faces the prospect of waiting up to 15 years before being resettled, the incentive to act this way would have been very strong. If that pull factor had in fact operated, it is likely that the quota of 800 transferees would have filled pretty quickly, and would have achieved very little for Australia apart from adding significantly to the cost of deterring boat arrivals.

So the agreement may have in fact attracted more asylum seekers because the conditions of those sent to Malaysia are much, much better than they would normally receive. Using this logic, the high courts decision becomes even more confusing… asylum seekers would get better than the usual treatment in Malaysia – but was still rejected because they can’t guarantee the treatment. No wonder we’re all a bit confused.

I guess either way there was going to be winners and losers. The poor Malaysians expecting to be sent to Australia under the agreement are now in limbo. But those that attempted to enter Australia by boat in the last few weeks – who would have already been sent to Malaysia had the agreement gone ahead – will now be processed in Australia. After all the problems that we’ve seen in Australia’s cramped, overcrowded detention centres recently, however, I wonder whether this is truly a blessing.

The real issue here, however, is how we think about asylum seekers – especially those arriving by boat. The fact is that only 3000 to 4000 asylum seekers attempt to enter Australia by boat. So we’re looking at around 0.0159090909% of our population. What a joke. We’re spending hundreds of millions ‘protecting’ ourselves from less than 4000 people. That’s 4000 people who have often endured horrific conditions. And I haven’t even mentioned the fact that more than 60% of those seeking asylum enter Australia by air – because we never see them, they aren’t a problem.

To finish up, there’s a fantastic government summary of the asylum seeker situation here. It helped me put things into perspective.

I found this paragraph particularly interesting.

Even in the peak boat arrival years of the 1970s and 1999–2001, the arrival numbers in Australia were small compared to other destination countries. In 2000, for example, when approximately 3000 ‘boat people’ arrived in Australia, Iran and Pakistan each hosted over a million Afghan refugees. In fact, the burden of assisting the world’s asylum seekers mostly fell, and still falls, to some of the world’s poorest countries.

We spend so much time and money on this.. it’s time we processed asylum seekers IN Australia and defused this unnecessarily toxic issue. That can only start with our politicians and the media. I know it’s unlikely, but we can all dream.