Human rights

Resisting the death penalty: An event with advocate Richard Bourke

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Australian barrister and advocate for the abolition of the death penalty, Richard Bourke, will speak in Brisbane (Screenshot YouTube)

Richard Bourke, an Australian lawyer and tireless advocate working in the United States on death penalty cases, will be speaking in Brisbane. Stephen Keim SC and Arron Hartnett share details of this rare opportunity.

RICHARD BOURKE is the director of the Louisiana Capital Assistance Center (LCAC), a non-profit law office based in New Orleans that provides legal assistance to poor people charged with capital offences in Louisiana (as well as Mississippi and Texas).

Mr Bourke had a thriving career practising at the Victorian Bar, but always had a deep passion for anti-death penalty advocacy. In 1998, he spent some months as an intern volunteering in New Orleans, offering assistance to clients who were facing the death penalty in Louisiana. In 2001, along with Melbourne criminal barrister, Nick Harrington, Mr Bourke founded Reprieve Australia, an organisation that sends Australian volunteers to work on death penalty cases in the southern U.S. States. Mr Bourke permanently relocated to the U.S. in 2002 and has been with the LCAC since then.

Mr Bourke’s decision to speak in his native Australia could not be more timely. Last month, the Department of Foreign Affairs and Trade (DFATreleased 'Australia’s Strategy for the Abolition of the Death Penalty', a whole-of-government strategy expressing Australia’s commitment to ending the death penalty worldwide. The statement of intent in the policy expresses that ‘Australia opposes the death penalty in all circumstances for all people’. All Australian jurisdictions in Australia had abolished the death penalty by 1985. (Queensland did so in 1922.) The Federal Government has enacted legislation preventing any State or Territory from reintroducing the death penalty.

By contrast, the U.S. is the world's eighth most active executioner, putting to death 23 people in 2017. (Somalia narrowly beat the U.S., executing 24 people that same year.)

The United States' approach to executing its own people varies widely between states and, indeed, between counties. In a 2016 feature for the New York Times Magazine, Emily Bazelon pointed out that, in 2015, only 14 of the 26 States which permit the use of the death penalty actually handed out death sentences to convicted offenders.

Justice Stephen Breyer, penning his 2015 dissent in Glossip v Gross, noted a disturbing trend that, of more than 3,000 counties in the U.S., 15 are responsible for routinely imposing the death penalty on their residents. Each of these 15 counties handed out five or more sentences between 2010 and 2015. According to Ms Bazelon, two per cent of all counties in the U.S. now account for the majority of people awaiting execution. Caddo Parish, nestled in the northwest corner of Mr Bourke’s adopted home of Louisiana, is one place in the U.S. where the death penalty still lives. Boasting a population of just 225,000 people, it imposed five death sentences between 2010 and 2015.

Mr Bourke is all too familiar with Louisiana’s track record for executing its people. On 4 August 2011, just next door to Caddo Parish, in Bossier Parish, a Louisiana District Court convicted Robert McCoy of three counts of first-degree murder. Mr Bourke and the LCAC represented Mr McCoy all the way to America's highest court in a bid to quash his conviction. On 6 March 2017, following a failed appeal to the Louisiana Supreme Court, which unanimously affirmed Mr McCoy’s convictions and his three death penalty sentences, Mr McCoy appealed to the U.S. Supreme Court. The Supreme Court agreed to take the case on 26 September 2017.

Mr McCoy was charged with three counts of first-degree murder for the killing of three members of his estranged wife’s family. At his trial, Mr McCoy had instructed his lawyer not to admit to the jury that he was guilty of the three murders. Instead, Mr McCoy said that he wanted to protest his innocence and give evidence of an alibi defence. His lawyer, deciding that Mr McCoy had no chance of avoiding a conviction with this strategy, admitted before the jury that Mr McCoy "committed [the] three murders". 

'Sometimes, it feels as if one could reach out and touch abolition. At other times, abolition feels much too far away.'

The lawyer concluded that Mr McCoy would have a greater chance of avoiding conviction simply by stating that Mr McCoy didn’t have the mental state required for a first-degree murder conviction (which is required for the death penalty to be imposed in Louisiana). The jury convicted Mr McCoy of first-degree murder on all three counts. In a separate penalty hearing before the jury, Mr McCoy’s lawyer conceded Mr McCoy’s guilt again but asked for the jury’s mercy because Mr McCoy had mental and emotional issues. Juries decide whether to impose the death penalty in Louisiana. The jury returned three death verdicts.

The Supreme Court heard argument on 17 January 2018 and rendered its opinion on 14 May 2018. Justice Ruth Bader-Ginsburg, writing for a six-justice majority, said that the Sixth Amendment of the U.S. Constitution guarantees an accused the right to choose the objective of their defence and insist that a lawyer refrains from admitting their guilt. This is so, Justice Ginsburg wrote, even where the lawyer’s opinion is that confessing to the offence would place the accused in a better position to avoid the death penalty.

Justice Samuel Alito, authoring a three-justice dissent, concluded that Mr McCoy’s lawyer had not admitted to the offences of first-degree murder. Instead, the lawyer had admitted only one element of the offence: the killing itself. Justice Alito concluded that there was no such right for an accused to insist that the accused’s attorney contest guilt on all charged offences. Further, Justice Alito said, Mr McCoy’s appeal did not meet the Supreme Court’s criteria for judicial review and the court should not have considered it. Ultimately, the U.S. Supreme Court quashed Mr McCoy’s conviction. The case will likely go back to the Louisiana District Court, where Mr McCoy will again be tried.

Mr Bourke said that, while rare in most of the country,

" ... what happened to Mr McCoy was a part of Louisiana's broken criminal justice system that fails to respect individual human dignity." 

For Mr Bourke, Mr McCoy’s case is a tale of deeper, structural problems that attend prosecutions in Louisiana for capital offences.

Mr Bourke said:

"Mr McCoy’s was one of ten death sentences imposed in Louisiana since 2000 that have been tainted with the same flaw." 

He has suggested that the practice of criminal defence lawyers in Louisiana admitting guilt in capital offences had become common. Part of this might be because juries in Louisiana have authority to impose the death penalty, meaning that there is a separate post-conviction penalty hearing before the jury about whether to impose the death penalty. Avoiding the death penalty becomes the primary focus of the defence lawyer’s energy.

McCoy’s case is one of many death penalty cases which continue to reignite the debate over capital punishment in the U.S. and abroad. In September 2016, the Washington Post reported the findings of a Pew Research Survey which showed that less than half the U.S. supported the death penalty — the lowest level of support in 40 years. The Supreme Court itself has had a history of division over the issue.

At one point, the Supreme Court appeared poised to abolish executions altogether. In 1972, the Supreme Court gave its opinion in Furman v Georgia. A five-four majority of the court issued a country-wide moratorium on all legal regimes which permitted imposition of the death penalty. This moratorium stopped short of complete abolition. In a carefully crafted opinion, the Supreme Court allowed legislatures latitude to design a death penalty scheme that was not arbitrarily or inconsistently imposed (and, therefore, not violating the Eighth Amendment of the U.S. Constitution’s prohibition on cruel and unusual punishment).

The death penalty was effectively reinstated just four years later, following the Supreme Court’s 1976 decision in Gregg v Georgia. Because of the dedicated work of lawyers like Richard Bourke, the numbers of people being executed in the United States have declined considerably since the beginning of this century. Sometimes, it feels as if one could reach out and touch abolition. At other times, abolition feels much too far away.

While the death penalty remains in place in the United States, the force of the moral case for abolition in countries such as Iraq, Iran, Pakistan and, especially, China, which carry out more and more frequent executions than the United States, is depleted. Australians have learned that the death penalty can strike Australians overseas. Capital punishment is wrong everywhere and at any time. But winning the battle in the U.S. has the potential to create momentum for abolition elsewhere.

Meanwhile, the battle must go on, case by case and life by life. It takes a rare character to abandon a burgeoning practice at the Victorian Bar to fight for the dignity of, and justice for, people whom the state seeks to execute. A strange truth emerges about Richard Bourke, and other leading advocates against the death penalty in the United States and elsewhere. Despite the traumas of always carrying the stress that one might be unsuccessful for this client, these advocates seem to gain more from their clients and their work than even the tremendous contributions they make. There is dignity in the people with and for whom they work. There is a dignity in the work they do. And there is the strength of knowing that one’s life is never without meaning.

For this reason, the opportunity to meet and hear Richard Bourke is a rare opportunity. We can learn from him lessons that are important in our lives. We can show him that his work for a cause that we hold important is appreciated by us. We can find a new understanding of that truth that his clients teach him, every day — that every person is much more than the worst thing they have ever done. And there is the opportunity to be mesmerised by his retelling the stories through which he has lived of offenders finding redemption, and of victims and victims’ families finding a way to reach out, to forgive and to love again.

An opportunity not to be missed.

Tickets to attend the Richard Bourke event can be purchased by emailing or visiting the University of Queensland website here.

Stephen Keim is a barrister and president of Australian Lawyers for Human Rights. You can follow him on Twitter @StephenKeim1.

Arron Hartnett is a barrister and a teacher of constitutional law at the Queensland University of Technology.

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