Capital punishment: A thin line between life and death
The deadly margin of error in death penalty cases should come as a salutary warning to those wanting to reinstate capital punishment in South Africa.
Consider the case of Anthony Ray Hinton from Alabama, US.
For 28 years, Anthony Ray Hinton woke up every day in a 5ft by 7 ft death cell. From that cramped space, he saw 54 men being led to the execution chamber, where electrocution put an end to their lives. The next day the air would be thick with the smell of burnt human flesh. Awaiting your death in prison is a horrible fate for anyone, but having to survive in those circumstances while you’re innocent, like Hinton, is unimaginably harsh and cruel. According to the Equal Justice Initiative (EJI), who assisted Hinton in proving his innocence and securing his release, 152 people have thus far been wrongfully convicted to death.
Polls in this country consistently reveal a majority of South Africans who are in favour of the reinstatement of capital punishment. Last week, the report Capital Punishment in South Africa, by the Institute of Race Relations (IRR), dealt with that question. It looked into the pros and cons of reinstating capital punishment. South Africa executed approximately 4,000 people from the introduction of the sentence in 1910 to 1995, when the Constitutional Court abolished capital punishment in its Makhanyane ruling. Judges in that case referenced the African principle of Ubuntu and pointed out that the law should not sanction vengeance.
Despite that ruling, many still believe the death penalty has a place on our criminal law books. One of the authors of the report, Graham Macintosh, explained: “Tony Leon and Mmusi Maimane from DA have said that capital punishment is an option for certain categories of crimes. They believe that a death sentence should be open to the courts both because of our very high levels of violent crime, including the killing of policemen, but also because communities are ‘privatising’ the death penalty and killing (lynching and necklacing) criminals. A death sentence would give South Africans more confidence in our justice system and make ‘private’ executions less prevalent.”
However, the deadly margin of error in death penalty cases, which the miscarriage of justice in Hinton’s case points to, should come as a salutary warning to those wanting to reinstate capital punishment in SA.
Escaping reality on death row
“I married three beautiful women. Halle Berry was my first love, we had an amazing relationship. But our union ended and we divorced. And then I remarried, to another beautiful woman: Sandra Bullock. What a lady. My third and last marriage was to the fabulous Kim Kardashian. Do you know what she said to me when she came home every day? ‘Baby, what would you like for dinner tonight?’”
Anthony Ray Hinton, a tall man with a disarming smile and a Southern drawl, married the celebrities from the confines of his single cell on death row in Holman Prison, Alabama (US). He also travelled the world and he drank tea with the queen of England who told Hinton she preferred her tea with a “spot of lemon”.
“You can’t survive on death row without escaping reality. The reason I didn’t kill myself was because of my imagination,” says the 59-year-old Hinton who in 1985 was arrested and convicted for a double murder he never committed.
Hinton lives in the same house where one sunny day, 31 years ago, he was mowing the lawn. Two white police officers appeared in the driveway. “They asked me if I was Anthony Ray Hinton. When I confirmed they said they were there to arrest me. For what? I said, before they handcuffed me,” Hinton remembers.
It’s a sunny day when I visit him, birds twitter in the garden, which borders on woody undulating fields. Quinton, the small village close to Birmingham where Hinton lives, is remote and rural. The only traffic is a pick-up truck and a tractor that pass by on the dirt road.
The two white cops took the then 29- year-old Hinton, the last-born son in a family of 10 kids, to the police station. “In the car on the way there they asked me if my mother owned a gun. I told them that my mom did indeed keep an old pistol under her mattress.”
What Hinton didn’t know at the time was that the police were desperate to solve three armed robberies on fast-food restaurants in Birmingham. Two white men had been killed but the third had survived the attack. He told the police that a light-skinned black man with a beard had committed the robbery. “I’m a light-skinned black man with a beard and someone must have mentioned my name,” Hinton says. “There was no further evidence: no fingerprints, no eyewitnesses. Nothing.”
Guns and bullets
During the trial, his mother’s pistol was presented as evidence. The prosecutor in the case, Bob McGregor, who died in 2010, wrote in his self-published memoir, Whiskey Bent and Hell Bound, that Hinton was “evil personified”, a “rat bastard” and “a sociopath with a glare as steady and cold as the polar ice”.
McGregor had a ballistics expert testify before court that the bullets found at the crime scene matched the Hinton’s mother’s gun. “I knew he was lying,” Hinton recalls.
It took three decades before that lie – the only tangible proof in the case – was debunked, which set in motion Hinton’s release.
His Legal Aid lawyer did not contest the evidence and casually disregarded Hinton’s claim to innocence by saying, “Y’all always say you’re innocent.” When an entirely white jury found him guilty of double homicide and attempted murder, everyone knew what the sentence would be.
“The first thing that crossed my mind when the judge sentenced me to death was: what about my mother, how can anyone explain to her that the state of Alabama will kill her baby?”
Hinton couldn’t eat anything during his first few days on the ‘row’. “I had entered hell. My cell was 5 by 7 feet. I didn’t breathe any fresh air or get any exercise for weeks. There was concrete everywhere I looked.”
As he showed me around his house, Hinton mentioned that he sleeps on his huge king-sized bed with his knees drawn up to his chest. “I’m a tall guy and I couldn’t stretch out on my prison bed. So I got used to sleeping in a foetal position. I still can’t stretch out.”
After a while, death row became his home and his fellow inmates were like family. “I always tried to make others laugh. Having a sense of humour on death row is incredibly important.”
During his 28-year stay on death row, Hinton witnessed 54 executions.
“The execution chamber was 30 feet from my cell. Death row inmates used to be killed through electrocution. What was sad is that after they executed this person, I would smell burned flesh. The electric currents literally set the body on fire and we would smell it the next morning and complain.”
Hinton hit rock bottom when his mother died in 2002. “She was the love of my life. When she passed, I also wanted to die. I didn’t see why I should continue to live.” The reason he pulled through that difficult phase is Lester Bailey, a middle-aged man with a pot belly who visits his best friend during the interview. Every month, for 30 years, Bailey would drive about 300 kilometres to visit his childhood friend in jail. After his mother passed on, Bailey was his only visitor. His best friend now lives down the road and the men see each nearly every day.
Hinton experienced a profound spiritual turning point in his life during his lengthy stay on death row. “Right after my conviction I was filled with hate, against McGregor, the police and the system. But slowly I arrived at the realisation that that hate would destroy me and no one else. It was a process that took years, but in the end I found forgiveness in my heart. I made a choice to enjoy the life God had given me.”
In 1995, Hinton was struggling to find a lawyer who believed in his innocence. Until he saw Bryan Stevenson on TV. “I knew immediately: I need this guy. I wrote him a letter. Stevenson and his organisation, the Equal Justice Initiative (EJI), literally saved my life.”
Stevenson was convinced of Hinton’s innocence and the first thing he did was arrange for an independent ballistics expert who analysed the bullets and the gun. Eventually, the case came before the Supreme Court of Appeal and that institution decided, based on the lack of any ballistic evidence, that Hinton was entitled to a retrial.
Attempts to thwart and delay his release were overcome and on April 1, 2015 Hinton was finally a free man. “’The sun is shining,’ that’s the first thing I said as I left the prison.”
Police investigators desperate to solve a crime, an overzealous prosecutor with tunnel vision and a criminal justice system with an obvious racial bias contributed to Hinton’s wrongful conviction. In South Africa, it is not much different. The IRR concluded that the most important reason not to introduce the death penalty is the many errors that are made in the criminal justice system. It is a well-known fact, documented by, among others, the Wits Justice Project that the South African police use torture to extract confessions from suspects. The IRR pointed out that in 2014/2015 the Independent Police Investigating Directorate (IPID) recorded 3,856 complaints of assault or torture against the police. But only 19 criminal officers were convicted in that same year.
In the US, the increasing number of wrongful death penalty convictions has led to waning support for capital punishment. A Pew research poll revealed that only 49 % of Americans are in favour of the death penalty for murders, while 42 % oppose it, an all-time low.
The Dutch newspaper het Parool also published the story in Dutch. Below are links to the PDFs.