The Skewed Politics of the Death Penalty

A Texas man condemned to death for a crime he didn’t commit was freed only after his attorney discovered a concealed phone record that proved his innocence. The attorney, Brian Stolarz, who wrote a book about the case, tells TCR that it’s an example of how capital punishment in the U.S. is hostage to a system that depends on whether you have enough money to pay for good legal help.

Alfred Dewayne Brown was condemned to death in 2005 after his conviction for killing a Houston police officer and a store clerk in a botched robbery in Texas. He spent a decade trying to prove his innocence, but it was only when an attorney named Brian Stolarz took his case and helped uncover the records of a phone call that proved he wasn’t anywhere near the scene of the crime—records that had been concealed from the grand jury—that Brown was finally exonerated and released in 2015.

Stolarz’ book about the case, Grace and Justice on Death Row (Skyhorse Publishing), arrives at a time when the movement for abolishing the death penalty continues to be stymied at the federal level—even as it has won more support in the states.

In a conversation with TCR’s Julia Pagnamenta, Stolarz discusses the outlook for the abolition of capital punishment in the U.S., how the politics of electing judges makes death sentences more likely, and how his Catholic faith influenced his own approach to the issue.

The Crime Report: Why write this book now?

Brian Stolarz: The death penalty debate in this country is trending towards abolition. In a new Gallup poll, approval is the lowest it’s been since the 70’s. A Pew research poll had [the approval rate] below 50 percent. It is my belief that it will be abolished one day. And I hope that cases like Dewayne’s shine a light on why.

TCR: And yet in the current political climate, it doesn’t seem like the death penalty will be abolished on the federal level. 

Brian Stolarz: I think the best way to attack the death penalty right now is through the states. Nebraska was a good example of a traditionally red state having that important debate. I think the federal death penalty will stay in large part because of the make-up of the Supreme Court. Now, with [Neil] Gorsuch taking Justice Antonin Scalia’s seat, I think it will be a number of years, if not decades, before the court shifts to a 5-4 for unconstitutionality of the death penalty.

So the way to attack that is on the state level and to identify what is called the “outlier counties.” There are only certain counties in this country that use it, and if there’s pressure even in those states to narrow it, and get rid of it, then maybe we can chip away at this brick by brick. If Nebraska is doing it, then other states can too, and if we get it so that it’s done only in a couple of states, then it becomes even more unconstitutional, and you may even have a federal challenge to it.

TCR: Let’s talk a little about Dewayne’s case: the prosecutor coerced Dewayne’s girlfriend, Ericka Dockery, into giving false testimony, and then hid the phone record that would have exonerated him. How did this happen?

Brian Stolarz: This case was in our view a rush to judgment. You have a high- profile case in which a black defendant is being charged in the murder of a white police officer, and there is a sense that they want to get quick justice. And so because there was never any science that connected Dewayne to the case, (and) never will be, this case was based largely on the testimony of his girlfriend Ericka Dockery.

Dewayne’s alibi was incredibly straightforward: He was at Ericka’s apartment at the time of the murders, and made a phone call to where she worked. Ericka testified that way in the grand jury.

The DA, and the grand jurors in particular, were badgering her, and in our view threatening her, and they kept pressing on her. I’ve never seen anything like the transcript in this case. But she held firm to Dewayne’s alibi. And the DA—and this is the moment where the case changed—decided that on his own, he would charge her with perjury, and ask for a very high bail, and then she sat in jail for four months. Her life fell apart. She lost her job, her kids…and so she said “fine, I’ll say whatever you want.”

Alfred Dewayne Brown

Alfred Dewayne Brown is released from prison after his exoneration. Photo courtesy Death Penalty Information Center.

But then we uncovered through our investigation that she testified about the phone call occurring on the caller ID box. The DA, Dan Rizzo, subpoenaed the phone company the day after she testified in the grand jury. The documents were sent by the phone company to the police, and it showed that Dewayne paid (for) that phone call, but they never turned the record over.

And that is still astonishing to me. The reason we got it was because the DA who was in charge of the writ of appeal emailed us in May of 2013, and said that the cop in charge of the investigation had recently spring-cleaned his garage, and found a box of documents. He sent it to us, and in the middle of the box was the phone record we had been looking for (over) eight long years.

TCR: You write about the lack of money and resources for public defenders, especially compared to the funding and political backing prosecutors receive. Please explain.

Brian Stolarz: Sadly, it’s easier to be rich and guilty than poor and innocent in this country, and it’s always more popular to pay the prosecutor than to pay a public defender. I hope that is going to change, because the Constitution is only upheld and preserved and maintained if the process is fair for everybody. In this case, Dewayne had a court-appointed lawyer, and the DA had all the resources to investigate. I see that in cases I work on all the time, and it’s bothersome to me because if Dewayne had the law firm I worked at, K & L Gates, that could have thrown a lot of resources at it, it might have been a different result for him, and he might not have spent 12 years and 62 days in jail for something he didn’t do.

Further Reading: “Legal Aid for Capital Punishment Cases Depends on Where you Live” (TCR Nov 7, 2017)

TCR: You worked pro bono nature on Dewayne’s case. Is this a common practice for private law firms?

Brian Stolarz: A strong public defender is always the first line of defense and that should be where our resources go. You can’t depend on large law firms to pick up the slack on everything because there are only a few law firms that will put the kind of resources that our firm put towards it.

TCR: How important to the capital punishment issue is the fact that judges administering these cases are elected?

Brian Stolarz: There’s a part in the book where I write that the Alabama judicial system had a jury override function, that the jury could recommend life, but then the judge could override that and give death. Well, in election years, the judges would override the jury verdicts more. It’s transparent to me to why they did that: to get elected. To me, that’s not justice, that’s political gain; I think all judges across the country should be appointed by their respective governors, or whatever bodies can do it. I think that when you politicize law, you are making it such that certain things are valued over other things, whether it’s these tough-on-crime sentences, or whether it’s a judicial override, so that a person can say at a rally, I put ten people to death. Well that’s not what I want my judge to be up there saying.

TCR: Your Catholic faith guided you through Dewayne’s case, and informs your opposition to the death penalty. And yet, in the book you recall how a religious group outside of Dewayne’s prison refused to serve you any food after you told them you were defending a person on death row. How did that affect you?

There is a certain level of hypocrisy that I see when I speak in churches. When I talked to this group, where they were all too happy to give a fish platter to the guard but they wouldn’t give one to me because I was defending someone in there. They were all happy to advocate for this man’s death. It just didn’t seem like the Christian way. Growing up Catholic, I was told that life was life, beginning and end, no matter what you’ve done, and it’s not the state’s role to kill anybody. Pope Francis has put a finer point on that now, and I hope that that combined with the advocacy work of Sister Helen, we can finally show that the Christian stance is that the death penalty should not happen.

TCR: Justice Scalia, also a practicing Catholic, supported the death penalty.

Brian Stolarz: Justice Scalia and I differed on our application of it even if we both had a strong Catholic faith.

TCR: Well, maybe in his case it wasn’t a Catholic interpretation, but a Constitutional reading of the death penalty?

brian stolarz

Brian Stolarz

Brian Stolarz: Yeah, it had to be. That’s what I read into it, but my faith has told me it’s not the right thing to do. If I were a judge I guess I would have to think about it differently, but from where I sit right now, it’s not the right thing to do. The state shouldn’t do this, and I hope Pope Francis’s message carries some weight.

TCR: There is currently an art exhibit, “Windows on Death Row” at Columbia Law School. People on death row made the art, and Columbia hosted several events this fall around the topic. At the first event, a Swiss representative who introduced the discussion said a central tenet of Switzerland’s foreign policy was a universal abolition of the death penalty. It’s also a European Union foreign policy objective. Why is it that the United States is one of the only countries in the Western world that still uses the death penalty?

Brian Stolarz: I spend a lot of time talking to folks in the European Union (EU). I’ve been to a few conferences and people are still shocked that we have it. We’re on a list with countries like Iraq and Iran and China, countries we don’t normally want to be on a list with as far as human rights. You can’t be a member of the EU if you have the death penalty. EU companies are not allowing drugs to be shipped here for this reason. Their advocacy is really important, and I think with more pressure like that, it may begin to change how we all think.

The American frontier spirit, and the Old Testament “eye-for-an-eye” approach has carried the narrative for us up to now. But I think that’s changing given the recent public opinion polls.

Julia Pagnamenta is a news intern for The Crime Report. She welcomes comments from readers.


Death Row Solitary: ‘Their Walls Have Driven Them Mad’

Texas inmates on Death Row have been placed in mandatory solitary confinement since 1999— a situation that some advocates say leads to ‘human rights abuse.’ The problem isn’t limited to Texas.

 Anthony Graves emerged from solitary confinement over six years ago to become a national crusader for justice reform, but it took a recent report by researchers at the University of Texas at Austin to add new urgency to his campaign to reform the practice in his own state.

Graves spent more than 18 years in the Texas prison system, including 16 years in the all-solitary Allan B. Polunksy Unit, after being convicted for murders that he didn’t commit.  He was released in 2010 after DNA evidence helped exonerate him—but the trauma of his nearly two decades behind bars is with him still.

Graves started his own foundation—with about $250,000 the state compensated him for the years he was wrongfully imprisoned—to support his efforts. His argument that solitary confinement on Death Row is inhumane has been reinforced by the study published earlier this spring by the Human Rights Clinic at the University of Texas School of Law-Austin, entitled “Designed to Break You: Human Rights Violations on Texas’ Death Row.”

The study’s title, he believes, couldn’t be more accurate.

“Every day you have something going on in solitary confinement,” Graves, who spent some 12 years of his solitary confinement on Death Row, told The Crime Report.

Anthony Graves. Courtesy Anthony Graves Foundation.

“From men going insane, to men dropping their appeals, to men overdosing on their medication– and some men not even being men because their walls have driven them mad.”

Texas Death Row inmates, according to the report, are subjected to a total ban of visits from attorneys, friends and family; “substandard” physical and psychological health care; and lack of access to what human rights activists would consider “sufficient” religious services.

“Prolonged solitary confinement has overwhelmingly negative effects on inmates’ mental health, exacerbating existing mental conditions, and causing more prisoners to develop mental illness for the first time,” the report said.

As of April 2017, 233 men were on Death Row in the Texas Department of Criminal Justice’s Polunksy Unit in Livingston, which “Texas Tough” author Robert Perkinson called the “most lethal” death row prison “anywhere in the democratic world.”  Another six women are housed in Death Row at the Mountain View Unit in Gatesville.

According to the UT-Austin study, inmates on Death Row spend an average of 14 years and 6 months housed there—most of the time in solitary.

According to a 2014 ACLU brief, Texas death-row prisoners had most of the same privileges as those in the general prison population until 1999, when they were effectively confined to permanent solitary confinement until their execution. Under current conditions, according to the report, inmates on solitary are confined to eight by 12-foot cells for at least 22 hours per day, and are banned from socializing or eating with other inmates.  Inmates are only able to see out a small window in their cells by rolling their mattresses and standing on them.

A bill calling for an Office of Independent Oversight Ombudsman for the Texas Department of Criminal Justice (TDCJ), which would increase transparency in the prison system was considered by the Texas legislature this session, but failed to move forward.

The problem is not confined to Texas.  According to the UT-Austin Human Rights Clinic researchers, more than 3,000 death row inmates across 35 states are in solitary confinement. Most are isolated due to their original capital conviction—and not for behavior while in prison.

Some states have reformed conditions.  Seven—California, Alabama, Georgia, Missouri, Nevada, Ohio and Indiana—now allow visits on Death Row with family and attorneys, for example.

But the number of exonerations has focused attention on what happens to all prisoners who experience solitary confinement.

Graves said he was fortunate to have a support system when he was released from prison. However, he says he suffered from PTSD, sleep deprivation and loneliness. He was so used to having only himself for company that he had a difficult time adjusting to the company of others.

“It’s like landing on Mars,” Graves said of his return to civil society. “The whole word has changed, and you have to deal with that. You’re starting to feel like maybe you can’t make it out here and you start to deal with it psychologically.

“The sad part is there are no facilities or programs trying to deal with these issues.”

He believes inmates held in solitary confinement are set up for failure when it comes to rehabilitation, and that runs counter to the purpose of any criminal justice system.  Considering that even inmates on Death Row could be released, as he was, on new evidence that exonerates their charges, authorities should not exclude those inmates from reform measures.

“Men are literally going insane and attempting suicide because of the way we’re allowing the state to house death row inmates,” he says.

A 2015 American Civil Liberties Union (ACLU) of Texas report backs up Graves’ claim.  Researchers found “self-injury” is eight times more likely, and suicide five times more likely, in Texas’ solitary confinement than in the general population.

Nevertheless, the Texas Department of Criminal Justice (TDCJ) counters that its processes and procedures are working effectively.

In a statement emailed to The Crime Report, identical to one published in The New York Times, and other publications, TDCJ Director Jason Clark said: “Offenders on death row are individuals who have been convicted of heinous crimes and given the harshest sentence possible under the law. TDCJ will continue to ensure it fulfills its mission of public safety and house death row offenders appropriately.”

Clark declined further comment on solitary confinement or any of the study’s findings.

Graves believes that conditions on Death Row will only improve if Texas and other states stop seeing solitary as a “weapon” used only to punish prisoners.

“Solitary confinement shouldn’t be a weapon,” he said. ”But the way it’s designed (currently), there is no way to properly get them ready to send them back out to the general population (in prison) or into the world.

“It’s a recipe for disaster.”

Nevertheless, Doug Smith, a policy analyst at Texas Criminal Justice Coalition, who was instrumental in pushing the bill forward, said there is evidence of progress.

A law went into effect Sept. 1, 2015 mandating that correctional departments conduct a mental health assessment prior to placing prisoners in solitary confinement. The legislation was a direct result of the ACLU study, which called for TDCJ to exclude people with mental illness from being placed in solitary confinement.

Smith, an ex-inmate who served some of his sentence in solitary,  acknowledges that TDCJ now  offers improved services to different segments of the prison population, including a program to help some inmates transition from administrative segregation back into the general prison population.

But other states have gone much further.

California loosened its stringent solitary confinement policies after a successful lawsuit in 2015 that followed a series of hunger strikes staged by inmates across the state in protest over “inhumane conditions and degrading conditions of confinement.”

The strikes, deemed the largest of its kind, garnered worldwide attention and led to a series of legislative hearings including a lawsuit that ultimately ended the use of long-term solitary confinement in the state.

“We argued that prolonged solitary confinement is torture and cannot be imposed on any prisoner,” says Rachel Meeropol, senior staff attorney and associate director of legal training at CCR, which joined the lawsuit in 2012.

“We successfully settled the case based on California agreeing to release thousands of prisoners who’d been in solitary confinement for decades into general population prisons. Under the settlement, California no longer puts prisoners in solitary based on gang association alone which is how so many people ended up there for so long.”

Meeropol said Texas appears to be out-of-step with the rest of the country which is moving away from solitary confinement.

“We’ve seen several states over the last decade recognize that solitary confinement is not necessary for prison security,” she states. “In fact, it’s counter-productive, and based on the (UT-Austin) report, it seems clear that Texas’ solitary confinement system violates the Eighth Amendment and is desperately in need of reform.”

In March of this year, three death row prisoners in Louisiana filed a lawsuit on behalf of all death row inmates at Louisiana State Penitentiary at Angola, asking for a change to the prison’s policy that automatically places all of them in solitary confinement without opportunity to challenge their placement.

Betsy Ginsberg, director of the Civil Rights Clinic and clinical associate professor of law at Yeshiva University’s Benjamin N. Cardozo School of Law, believes such lawsuits can set a pattern for change elsewhere in the country.

“Prisons have a set of factors to take into account to determine what level of security a prisoner needs,” she said.  “It doesn’t need to rely just on someone’s sentence….. It should be how well they behave inside a prison.”

Ginsberg said the growing opposition to solitary confinement has been boosted by statements from Supreme Court Justices Stephen Breyer and Anthony Kennedy.

“The view that is gaining consensus is that it is inhumane,” she said.

That’s encouraging to Graves, who has been crisscrossing the state to provide resources to the wrongfully convicted and ensure they have support to re-enter back into society. Graves was influential in convincing a key witness to testify in Alfred Brown’s case, the latest Texas death row exoneree.

He has also in demand as a speaker on criminal justice issues at universities and organizations across the country. Recent appearances include: the American Bar Association Death Penalty Representation Project’s 25th anniversary with retired Supreme Court Justice John Paul Stevens and the Anti-Defamation League’s Summer Association Program.

Graves also testified at the U.S. Senate Judiciary Hearing on Solitary Confinement led by Sen. Dick Durbin (D-Ill), and frequently presents at ACLU Continuing Legal Education workshops.

Even as he sees reform happening in other states, he worries he will still wait a long time before anything changes in his home state.

“Texas laws are disconnected from the reality on the streets,” said Graves, who is now studying for a criminal justice degree through an online program with the University of Maryland.

“[It’s] one of the worst states when it comes to inhumane punishment.”

Christine Bolaños, a  freelance writer based in Austin, Texas,  covers government, education, human interest features and business for numerous international, national and local outlets. Her work is can be accessed at or  She welcomes readers’ comments.


Execution Delays: How Long Is Too Long?

Arthur Lee Giles in Alabama has been waiting nearly four decades for a possible execution. His glacial march to the death chamber exposes a conundrum at the heart of U.S. death penalty. Condemned prisoners often spend decades on death row before being executed—if the execution ever happens at all. About 40 percent of the 2,739 people on death row have spent at least 20 years there.

In 1979, Arthur Lee Giles, then 19, was sentenced to death in Blount County, Al. Nearly 40 years later, he is still waiting to be executed. His glacial march to execution exposes a conundrum at the heart of U.S. death penalty, reports Slate. Condemned prisoners often spend decades on death row before being executed—if the execution ever happens at all—a fact that undermines any retributive value capital punishment might provide. About 40 percent of the 2,739 people on death row have spent at least 20 years awaiting execution, and 1 in 3 of these prisoners are older than 50, says the Fair Punishment Project. The Los Angeles Times says two dozen men on California’s death row require walkers and wheelchairs, and one is living out his days in bed wearing diapers. In North Carolina, nine death row prisoners have died of natural causes since 2006, the same year the state last executed someone.

The process that creates those delays cannot be eliminated without a corresponding increase in the risk of wrongful executions. Since 1973, 157 men and women have been exonerated. Decades spent awaiting an uncertain execution inflicts an additional and cruel layer of punishment on the condemned. Most death row inmates are housed alone for years in tiny concrete cells even as a growing body of evidence suggests the psychological burden of solitary confinement is tantamount to torture. In 2015, Supreme Court Justice Anthony Kennedy questioned the humanity of confining prisoners “in a windowless cell no larger than a typical parking spot.” With public support for executions at historic lows, death row delays seem likely to increase. Just 20 of the nearly 3,000 prisoners on death row nationwide were executed last year. To combat delays, California voters narrowly passed Proposition 66 last year, which promised to speed up executions by imposing more severe limitations on the death penalty appeals process.