Originally this column appeared as an Op-Ed on the front page of Section D of The Philadelphia Inquirer, December 11, 2011. The original version, only slightly different than this updated version, is also available at Philly.com.
“Free Mumia” is more than a chant heard at rallies in support of Mumia Abu-Jamal. There’s a renewed logic to the refrain. After almost 30 years on Pennsylvania’s death row, and after Philadelphia prosecutors have now backed away from pursuing a death sentence and seek now to leave Abu-Jamal in prison for life, it makes good sense to release him.
Why now? Why were over 1,200 people, including authors Cornel West of Princeton University and Vijay Prashad of Trinity College, gathered at the National Constitution Center on December 9, 2011, to affirm, as Desmond Tutu said by video message, “Mumia must now be released”? Why does this 30-year movement seem to be cresting with continuing demands for his freedom?
Because the floodwall built around him, keeping at bay an aware public, and walling him inside prison for 30 years, has recently been breached. Moreover, two swells of public opinion now rise like quiet, powerful waves, widening the breach, making release not only thinkable, but perhaps, also, achievable.
First, the breach. In October 2011, a U.S. Supreme Court ruling held Abu-Jamal’s death sentence unconstitutional. Jurors, the court held, were misled to believe they had to be unanimous to consider mitigating circumstances against execution: his lack of previous criminal record, his distinguished journalism career, his devotion to family.
October’s ruling meant that prosecutors were forced to consider holding a new penalty hearing if they wanted to keep the death sentence. If they didn’t give him a new hearing, Abu-Jamal would be left with a life sentence without parole. Prosecutors have chosen the latter, obviously fearing that a new sentencing hearing could unleash a storm of questions about Abu-Jamal’s guilty conviction. Indeed it would.
And now, the breach made by the Supreme Court ruling and the district attorney’s decision, allows the first wave of public concern: renewed criticism of the entire trial. If death-sentence deliberations were handled so poorly, should not the trial itself, which featured the same judge, prosecutor, and jury, also be viewed with greater suspicion?
In 2000, Amnesty International reviewed Abu-Jamal’s 1982 trial and found it “in violation of minimum international standards that govern fair trial procedures.” That judgment looks more credible after the October 2011 ruling. Moreover, the state’s case against Abu-Jamal can be further questioned because other disturbing disclosures have come to the fore.
In 2001, court stenographer Terri Maurer-Carter swore in an affidavit that she heard Abu-Jamal’s judge, Albert Sabo, say of him during a break in proceedings, “Yeah and I’m gonna help ’em fry the n—er.”
In 2006, photos of the crime scene taken by a freelance photographer were rediscovered. They had been offered to police and prosecutors at the time of Abu-Jamal’s trial but rejected by both the police and prosecutors, perhaps because they offer details that differ from police photos – the placement of the slain officer’s police cap, how an officer is holding weapons in ways that compromise later fingerprint tests (if they were even done). Jurors never saw these photos – only the police photos.
In 2008, investigator Patrick O’Connor argued in his book The Framing of Mumia Abu-Jamal that there was a fourth man at the crime scene, Kenneth Freeman, who was picked out of a lineup by a woman who was later a witness for the prosecution. Jurors never had a chance to consider Freeman. I repeat, there was another person on the scene (the policeman even had his id card in his shirt pocket) – and jurors never got to hear about this.
Back in 2009, when the federal Third Circuit court ruled against an appeal by Abu-Jamal, Judge Thomas Ambro wrote a long dissenting opinion, strengthening Abu-Jamal’s claims that racial bias skewed his trial. Because prosecutors blocked 11 of 15 eligible African American jurors from serving on the jury, Ambro found evidence of the kind of racial bias that often had led courts to grant relief to others making similar appeals. Abu-Jamal deserved the same “courtesy of our precedents,” Ambro argued.
Now there is a second wave of public advocacy: claims that Abu-Jamal’s long time on death row is “cruel and unusual.”
Philadelphia journalists David Lindorff and Linn Washington argue in their online essay “Free Mumia Abu-Jamal Now!” that the unconstitutional death sentence was responsible for placing Abu-Jamal in “30-years of a true hell,” separated from children and family, waiting for the state to kill him. They call for his release for time served.
On the National Constitution Center’s blog, “Constitution Daily,” historian Johanna Fernandez argues that Abu-Jamal’s unconstitutional subjection to “unbearably inhumane conditions” means he should be “immediately released from prison and awarded restitution for time served.”
These calls for release are supported by an emerging body of legal and judicial reflection.
A 1989 ruling by the European Court of Human Rights held that long confinement on death row violates conventions against torture and degrading punishment.
While still on the Supreme Court, now retired Justice John Paul Stevens concluded in 1997 that a 17-year delay in execution violated Eighth Amendment prohibitions against “cruel and unusual punishment.”
This October, Supreme Court Justice Stephen G. Breyer dissented to Manual Valle’s execution in Florida because his 33 years on death row violated the Eighth Amendment.
Attorney Kathleen Flynn concludes in the Washington and Lee Law Review: “Protracted death-row confinement clearly inflicts severe mental suffering on death-row inmates. This suffering is gratuitous and devoid of penological value.”
The redress for Abu-Jamal’s 30 years of anguish and the “cruel and unusual punishment” he has suffered is not life in prison without parole. It is release from prison into the arms of family and friends, into spaces of support and life.