At first, Cornell Law Professor Sandra Babcock kept her hopes modest. Malawi had started to revisit the sentences of death row prisoners en masse, and maybe the work there by Cornell's International Human Rights Clinic would result in a few dozen people walking free.
“Even in my wildest dreams, I thought maybe we would get 50 people out over the lifetime of the project,” says Babcock. “As of today, it's 64.”
Babcock and her clinic students have been working in Malawi for years, but lately they have been caught up in a large-scale reimagining of the country's judicial landscape. After a 2007 High Court ruling overturning a requirement that homicide convictions receive the death penalty was followed by years of inaction, the courts in February 2015 had suddenly begun holding resentencing hearings for people who had been languishing on death row, sometimes for decades.
Cornell Law students in the clinic's Malawi project draft pleadings on behalf of condemned prisoners in collaboration with local lawyers, laying out arguments for their sentences to be reduced. This past November, Babcock and several of her students traveled to Malawi to continue their work on the front lines of the resentencing efforts. Working with local paralegals and law students, the Cornell students interviewed prisoners and their families, collecting information about their cases that will be submitted in future hearings. They'll be going back again in March.
One of the cases the clinic tackled this past fall involved Maiden Matolela, an inmate who had been convicted of killing his uncle. Matolela believed that his uncle was a witch who had cast spells that deformed his hand and sickened children in his family. After a night of drinking, Matolela accused his uncle of witchcraft, and his uncle hit him; when Matolela pushed back, his uncle fell into a ditch and died. “It's not exactly what we would call murder here,” says Megha Hoon '16, who filed a submission on Matolela's behalf in October. “It wasn't premeditated. He didn't have a plan to go after his uncle.” Hoon says she discovered that the uncle had been “elderly and malnourished,” likely contributing to his death from the fall. “His diet consisted almost exclusively of mangoes,” she said. And, Hoon says, both Matolela's alcohol use and his belief that his uncle was a witch were considered mitigating factors in Malawian courts.
It's not easy work. Malawi's judicial system had never previously considered the relevance of mental health in capital sentencing proceedings, and no tests had ever been administered to determine whether prisoners had intellectual disabilities. The clinic is currently collaborating with an international team of mental-health experts and local mental-health workers to develop and administer such a test to prisoners, many who are illiterate.
Because of poor record keeping, details about cases are often nonexistent, necessitating careful work to reconstruct their circumstances under tight time constraints, and sometimes difficult choices. “In some of these cases, we have actually presented affidavits from the prisoners themselves that say, this is what happened,” Babcock says. “As a defense attorney in the United States, you would never have your client submit an affidavit that is self-incriminating. It would simply never be done. But because the facts of these cases are so mitigating and because in so many cases they've been imprisoned for such a long time, we've decided to submit these affidavits even when they're incriminating because we think the judges are likely to release them, and because submitting these affidavits shows that they have accepted responsibility for what they did.”
However, results have been coming fast. Hoon met with Matolela in prison during the November trip to let him know that she had filed a pleading on his behalf. “Then the week after we got back, I found out that he had been released,” Hoon said. “It's really nice for us because it keeps everyone energized.”
The prominence of the resentencing hearings has kicked off a larger debate in Malawi about whether Malawi should even have the death penalty at all. Babcock says that while she and her students will continue to focus on individual cases, the clinic will also start to look systematically at the data it's collected over the course of assisting many prisoners, with an eye towards putting together a report on wrongful convictions in Malawi. “Obviously, a discussion has to take place internally there, and it's not something that we can really be a part of officially,” Babcock says. “But, we can help support it with the data, and that's the best way for us to be involved in that debate.”
“Now that this has been going on for several years, we have this body of resentencing jurisprudence that now we need to analyze,” says Christa Maiorano '16, one of the students participating in the clinic. “Not everyone has been immediately released. Some people have been resentenced for a term of years. So we want to see if we can find any patterns, and what the mitigating factors were in each of these people's cases that contributed to the judges giving them the sentences that they did.”
“When people realize that the death penalty is fallible and that innocents can be wrongly convicted and sentenced to death,” Babcock says, “that can have an enormous impact on public perception of the utility of the death penalty.”