"The Power to Effect Change": Clinical Professor of Law Sandra Babcock and the Cornell Center on the Death Penalty Worldwide

Higher Callings Podcast

Interview of Professor Sandra L. Babcock (unabridged)

Hosted by Donald R. Frederico

Recorded January 31, 2023

Don: Malawi is a landlocked country in southeastern Africa. It's one of the poorest countries in the world. Like many countries, Malawi still applies the death penalty for capital crimes, although the death penalty is no longer mandatory in capital cases and may be abolished entirely in Malawi soon.

Several years ago, a law professor named Sandra Babcock took an interest in the Malawi penal system after seeing a New York Times article about horrific prison conditions there. Having spent much of her early career representing persons awaiting execution in American prisons, Professor Babcock, then at Northwestern Law School, arranged to bring six of her students to Malawi to see how they might help Malawian prisoners subjected to those conditions, many of whom had no lawyer and were still awaiting trial after years of incarceration.

That first trip resulted in the release of 12 incarcerated persons and marked the beginning of a multi-year project Professor Babcock led, first at Northwestern and later at Cornell Law School. Today, the Cornell Center on the Death Penalty Worldwide that Professor Babcock leads continues to assist Malawian prisoners and has extended its work to Tanzania with a focus on representing women on death row in that country.

I recently had the pleasure of talking with Professor Babcock about the public defense and death penalty work she performed before becoming a law professor and the work she and her students have done and continue to do on behalf of Malawians on death row.

Don: I'm going to ask you a question, the answer to which might be very obvious, but maybe not. What do the students get out of this work? I'm sure many of them get a lot of personal satisfaction, but I'm sure there's more to it than that too.

Sandra: Yeah. I think it blows their mind. I think it really blows their mind when they go to Malawi and they recognize not only that -- I think the first impression is just of overwhelming poverty, right? The poverty and deprivation, which is overwhelming if you've never been exposed to it before. But I think the second thing that they recognize is that they have the power to effect change.

Don: I'm Don Frederico, and this is Higher Callings.

Today I'm with Sandra Babcock, a clinical law professor at Cornell Law School. Hi, Sandra, how are you today?

Sandra: Hi, Don. It's nice to be here.

Don: I really appreciate your being here. The work you do, it's such important work and it gives students such a great opportunity, but mostly you're saving a lot of lives, and I want to talk a lot about that, but I think we'll start by going into your background and we'll also hopefully talk a little bit about the broader work Cornell does with respect to the death penalty project.

How did you develop an interest in, first of all, international law? I know that you studied international relations in college, at Johns Hopkins University, but tell me a little bit about where did you get the interest in international work to begin with?

Sandra: Well, truthful answer is that it started when I was an exchange student to Tunisia in high school. And I'm sure others can relate to this experience. Once I traveled at such a young age, I just got the bug and I was fascinated by foreign cultures and different countries and languages. I love languages and really enjoy meeting people from all over the world.

So that was the foundation of my interest. And I always thought when I went to law school that I might do international human rights work for a career, but at that time, I graduated from Harvard in 1991, at that time, human rights work was something that very few people got to do because there were so few jobs. There were only a few organizations doing it, and our definition of human rights work was much more narrow. So we thought of human rights as something that involved political dissidents in the Soviet-block countries, for example. I mean, really that was the origins of the modern human rights movement.

So I didn't get a job doing human rights work out of law school. And in part because I became really fascinated by the U.S. death penalty. And I made a sharp right turn, or a sharp left turn, however you want to say it, in law school when I discovered the work that people were doing already to protect the lives of individuals who'd been sentenced to death.

Don: In the United States at the time, right?

Sandra: In the United States.

Don: Now, you and I have talked before, and I think you told me that one thing that really sparked your interest in the death penalty issues was you heard a lecture by Bryan Stevenson. Is that right?

Sandra: Yeah, I did.

Don: Tell us about that.

Sandra: Well, Bryan is much better known today than he was back then.

Bryan is the author of Just Mercy, a film that was made, starring, oh my gosh, I've forgotten the actor's name. He’s so good. But Brian is a longtime capital defense lawyer and civil rights lawyer based in Montgomery, Alabama. And when I was a second-year law student, I went to a public interest job fair in Washington DC where more experienced practitioners came and spoke about their work.

Bryan was one of those practitioners. He was probably only 30 years old at the time. He graduated a few years ahead of me. And he spoke about his work defending people on death row in Alabama. And during this talk, and anybody who's ever heard Bryan Stevenson speak, he really is one of the most gifted speakers that I've ever heard. You could listen to Bryan read the phone book and be completely mesmerized. But he spoke about his work, and at the time one of his clients had just recently been executed. And as he was speaking to this room full of 2Ls, he started to cry when speaking about his client, and it was really apparent that he was grieving.

And I was so blown away by, having gone to law school, and so much of what we learn in law school is a sanitized version of the law. A lot of what we learn in law school doesn't involve your soul or your deepest moral convictions. Some of it does, but a lot of it doesn't. And Bryan was the first person that I heard speak who made me think, well, you know, the law is not just about what you learn in a book or these abstract principles. It's about human lives. And I want to work with people like Bryan. And that's why when I was applying for jobs after law school, I applied to death penalty defense organizations throughout the South.

Don: Were you doing this on your own, or did you have mentors who were advising you and helping you find some of those jobs?

Sandra: I had one other mentor who was also a Harvard grad and also a death penalty lawyer, named David Brock. Also, if you do this work, a very, very well known, very prominent capital defense lawyer now based in Virginia, was in South Carolina, who helped me think through what some of my options might be. And it was through him, I did actually get a job offer from Bryan Stevenson and I ended up turning it down and going to Texas, because at the time in Texas, the pitch to me was, "Well, we really need you in Texas more than they need you in Alabama," because they were executing so many people in Texas at the time, and they were particularly short staffed. And frankly, Houston seemed like a better place to live for me right out of law school than Montgomery.

Don: So tell me about that job. You were at a place called the Texas Resource Center, is that right?

Sandra: Yes. The Texas Resource Center was one of a number of resource centers that were funded by Congress. They were set up because the United States was killing people, executing people who didn't have lawyers. And it was unseemly to be executing people who didn't have the ability to defend themselves in the appellate process.

Don: Why didn't they have court appointed lawyers, public defenders? How did that happen?

Sandra: A lot of it is people just weren't qualified to do the work. It's also not work that anybody really, if you're not really passionate about it, it's not really at the top of anyone's list to take on these cases. They're very, very difficult. The crimes are very tough, and it's emotionally draining and it does take a special expertise, and a lot of people just lacked that expertise.

So they set up a number of different resource centers, mostly in the southern United States, to provide this legal representation to people, mostly at the end stages of the appellate process. So we're talking about state and federal post-conviction or habeas corpus procedures. And when I went to Texas, I got there in September 1991, I was given my very first case. My first file was somebody who was a Canadian national who had been sentenced to death and had an execution date two months out. And I was a freshly minted lawyer and I was told go to prison and meet your first client and figure out what to do to stop that execution.

Don: So how did you learn it and what are some of the issues? What were some of the defenses or arguments that were relevant in a state where the death penalty is the law of the land?

Sandra: Well, the legal issues were many and, among others, there was and remains to this day endemic racism in the way the death penalty is applied, and fair trial violations.

It's really hard to summarize what it was like in the early nineties back in Texas. But the political atmosphere was so hostile to what we were doing. These days I think all of the major Texas newspapers, their editorial boards, have adopted an anti-death-penalty position. They recognize the flaws and don't support it. But back then everyone supported the death penalty, and we felt very beleaguered. And it wasn’t . . .every single case presented ineffective assistance of counsel. I mean, lawyers who were falling asleep during trial, who missed major portions of the trial because they were sleeping or drunk or, you know, the stories that we could tell. But the courts just didn't care.

The courts were so conservative. They were so indifferent.

Don: And we're talking totally about state courts, right? At that time?

Sandra: This is state and federal courts. We're talking about the Fifth Circuit Court of Appeals. We used to call it the death penalty exception to the rule of law because it seemed as though, if it weren't a death penalty case, then somebody would've stopped it. And if you were in a different state in a different jurisdiction, the cases would've been stopped. But Texas was just a really different, very, very tough place to do this work back then.

Don: You know, I think we, I tend at least, and I suspect other people do too, to kind of blur two separate issues. One is wrongful convictions, where the person on death row was actually not guilty of the crime that they were convicted of. And perhaps they had committed the crime, but there were reasons why the death penalty should not apply to them. Is that the right breakdown? Is it kind of those two broad issues that tend to come up in death penalty cases?

Sandra: Yeah, I think that's a really accurate summary. And you're right, a lot of people confuse that when you tell them that you're defending someone on death row. They say, "Oh , well do you think that person just shouldn't be in prison?" And, that's a complicated question, but really what we're fighting for in most cases is, the evidence in these cases can be pretty overwhelming.

In the vast majority of capital cases, what you're really striving for is to humanize your client, to provide an explanation for what would otherwise be an inexplicable act of violence. And to help people understand how a human being can do something really terrible to another human being.

And that is a hard job, and it's hard for people to find empathy for someone who is convicted of murder. But what we found in these cases, and, you know, when I talk about death penalty work, it's one of those things you don't do often at dinner parties because it can be a conversation stopper and people don't really quite know what to say.

But I find my work oddly uplifting because, what it helped me recognize is that there's no such thing as evil. There's no such thing as intrinsically evil people. What I learned is that people do things that could be characterized as evil, but people themselves are a product of so many different complex life experiences, and genetic disorders, mental illnesses, substance abuse problems, that contribute to their behavior that, when you put it all together, creates for many people a situation where they are acting in ways that they would never, ever have behaved had they received the kind of support and love and affection and community that many of us are fortunate enough to grow up with.

Don: Right. You had told me that there was a video on the Cornell Law School website, and I looked at it before this interview. And I'll post a link to it in the show notes when we publish this podcast. But it's about a six-minute video and you're one of the speakers, it’s about the death penalty project, and so is John Blume, and others. And we'll talk about the broader work that Cornell is doing in the death penalty area a little later in this interview.

But the first words, I think, on the video came out of John's mouth, Professor Blume. And they were something that I've believed in for a long time, which is nobody is the worst thing that they do. People are much larger than the worst thing they do. And the death penalty is so final and so complete. But you're punishing somebody who might be 40, 50, 60 years old, even, for one act that they committed at one moment in their lives and without necessarily having a good picture of what kind of person they were the rest of that time.

Anyway, I don't want to get too philosophical, but what you just said reminded me of that well-known saying that Professor Blume started out with.

Sandra: And that's something that Bryan Stevenson always said every time he gave a talk. You know, somebody who lies is not just a liar. Somebody who steals is not just a thief.

Don: Right. And every human being, hopefully, is capable of redemption.

Sandra: I believe that.

Don: I do too.

Sandra: I really believe that.

Don: So, you were at the Texas Resource Center for four years, and then you went to the Public Defender's Office in Minneapolis, where I think you worked for about five years. How did that come about?

Sandra: Well, the short story is that I met the person that I would eventually marry, and he had family in Minneapolis. So we moved there together and I became the public defender in Lake Wobegon. I don't know if anybody remembers Garrison Keillor but, he used to have this radio show about this fictional town of Lake Wobegon, which was based on the town of Anoka, which is a suburb of Minneapolis, and I was the public defender for that town.

Don: I remember that show pretty well. So, go ahead. What kind of work did you do there?

Sandra: I did bread and butter public defender work, which was a really interesting change from having done death penalty work. I defended people charged with DWIs and assaults and basically what every single public defender does.

I took every case that came in the door. And that was a real lesson in the structural racism that is inherent in the criminal justice system in many states. Just looking at the racial composition of the people who would make their first appearances in court who weren't able to make bail versus those who were able to make bail, making their first appearances in court. And the latter, the people who made bail, who were released, were overwhelmingly white and the people who were in custody were overwhelmingly black, and people of color, but mostly black. And I just defended everybody.

And it was a wonderful job. I really recommend to all of my students working as a public defender because it's not only a great job if you are interested in civil rights. You know, you think you've got to do civil rights work in civil courts, but civil rights work, the biggest battles, in my view, are taking place in criminal courts. And of course, if you want to be a trial lawyer, there's no better place to cut your teeth.

Don: Yeah, I'm sure that's true. And I'll just mention, put in a plug for my own podcast. In one of the earlier seasons, I interviewed a man named Anthony Benedetti, who's the head of the public defender program in Massachusetts. And we talked a lot about that. I think it is probably a great place for a lot of recent law school graduates to cut their teeth on practicing law and also do a lot of good at the same time.

So, you were there for five years and then, you went about as far from Minneapolis as you could, I suppose. You became the founding director of the Mexican Capital Legal Assistance Program. Tell us about that.

Sandra: Well, that was a program that was started by the government of Mexico to provide better legal representation to Mexican nationals who are facing the death penalty in the United States. One thing I didn't mention is that, I told you that my first client was Canadian. My second client whom I ever represented as a young lawyer was Mexican. So my very first two clients were foreign nationals.

And that gave me an opportunity to go back to my international roots, and to litigate some of the treaty violations that were taking place in those cases, including the violation of a treaty that most Americans take for granted. It's the Vienna Convention on Consular Relations, and it's the treaty that says that if you are detained in a foreign country, that you have the right to communicate with your consulate and to seek their assistance.

So the United States is a party to this treaty, and in the case of my two clients, the United States had violated that treaty. So I began to litigate that and my client, Ricardo, was actually innocent. That was a wrongful conviction. And he was released. It was a very high-profile case in Mexico.

So the Mexican government, when it began to search for someone who could help defend other Mexican nationals, who was able to speak Spanish and knew something about international law, there was a universe of about one person, and that was me, who had the qualifications. So I was actually in private practice at the time when the Mexican government approached me and asked me to start this program as the inaugural director.

Don: Okay. And what kind of work did you do there?

Sandra: I helped organize defense teams for Mexican nationals, and I provided support to those teams, helped them understand some of the cultural issues, some of the legal issues. What kind of interpreters should you get? What if an interpreter wasn't provided during interrogations? What does that mean? How do you litigate that? How do you gather mitigation evidence in Mexico? What do you have to do? What are some of the cultural concerns there that you have to know about? Mental health issues, the immigration experience, all of these things are relevant to defending somebody from a foreign country.

So we put together resources for lawyers who were in that position to prevent the execution of Mexican nationals. And, in the course of that, I represented Mexico in a case before the International Court of Justice, called Avena, and other Mexican nationals. It was a case that we brought on behalf of 52 Mexican nationals who were facing the death penalty in this country.

That led to a decision by the International Court of Justice condemning the United States for violating their treaty rights and ordering the United States to provide hearings in all of these cases.

Don: And did that happen? Did the United States provide the hearings?

Sandra: You know, it did. And so the interesting thing is that, President Bush, the second President Bush, George W, was President at the time, and George Bush issued an executive order, finding that this was a binding decision and directing states to provide these hearings. Texas did not like that idea, and it contested the authority of this Texan president to instruct them to comply with the international court's decision.

And it went up to the Supreme Court and we lost. The Supreme Court said this is binding as a matter of international law, but unless Congress passes legislation to implement it as a matter of federal law, we can't force the states to do anything. Nonetheless, states have complied with this decision.

So we got the Oklahoma Court of Criminal Appeals, of all things, and the Nevada Supreme Court, both to say that they would comply with the decision. And we got both of those, a prisoner in Oklahoma and a prisoner in Nevada. in the Nevada case just last week they entered a life sentence for this prisoner because he had his hearing under the decision and they found that his rights were prejudiced, that his trial was prejudiced as a result of the violation.

Don: In terms of the sentencing, the death penalty, sentencing.

Sandra: Yes.

Don: Well, that's really fascinating work and so important. It also just kind of highlights how political this all is and how much variation there can be from one state to another.

Sandra: Well, I was particularly proud that we got those decisions in states that, you know, it wasn't Vermont and Massachusetts. You know? It was Oklahoma of all places, that was the very first court in the country to say, "We are going to abide by this international court ruling.”

Don: Yeah. That's terrific.

Now, at some point you decided to go into academia What drove you into the ivory tower? I know you're as far from the ivory tower as any professor could be, probably, with the work you do. But what drove you into teaching?

Sandra: You know, I kind of wanted to get back to my human rights practice. I wanted to do more than death penalty work. I was interested in a number of different human rights violations. I was interested in teaching and working with students. So it was a natural follow on from the work that I'd been doing before.

And I'd practiced for 15 years at that time. So I felt like I had a lot to bring to clinical teaching in particular.

Don: Right. And teaching students to do the type of work that you were already doing. So you can have a much greater impact, right, when you're actually equipping other people to go out and do that good work that you've already done.

Sandra: Exactly. I mean, you get to an age where you're like, okay, I have to start passing the baton, you know, I have to start equipping others so that they can carry on the work. And I think that for the last 10 years especially of my career, I've really been focused on trying to equip lawyers and students with these tools and resources and knowledge so that they can continue the work and do better and do more.

And that is really rewarding. It is just the best experience. Anybody who teaches will tell you at any level, from probably elementary school through universities, is that, when you find those students who just soak up the knowledge and then go out into the world and do amazing things and you know that you had an influence on them. That's just the best thing.

Don: So now you were a clinical professor at Northwestern. What clinics were you running at the time? Or did you found at the time?

Sandra: I ran the International Human Rights Clinic there, which is the same clinic that I run here at Cornell. And the very first project that I started at Northwestern when I began teaching was a project looking at and assisting prisoners who were potentially facing the death penalty in Malawi.

Don: Yeah. And that's the first time I think I heard about the work you do. I heard about the work you've done with respect to the death penalty in Malawi, and I just became very interested in it. I was not at all familiar with the country of Malawi, which is on the east coast of Africa. I don't know if that's what you call it, or if there's a better descriptor. But you started doing that work at Northwestern. And what specifically were you doing there?

Sandra: Well, I was interested in Malawi because at the time I moved into clinical teaching, there was a front-page story in the New York Times about prison overcrowding in Malawi. And there was a color photo, an above-the-fold color photo. This is when people actually got a physical paper. And the photograph showed men who were stacked like firewood in a prison cell, with scarcely a millimeter of space between them. They were just so tightly wedged in, and they were sleeping head to foot.

The photo itself was just so stunning. And when I read the article that accompanied it, it said that the prison overcrowding in Malawi was so bad that they could only sleep this way. And that if they wanted to turn over in their sleep, somebody in the middle of the night would give a signal and everybody would turn simultaneously.

It went on to describe in great detail the horrifying conditions, the lack of sanitary facilities. But in the same article, they mentioned that there were paralegals who were going into the prisons and teaching prisoners about their rights to help them advocate for themselves in court, because many people in Malawi don't have lawyers. Most people don't have lawyers. And I thought, well, if they're letting paralegals into prisons, maybe they'll let students into prisons.

So that was the reason why I thought about Malawi. It was just because of that New York Times article. And incidentally, that same photograph, there's a connection to Brian Stevenson. That photograph that I saw that really inspired me and really transformed my career is now in the Legacy Museum in Montgomery, Alabama. And it accompanies an exhibit that discusses the slave trade, the trans-Atlantic slave trade, and how Africans were brought to this country in the holds of ships, and these torturous conditions. And the photograph that they have used in that exhibit is that same photograph of the Malawian prison. That's how powerful that photo was.

Don: Yeah. And so how did you get started? Who did you contact? How did you get going on a project like that?

Sandra: Well, it turns out that a colleague of mine at Northwestern knew somebody who worked in Malawi. He worked at an organization called Penal Reform International, which still exists. It's a terrific organization. And they were doing work in the prisons with paralegals. So I contacted this guy, his name was Adam Stapleton, and told him that I wanted to bring some students over there. Northwestern wouldn't pay for that, so I had to fundraise. I did some fee generating work for the Mexican government, and I managed to bring in enough money to pay for the students’ trips. And I brought a group of students over. And that was the first, the very first of, I think now I've been back 25 times to Malawi. And I brought probably around a hundred students. But that first trip was six students.

And we went into the prisons. We started interviewing prisoners, finding out why they were there. What were they accused of? Had they ever been to court? I sent some students to the prosecutor's office to track down their files. And we were able on that very first trip, which was only a two week trip, we got 12 people out of prison. And that was because we adopted an approach that you would just never think of, wouldn't be feasible here, where we were able by sort of bringing the prosecution and the defense together and talking about the circumstances of these cases, we were able to work out agreements, basically plea agreements. But to do it in a non-adversarial setting. And the prosecution ended up agreeing that these were people who didn't deserve to be in prison.

Don: And so were these people who were awaiting trial? They had not yet been convicted?

Sandra: They were awaiting trial. So when we first started going the first five years or so, all we did is work on pre-trial detention. We helped people prepare for trials. We helped find lost people in the prison who had just been sitting there for years and years without access to the courts.

Don: So at that time you were focused on the human rights aspect and, I guess we would call it the civil rights or prisoner rights, motivated at first by what you saw about the conditions that prisoners were under. But it sounds like it wasn't initially focused on the death penalty. Is that right?

Sandra: That's right. Malawi at the time had what we call a mandatory death penalty. So anyone who was convicted of certain crimes --murder, treason-- would automatically be sentenced to death without any regard for their age, their mental health, whether they'd been abused as a child. None of this was relevant. Many of the cases that we worked on were people who had been charged with homicides. So if they had gone to trial, they would've faced capital sentences.

But we also represented other people. There was a woman that we represented who, we just saw her when we were in the prison. She was very pregnant. And it turns out she was pregnant with twins. When we talked to her about why she was in prison, it turns out she had had a consensual relationship with her half-brother, whom she had never met as a child. She met him as an adult. They fell in love and they started a relationship. And in fact, she became pregnant. And this was against the law. So even though her traditional leader in her village had blessed the union, had given his approval, an ex-partner of hers informed the police and they arrested her and they arrested her partner.

So, at the time that we saw her, she'd been in prison for six months for this crime that was almost a status offense. She was about to give birth. She had another child in prison with her. She'd never been to court. She didn't have a lawyer. So we went to the prosecutor's office and went to the judge, and advocated for her, and said, “There is just no need for her to be in prison.” And they ultimately agreed. So we were able to get her out and we got her brother out.

So there were little things like that too. We were just there, and we learned by doing. And we would find situations and work with people to try to resolve them.

Don: So you were a group of Americans who went to Africa, and went to Malawi in particular, to do this work. What was the status of the bar in Malawi? As I understand it, Malawi had been a colony of Great Britain and their legal system wasn't that different from what we're used to. I assume they had the right to jury trial, just like they do in Britain and they do here in the United States.

So it was not a totally alien environment to go work in that country for American lawyers and American law students. But where were the lawyers and the judges in Malawi at the time? Why did it take some group coming in from another country to start to see results for some of these people?

Sandra: It really comes down to a question of resources and capacity. At the time, and I think this is probably still the case, Malawi has one law school that was accredited. It graduates about 30 people a year on a good year. And at the time we started doing this there were about 300 lawyers throughout the whole country.

Don: What's the population in Malawi?

Sandra: Well, now it's close to 20 million. At the time it was probably about 13 million. And in terms of legal aid lawyers, there were no more than a handful. At any given time, there could be as few as seven and as many as 20. But on average, I'd say there are about 10 legal aid lawyers in the entire country. And they do all civil legal aid and all criminal legal aid. They simply don't have the capacity to provide quality legal representation to every person who needs it. And you're talking about a country where 99% of the population is indigent. Malawi is, by some estimates, the sixth poorest country in the world. So even in the spectrum of countries in the global south that suffer terrible poverty, Malawi is at the very bottom.

It's hard for people who've never been there to try to communicate how deprived people are and even professionals who work as lawyers. But to give you an idea, because you ask about where were the lawyers? Why weren't they doing this? People wouldn't go to the prison to visit their clients because, number one, they have no vehicles. They don't have cars. Right? So how do you get there? You have to have maybe a company car or something.

But first of all, there are terrible fuel shortages in Malawi. Right now, if you go to Malawi, there's a fuel shortage. People are lining up to get gas 24 hours in advance because fuel is so scarce. But even if there is fuel available, people can't afford it. So even just a simple thing, like going to the prison to interview someone, becomes an insurmountable task because you just don't have the ability to do it.

Copying a legal document. You want to file something with the court. In Malawi at the time, and still to this day, they don't have electronic filing. You have to file a paper copy. To try to get something copied in Malawi, first of all to get it printed and then to get it copied. I remember once going to three different copy places. Little shops. Tiny little shops. These aren't Kinkos. These are like little hole-in-the-wall places that have a copy machine. And the first one I'd go to, the copy machine wasn't working. The second one, there was a power outage, so nothing was working. The third one, they had to download the software and then they could get the copies. But they were terrible. Literally everything is difficult and everything takes time. I would bring a portable printer with me when I went every single time because I couldn't rely on getting copies anywhere. So it's just all of these little things that add up.

And on top of that, when we started working on the cases of prisoners who'd been sentenced to death many years ago, in many cases their files had been lost. There was no filing system. So people would have these paper files that, like in one court, the filing system was an abandoned toilet cubicle. And even in the national archives, things would be in boxes, but they wouldn't be in any particular order. And so even finding the file of somebody who, let's say, who has been in prison for five years, becomes really challenging.

And so there are people literally in prison in Malawi whose files are missing. There's really no record of the evidence against them. And yet they remain in custody.

Don: It sounds like your biggest obstacle in helping these people was the lack of resources. In other words here, depending on where in this country you would be, you might find strong political opposition to what you were doing, or prosecutors who wouldn't cooperate, wouldn't talk to you, wouldn't provide you the information you were entitled to. Did you find any of that in Malawi, or was it really more just the lack of resources to make sure that files weren't lost and copies could be made and all those things that we take for granted here?

Sandra: That's really what it was. Malawi is such an extraordinary place. You have a lot of really creative people in the legal profession, committed people, passionate, smart, but they just don't have the tools and the resources. But at the same time you have things, we were talking about the death penalty in the United States, and you know, how we believe in redemption. Well, the idea of redemption, that people can change, is really kind of an accepted principle in the criminal justice system in Malawi.

Judges will routinely accord great mitigating weight to someone who is below the age of 25 at the time of the crime because they know that people can change. And similarly, let's say you have somebody who is very elderly and you're making a pitch for compassionate release. That's something that people will be very sensitive to. They really take that to heart. You asked about the adversarial system and prosecutors withholding evidence. That does not happen in Malawi, as I've seen. Look, maybe it does. I've never seen it.

Prosecutors struggle the same ways that defense attorneys do. They have it a little easier because the police support the prosecutors and so police will do investigation, whereas legal aid lawyers, they have no investigators, they have no experts, they've got nothing. So prosecutors have it a little easier, but if they don't provide paperwork, it's because they don't have the paperwork or they don't have the resources to make a copy of the file for the defense. It's not that they're willfully hiding exculpatory evidence. I've never seen that in Malawi.

Don: Or resisting having to produce it through court motions or something like that.

Sandra: Right. Which doesn't mean that the effects aren't equally pernicious for the accused person who is sitting in prison and who's never been shown an iota of evidence. Right? And who's sitting there for five years awaiting trial without access to the courts. But there's not venality behind it. And that is a real difference.

The other thing I noticed from the very beginning is that, when you walk into a prison in Malawi, there might be, as a foreigner, there was some initial suspicion, and I really had to go back a number of times and speak a little bit of Chichewa and establish my bona fides. But once we did that, the prison welcomed us. The prison recognized that there were people there who didn't belong there. And the most extraordinary thing was once we started working on capital cases and people started to get out of prison after having been there for 20 years, the prison guards would celebrate with us. They were happy for people to be released. And this was something I had never experienced in a U.S. prison.

Don: Yeah. Yeah. Which is not to say there aren't guards in U.S. prisons that wouldn't have been happy too. But it sounds like the culture overall is different.

Sandra: That's the thing. It's the culture. It's not about the individuals. Of course there's going to be violent prison guards, and any place you go, it just all depends on the culture. But the culture, and I'm not saying that in Malawi there's never violence in the prisons by prison guards, but it's not as tangible. There's not that tense, really oppressive atmosphere. It's oppressive because people aren't eating enough, they don't have enough food. Horrible sleeping conditions. The conditions are God-awful. But at the same time, they're treated with a degree of humanity that you just don't see in the U.S. I have danced in prisons in Malawi, repeatedly, with prisoners.

Don: You mean when they're released?

Sandra: No, in the prisons. Inside the prisons. There are different dance groups in the prisons. And I have danced with some of my clients in the prison, in the view of prison officers. And I just can't imagine doing that, it would never, ever happen in the United States. People aren't really allowed to be fully human in U.S. prisons.

Don: So, was it 2014 you left Northwestern and you went to Cornell Law School?

Sandra: Mm-hmm.

Don: Is that when it happened? And you continued to work in Malawi at Cornell. Tell us how that work has gone. Were you doing the same things? I know that there had been some changes in the law in Malawi at some point in time which affected your work. Can you tell us about that transition to Cornell and what you've done since then?

Sandra: Sure. So, around the time I started working in Malawi, the Malawi High Court determined that the mandatory death penalty violated the Malawian constitution. What that meant was that everyone on death row who had received this, it's like an automatic death sentence, like I described before, without consideration of the circumstances of the crime or their personal backgrounds, was entitled to a new sentencing proceeding. But because of all of the resource constraints that I mentioned before, several years went by after this decision, it was in 2007, and everyone who'd been sentenced to death was still sitting in prison and nobody had taken those cases to court. So, starting shortly before I came to Cornell, I went to the prisons in Malawi and started to interview the prisoners who were there with my students, to talk to prosecutors, judges, and others about how it is that these cases could be brought back for re-sentencing.

We began training people in how to conduct a mitigation investigation, which had never been done before in Malawi because mitigation evidence wasn't relevant. So we had to teach people about things like intellectual disability. What is intellectual disability? How do you measure intellectual disability? In a country where no one has ever done research on intellectual disability. It's all been done in the global north, right? So we had to find a nonverbal screening test for intellectual disability that can be used on people who aren't literate. And we had to bring in experts to train people in how do you do these kinds of mental health screenings? Because of course, intellectual disability is not only a relevant mitigating factor, but in fact, it should exclude someone from the application of the death penalty under international law.

So all of this groundwork took years. And then when I came to Cornell, we had finally gotten to the point where the courts and the prosecution and the defense were trained and they were ready to start hearing these cases. And we had applied for a grant that we received that would allow for the basic expenses. So for people to drive to court, to get the prisoners there, to provide people with the lunches so they'd have something to eat. Again, all these basic things you just wouldn't think about in the states that were obstacles to them accessing justice.

And at Cornell, the first hearing started taking place. My students here at Cornell were writing these submissions to the court, seeking reduced sentences for prisoners who had been on death row for 20 years, who'd been sentenced decades earlier, sometimes for crimes they didn't commit. There were some people who we believed were factually innocent. There were others where the circumstances were so highly mitigating. Someone who killed his stepfather who'd been beating his mother. A woman who killed her husband who'd been beating her and her mother. These were the kinds of cases you would never, ever see prosecuted in this country as death penalty cases.

And we started to advocate for them, and my students wrote the legal submissions that went to the courts that presented all the mitigating evidence and sought a reduction in their sentences. Those hearings began and they happened for years. And my students were involved, really heavily involved in not only the mitigation investigations that we did, but going to the prisons and talking to the prisoners and then putting this all together so that the courts could take it into account.

The first prisoners were released in early 2015. This was my very first semester teaching at Cornell.

Don: So let me just stop you there. You said they were released. So it wasn't just a change in their sentences, but they were actually let go.

Sandra: Well, so it was a change in their sentences. What would happen is they would be resentenced to, let's say a term of years. And if they were given a 20 year sentence and they had already served 20 years, or even 15 because, we have in this country and they have there, a system where you get credit for good time and for good behavior. So they would be reduced to a term of years, and then people who had already served that sentence would be released.

And that's what happened. So a lot of people were released. The first person to be released was a woman who had been in prison for several years. And then it just started happening every month, people would be released. And we got to witness some of these releases. I took students there, we were there when clients walked out of prison, which is a rare experience for any lawyer. But we ultimately were able to get 150 former death row prisoners released. And they are back in their villages. They are living full lives. They've had children. They're working. It was really, really extraordinary.

Don: That's just amazing. I mean, 150 people who thought that they were going to die, and they've been given a new life. All of them. That's just wonderful work. And again, going back to the theme you and I both agree on, I'm not sure everybody does, that everybody can be redeemed. That nobody is the worst thing that they've done in their life. You can't reduce somebody to that. And presumably maybe some of these people weren't guilty of the crimes at all. But your job was really to get the sentences changed and they were released that way.

Sandra: That's right. And I think the other thing that's worth pointing out is that this was a real innovation in Malawi that I learned from. I didn't come up with this idea. The paralegals came up with this idea, the Malawian paralegals. In every single case where someone was released, we went to the village. And I say we. I only went to a couple of villages. The paralegals went to every single village.

Some of these villages were so far away from main roads. They would travel for a day to get to these villages, and they would explain to the villagers what was happening in these cases. They would explain that they were going back to court. They would speak to the victim's family members. They would speak to the village, to the traditional leaders, the village chiefs, to say, we're going to court. This is why. This is what we're trying to do. There's a possibility that this person would be coming back to live in your community. Would that be acceptable to you?

And they got feedback from the villagers about how they felt about that. Nine times out of ten, the village said, this was very difficult for us, but it was not only difficult that a life was lost. It was difficult for us to lose a community member, to lose a husband, to lose a father, because most of them, of course, were men. But what we were really struck by was people's willingness to forgive. And if not to forgive, to understand that people could change.

And the fabric of village life in Malawi is such that, when you lose an able-bodied adult, you lose somebody who's able to help rebuild a school. Who's able to dig a grave. Who's able to repair a road. Because all of these things, they don't get done by the state. Villagers have to do it themselves. So they mourned the loss not only of the victim of the crime, but of the person who was condemned to die. And in many cases, until we went to the village, they didn't even know that the prisoner was still alive.

Don: I'm going to ask you a question the answer to which might be very obvious, but maybe not. What do the students get out of this work? I'm sure many of them get a lot of personal satisfaction, but I'm sure there's more to it than that too.

Sandra: Yeah. I think it blows their mind. I think it really blows their mind when they go to Malawi and they recognize not only that, I think the first impression is just of overwhelming poverty, right? The poverty and deprivation, which is overwhelming if you've never been exposed to it before.

But I think the second thing that they recognize is that they have the power to effect change in a country that is halfway around the world, where there are immense cultural differences. And yet they see that because they have certain talents, because they have resources behind them from Cornell University, they have access to legal databases, they have legal training, they have access to copy machines and filing cabinets and Westlaw, that they have something that is really valuable. And that by using those skills, and by using the skills that we teach them in the clinic, which is about how do you listen to someone? How do you engage in active listening? How do you listen empathetically? And going into prisons and listening to people tell their stories to someone for the very, very first time.

And the very first person who is hearing the story of a Malawian prisoner is an American law student from Ithaca. There's something that is very powerful about that experience. Because I think that most students in law school don't see how they can, it's really hard for them to grasp how they can make a difference in someone's life as a lawyer. Not as an individual, but as a lawyer. And this teaches that. You know, if you can do it in Malawi, you can do it in your neighborhood.

Don: It teaches it in a very dramatic way. I mean, it's an enormous difference, it's the difference between life and death. And if you can do that, then there are other ways you can make a difference in other people's lives too. Anything is possible, I guess, is part of what they learn. And they develop the skills that translate into all types of legal work. You mentioned listening. I think listening is just such an important skill for any lawyer to have, but particularly litigators, people who are doing either civil or criminal litigation. So that's just wonderful.

Now, you've been doing it long enough that you've seen some of your students go off into their careers. Are any of them continuing to do this kind of work after they graduate?

Sandra: They are. Some of them as pro bono lawyers at firms. But some of them have gone on to be public defenders, and others are doing death penalty defense work. Others are doing human rights work in different countries around the world and in the United States. And I stay in touch with them. Not every single one, but I stay in touch with a lot of them and I update them on the cases. When we have news, I have a Malawi newsletter, I send everybody updates and keep them informed.

My first students that I had as a young law professor must be close to 40 years old now, which is hard to fathom. But I think the other thing that the Malawi work teaches them is that, because all of the students who are on the Malawi project, I have two students who are on the Malawi project now, whom I took to Malawi in November, they know that they're the latest generation of students that have been going to Malawi for 15 years. And it also helps them to see that you can have incredible results. You can effect change, but change takes time. It takes an investment of time and humility and a willingness to learn and to work within a different system and to bring people along.

And all of that just takes years. We've been in Malawi 15 years now, and they are, it looks like, on the brink of abolishing the death penalty. Fifteen years is a blink of an eye. Right? But for students it's an unimaginably long time. And it teaches them that, you just do this patient, deliberate work, and you keep going back and you build the relationships and you keep plugging away and you can get things done.

And sometimes you have immediate results. Like the first trip we went, we got 12 people out of prison. That's pretty extraordinary. But the long term, the more enduring transformation of a legal culture, training a generation of lawyers to do things differently, the importance of visiting a client in prison. A really basic thing.

When we first started going to Malawi, we would go into the prison and we'd have to sit on the floor because they wouldn't give our clients chairs. And it used to be that when lawyers went into the prisons, and paralegals too, they would sit on a chair and the client would sit on the floor. And so you would be in this position of superiority to the client. So I told the students, no, we're not gonna do that. If the prison doesn't give them chairs, everybody sits on the floor.

So we went in. Nobody wanted to do it. Nobody wanted to do this. Right? The paralegals said, we're not going to do it. We're wearing nice suits. We don't want to sit on the floor. The lawyers certainly didn't want to do it. But they humored me, and we went into the prison. Everybody sat on the floor. And it was so upsetting for the prison staff to see these lawyers and everybody sitting on the floor that they gave chairs to everybody. And now everyone gets chairs every time. It's not questioned. And that's just a tiny little example, but it's recognizing the humanity of the people who are in prison.

So that, to me alone, just for the students to be able to see that. Just by asking for something and going back and, okay, you're not going to give me a chair, then I'm sitting on the floor. It's almost like passive resistance. Right?

Don: It sounds a lot like it. Yeah. But the outcome was great.

So you've been doing and you're still doing the work in Malawi. Now, I understand you've also expanded some of that work to Tanzania. What are you doing there?

Sandra: So in Tanzania we're doing much of the same. We've shifted recently. The Cornell Center on the Death Penalty Worldwide has become a real leader in looking at gender bias in the application of the death penalty. And that's something I'm very passionate about. So the people that we are now representing in Tanzania, many of them are women. Many of them have been subjected to violence by intimate partners, family members, and are in prison because of their responses to that violence. So we are working with local partners in those countries.

We're also doing a lot of work before the African Court on Human and People's Rights to try to obtain jurisprudence that is going to hopefully bring African countries closer to abolishing the death penalty and protect more and more people from execution. So we are bringing, and the students are very involved in bringing, these cases to the African court.

So we're doing a lot of the same work, but it's slightly different because it's a new country, it's a different context, but it's still very, very challenging and very satisfying.

Don: Now, while you're doing all of this really important work in Africa, and your students also, you're part of a larger group of professors at Cornell. And the others as I understand it are doing the same kind of work or very similar work domestically in the United States. And Cornell is known, I think, not only for the Death Penalty Project Worldwide, but for the death penalty project that's run at Cornell by such professors as John Blume and Sheri Lynn Johnson and Keir Weyble, all of whom I know are just phenomenal professors and also people who have argued important cases and worked with the help of students and others to get people in the United States off of death row.

I actually heard Sheri Lynn Johnson speak at a program that Cornell had last week in New York City, and I was reminded that she had won the case in the Supreme Court just a few years ago, Flowers v. Mississippi, which, I won't go into all the details, but it involved a black man who was accused of murder, tried repeatedly, and found guilty. But the appellate court in Mississippi, I think more than once, reversed the conviction because the prosecutor had been challenging the black jurors who were being impaneled and getting them excluded, or at least many of them excluded, from sitting on the trial. So there was a racial discrimination, racial bias factor that the state courts had found compelling. But ultimately, in the last conviction, it went all the way up to the Supreme Court.

Sandra: He's out. They did get him out.

Don: Yeah. Sherry Lynn Johnson won that case in a conservative Supreme Court, based on the racial bias of and the actions of the prosecutor in excluding jurors. So just amazing work.

And I know John Blume does, Professor Blume, who I don't even think I've ever met, he doesn't know who I am, I'm sure. But he has quite a reputation nationally and perhaps internationally in the work he's done in the United States.

So you're part of this larger death penalty program at Cornell. Can you talk a little bit about how all of you work together, how you collaborate. I know you've won some awards together, some very prestigious awards. You also won a very prestigious award yourself from the American Bar Association a few years ago. But tell me a little bit about that culture among at least the four of you. And there's probably more that I'm leaving out.

Sandra: Well, I feel very lucky to work with Professors Blume and Johnson and Weyble. They really are some of the most highly respected capital litigators and scholars in the country. You know, they've got it all. They're brilliant. They're incredible litigators, really humane people, just decent, wonderful human beings. And what you say is true. I think Cornell has the strongest faculty who has made the deepest impact on the way that the death penalty is applied and restricting the way the death penalty is applied in this country, of any law faculty in the country. There are lots of good people and law faculties around the country, but the concentration that we have at Cornell is pretty remarkable.

Don: And I've kind of glossed over the fact that you all teach in the classroom too. So there is a more scholarly side of this that we haven't talked about. But this has been really fascinating, Sandra, and I really appreciate your spending the time on this.

Where could people go to learn more? I know there are some things that are up on the Cornell Law School website.

Sandra: Well, the first place is the Cornell Center on the Death Penalty Worldwide, which is deathpenaltyworldwide.org. And we are always looking for and can use donations, especially to help us pay the expenses of lawyers in Tanzania and Malawi. We don't have a budget for that. We don't get a budget from the law school for that. But as I said, the needs are so great, and the costs are so little compared to what we would pay here for lawyers. But we need to get people lawyers. And we need psychologists to go to the prison and do these assessments. So any donation really helps. And at our website you can find information on how to donate.

Don: Great. Well, thank you very much. This has been fascinating, and again, I really appreciate you taking the time to do this. So thank you and keep up the good work. I know you will.

Sandra: Thank you Don. Thank you so much. I really appreciate your interest and look forward to hearing it when it runs.

Don: Great. Take care.

Sandra: Take care. Bye.