An Extended Interview with Jim Moreno
Joyce Hinnefeld: How does your work as a death row defense lawyer connect with your life as a Quaker?
Jim Moreno: While I was in law school, I started attending Hanover Meeting in Hanover, N.H. Around that same time, I met Sarah [Sarah Nicklin, Jim’s future wife], who was a medical student at Dartmouth, and we started dating. She was a Quaker, and we started going to Hanover Meeting together.
I was pretty—and I remain pretty—cynical about lots of religions. But Quakerism did speak to me. And it probably spoke to me because of what I perceived, in the beginning of my experience, as an acceptance of differing viewpoints about spirituality. It struck me that at Hanover Meeting, while there may have been members who were Christ- or Christian-centric, there wasn’t a push on that like I’d felt in the Methodist church I grew up in. And I appreciated that. It allowed for individual exploration, and difference of opinions.
As time went on and I learned more about Quaker principles and the Quaker testimonies, there was a lot about it all that really did speak to me. One of the things that spoke to me most powerfully was the Quakers’ recognition of that of God in everyone. That really appeals to me, and it has been sort of a guiding principle for me, emotionally and spiritually, in my work.
It’s also been the source of great contradiction in my work. Because while I can look at my clients—who have done, you know, some pretty bad stuff—and see the Light of God in them, I’m aware that the people who are on the other side, the prosecutors, also think they’re doing the work of God in representing the victims. I sometimes find myself struggling really, really hard to see the Light of God in them, in the prosecutors.
I mean, it’s a real contradiction. I do find, as I’ve gotten older, that there’s a part of me that can do this more easily than I could years ago, when I think my anger, and really my self-righteousness, got in the way. Because when I do get to know some of these other folks, some of the prosecutors, they’re not bad people. They just have a differing opinion than I do about the death penalty and about what constitutes justice.
JH: I was fascinated by our discussion of McClesky v. Kemp (the case that brought in data-driven evidence that racial considerations enter into capital sentencing), and Justice William Brennan’s writing in his dissent that the Supreme Court was afraid of “too much justice.” This makes it seem as if the highest U.S. court has decided that when it comes to our criminal justice system, we simply don’t want to have to revisit the past.
JM: Right. And you know, I thought before Trump’s election in 2016 that we were one justice away from being able to get rid of McCleskey, and of the death penalty. Because the court has steadfastly refused to revisit McCleskey. And now there is no chance—none—that they’re going to revisit that case. I mean none.
So that decision has made it virtually impossible to argue that there is racial discrimination in death penalty cases. That’s why North Carolina passed what’s called the Racial Justice Act, and there’ve been statutes like that one proposed all over the country, though not many have actually been passed. North Carolina’s Racial Justice Act says that the courts can accept statistical analyses to show discriminatory intent and that you no longer need to show purposeful discriminatory intent about the actors in your individual case. As a result, all these death sentences in North Carolina got totally kicked out.
But then the state legislature changed, and there was a new governor, and they rescinded the Racial Justice Act. They tried to undo what the courts had already done. But in June 2020 the North Carolina Supreme Court restored the full protections of the Racial Justice Act for people who filed claims before the law was repealed in 2013. At this point it’s going to take legislation like that. Something similar has been proposed in Pennsylvania. But it’s not likely to pass, given the current legislature. legislators are almost trying to outdo each other in who can be the most regressive.
JH: Quakers, like many people throughout the world, are having powerful moments of reckoning now—about slavery, about solitary confinement and our role in the creation of the modern prison. How do we counter the idea of “too much justice,” the idea that we can’t undo the mistakes of the past? Is it a matter of greater engagement at the state level, working for legislation there, and being more vigilant about the appointment of judges?
JM: Well, the appointment of judges has been an issue for me in elections for what feels like most of my adult life. But with the death penalty it’s mostly about the Supreme Court. When he was coming in, we all knew Trump was going to have two or three appointments.
I feel almost despondent right now about my role as an advocate and my ability to actually effect change through the law—more so than I have in the past. Often this work is like banging your head against the wall. Because the law is designed to make it very difficult to appeal successfully, even if you’re innocent. Once you’ve been convicted, the law is really stacked against you. That’s not really just—and I’m not just saying that as a biased capital defense lawyer. It’s just how the law is written. It’s very, very difficult, even if you’re innocent sometimes, to get your facts heard.
I think, to answer your question, engagement—local engagement—and legislation are going to be the ways we change this. I mean, the Biden administration can work to protect the Voting Rights Act. They can also fix the death penalty on the federal level, and I don’t even mean just by abolishing it. They can change the statute that makes it almost impossible for federal judges to effectively ensure that constitutional violations in capital cases are corrected.
Because the way the law is written right now, a federal judge’s ability to overturn a state death sentence is incredibly restricted. There are only these narrow exceptions that allow a federal court to review state death sentences, and these limits on federal judges were put in place under the Clinton administration, through something called the Antiterrorism Effective Death Penalty Act, or AEDPA. That law went into effect in 1996, and it has been a disaster. The only way to get around that now is to legislate.
We can legislate our way out of the McCleskey v. Kemp dilemma. We can do it on the state level. You know, the beauty about the state level is that, even if the U.S. Supreme Court is stacked with people who aren’t going to recognize these rights and aren’t going to overrule McCleskey v. Kemp, state legislatures have the authority to do so under state law, and that can’t be reversed by the U.S. Supreme Court because of federalism. The state can provide greater protections for its citizens through the state constitution than is provided through the federal constitution. So state elections are really important, because you can do a lot on a state level that can reduce the dependence on being successful at the federal level.
JH: I know the rash of executions that happened in the waning months of the Trump administration, combined with the restrictions of the COVID pandemic, made 2020 a particularly difficult year for you. Are you willing to speak about that?
JM: From July 2020 until January 2021, 13 men and one woman were executed. And yes, it was pretty depressing.
What made it hard was that my colleagues and I had to do everything over Zoom. Normally, when we have situations where our clients are facing an active death warrant, and we’re litigating, we’ll all gather together in the office, and that camaraderie is a big part of the coping. Even the people who aren’t on the particular legal team—when an execution is upon us, the team grows by leaps and bounds. We have teams of people on the ground doing investigations and all of that, and then we have people who are doing legal writing.
During that time period 14 different courts issued stays in these cases. These were not stays saying you can’t execute these people. Basically they were saying, these are substantial issues, serious issues that require evidentiary development. So before we say you can execute these people, we need to litigate and decide these issues on the merits, and with enough time to do so. So they granted stays in order to have evidentiary hearings, which is perfectly judicious. It’s what a reasoned factfinder who’s being asked to make a life and death decision should do. And in every one of those instances, the U.S. Supreme Court shot the stay down. They didn’t even write opinions.
In two of the cases—and one of these was a man my office represented—these were people who were intellectually disabled. One man had an IQ of 68. The other had an IQ in the range of 68, 69. Under well-established constitutional principles and case law, you’re not allowed to execute people with intellectual disabilities who have an IQ of 70 to 75 or below and who also have adaptive deficits in two separate domains. These men qualified in both instances. Lower courts granted stays so that they could consider that evidence to decide whether or not it would be unconstitutional under the Eighth Amendment to execute them. In both cases, the U.S. Supreme Court pulled it. In both cases, they didn’t say why.
There was another man who had dementia. And Lisa Montgomery, the woman who was executed, was profoundly mentally ill. She had bipolar disorder, separate from hallucinations, and she had one of the worst upbringings and backgrounds of abuse that I’d ever seen.
Are you familiar with the movie based on Bryan Stevenson’s book Just Mercy? One of the guys in that movie says, “I thought it would be okay because I got the truth.” And that stuck with me. Because with these executions, even though we had the truth, it wasn’t a shield. Anybody who’s been in the criminal justice system for any length of time will tell you that, you know, you think you’re cool if you have the truth—that all you have to do is present the truth, and you’re going to be okay. But sometimes the truth doesn’t matter.
That seems like an oxymoron, particularly to Quakers, right? We’re trying to follow the light of God and see the light of God in everyone, and to be truthful and behave with integrity in our daily lives—which means struggling with these issues of, well, I can see the light of God in you but, damn, not you.
JH: Yes. That’s where integrity comes in, owning your own inability, your own struggles with seeing that light.
JM: Right. And I think that to not have the truth actually be a shield, or even matter, is really, really demoralizing.I think this is where we have to legislate, and why there is a lot of legislative work going on now. We’re talking about making the criminal justice system more equitable.
For instance, Delaware is considering legislation right now to require videotaping of interrogations. That just makes perfect sense. I’ve been involved in a number of cases where confessions haven’t been videotaped, and those confessions have been totally inconsistent with the physical evidence, with eyewitness statements. Yet they get admitted, and then people get convicted, and they spend a long time in jail.
And sometimes people never get out. The former death row inmate in Delaware that I defended, Jermaine Marlow Wright: his was a false confession. Everything that he told the police was factually incorrect, but it didn’t matter. So now there’s legislation in Delaware calling for confessions to be videotaped.
Illinois just passed legislation—and it’s amazing to me that they actually have to legislate against this—prohibiting the police from lying to juveniles during interrogations. Because did you know that the police can actually look you in the face and lie to you about the evidence they have? They can lie through their teeth. So Illinois is trying to at least preclude adults from lying to children when they’re interrogating them about crimes.
So there are a lot of things that can be done on the legislative level to take these issues out of the hands of the courts and the actors who have stakes in the matter. I think that would definitely be a good thing.
JH: I think this point about truth, about regaining respect for truth and integrity as one of the Quaker testimonies, also becomes a valuable way to think about the work that you do in spiritual terms.
JM: I was looking at Philadelphia Yearly Meeting’s Faith and Practice, and I came across a line that spoke to me: “When we encounter people whose views profoundly differ from our own, we can also manifest that love by affirming the sincerity with which they hold those views, while forthrightly expressing our own conviction.” That’s so much of what it seems like, on a societal level, we haven’t been able to do.
Friends talk about how integrity, courage, and respect for others, along with careful attention to different points of view, can bring about a just community. That speaks to me, though I do recognize that within my own head it’s easier said than done. But I really do think that integrity and respect are important in trying to come to solutions to these problems.
JH: I also wonder about ways to counter the notion of punishment at all costs—that is, the extreme punitiveness of our criminal justice system. There seems to be a need for such a simplified sense of right and wrong—and, if wrong, deserving of every kind of punishment and ill treatment.
JM: And the degree to which prosecutors, and others, dehumanize people who are convicted of crimes. I don’t know if that’s done to make it easier on themselves—again to the point you’re making about this need to punish, punish, punish.
One of the terrible stories that Jermaine Marlow Wright, who is home now, tells is that after executions in Delaware, the prisoners had a window they could look out of, into this courtyard where the guards would be smoking celebratory cigars. This was in plain view of the people whom they would then need to guard and feed and take out to recreation.
JH: So there’s a cultivation of this extreme punitiveness, and also dehumanization, on the part of the prison staff too—a definite us versus them attitude.
JM: Yes. Though not for everybody. A few years ago, in 2017, the state of Arkansas had this supply of lethal injection drugs that they thought were expiring. So they scheduled eight executions in ten days. The dates were set in February, and we got involved in March. I went down to Arkansas to work on a couple of those cases. And a lot of the guards that I talked to at the prison were horrified. So it’s not everyone. It’s not everyone. There were some guards who were genuinely upset about what was happening.
JH: In corresponding with people in Muncy State Correctional Institution in Pennsylvania, I’ve been astounded by the spiritual grounding of a number of these women, many of whom are serving life sentences. They have come to terms with the crimes they committed, with the reality of their situation. They are hopeful. They still hope that they’ll get out of prison one day. I always feel like these women could be such amazing spiritual teachers and community models, given the right structure and the right situation. They have rehabilitated. They have acknowledged their crimes. They see it all very, very clearly. And it’s our limitations that make us unable or unwilling to recognize and acknowledge this change.
JM: Ken Williams, one of the men who was executed in Arkansas, described feeling as a kid like he was invisible. I think that’s what a lot of these women have experienced. I represented a woman who’s at Muncy now who was on Pennsylvania’s death row. She’s not on death row anymore; she’s doing life. And I think that was her story. Like many people, she had suffered extraordinary abuse. She had a grandfather who would let his friends sexually abuse her when she was a kid. I mean, it was just all these horrible things that people endure. It does shape behavior and who they are.
But they all can change, and many of them do. We see that time and time again. The power of redemption, it’s just—I don’t think it can be overestimated. Everyone wants to be forgiven for the stuff they do. But when it’s someone else or when the acts that have been done are horrible—we struggle with this. Helen Prejean has a saying that’s bandied around a lot, but it’s true: there’s more to a person than the worst thing they’ve ever done.