Jessica Blank and Erik Jensen are not your average struggling actors, first-time playwrights, married couple, or just about anything else. These talented activists and artists are the force behind the anti-death penalty play The Exonerated, and have recently authored a behind-the-scenes peek into their creative process and political awakening entitled Living Justice: Love, Freedom and the Making of The Exonerated (Atria, February 2005). The play was culled from their interviews with over 40 exonerated death row inmates, stemming from a symposium they attended on the death penalty at Columbia University, which sparked their interest and gave them a vision for the play they wanted to create.
From there, they traveled the country conducted interviews, learning about the judicial and penal system, and ultimately writing and staging a play with actors such as Gabriel Byrne, Kristin Davis, Richard Dreyfuss, Mia Farrow, Sara Gilbert, Lyle Lovett, Debra Winger and support from the likes of Tim Robbins and Susan Sarandon, at New York's 45 Bleecker Theater, as well as across the country. The play's political reach was wide as well: it's been performed at the United Nations and in front of the likes of Janet Reno, Supreme Court Justice David Souter, Senator Patrick Leahy, and members of the Justice Department. One of the most gripping moments in the book details a performance given in Chicago as then-Governor Ryan was deciding whether to exonerate people being held on death row in Illinois. The Exonerated also garnered Blank and Jensen numerous awards, including the 2003 Lucille Lortel Award, the Outer Critics Circle Award for Outstanding Off-Broadway Play, and a Drama Desk Award.
Living Justice is a moving story, outlining their struggles, triumphs and the day-to-day tasks involved in the creation of a production that became much larger than either had envisioned. And while the topic has far-reaching implications, Blank's and Jensen's is also an eminently New York story, chronicling their East Village digs, local theater community, reactions to 9/11, and experiences as New Yorkers meeting with people from vastly different backgrounds and forging profound connections that wind up cutting across race, class, and geography, while never forgetting the impact of these differences. Blank and Jensen have managed to personalize a politically divisive, often volatile issue, imbuing it with the very moving voices of real people, and by sharing their own bumpy path to playwrighting in Living Justice, they offer an intimate portrait of the countless decisions and compromises that go into such an undertaking. Here, Blank and Jensen describe their challenges and triumphs, the roles of fate and religion in their journey, and their definition of activism, while highlighting their findings about the problems with current death penalty procedures, especially the role of wrongful convictions.
The play was very successful during its run at 45 Bleecker and told these peoples' stories in a unique, compelling way. What prompted you to chronicle the rest of your journey in Living Justice?
Our job as playwrights was to tell the stories of the exonerated people as purely and simply as we could; we felt strongly that their journeys are so compelling that inserting our own journey into the narrative of the play would have weakened its power as a piece of theater. We tried hard to avoid describing our own political ideas in the play, for example, or talking about our own experiences learning about the criminal justice system, because we felt that it was so important that the exonerated people's powerful stories speak for themselves.
However, once the play was up and running Off-Broadway and we had a chance to step back and look at what had unfolded over the preceding few years, we realized that both our lives had changed enormously through the process of creating the play--the experiences that we had on the road, traveling across the country and interviewing the exonerated people had transformed our thinking about our justice system, our country and our world. The people we met changed our lives profoundly and their stories blew our minds. We thought that readers might be interested in our journey: how a couple of young New York actors who'd been dating for a month and had no previous contact with the legal system threw our dog in the back of a rental car, went on the road, crisscrossed the country meeting former death row inmates with the most extraordinary stories we'd ever heard--and came out the other side married actor/playwrights with an entirely new take on the American criminal justice system, and on how incredibly resilient the human spirit can be.
You write that you chose to focus on those who’d been exonerated as one of the most extreme examples of things that can go wrong with the death penalty. How does the issue of the wrongly convicted fit into the larger issue of the death penalty?
Wrongful conviction is an epidemic in America, and is as much of a problem in cases that don't involve capital punishment as it is in those that do; cases in which individuals are sentenced to 25 years, or 50 years, or life, for crimes they didn't commit are also extraordinarily tragic and frighteningly common. The death penalty puts the issue in stark relief, however, because capital punishment is irreversible. In a non-capital case, while authorities can never give an innocent person back the years that were stolen from him, at least the sentence can be reversed at any point. Once an execution happens, it cannot be reversed.
Our criminal justice system is fraught with error. There are many systemic causes of wrongful conviction, many of which have potential solutions. Many of these causes and potential solutions have been identified, and with the right legislation, the risk of wrongful conviction could be significantly lessened. But people will always make mistakes. We can build safeguards into the system to help prevent wrongful conviction, and it is morally imperative that we do so--but we can never build safeguards strong enough to completely remove the risk of human error. When an idividual's life is in the balance, even one potential mistake is too many.
What was the experience of writing the book together, in the second person plural, like? It’s rare to see a jointly coauthored book telling such a personal story. Was it a challenge to incorporate both of your sometimes differing viewpoints?
Sometimes, but we're married, so we're used to compromise! And our experience of creating "The Exonerated" was such a shared one that it wasn't too hard to reconcile our viewpoints. The first person plural voice that's in the book is really a combination of both our voices, a melding together of our perspectives and sensibilities. Which we thought was appropriate, given that the experience really was ours.
What was the most surprising thing you learned, about both yourselves and the legal system, in making this play?
There were tons of surprises along the way. One of the things that surprised us most was the tone of the stories we heard. When we first started out, we expected lots of tragedy--injustice, rage, depression, loss. We certainly found some of these things--you don't spend years on death row for a crime you didn't commit without some anger and loss. But you also don't survive an experience like that without finding something much larger to tap in to. As Delbert Tibbs, one of the exonerated people we met, told us, "I realized if I internalized all the pain, and all the anger, and all the hurt, I'd be dead already." It takes so much tenacity and work to even get someone on the outside to listen to you (let alone take on your case, fight it and win) that people who fall into despair and stay there--no matter how innocent they are--simply don't make it out. So all the people we met had found something inside themselves that helped them to survive, whether that was religion, a sense of personal spirituality, a connection to their community on the outside, simple hope, or humor. Humor is one of the most incredible survival tools we have as human beings, and we were amazed to find that many of the exonerated folks we met made us laugh a lot!
There were also lots and lots of surprises about the American criminal justice system and how it works. For example, in a capital case the state often gets upwards of $500,000 to investigate and try a case--sometimes into the millions--while a public defender is lucky to get $15,000. And that money doesn't just go to pay the lawyers-it goes to reinvestigate witnesses, dig up evidence, hire expert witnesses to explain complex forensic testimony to the jury, etc. So what that imbalance means is that often, there is an enormous amount of evidence that the jury simply doesn't hear until the appeals stage--and that's only if a defendant is lucky enough to find a good attorney who will champion their case pro bono. We heard all kinds of stories of jurors saying that they would never have convicted these individuals if they had had all the evidence that later came to light. And many times, the reason that evidence did not come to light in the beginning was because of this massive discrepancy in resources.
There were many, many more surprises for us having to do with the criminal justice system as well--our learning curve was sharp--which we examine in more detail in the book.
You talk about it in the book, but for our readers, can you summarize some of your findings as to the commonalities between your interview subjects?
The people we met were from all walks of life. Different races, different genders, different educational backgrounds, different religions, different histories. Some of them were from small towns and some of them were from big cities. Some of them hadn't made it past junior high and others had graduate degrees. Some had never even gotten a speeding ticket and others had minor criminal records (though none of them, upon arrest in these cases, had records involving crimes even approaching the seriousness of capital murder). The one thing every single person had in common was that none of them had the money to hire an attorney who could match the resources of the prosecution.
You talk about synchronicity and the many people and events that lined up which allowed you to complete your work on the play, from interviews and connections to grant money, and write about almost giving up were it not for these forces. “Once we accepted that something bigger than us was helping the play along, it helped us along, too,” you write in Living Justice. Do you believe there was some greater spiritual power at work, or what do you think this force was? Do you believe in fate?
Hmm...that's a big one. Yes, it has always felt to us, at the risk of sounding cheesy, like something bigger than us was writing this play. It felt very much like this project wanted to happen; like whatever force it was that wanted it to happen sort of grabbed us by the scruff of our necks and said, "Okay, you do it." There's no other way to explain the various synchronicities that occurred during the course of our work on the play---some of them are just too weird to be the result of simple hard work or luck. When we started work on this project, we really thought we would be doing this play in some tiny 99-seat theater downtown for a week with some of our actor friends. We had no idea what it would become. And it's been a pretty incredible experience for us to watch this play take on the life it has in the world, not just the movie stars and having a successful run Off-Broadway and on tour and that kind of stuff, but watching the play be performed for audiences of exonerated death row inmates and Attorneys General and Supreme Court Justices--and in front of Governor Ryan of Illinois as he was deciding whether to commute the sentences of nearly 200 Illinois death row inmates (which is a story we tell in the book).
Is your ideal reader someone who is either pro-death penalty or on the fence about it? Who, whether a single person or a group, would you love to have read your book?
Anyone who is interested in fairness and justice and what's really happening in America should read the book; anyone who thinks, like we did when we started this, that one or two people can't make *that* much of a difference (but secretly hopes they can) should read the book; anyone who is curious about our country and our justice system; anyone who's curious about what it takes to get a play up and running in New York; anyone who likes 'on-the-road' stories; anyone who wants to know what it's like to fall in love while working 80-hour weeks on a project about the death penalty; students; actors; lawyers; writers; politicians; teachers; regular people. And we especially want to reach people who are yes, on the fence about the death penalty (or in favor of it); who may think that the criminal justice system doesn't affect them because they haven't violated the law; who believe that it's safe to trust the authorities just to do their job; who think that if they vote, that's sufficient civic engagement; who think that things like this only happen to "other people," out there in some other place, and who don't realize how intertwined our fates all are in this country and this world. And also people who just want to read a good story!
There’s a lot woven into the book about each of your approaches to activism and how that intersects with your daily life and your art, from your vegetarianism to playwrighting. To a large degree, the common image of the “activist” is of someone standing outside holding a placard and screaming, even though clearly there are countless ways to be an activist. What does being an activist mean to you?
Being "activists," to us, means being engaged: having a sense that we are connected to people on a larger scale than just our personal lives, understanding that we affect and are affected by the larger world we live in, and participating actively in our relationship with that larger world. It doesn't necessarily mean being a professional organizer, or coordinating marches, or working for a nonprofit (though all of these are important kinds of activists). It certainly doesn't mean standing on a corner with a placard and yelling, and while there might be some uses for that kind of activism, we generally feel that the placard-and-yelling thing doesn't do much to reach anyone who doesn't already agree with you, and all that energy is really better spent elsewhere. We're a lot less interested in telling people what to think than we are in raising questions. We think conversations that come from questions are a lot more fun and a lot more fruitful than conversations that come from people preaching at each other. We're artists and storytellers, and to us being "activists" means using that work to engage with the world, to start conversations, to ask questions about what kind of world we live in and what kind of world we want.
Along the same lines, at the end of the book you talk about Illinois's then-Governor Ryan inviting you to stage the play and be part of his decision-making process regarding prisoners on death row (he wound up commuting all their sentences), which seemed to elevate the play from political theater to a higher level of political involvement. Have you done further work, whether through the play or other means, on this issue in the subsequent years?
Although we certainly didn't expect this when we started out, we're now connected to this issue for the rest of our lives. We do lots of other writing/directing/acting/producing projects about lots of other things, and this is probably the last major artwork we'll do about the criminal justice system for a while, but we will always be connected to this issue. The people we met affected us too profoundly, and we now have too much information about the flaws in the justice system and how those flaws affect real people's lives, to just move on to the next thing.
You write about going back to visit some of the exonerated people whose stories you told in the play. Are you still in touch with them, and how are they doing? What, in your estimation, has been the impact of the play on their lives?
We're in touch to varying degrees and in varying ways with all the exonerated folks whose stories appear in the play. They all have their own stories and their own lives; some are thriving, some are struggling, and most are somewhere in between. The play has raised over half a million dollars for the people whose stories appear in the play, and most exonerated people are given no compensation upon their release, so that's made a difference for them as well.
Court TV recently aired a film version of The Exonerated. How do you feel about that production? Aside from reaching a wider audience, do you feel the television version did justice to your vision for the play?
Bob Balaban, who also directed the play Off-Broadway at the 45 Bleecker Theater, directed the film, and we think he did a fantastic job translating the play to film. We were really, really happy with it (and it was fun acting in it as well!).
I found the coping mechanisms of some of the exonerated people, from religion to legal research to interaction with other inmates, fascinating. Are there certain qualities of inner strength that these people possessed that you think helped further their release?
This is discussed above to a large extent--but yes, we found that all the exonerated folks we met found something larger to tap into that helped them to survive. Some people may have had these strengths going in, but probably the vast majority developed them in prison, because they had to. We learned an enormous amount from the exonerated folks about what strength and endurance people can develop when they have to.
You focus on several groups who are disproportionately affected by the death penalty. One of those groups is the mentally retarded, whose plight you single out as especially unfair. Can you talk about some of the specific issues that cropped up both in your interviews and research with the mentally retarded and their treatment in capital cases?
We conducted one interview with someone who could have been mentally retarded. We don't know his IQ, but it was clear that he had trouble articulating many of the details of his case. This was one of the most heartbreaking stories we encountered. The Supreme Court recently outlawed the execution of the mentally retarded, for good reason: they are among the most vulnerable among us, and when they get caught up in the criminal justice system the results can be tragic. Studies have shown that the mentally retarded are far more vulnerable to giving false confessions than any other group except young children. They often do not understand the facts of their own cases, and do not know to ask for an attorney or take other steps to preserve their rights. Often (such as in the case that we encountered) they are fingered by other suspects seeking to diffuse blame, and are nearly helpless to defend themselves. For these and many other reasons, they are among the groups most vulnerable to wrongful conviction.
Another factor you discuss at length is race, and state that black people make up 42% of the death row population, but only 12% of the U.S. population, while also covering peremptory exemptions for jurors based on race (ruled illegal by the Supreme Court) and other ways race gets played out in death penalty cases. Do you have any suggestions as to how race can be treated more fairly within the system, or is the racism of the legal process simply a byproduct the racism in many of these small, often Southern, towns?
We saw nearly as much racism in large cosmopolitan cities and in suburbs as we did in small, rural towns. Racism is a human problem, and an American problem, and is unfortunately not confined by geography or culture. Legal safeguards might help guard against the most egregious examples of racism in the criminal justice system, and we should work to identify and enact these safeguards. But unfortunately, the problem is not a simple one to fix. Racism is not only personal, it's institutionalized--in 1999, according to Amnesty International, "of the 1,838 District Attorneys in the USA. . .a mere 44 were non-white." In the vast majority of jurisdictions, the District Attorney makes the decision about whether to seek the death penalty in each case. So getting rid of racism in the justice system means identifying and dismantling institutionalized racism wherever it manifest--not an easy task. And even if this monumental problem were to be solved, the fact remains that the system is populated by individual human beings--some upstanding, egalitarian and fair, and others personally biased or racist. Many different kinds of people rise to the top in the DA's office and in the police force--as they do in any profession. Unfortunately, as long as human beings are capable of being flawed or biased, racism will continue to be a problem in the criminal justice system. This is why we feel it is wise to be extremely cautious when meting out punishments, to have checks and balances on all our authorities, and to have many, many safeguards in place to protect the innocent.
You write about the culture shock of traveling largely in the South and being treated almost as foreigners since you’re from New York. Did that reaffirm your identity as New Yorkers?
It did--and it reminded us what a big country this is! New York is so big, and so busy, and so diverse, that it's easy to forget that the country outside the boroughs can be quite different. All the many parts of the United States are quite different from each other, and it was a great educational experience to get out of our little corner of the country for a while. And it was really, really nice to get home.
One of the most interesting personal observations was your treatment in small towns across the country post 9/11, as opposed to prior to that date. You write about how the rest of the country seemed to glom onto New Yorkers' grief, in the same areas that had previously been hostile and standoffish. Several years on, how do you see 9/11 having impacted the rest of the country's view of New York?
Unfortunately, it seems that the very real sense of connection with New York that much of the country felt immediately following 9/11 has faded in the ensuing years, and that in the national discourse the city has become more of a political symbol than a human reality. Nowhere did we feel this more acutely than during the Republican National Convention in New York this summer. At one point, Jessica got into a conversation on the street with a delegate from Florida, who--while wearing an NYC t-shirt and baseball cap in the middle of Times Square--informed her that the only good thing to ever come out of New York City was Giuliani, who "cleaned this filthy place up"--and then proceeded inside to the convention, where iconography of the city and the falling towers was put to use campaigning for a presidential candidate. This sort of cynical, symbolic use of the city's tragedy for political ends unfortunately seems emblematic of much of the country's relationship to New York this long after 9/11. And it's unfortunate, because in the months after 9/11 there was a real, tangible sense of understanding, connection and compassion that could have been a real opportunity.
Something else you discuss is small towns, which I hadn’t thought about before, and the ease of planting suspicion against a defendant. How much does the size/location of a town affect the wrongfully convicted? Are they more likely to be from small towns than big cities?
Wrongful conviction is a problem all over America--from small towns to suburbs to exurbs to cities. However, the phenomenon seems to play out in distinct and specific ways in smaller communities. In close-knit towns, when an horrific crime is committed, the emotional effect on the public can be quite dramatic--people often feel more vulnerable because of the small size of their community, and consequently there is more pressure on prosecutors to identify and detain a suspect immediately. While this is certainly understandable, pressure on police to work fast often increases the risk of wrongful conviction. Sometimes there can be so much pressure on the cops to "get the guy" that getting the right guy gets lost in the shuffle.
In addition, media saturation can have much more of an effect on the jury pool in small areas, where almost all potential jurors have been reading the same newspaper articles.
Also, in many small towns the police and prosecutors' offices are very small, and very tight; people have to work together for years and years and can be quite vulnerable to each other's whims and opinions. Less checks and balances exist than in larger administrations. This can create an atmosphere that makes wrongful conviction more likely.
And finally, we found that in many small towns a kind of distrust of outsiders develops. This can raise the risk of wrongful conviction as well--as can any type of suspicion not based on actual facts.
The play was created, written and originally performed in New York, but has since gone on to be staged in many other cities. Have you found New Yorkers to be more sympathetic to the play's concerns? New Yorkers often like to think we're more liberal, more left-wing, more sophisticated than those in other cities, or areas of the country, and those are some of the issues you explore in chronicling your travels, so I'm curious how that played out in reactions to the play.
We've had strong reactions all over the country--and often in surprising places. At a production in Texas, hundreds of people came to the play each evening--and every night, almost every single one stayed afterward to ask questions and continue the conversation. The play has gone from New York to Houston, from New Orleans to Minnesota, and every place it's gone people have responded emotionally and positively. We really believe that this play--like the issue of wrongful conviction--is not about "left" or "right," it's about basic fairness and justice. The issue of innocence is common ground on which people of vastly differing belief systems can come together. We've had some very positive reactions in some very traditionally conservative parts of the country--because the folks we've talked to all share concerns about justice, and about fairness, and about the truth, no matter what their particular political bent.
What were the most rewarding and frustrating parts of working on The Exonerated?
There were two most rewarding moments--the first was at the end of the first reading. We had flown in several of the subjects of the play for the performance, without telling the audience members or the cast that they were there. At the end of the show, after the audience applauded, one by one the exonerated folks were introduced. The audience jumped to their feet and roared; the actors started weeping. Neither of us expected how that moment would feel.
The other most rewarding moment was in January 2003, when, on our way up the Pacific coast in a car, we heard that Governor Ryan had decided to commute the sentences of everyone on Illinois' death row before leaving office. All the death sentences were changed to life without parole, so that those with a convincing claim of innocence would have the chance to appeal. While Governor Ryan listened to many, many people during the course of his decision-making process, many with much more expertise than us, we knew that he had seen our play while he was making up his mind. It was an incredible honor just to be part of the conversation.
Despite all the hard work, there weren't a lot of frustrating moments. The hardest thing has been dealing with the very, very few death-penalty advocates who have attempted to attack us in the media. Those attacks have been extremely rare, and the overwhelming majority of press we've gotten from all points on the ideological spectrum has been supportive--again, left or right, you can't argue that these cases weren't a travesty of justice, and you can't deny that that hurts all of us. And all kinds of people--from prosecutors to pro-bono defense attorneys, from police to abolitionists, from the independent progressive press to conservative Christian radio hosts in Texas--have come together with us to support our work, and to talk about how wrongful conviction impacts real human lives and what we can do to solve the problem. But there are a couple folks out there who seem to be really threatened by the growing public awareness of wrongful conviction, and who seem determined to preserve the public's perception that authorities are incapable of making mistakes. It's really sad to us that these people's resources are being wasted trying to convince the public that authorities never make mistakes, instead of accepting what's been proven in study after study and court case after court case--that wrongful conviction does happen and that there are systemic reasons for it--and coming together with the rest of us who care about justice to fix our system.
Where can people go to find out more information about some of the issues you raise regarding the death penalty and wrongful convictions?
innocenceproject.org, theexonerated.com, schr.org, Amnesty International
What are you working on next?
We're both acting--Erik has a recurring role on CSI and Jessica was just cast in the new Mira Nair ("Monsoon Wedding") movie, among other acting projects. Jessica is co-writing and directing a solo play for one of the actors from "The Exonerated," April Thompson. We have a screenplay about rock n roll that we co-wrote with our friend Bruce Kronenberg that we're raising a budget for. Court TV just hired us to write and produce another movie, and Jessica is looking for a publisher for her first novel.
Living Justice: Love, Freedom and the Making of The Exonerated is available now.
