death penalty
Relegating McCleskey
Apr 23rd
Twenty five years ago yesterday, the United States Supreme Court issued one if its most shameful opinions in recent history: McCleskey v. Kemp, in which it willfully turned a blind eye to racial discrimination in death penalty cases and prohibited citizens from raising claims of racial bias leading to the imposition of death sentences. The Court in McCleskey, assuming that the Baldus study [.doc] was accurate, nevertheless:
categorically rejected the idea that statistical evidence was sufficient to show a constitutional violation, requiring instead that a defendant show “exceptionally clear proof” of discrimination under the facts of his or her own case. This near impossibility effectively shut the door to any thing short of “smoking gun” evidence of intentional discrimination — evidence that is unlikely to exist, or unlikely to be discovered by the defense.
From this post the ACLU’s McCleskey project website. That is to say, the Court made it near impossible to prove the standard, particularly in light of the fact that contacting individual jurors and asking them about their personal racial biases is a non-starter. The Court’s rationale in rejecting McCleskey’s claim wasn’t that racial discrimination in the criminal justice system didn’t exist, but rather that it was “inevitable” and, as Justice Brennan put it, the majority was afraid of having to dispense too much justice. Rather than confront the reality that the system is terribly flawed and skewed against people of color, especially in the death penalty context, the Court did what was natural to any petulant 5-year old: run in the other direction, hands over their ears, yelling at the top of their lungs so as to not let reality set in.
[Interestingly, as heretofore unknown to me, was a Scalia memorandum prior to the decision in McCleskey, which said:
Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot say that all I need is more proof.
Shorter Scalia: it's there, it's real and we can't change it, so why even bother?]
McCleskey, of course, is also famous for being the one vote that Justice Powell, in his later years, regretted. Which brings me to the point of this post. While no courts would ever seriously consider a systemic bias claim in light of McCleskey, that doesn’t mean legislatures aren’t free to mandate such a consideration. In 2009, North Carolina did just that, with its Racial Justice Act. And last week, we saw the results. In the first ever decision applying the RJA, Superior Court Judge Greg Weeks held [PDF] that Marcus Robinson’s death sentence must be commuted to life without the possibility of release because of racial bias in the jury selection process:
Race played a “persistent, pervasive and distorting role” in jury selection and couldn’t be explained other than that “prosecutors have intentionally discriminated” against Robinson and other capital defendants statewide, Weeks said. Prosecutors eliminated black jurors more than twice as often as white jurors, according to a study by two Michigan State University law professors Weeks said he found highly reliable.
The Michigan State University study [PDF] produced some stunning findings:
It reported that, of almost 160 people on North Carolina’s death row, 31 had all-white juries, and 38 had only one person of color.
More here. The MSU study of capital charging and sentencing found that those who kill whites are more likely to get the death penalty than those who kill blacks. The MSU study found that a defendant is 2.6 times more likely to get the death penalty if the victim is white.
It isn’t enough for us in the system to “know” that there is racial bias. It isn’t enough for us to throw our hands up and shrug. It isn’t enough that we pay lip service. We must relegate McCleskey to the dustbin of history, alongside cases like Dred Scott and Plessy v. Ferguson. We must do something more. David Baldus, may he rest in peace, did. Gov. Beverly Perdue, who vetoed a repeal of the RJA, did. Judge Greg Weeks did.
Who’s next?
Idiocracy
Apr 16th
There is a moderately entertaining movie called Idiocracy, directed by Mike Judge and starring the less-stoned Wilson brother about a man of perfectly average intelligence who goes into cryogenic deep freeze for a long time and emerges 500 years in the future where the stupid have out-reproduced the intelligent and the Earth is ruled by grunts and monosyllables. Reading some reactions to the death penalty repeal here in CT, it seems to me that the future is now.
First, CT News Junkie reported, in a story with the provocative title ‘Lawmaker Guided By Experience As Defense Attorney’, of the tale of Representative David Labriola. Labriola, a Republican, drew upon his experience as a criminal defense attorney to vote against the repeal of the death penalty, in something that can only be described as fzzt-fzzt-does-not-compute-err-ROR-err-ROR.
You see, Attorney Rep. Labriola represented Miguel Roman. Miguel Roman, you might or might not remember, was the fourth man exonerated in CT with the assistance of DNA evidence. Unfortunately, before that happened, Roman spent 20 years of his life in jail for a crime he did not commit. His actual sentence was 60 years for a murder – one of three that the police believed were linked. Having represented a man you believe is wrongly convicted and has spent decades of his life unjustly in prison is not something a defense lawyer gets over quickly and it is certainly not something that builds confidence in the infallibility of the criminal justice system.
Yet, we have Labriola:
He said the sophistication and reliability of modern DNA analysis is one of the reasons he supported the death penalty statute, which a majority of his colleagues voted to take off the books Wednesday. DNA evidence provides the state with greater assurance that offenders handed guilty verdicts are, in fact, guilty, he said.
I suppose that’s somewhat logical so far, if a bit naive. But here’s the key part:
Labriola recalled that he did present DNA evidence in Roman’s case more than 20 years ago. He said it was one of the first DNA cases in the country. Though the DNA clearly didn’t belong to Roman, prosecutor John Massameno was able to argue that presence of another person’s DNA did not mean Roman was not guilty.
[Ideally, at this juncture, I'd like to Professor Farnsworth uttering his signature "Whaaaa? - you can hear it in your head, can't you? - but I can't find it online. So this equally appropriate reaction will have to suffice.]
This is far beyond any timey-wimey plotline that Steven Moffat could conceive of, but I’m going to try and untangle it. Labriola believes:
1. The death penalty is appropriate.
2. Because DNA evidence provides great assurances that offenders are actually guilty.
3. He knows this because he represented an offender.
4. In whose case DNA evidence was presented.
5. And the DNA evidence excluded his guy.
6. And still his client was convicted.
7. And spent 20 years in jail.
8. ????
9. PROFIT!!!!
Labriola concludes with:
“I think working as a defense attorney for the last 25 years gives me insight into a wide range of issues and some crimes are so heinous that the death penalty is the only justifiable punishment,” he said.
It’s almost as if he got to logical step number 8 above, realized that he was going up the down staircase and ended with the handwavium encrusted “well, I know better”. As a fellow criminal defense lawyer, that last quote of his is especially troubling. I’ve often written that in order to do this job well and honestly, one cannot judge one’s clients and one must take the place of the client and view the world through his eyes. We are the client. We are his advocate and his shepherd. Where does Labriola stop? If some clients are deserving of the death penalty, are others deserving of life without the possibility of release? Are others deserving of 60 years in jail, because, in his opinion, they’re bad people? How do we differentiate the role of the prosecutor from that of the defense attorney? At what point do we stop becoming an advocate and start becoming a mouthpiece – a mere messenger?
For many in this field, capital defense is the holy grail. It is the one job that embodies every ideal that leads us to this work: the defense of those who are most undeserving, the fight for another’s life, the pushback against the mightiest weapon the State possesses in its arsenal. Death penalty defense is more than a job. It is the embodiment of an idea. I believe that one can be a great defense attorney and not like all the crimes that our clients are charged with. Great lawyers refuse to represent people accused of sex crimes. I disagree with that, but I can see it. I believe, however, that anyone in favor of the death penalty has no business representing individuals accused of crimes.
It does not compute.
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Lagniappe (a word I have shamelessly borrowed from today’s MLK-themed edition of Blawg Review, hosted by the inimitable Mark Bennett): “Judge” Andrew Napolitano goes on FOX to suggest that CT delay the implementation of the death penalty repeal by, oh, 5 years so we can quickly execute the 11 men on death row. The stupendous idiocy of that position hardly merits the waste of more pixels.
Nevermore in my name: CT abolishes the death penalty
Apr 11th
I know I wrote a similar post last week, but this time there’s no caveat. Connecticut has just abolished the death penalty. The Senate abolished it. The House has abolished it. The Governor will sign it.
If I weren’t so tired from listening to hours of testimony, my hands would probably be shaking. This is historic, indeed.
We have turned a corner. We have made ourselves known. We have stated with clarity that we have a moral compass and that compass is pointed in the direction of compassion and humanity. We are not that which we wish to condemn. We are not that which we wish to punish. We are better than them. We will not arbitrarily punish our own, we will not discriminate based on race or geography.
We will take a different approach. A road that leads to mercy and forgiveness. A path that saves the best in us. A choice that allows us to hold our head high and be counted among the citizens of the world. We will show that while it is difficult to resist our base instincts of anger, revenge and hatred, it is possible. And we can move past that and emerge stronger. We will lead by example.
We will not assume the hubris to decide, as a people, whose life is worth living. We will not ask that of our friends, neighbors and our children. We will unburden our state from the heavy yoke of carrying the deaths of so many. We will wash the blood from our hands.
Nevermore in my name.
In which I make some uninvited retorts to specious arguments against abolition
Apr 10th
With the Connecticut Senate having already voted to abolish the death penalty last week, and in light of the looming vote in the House tomorrow and given the extensive debate this topic has been subject to for decades, I figured that we finally had reached a point where we were having honest, intellectual and moral arguments for or against this propriety of maintaining this punishment.
I was wrong. Linked there is a post by “Don Pesci” (whether that is his real name is unknown to me and irrelevant as well), who seems to be a real conservative and proponent of the death penalty. That someone is both of those things doesn’t bother me; rather what bothers me is someone who is both of those things (or anything, really) who then uses false arguments to state his or her support for the penalty. I did leave a brief comment on his blog, but upon further reflection, I decided that it merits a somewhat longer blog post. These are counter-arguments that have been stated plainly before, but are ultimately worth repeating, especially given the importance of tomorrow’s vote. I will attempt – as far as it is possible – to respond to each quip.
Q: The death penalty was abolished by the Senate on April 5. It’s a virtual certainty that the House also will approve the Democrat inspired bill. Do you feel safer?
A: Can’t say. Part of the abolition bluster was that the death penalty did not prevent murders, always a questionable assumption.
Q: “Bluster?” What ever can you mean?
A: It was never a serious proposition, just a useful piece of propaganda.
He then goes on to state that one can’t ever know if a punishment deters a crime. While that is clearly true, one can measure the impact of having a particular penalty on the actions of those it is meant to serve as a deterrent to. One could, for instance, compare the murder rates in death-penalty and non-death penalty states. One could look to a survey of law enforcement agencies which list the death penalty as the most ineffective tool for reducing violent crime. Or one could read the voluminous research and scientific study undermining the argument that the death penalty serves as a deterrent. While it may be true that it is not possible to know if the death penalty had a direct impact on a particular individual and prevented him from committing a crime, it is also honest to acknowledge that we don’t know that it did. And that is the crux: that the argument that the death penalty deters crime (one of the foundational arguments for retaining this punishment) is false.
Q: One of the other points raised against the death penalty by Senate President Don Williams prior to the vote to abolish was that it had been randomly applied: Not everyone who committed murder in Connecticut has been sentenced to death.
A: And a good thing too. In practice, Connecticut’s death penalty punishment was applied ONLY if certain circumstances had been met. Not every murderer qualified. You had to work really hard to merit the death penalty. It is no argument in favor of the abolition of a punishment – say, ticketing for speeding – to say that not everyone who commits the offense is punished. This is an infantile objection: “Mommy, he did it too. How come only I got sent to bed?” Should we abolish ticketing for excessive speed on the highways because – just to fetch for a figure – 98 percent of speeders are not ticketed and of those ticketed 99 percent are not brought to trial? Grow up!
This argument, as I said in my comment to his post, is simplistic and possibly disingenuous. The comparison made in the “disparity” argument is not between non-death eligible murder and death-eligible murder. That is a false comparison. The comparison is between one death-eligible murder in which the penalty was not sought and another in which it was. The argument is made that the death penalty is arbitrary because often the decision to seek the penalty depends not on the crime itself – which may be comparable in every respect – but on other factors, such as the race of the defendant, the victim, the geographical location and sometimes the quality of the lawyer representing the defendant.
It is this disparity that gives us pause. In Connecticut, if two people commit two identical death eligible crimes, but one does it in New Haven and the other in Waterbury, there is a significantly greater chance that the person who committed the crime in Waterbury would have to defend against the death penalty and the one who committed the crime in New Haven would not.
So the next time someone tells you that of course the death penalty should be discriminatory and not applied to all murderers, tell them that you know they’re hiding critical information from you and their argument is based on a lie.
Q: Another argument was that the penalty once applied was irreversible.
A: People who said that the death penalty could be applied in error had to travel outside the confines of Connecticut to find such instances. Or they presented their objection as a theoretical proposition. No one awaiting death on Connecticut’s death row has been mistakenly led there by judicial error.
I would have said that this is my favorite argument, but that title belongs to the next one. We’ll get there. This one is particularly rich because it takes a very foolhardy view. The argument, essentially, is that we haven’t screwed up yet. Yes, that’s true. We haven’t. But we, in CT, have also had at least 4 DNA exonerations in the last half-decade. Before that, we’ve had other innocent men in jail. Is it a matter of time until we have an innocent man on death row? I don’t know the answer to that, but I’d say there’s a greater chance that we will, than that we won’t. That is not a risk I – or you – should be willing to take.
Q: But the appeals!
A: A means of postponing punishment, a judicial means of jury nullification.
…
[and elsewhere:] The abolition bill does not and cannot prevent pointless appeals.
You can see why this would be my favorite argument and it is one that has come up repeatedly. Variations include “endless appeals” and “endless habeas appeals”. I think it’s important to define what these terms mean and the Constitutional underpinnings of these mechanisms before illustrating just how misinformed, stupid and dangerous the argument is.
First, pointless signifies that the the only arbiter of a legal conviction is a jury at the trial level. It implies that any judicial review is a mechanism for undermining the jury’s just verdict. It also implies that somehow appellate courts are complicit in the liberal desire to avoid implementing the necessary punishment of death.
This flies in the face of what we normally call facts. For one, the Connecticut Supreme court has not only routinely upheld death sentences for those currently on death row (duh), but also has repeatedly and consistently upheld the constitutionality of the death penalty in Connecticut. Further, our supreme court overwhelmingly sides with the State against criminal defendants and if one is to accuse them of complicity in something, a more accurate accusation would involve the disturbing curtailing of individual rights and emasculation of Constitutional protections.
But I digress. Appeals are not pointless. They are checks on the functioning of our criminal justice system. They are the umpires that review the methods and processes we use. They are the enforcers of our rules of law, rules that we all rely upon to keep us and our freedoms safe. That a particular defendant has no viable claims for review does not make the entire appellate process pointless. Rather, it makes it indispensable.
Second, appeals aren’t endless either. There are very limited appeals granted to defendants. That they may take a lot of time to resolve is not the same as the appellate process having no end.
These are the appellate review options available to any defendant:
1. Direct Appeal to the Supreme Court of Connecticut (bypassing, by statute, the intermediate Appellate Court).
2. Petition for Writ of Certiorari to the United States Supreme Court (which is granted almost never).
3. A Petition for Writ of Habeas Corpus in State Court.
4. An Appeal to the Connecticut Supreme Court from that decision.
5. A Petition for Writ of Certiorari to the United States Supreme Court (which is granted almost never).
6. A Petition for Writ of Habeas Corpus in Federal District Court.
7. A Discretionary Appeal to the Second Circuit Court of Appeals.
8. A Petition for Writ of Certiorari to the United States Supreme Court (which is granted almost never).
Sure, you may say, these are a lot! But 1, 2, 3, 4 are necessarily separate because they challenge different things. It is by statute and law in Connecticut (State v. Leecan), that some claims cannot be raised via direct appeal (#1) and must be raised via a petition for writ of habeas corpus (#3). In some states those two are combined, but that is a poor way to do it because #3 requires information that #1 cannot provide. [See this previous post on the meaning and importance of The Great Writ.]
To do away with any of these avenues would push us all down that slippery slope. The justice system is fraught as it is with allegations of bias, racism and unfairness. To limit avenues of redress would affect us all. You just haven’t been arrested yet.
To claim that these appeals are pointless because thesepeopleareguiltyletsjustkillthemalready is stunningly narrow-sighted.
In the end, I do not dispute that this is an entirely moral issue. If, however, you’re going to rely on other arguments to support your position, at least make sure you’re correct, so you can be taken seriously.
[As a side note, I am glad that news agencies are finally paying attention to those survivors of homicide who are opposed to the death penalty, instead of just those who are in favor of it.]
The measure of our society
Apr 6th
One of the highlights of staying up until 3am on Wednesday night/Thursday morning to watch the death penalty abolition debate was listening to state Senator Gayle Slossberg give a rousing speech in support of repeal. Susan Campbell of the Courant has obtained a copy of the entire speech and I would urge everyone to read it.
I have said for years that the death penalty is, at its core, a purely moral and emotional issue. The rest of the reason – deterrence and cost for example – are sideshows. An attempt to dress our passions in the garb of rationality in order to give them a semblance of respect.
But in the end, you either believe in retribution or forgiveness. You either believe that the majority – collectively – should not have the power to dictate whether another lives or dies or you believe that it must. You balance the emotions of compassion and mercy with revenge, anger and retribution. Some come out on one side; some on the other.
The debate on the death penalty is not about the viciousness of the acts of 11 men or the feelings of 4 survivors of homicide who support the ultimate penalty or the 4 who oppose it. There are vicious men who have done terrible things and there always will be. There are people who are opposed to executions and those who support it and that will remain forever.
It is about what we value more (and no, it isn’t about valuing life more, which is why it is not incongruent to believe in a woman’s right to choose and be opposed to the death penalty): that society should act in revenge or society should set the example and offer mercy and compassion and forgiveness.
When opponents of the death penalty chant “not in my name”, it isn’t that we want this particular person to live because we like them, but it’s because we don’t want the Government to take the life of one of our fellow citizens in the name of all of us. It is that governmental action that we decry. We refuse to give the shapeless, amorphous body called “the State” the power to determine whose lives are worthy of permitting to exist.
Today, there are 11 men on CT’s death row of whose guilt there is no doubt. But that is not the case in the rest of the country and will undoubtedly not be the case some time in the future in CT as well. That risk is untenable. We are all fallible beings. We all have made mistakes. As fallible beings, the responsibility of deciding who lives and who dies is too awesome to be trusted to be carried out without error and in good judgment in a way that doesn’t unfairly affect one group or another.
Vengeance is easy. Forgiveness is difficult. As a society, we must make difficult choices. Giving up the power to exact revenge is perhaps the most difficult one of them all, yet it is one we must make, because otherwise, an eye for an eye will make us all blind.
Prison isn’t what you think it is, and other death penalty half-truths
Mar 15th
The judiciary committee’s public hearing on the repeal of the death penalty in Connecticut lasted well over 14 hours yesterday, with both sides making impassioned pleas for their respective positions. All the usual arguments were bandied about: it’s not a deterrent, yes it is; it costs money; it’s worth it and so on. So one would think that with a debate so well worn out, there wouldn’t be any surprising moments in the discussion, but oh my, where do I start?
[Before I do start, however, I do want to point out that it seemed to me that unlike in years past, the number of supporters of repeal significantly outnumbered the opponents of repeal. Is this indicative of anything? I'm not sure, but it's worth noting.]
As the day progressed, one common theme seemed to emerge among the opponents of repeal, and since it’s one that’s blatantly wrong and designed to invoke false outrage among people it’s worth tackling head on. The refrain was that prison is a dandy place. A place where inmates “have everything going for them” (yes, that’s an approximation of an actual quote by a State Representative), where they get “all the rights and responsibilities” of other inmates. Where they have a TV – albeit 9 inches and only 1 or 2 channels. Where they can spend 6-7 hours a day outside their cages. Sounds heavenly.
So let’s get one thing clear: bullshit. Prison is a terrible, terrible place. It’s not Club Fed. It’s not your mother’s basement. It’s not the local Starbucks. It’s a fucking prison.
You know what happens in a prison? People are locked up. In tiny cells. With a big metal door that other people control. They also control when you eat, when you walk, when you take a shower, when you sleep, who you talk to, how long you talk to them, what you can watch, what you can read and whether that medical condition of yours deserves treatment.
And you are so controlled, inside drab, grey, concrete, barricaded walls for days, weeks, months, years, decades and in some cases, for the rest of your life. To suggest that allowing people from death row out into some form of general population is a gift that they do not deserve betrays a fundamental misunderstanding of what prison is. Either that or it’s an intentional lie meant to rouse the passions of the masses, in which case, if you’re stupid enough to believe it, you deserve what you get.
It’s one thing to go look at conditions of confinement when you’re with a touring party and a show is being put on just for you. It’s quite another to sit there, day in and day out, left with nothing but the sound of your own slowly deteriorating mind.
And let’s clear up another misconception: this bill would change the penalty of death to – and listen carefully now – life in prison. without. the possibility. of release.
It should be clear enough, but since a surprising number of people are poor at reading comprehension, I’ll state it in even simpler terms: life without the possibility of release means that there is no chance, none whatsoever, that those individuals will ever be released from prison, even if they live to the ripe old age of 5,328. In yet other words, they will die in prison. There’s no if, but or parole about it. So stop with the nonsense.
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There is another segment of the population that seems to have deliberately closed its ears to an honest and accurate debate on the death penalty: our purveyors of fact, the doyens of social responsibility and honorable men, all – news media.
There are two things the media loves to trumpet in the wake of any death penalty debate: an incomplete statistic of the support of the death penalty and the views of one particular high-profile victim’s family.
It is true that, when asked if they support the death penalty, 67% of respondents said yes. So the headline becomes 67% support the death penalty. The headline is half-true and would be fully true if the words (in a vacuum) were added.
Because, as is often the case, the truth lies deeper (or in the case of this poll, in the next sentence): that when given the choice between the death penalty and life without the possibility of release, only 48% support the death penalty, while 43% oppose it with 9% not having a clue. As anyone who can reasonably guess at the meaning of words might tell you, 48% does not a majority make.
But try and find that in the news piece I linked to above. Or in any other. I’m not saying this as a supporter of abolition. I’m saying this as someone who wants to see an honest, informed debate. What other reason can there be to ignore this vital statistic than the fact that it doesn’t fit within the pre-determined story?
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In the world of victims in Connecticut, in the context of the death penalty debate, there are two types: the Petits and everyone else. The Petits who, as is their right, have been vocal in their opposition to the repeal of the death penalty get a mention in every news story about yesterday’s public hearing despite not being present to testify. Those on the other side are lumped together – if they get a mention at all – in an amorphous blog of nameless, colorless, existence-less, generic terms like “other supporters of repeal”.
No, sorry, that’s just disrespectful. The Petits’ position is just as valid as that of Dawn Mancarella or Elizabeth Brancato whose mothers were murdered, or Catherine Ednie, whose brother and four of his friends were murdered, or Cindy Siclari, whose sister-in-law was raped and murdered, or Jane Caron, whose aunt was murdered in the course of a robbery, or former Hartford Police Chief Daryl Roberts, testifying both as law enforcement and as someone whose cousin was murdered, or Timothy Anderson, whose aunt was murdered [and who is interesting for more than that reason, but more on that in a bit]. You can read all the submitted testimony here.
These people – and their voices and opinions – should be part of the debate just as much as those on the other side.
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There was a moment, when Chief State’s Attorney Kevin Kane, a man who is respected by most on both sides of the bar, started speaking in opposition to the death penalty, when he asked the members of the committee, just like he asks juries, to vote their conscience. He asked them to recognize that this is a gut-wrenching issue, that this will be the most important decision of their lives and to search within their souls and vote according to their beliefs and their convictions.
He’s right, you know. Underneath it all, sentencing a fellow human being to death, no matter whether their actions justified it, is a deeply moral issue.
And we ask our fellow, average, everyday citizens to do this on a regular basis. We ask you and me to make the decision to another’s life as if it were a decision about which car to buy. We place this heavy moral burden on people who do not ask for, nor want this responsibility. If it is such a monumental decision and causes so much anguish for those who are elected to make these decisions, how can we, in good conscience, foist this upon the rest of us?
This brings me back to Timothy Anderson, linked to above. Timothy Anderson was a juror in the trial of Joshua Komisarjevsky. Anderson was opposed to the death penalty and yet he voted to put Komisarjevsky to death (let’s put aside the contradictions here for the purposes of this post). He submitted testimony in support of repeal, not only for moral reasons, but because he experienced first-hand the toll it takes on the regular individual to have to make the decision to end someone’s life. We should not be asking this of our fellow citizens.
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This post has gone on long enough and meandered far enough, but I want to end with one exchange I viewed near the very end of the debate last night.
Maybe this came up during the day, I don’t know. But it was the first time I’d seen someone mention it yesterday: the death penalty is about who we are and who we want to be. It needs to be said. Put aside finances and the unworkability of the statute and the required appellate process. At its core, the death penalty is about how we wish to be viewed as a society. Are we forgiving, just and fair? Or are we racist, vengeful murderers?
As the member of the public said in response to some chiding by Republican Senator Kissel: “with all due respect, Senator, this is about how history will view us. And history will not look upon us kindly”.
Truth in sentencing
Mar 13th
In 1994, Connecticut joined the vast majority of states in enacting the ‘Truth in Sentencing’ law, which did away with good time and other early release opportunities for inmates. It established a three-tiered system for parole: non-violent offenders are eligible for parole upon serving 50% of their sentences, violent offenders upon 85% and murderers not at all.
The bill was in response to growing outcry that people were getting off too easily, some after serving only 10-30% of their sentences. “So we need truth in sentencing”, they said. “We need to know exactly how long people will serve!” Fine, whatever. It is a legislative scheme and it is what it is.
Then prison populations ballooned and recidivism was dropped as an objective of incarceration altogether. Last year, a much needed risk reduction credit bill was passed, awarding 5 days per month to certain inmates while they were in programs in jail and if they didn’t get any disciplinary tickets. The legislature capped this at 50 days per year. The purpose was to encourage inmates to enroll in programs in prison – whether to educate themselves, get psychiatric help or overcome a substance dependency. And it makes sense. The best way to help prevent crimes in the future is to attempt to address the causes of those crimes in the present. If a person robs banks because they have a crippling addiction to crack, locking them up for 5 years is one way to deal with the problem, but it’s not very useful when that individual leaves the jail in 5 years, with no job skills, no education and that same addiction to crack.
But good sense is too much for some legislators. Sen. Andrew Roraback (R-Goshen) and candidate for Congress put on a show at the Capitol yesterday, bringing with him crime victims who were shocked to hear that some inmates were earning this credit and it meant that their eligibility for parole was advanced by some 200 days.
Eligibility. That’s the key. Our supreme court has repeatedly ruled that there is no liberty interest in parole. Which means that the 50% mark of your sentence could come, and you could get a hearing and the parole board could still make you serve 100% of your sentence. And no one can do a damn thing about it.
Every criminal defense lawyer (the ethical ones, at least), tells their clients that they should expect to serve 100% of their sentence. If they get out early, consider it a windfall.
But apparently that’s not what prosecutors and victims advocates are telling victims:
It wasn’t welcome news. The couple [parents of the decedent] said that after the 1996 murder they agreed to accept a plea bargain that allowed Gargliardo to cop to manslaughter and a 27-and-a-half-year sentence. The only reason they said they agreed to the lesser sentence was to avoid putting their four-year-old grandson on the witness stand. They said the possibility of him getting parole parole sooner than that wasn’t fair. “They promised us,” Lee DeGrosse said.
Who, exactly, promised them that is unclear. But they’re victims and they’re allowed to feel any way they want. Who isn’t allowed to tag along is an elected member of our legislature, who is presumed to have some critical reasoning ability. There is no functional difference between ‘tough on crime’ and ‘dumb on crime’.
To make matters worse, Roraback wants to be heard. And he wants to be heard now. So much so that he’s threatening to vote against his moral convictions on the death penalty, unless these credits are repealed.
There is nothing more disgusting than playing with an issue as important and fundamental as the death penalty over a half-baked and utterly ridiculous idea.
In the name of victims, he purports to do something that will only cause more harm. Take away credits and we return to a time where inmates had no incentive to better themselves, to arm themselves with the opportunities to succeed in the real world. To give them the tools to step away from a life of crime, not embrace it with open arms again because no one cares about them.
In the name of protecting victims and the lies they were told, he moves only to harm them further and create more of them.
As former Judiciary Co-Chair Mike Lawlor explains:
“If you’re going to pick a group of inmates you didn’t want to recidivate, you would start with violent offenders I would assume,” he said in a phone interview. Lawlor said that the credits don’t ensure an inmate is released early, they only allow them to be up for a parole hearing sooner. During those hearings victims and families are given an opportunity to testify and the board can decide not to release them, he said. “I’m not aware of any violent offender who’s been released without serving 85 percent of their sentence,” he said. “At the end of the day it’s actually quite unlikely.”
And that’s entirely true. Parole can – and will – likely say “That’s great Mr. X. We grant you parole. At 85% of your sentence. See you in three years.”
Go ahead Mr. Roraback. Vote against your convictions and against common sense. We’ll vote with our convictions and repeal the death penalty anyway.
The United States of China
Mar 4th
China, not a country known for subtlety, has turned a mirror on ourselves by taking two of the most beloved forms of American entertainment and combining it into one: reality television and the death penalty. And they’ve struck viewership gold, with 40 million viewers every Saturday night for 5 years. The show, which is a slightly more twisted version of ‘To Catch a Predator’ features a Ms. Ding with:
harrowing – some would say voyeuristic – footage of prisoners confessing their crimes and begging forgiveness before being led away to their executions.
The scenes are recorded sometimes minutes before the prisoners are put to death, or in other cases when only days of their life remain.
The inhumanity of this all is staggering:
In one scene, a prisoner in his 20s falls to his knees before his parents, who have been allowed to see him. He pleads: ‘Father, I was wrong. I’m sorry.’
Moments later, his parents see him about to be led away to his death. His distraught mother apologises for beating him once as a child and implores her son: ‘Go peacefully. It’s following government’s orders.’
Prison officers then push her aside and drag him away.
We are in elite company, with only 3 other countries separating us from China in number of executions (2010 data). And yet, somehow, I have this nagging feeling that there are some within our country who rejoice at executions the way the Chinese have been riveted to their TV screens; that the increasingly louder howls for blood perpetuated by the 24 hour news cycle and its Voldemort make ‘Interviews before Execution’ an idea that is very much alive here in the US, even if it isn’t on our TV screens.
The vengeance in Ms. Ding is something oft seen stateside:
Denying her show is exploitative, she said: ‘Some viewers might consider it cruel to ask a criminal to do an interview when they are about to be executed. On the contrary, they want to be heard.
‘When I am face-to-face with them I feel sorry and regretful for them. But I don’t sympathise with them, for they should pay a heavy price for their wrongdoing. They deserve it.’
And when we are face-to-face with the same sort of glee exhibited by a country that shares nary another value with us, it should give us pause. Is this who we really are:
The case that has drawn the largest number of viewers so far is that of Bao Rongting, an openly gay man who was condemned to death for murdering his mother and then violating her dead body.
Three extra episodes were devoted to his story as viewing figures soared. Homosexuality is still regarded as taboo in most of China, and the sensational trailers described his interviews as ‘shining a light on a mysterious group of people in our country’.
When Bao was executed, no family members turned up to say farewell. His final conversation before being led to his death was on camera with a decidedly wary Ms Ding, who admitted to being unsettled by his sexuality. In a remarkable scene, he asks if she will do him a last favour by shaking his hand before he dies. She hesitates, before lightly touching his hand with her finger and then pulling it away.
She later confessed to being unsure if she should have shaken his hand, saying with obvious distaste: ‘There was a lot of dirt under his nails. For a long time there was a feeling in this finger. I can’t describe that feeling.’
Is this who want to be? Aren’t they doing what we already do, just more explicitly? A spokeswoman for the BBC, which is scheduled to air a documentary on this show, said:
The programme provides a revealing insight into Chinese attitudes to the death penalty. By showing rare footage of China’s death row alongside interviews with convicts, judges and journalists, it opens up an aspect of China that is normally hidden from the world.
It’s also opening up an aspect of ourselves that we wish to hide. Are we strong enough to face it and reject it? Or do we succumb to the power of anger and turn up the volume?
H/T: SL&P
CT death penalty nothing but arbitrary
Jan 9th
Only today did I stumble across this October 2011 study [PDF] [also available here] on the arbitrariness of the death penalty in CT (via the NYT), which seems to be an update of this 2007 study. Both are by Yale and Stanford lawprof John Donohue, hired by the public defenders office and the attorneys representing death row inmates in the long-ongoing racial disparity litigation here in CT.
The study is remarkable in its breadth and scope; it analyzed 4686 murder cases spanning 34 years to see whether the application of the death penalty was arbitrary in any fashion. The results are telling and a sizeable slap across the face of The Constitution State. The NYT sums up the numbers nicely:
Of those [4686 murders], 205 were death-eligible cases that resulted in some kind of conviction, either through a plea bargain or conviction at trial. The arbitrariness started at the charging level: nearly a third of these death-eligible cases were not charged as capital offenses as they could have been, but as lesser crimes. Sixty-six defendants were convicted of capital murder, 29 went to a hearing for a death sentence, nine death sentences were sustained and one person was executed.
In order to evaluate the arbitrariness of the imposition of the death penalty, Prof. Donohue devised an egregiousness scale and applied it to each case:
It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant’s culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case’s outcome or the race of the defendant or victim) on a scale from 1 to 3 (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from 1 (low) to 5 (high), to ensure that more general reactions could be captured.
The results are either stunning or completely unsurprising, depending on your point of view or naivete. For example, the study completely undermines the most often repeated defense of the death penalty in CT and elsewhere: that it’s reserved for only the “worst of the worst”. As this NYT graphic demonstrates, the study found that only one of the 32 “most egregious” crimes in CT resulted in the imposition of the death penalty. Further, the study found no real disparity in the “egregiousness” of the crimes that resulted in a sentence of LWPOR and the death sentence, thus further underscoring the idea that the death penalty was nothing but arbitrary.
It even supported the vast geographic disparity in Connecticut: a murder in the death penalty capital of CT – Waterbury – was seven times more likely to result in a death sentence than in any other jurisdiction in the State. If the chances of an individual getting a death sentence increase by 700% merely because of the physical location of that crime, then that is the very definition of arbitrary.
The study’s findings also supported those of other nationwide studies that the race of the defendant and the victim play a major role in determining whether the death penalty is imposed:
not only are minority on white murders getting harsher treatment controlling for all of the factors specified above, but this harsher treatment is substantial. Minority on white murders are charged as capital felonies at a roughly 21 or 22 percentage point higher rate (see columns 2, 3, 5, and 6 in row 2 of Table 22) and receive death sentences at a roughly 4 to 8 percentage point higher rate (see columns 2, 3, 5, and 6 in row 2 of Table 23). A sense of the importance of these estimated effects can be gained by comparing these effects against the overall charging and sentencing rates.
For instance, the overall rate of capital charging from the data set of 205 death-eligible cases is roughly 67 percent (as indicated in Table 21). Clearly, a 21 or 22 percentage point increase in charging for a racially defined class of crimes is a notably large number. Similarly, when the overall death sentencing rate in the sample is only 4.4 percent (see Table 21), an elevated death sentencing rate for minority on white crimes on the order of magnitude of 4 to 8 percent is obviously sizeable.
Indeed, the harsher sentencing of minority defendants who kill whites is even greater (proportionally) than the increase in the capital charging rates experienced by this same group. The proportionally greater death sentencing rate suggests that minority on white murders receive harsher treatment not only by virtue of initial prosecutorial decisions to charge death-eligible cases as capital felonies, although this is clearly one component, but also because of subsequent racially biased decisions of prosecutors and/or judges and juries subsequent to the initial charging decision.
The study is also a delightful read because it takes the counter-study of the State’s expert and rips it to shreds. It cuts through the “rhetoric and unfounded speculations” made by the State’s expert and presents the findings of that study as following:
1. There are enormous and unexplained geographic disparities.
2. Death sentences are not confined to the worst murders.
3. There is gender bias in death sentencing.
4. There is racial bias in capital outcomes.
5. There is arbitrariness in the key charging and sentencing decisions of the Connecticut
death penalty system.
That sounds awfully like the State’s expert agrees with the defense expert.
The report concludes as one would expect: with a plea to the court and the legislature to take into account the findings of the study and to do something to fix the problem (or, in my opinion, do away with it entirely). If you read the entire report, it will leave you with no doubt that the death penalty as it stands is unworkable and geographically and racially disparate and that its application is nothing but arbitrary, a clear violation of Furman and the Eight Amendment to the Constitution of the United States. As the legislature heads into its short session in February, it would be wise to look at this report and address the concerns raised by it. Now that that trial is over, perhaps we will talk honestly about the problems created by the death penalty in Connecticut and look seriously to abolition.
A different approach
Nov 22nd
For those of you who have followed the recent history of capital punishment in Connecticut and the struggle over abolition, I will quote a few paragraphs. Tell me if it sounds familiar:
[We] have a fundamental belief in fairness and justice – in swift and certain justice. The death penalty as practiced [here] is neither fair nor just; and it is not swift or certain. It is not applied equally to all. It is a perversion of justice that the single best indicator of who will and will not be executed has nothing to do with the circumstances of a crime or the findings of a jury. The only factor that determines whether someone sentenced to death [here] is actually executed is that they volunteer. The hard truth is that in the [40 odd] years since [we] reinstated the death penalty, it has only been carried out on [one] volunteer who waived [his] right to appeal.
In the years since [then], many judges, district attorneys, legislators, death penalty proponents and opponents, and victims and their families have agreed that [our] system is broken.
But we have done nothing. We have avoided the question.
And during that time, a growing number of states have reconsidered their approach to capital punishment given public concern, evidence of wrongful convictions, the unequal application of the law, the expense of the process and other issues.
It goes on and on. Sadly, while the debates and the struggles and the arguments are the same, the State is not Connecticut, but rather Oregon, and the above is not an excerpt from a speech of Governor Malloy, but rather from a remarkable statement [PDF] made by Governor Kitzhaber in explaining his decision to impose a moratorium on executions in Oregon. Compare the solemn eloquence of Kitzhaber’s statement with the barbaric vengeance that spewed forth from the mouth of Edith Prague. The former is replete with compassion and realism, while the latter is devoid of any intellectual honesty.
Is there any wonder that we still seek and pursue the death penalty here in Connecticut? What more could highlight the arbitrariness of the death penalty when the same argument is utilized by Kitzhaber to justify his moratorium and by the Connecticut Supreme Court to continue to sanction this ghastly punishment [PDF]:
And while it may be convenient to blame lengthy and expensive death penalty trials and appeals on inmates “working the system,” the truth is courts (and society) continue to reinterpret when, how and under what circumstances it is acceptable for the state to kill someone. Over time, those options are narrowing. Courts are applying stricter standards and continually raising the bar for prosecuting death penalty cases. Consider that it was only six years ago that the U.S. Supreme Court reversed itself and held that it is unconstitutional to impose capital punishment on those under the age of 18. For a state intent on maintaining a death penalty, the inevitable result will be bigger questions, fewer options and higher costs.
versus:
We recognize that imposition of new death sentences also has declined substantially over the past decade, from 224 in 2000 to 112 in 2010. Death Penalty Information Center, ‘‘Facts about the Death Penalty,’’ supra, p. 3. Various reasons have been posited for the decline, however, including: the high costs of the death penalty at a time when state budgets are strained from a weak economy; publicity about convictions overturned due to DNA evidence; a significant drop in rates of violent crime and murder; improved legal representation for capital defendants, including the greater use of mitigation specialists; and the increasingly available option for prosecutors to seek life sentences without the possibility of parole.
Although some of these explanations suggest declining public support for the death penalty because it offends contemporary standards of decency and morality, others decidedly do not. Because of the ambiguity underlying the decline in new death sentences, that circumstance does not provide compelling support for abandoning our decisions in Ross and Webb.
The courts and the legislature in Connecticut are engaged in a silly game of kickball and avoidance. We hide behind the cutesy nickname, “the land of steady habits”, when in reality, we are the only state in the entire Northeast to still sanction this punishment. Steady we are, I suppose. Steadily vengeful and regressive.
Says Kitzhaber:
Fourteen years ago, I struggled with the decision to allow an execution to proceed. Over the years I have thought if faced with the same set of circumstances I would make a different decision. That time has come.
The time has come. Who will have the courage to utter these words and take a different approach?
What do we want from our system?
Jul 10th
see end of post for info on this picture
I feel compelled to start, once again, with one of my favorite quotes:
Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.
Coffin v. United States. And yet, in these days, I look around and see more of Delphidius than of Caesar. Surely, you have heard of Casey Anthony and the verdict of not guilty rendered in her capital trial, that has sent a million heads spinning and the veins of nearly half the population of the country pumping with boiling blood calling for vengeance and murder.
The appreciation of a system which presumes an individual innocent unless the State can prove guilt beyond a reasonable doubt seems to be shrinking to a select few who make their living in that system. For the rest, the pure exhilaration of having a pre-determined verdict of guilt (and isn’t it always guilt?) announced, confirming their increasingly myopic and monochromatic view of the world is the only expectation.
Do we want a system that protects the individual or do we want a system that confirms our view of the guilt of those arrested? Do we want a system that lifts the substance of the accusation up to the light – and upon finding it wanting – discards it? Or do we want a system that goes by the smell test? Do we want a system where no one who is arrested is not guilty? Do we want so much to believe in the infallibility of our so-called protectors? Do we want a system that allows us to so easily and hypocritically create an artificial divide between the mob and the mobbed?
Does the system only work when the guilty are convicted and the innocent are acquitted, or does it work when some who may be guilty are nonetheless set free? Does the system work when some who are likely innocent are not?
we are mindful that it may seem unjust to allow a conviction to stand when the evidence on which the conviction rested has been discredited. It must be remembered, however, that, once properly convicted, the petitioners no longer are cloaked in the mantle of the presumption of innocence.
Gould v. Commissioner of Correction, while doing just that. Gould is a case I wrote about some time ago, where a habeas court reversed Gould’s (and his co-defendant Taylor’s) conviction for murder on the grounds that they were actually innocent. From that decision:
“A senseless, cold-blooded, execution style murder was committed in the early morning hours of July 4th, 1993,” Fuger begins. Eugenio Deleon Vega went to his small Fair Haven bodega, La Casa Green, to open shop at 5:08 a.m. “Before the hour of six AM, before he could even arrange the morning newspapers, he was dead. He had been executed, shot once in the left temple with a projectile from a .38 caliber semiautomatic pistol. These are indisputable facts.”
Fuger sets the scene for his sharp reproof with a blazing sub-header on Page One.
“This case rises and falls on the testimony of Doreen Stiles,” the sub-header reads, quoting New Haven’s Senior Assistant State Attorney James Clark’s words during Taylor and Gould’s 1995 Superior Court trial.
“No truer statement has ever been spoken,” Fuger wrote.
Stiles, a drug-addicted police informant, was the only supposed eyewitness who placed the defendants at the murder scene. DNA evidence found at the murder scene did not match Gould or Taylor. The state’s case rested on Stiles’ testimony, as Clark openly admitted during the trial. Stiles came forward and recanted her statement in 2006, allowing the defendants to open a joint habeas corpus claim of actual innocence, based on new evidence.
It is “crystal clear,” wrote Fuger, “that the sole piece of evidence, the only thread that links George Gould and Ronald Taylor to this senseless murder is the testimony of Doreen Stiles. If this tether breaks, then there is absolutely nothing that implicates these two men.”
“At the trial of the case in 1995, the case rose because Doreen Stiles made that linkage; at the trial of the habeas petition in 2009, the case must fall, once again, based upon the testimony of Doreen Stiles,” Fuger wrote.
The Supreme Court in its desire to so respectfully uphold the notion of finality, trips over itself to make absolutely clear that they seems somewhat squeamish about writing this decision, but in the end, they really have to. They don’t, really. I know it, they know and you should know it too. The verbal gymnastics are impressive:
In sum, the recantations by Stiles and Boyd may demonstrate that there no longer is any credible evidence that the petitioners did commit the crimes of which they were convicted. What the habeas court’s decision lacks is any discussion of affirmative evidence that would prove by clear and convincing evidence that the petitioners did not commit the crimes. We therefore conclude that the habeas court’s judgments must be reversed…
Emphasis added by me to point out the subtle use of words to support their conclusion.
So, if the only testimony which links the defendants to the murder is now discredited, and that’s not enough, then what must someone do to convince a court of their innocence? I’m glad you asked:
First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, as that standard is properly understood and applied in the context of such a claim, that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that, after considering all of that evidence and the inferences drawn therefrom, as the habeas court did, no reasonable fact finder would find the petitioner guilty.
Not only does one have to prove to the system that they affirmatively did not commit this crime, but they also have to prove that a jury would not find them guilty. It isn’t enough, here, that one presents evidence proving that they did not commit the crime – although how that is to be applied as a universal standard is beyond me.
Are we to decide on the innocence of individuals who are caught up in our system based on their their sheer luck that there exists some physical evidence such as DNA that proves they did not commit the crime? Must we require such a circumstance beyond their control? And what do we say to those who are lucky enough to completely undermine the State’s case against them, yet unlucky enough to have no independent corroborative evidence of their “alleged” innocence? Finality trumps innocence? Form over substance? Perhaps.
It really doesn’t come as any surprise, though, to me – and perhaps to you as well – that our rules are such. That there is a bias toward convicting and keeping people convicted. I sit here, day after day, reading as cases and reports of cases come flooding across my line of sight – and every day it’s the same: we love pronouncing judgment on others and love our moral indignation and our self-assumed superiority. We are better. They are guilty. And how dare anyone disagree with us:
A red-haired woman in her 60s who moved to Florida from Michigan, she told the court she worked at a Publix Grocery when she was questioned as a potential juror.
Now, she’s in hiding.
Juror number 12 left Florida. Her husband, fighting back tears, tells NBC News he’s not sure when she’ll return to her home in Florida.
Why? He says she fears half of her co-workers want her head on a platter.
The other may understand what she did, but she didn’t want to face them.
She was due to retire in the fall, but Juror number 12, after being released from sequestration, chose to call her boss to announce she couldn’t come to work. She didn’t feel safe.
She retired over the phone.
The husband, who sat with two NBC News producers, glanced repeatedly at his blood pressure monitor on the coffee table and the Bible next to it.
One day they’ll come for you and there’ll be no one left to speak up for you.
What do we want from our system? A rubber stamp, apparently.
[For an interesting local connection to the image above, see here.]
Florida’s death penalty is unconstitutional
Jun 22nd
In a fascinating decision from the United States District Court for the Southern District of Florida, Judge Jose Martinez has ruled that Florida’s capital sentencing statute violates Ring v. Arizona. In Paul Evans v. McNeil [pdf] (scroll to page 78 of the document), the district judge considers – and rejects – 16 claims for relief before finally getting to the Ring claim. For those who don’t know, in Ring v. Arizona, SCOTUS held:
This case concerns the Sixth Amendment right to a jury trial in capital prosecutions. In Arizona, following a jury adjudication of a defendant’s guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty.
In Walton v. Arizona, 497 U. S. 639 (1990), this Court held that Arizona’s sentencing scheme was compatible with the Sixth Amendment because the additional facts found by the judge qualified as sentencing considerations, not as “element[s] of the offense of capital murder.” Id., at 649. Ten years later, however, we decided Apprendi v. New Jersey, 530 U. S. 466 (2000), which held that the Sixth Amendment does not permit a defendant to be “expose[d] . . . to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” Id., at 483. This prescription governs, Apprendi determined, even if the State characterizes the additional findings made by the judge as “sentencing factor[s].” Id., at 492.
Apprendi’s reasoning is irreconcilable with Walton’s holding in this regard, and today we overrule Walton in relevant part. Capital defendants, no less than noncapital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.
In other words, any aggravating factor that exposes the defendant to the sentence of death must be found by a jury, beyond a reasonable doubt. A judge cannot find an aggravating factor that then increases the defendant’s punishment to death.
Florida’s capital sentencing statute (see also) permits exactly that:
(1) A person who has been convicted of a capital felony shall be punished by death if the proceeding held to determine sentence according to the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death, otherwise such person shall be punished by life imprisonment and shall be ineligible for parole.
(Emphasis mine). In a Florida capital case, the jury’s recommendation as to death is merely advisory. The court, after receiving the jury’s recommendation, must find the existence of an aggravating factor and determine whether that is outweighed by a mitigating factor and then decide whether to impose the sentence of death.
But this highly convoluted and “advisory” process gets even worse: a capital jury does not have to make specific factual findings. Reviewing courts never know what aggravating or mitigating factors were found. It is possible that some jurors found no aggravating factors, or that each juror found a different aggravating factor or all jurors found aggravating factors but some found they were outweighed by mitigation.
All it takes, in Florida, is a simple majority of jurors to recommend a sentence of death. Once that happens, a separate hearing is conducted in front of the judge only. The state and defense may present additional evidence and then the judge has to find an aggravating factor. Since the judge doesn’t know what aggravating factor the jury may have found, he may find an entirely different factor and not find the existence of the one the jury found!
This is squarely at odds with Ring. Under Ring, a jury – and only a jury – can find beyond a reasonable doubt the existence of an aggravating factor that exposes the defendant to the sentence of death.
What’s even more troubling according to Judge Martinez – and I agree – is that there is no evidence to show that the jury in Evans’ case found the existence of an aggravating factor by even a simple majority. Consider the scenario – as in this case – where the jury voted 9-3 in favor of death. Since we don’t know what aggravating factor was found by whom and how many, it’s possible that 5 jurors found the existence of one aggravating factor and 4 jurors another – both below the number 6, which is just half of the jury. While unanimity is not required, the Court is rightly troubled by the fact that this sentencing scheme can permit a man to be sentenced to death when not even 50% of the jurors agree on an aggravating factor.
In this news article, a (presumably) sitting Florida judge [Judge O.H. Eaton Jr., who offers legal analysis for WESH 2 - heh] opines that the decision affects only Mr. Evans and the effect on Florida’s death penalty as a whole will not be felt for years, if at all:
The judge’s decision in the murder-for-hire case only affects that particular trial. Eaton said Florida’s attorney general may file an appeal with the 11th Circuit Court in Atlanta.Eaton said that if the ruling has any effect on Florida’s death penalty statute, it will not be immediate.”That would be several years down the road,” Eaton said.
Perhaps the good judge missed this from footnote 33:
Here, the Court finds that Ring does apply in Florida and the Florida sentencing statute is unconstitutional.
Don’t even think about asking me what this means for the Casey Anthony trial.
This, that and the other
Jun 20th
Here are some stories that are deserving of more attention than 140 characters provides, but not interesting enough to get me to write a whole post about them:
- In what is reminiscent of the plot of an O’Henry short story or an article on snopes.com, a man robs a bank, asking for only $1, so he can be arrested and spend a few years in jail. His logic?
That’s right. James Verone says he has no medical insurance. He has a growth of some sort on his chest, two ruptured disks and a problem with his left foot. He is 59 years old and with no job and a depleted bank account. He thought jail was the best place he could go for medical care and a roof over his head. Verone is hoping for a three-year sentence.
- Connecticut judges agreed to allow cameras in all Judicial District criminal courtrooms starting in January:
Beginning in January, cameras and recording devices will be allowed at criminal court hearings in the state’s 13 judicial districts. Whether a proceeding may be televised or recorded will be up to the discretion of the judge in the courtroom. Cameras will be prohibited from courtrooms in which the proceedings involve a sexual assault or a juvenile defendant.
Connecticut’s Commission on Child Protection – deep in the red – folds and its responsibilities will now be shouldered by the Public Defender’s Office:
The state agency that pays private lawyers to represent poor parents and children in child-protection cases has run up such a gaping deficit and owes the lawyers so much money that the agency has been abolished; its work will be folded into the public defenders’ office starting July 1.
Nearly 200 private lawyers are owed as much as $2.4 million by the Commission on Child Protection – which had overspent its budget by $3.8 million at one point late last year. That was the largest deficit, by percent of budget, of any agency of state government.
Most of the lawyers devote at least 80 percent of their practice to this work, which includes defending parents who face losing custody of their children in neglect cases brought by the Department of Children and Families. The lawyers, who also represent children in court, haven’t been paid since October or November in many cases.
- Yet another story – this time from CA – that reiterates the inordinate cost of the death penalty:
Taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then, according to a comprehensive analysis of the death penalty’s costs.
The study’s authors, U.S. 9th Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell, also forecast that the tab for maintaining the death penalty will climb to $9 billion by 2030, when San Quentin’s death row will have swollen to well over 1,000.
Among their findings to be published next weekin the Loyola of Los Angeles Law Review:
The state’s 714 death row prisoners cost $184 million more per year than those sentenced to life in prison without the possibility of parole.
A death penalty prosecution costs up to 20 times as much as a life-without-parole case.
The least expensive death penalty trial costs $1.1 million more than the most expensive life-without-parole case.
Jury selection in a capital case runs three to four weeks longer and costs $200,000 more than in life-without-parole cases.
The state pays up to $300,000 for attorneys to represent each capital inmate on appeal.
- Police corruption has “forced” prosecutors in the Bay Area to dismiss over 800 criminal prosecutions in the last year:
Bay Area prosecutors have been forced to dismiss more than 800 criminal cases in the past year because of allegations of police corruption that include selling drug evidence, conducting unlawful searches and conspiring to get men drunk and then arrest them on drunk-driving charges.
In some cases, defense lawyers found that security-camera videos in residential hotels—showing police making drug arrests—apparently contradicted the officers’ sworn statements.
In one case, a suspect was seen in a video of his arrest wearing a different jacket from the one the officers entered into evidence.
Last year, the San Francisco district attorney dismissed about 700 criminal cases after a drug crime-lab worker was accused of stealing evidence. This year, since March, the district attorney has dismissed about 125 cases, mainly felony drug prosecutions.
- An interesting opinion from SCOTUS today, in Turner v. Rogers [pdf], holding that while the Constitution does not guarantee the provision of counsel in civil contempt cases where incarceration is a possibility, the Due Process clause mandates certain procedural safeguards before a person may be imprisoned after being held in contempt.
And you say I don’t post anymore.
Georgia’s retarded
Jun 14th
In 2002, in the landmark decision Atkins v. Virginia, SCOTUS held that it was a violation of the 8th Amendment to execute a mentally retarded individual. In a beautifully succinct opinion, Justice Stevens (Kagan? Kagan who?) wrote for a 6-3 majority that the 8th Amendment’s ban on cruel and unusual punishments prohibited the execution of the mentally retarded. In that opinion, he noted a movement in state legislatures toward banning the execution of those who are mentally retarded:
The parties have not called our attention to any state legislative consideration of the suitability of imposing the death penalty on mentally retarded offenders prior to 1986. In that year, the public reaction to the execution of a mentally retarded murderer in Georgia apparently led to the enactment of the first state statute prohibiting such executions…
Georgia, once at the forefront of radical movements in the criminal justice system, is now floundering at the bottom. Yesterday, the GA Supreme Court upheld [pdf] the constitutionality of a statute that requires defendants to prove beyond a reasonable doubt that they are, in fact, mentally retarded. In a decision that is short on logic or reasoning and long on law-and-order-fed-vengeance, a 6-1 majority relied – I kid you not – on the fact that SCOTUS, in Atkins said nothing negative about GA’s burden of proof. Don’t believe me? Here:
In Atkins, the Supreme Court praised Georgia as being the first state in the nation to have banned the execution of mentally retarded persons, and the Supreme Court made no negative comment about Georgia’s heightened burden of proof, but instead counted Georgia among the states forming the national consensus about the treatment of mentally retarded defendants.
…
Georgia, among other states with heightened standards for defining and proving mental retardation, was counted by the Supreme Court as being part of the national consensus regarding the treatment of mentally retarded defendants, and it seems to us entirely illogical that Georgia could have been a part of the consensus dictating a categorical rule and yet somehow simultaneously in violation of that rule.
(Emphasis in original.) Justice Melton, who authored the 6-1 GA decision, seems to have a massive reading comprehension problem. Atkins was a decision about whether the practice of executing mentally retarded people violated the Constitution, and to that extent the Court’s praise (such as it was) of the Georgia statute was warranted. What the court in Atkins was not deciding was the burden of proof required to find that a defendant is mentally retarded. But it gets worse. Here’s what Justice Stevens wrote:
To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, 477 U. S. 399 (1986), with regard to insanity, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Id., at 405, 416-417.
Nowhere in Atkins does the Court say that a defendant must prove beyond a reasonable doubt that he is mentally retarded in order to save execution. The paragraph above and its mention of the definition of mental retardation stems from the large number of briefs submitted to the court by psychiatric organizations highlighting that mental retardation isn’t a definite concept that can be given a fixed number. While we may now generally use an IQ range of 70-75 to separate those who are “retarded” from those who aren’t, any reasonably-versed practitioner will tell you that that is not something that can be set in stone. Individuals with an IQ of 80 may well be mentally retarded. In that vein, make sure you read this terrific law review article on the challenges of implementing Atkins. Here’s an excerpt, which highlights the problem:
What is so striking about Atkins is that the Court was persuaded to adopt a per se rule exempting all persons with mental retardation from the death penalty based on diagnosis alone. This is all the more remarkable in light of the fact that the line between being mentally retarded and being of borderline intelligence is operationalized statistically by an admittedly arbitrary line on a bell curve representing performance on an IQ test two standard deviations below the mean. In short, the diagnosis of mental retardation is in large part a statistical construct.
As for Melton’s claim that since they were praised for being on the forefront of this change, they should be allowed to rest on their laurels? The dissent rips it to shreds.
It seems that Georgia is now the only state in the country that requires such an impossible burden. Of the 35 states that impose the death penalty (and thus prohibit the execution of the mentally retarded), 22 require proof by a preponderance of the evidence – a much, much lower standard. Four states require proof by clear and convincing evidence and the three States (*cough*Connecticut*cough*) have not yet articulated the standard, though I would be surprised if it were anything but preponderance here.
The dissent also rightly points out the import of the language in Atkins, that the highest burden of proof needs to be reserved for the determination of factual allegations and scientific diagnoses are by nature more fuzzy. To subject the interpretation of test scores, manifested symptoms and perceived cognitive difficulties to that high standard would only serve to ensure that a mentally retarded individual will be executed, thus clearly violating the Constitution.
Even more puzzling, to me, is the fact that it seems that Georgia has no standard for proving mitigation in capital cases. It seems that juries can decide to recommend a sentence of life for any reason whatsoever. In fact, one of the complaints [pdf] about Georgia’s capital system is that its jury instructions are so poorly crafted that juries are regularly misled: a full 62.2% of jurors surveyed in this study believed that the defense had to prove mitigating factors beyond a reasonable doubt, which is incorrect.
Think about that. Georgia defendants aren’t even required to prove ordinary mitigation factors. A defendant may get up and say “spare me, I’m left handed” and the jury can say “but we saw you writing with your right hand” and still decide, that because he’s left handed, they’ll spare his life. A defendant can claim to be the love child of Amelia Earhart and Britney Spears, and based on that that jury can spare his life. But if the defendant is mentally retarded and thus protected by the Constitution, he must prove it beyond a reasonable doubt?
That’s not only troubling, it is what I call retarded. I think it’s about time Georgia got its own category on this blog.
Death penalty worldwide
May 18th
Just heard about a new website started by the Center for International Human Rights at Northwestern Law School’s Bluhm Legal Clinic called – you guessed it – Death Penalty Worldwide. From their about page:
The website and database are intended to fill a void in current information about the laws and practices relating to the application of the death penalty around the world. There is a great deal of conflicting information about the death penalty, and at times it is difficult to gauge the accuracy of reports one is able to find by searching the web. Although there are many excellent online sources of information relating to death penalty practices around the world—most notably, reports generated by Amnesty International and the database maintained by Hands Off Cain—none of these are devoted to academic and legal analysis of developments in this field. This resource is not intended to supplant those resources, but to supplement them.
The database is the centerpiece of the Death Penalty Worldwide project. It is intended to provide detailed and transparent information regarding the application of the death penalty in law and in practice in every country that retains it.
The database seems very comprehensive and informative, so be sure to poke around the site. You’re bound to learn something new.
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