Cruel and unusual: the new lows we hit in our thirst for blood (updated)

The death penalty is a disgusting, cruel and barbaric business. It is nothing more than a manifestation of our basest instinct for revenge, wrapped in primal anger and fear. It is the worst of us.

In this pursuit of revenge under the guise of justice, the depths we have fallen to are stunning: state governments are sanctioning secret protocols to poison people to death, just so their nefarious concoctions cannot be questioned by those who are subject to die by them.

Our blood-thirst has driven us so mad that we are willing to make threats about impeaching state supreme court justices for staying executions and those justices are willing to back down rather than ensure that no person suffers torture.

So it was, in a sense almost inevitable that the debacle in Oklahoma would occur, an event that was so eerily foreshadowed by a statement of the attorney for one of the condemned.

I can’t reproduce anything more poignantly than those who were covering it live, so there it is:

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and

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What have we done? What are we doing? Is this who we want to be? As CT’s Supreme Court considers the continued viability of capital punishment for the 10 remaining on death row, it would do well to keep in mind the kind of inhuman torture that we are endorsing – explicitly or implicitly – by keeping this punishment alive.

Of course, this puts the latest findings that a full 4% of death row inmates may be actually innocent in a disturbing and urgent light.

Shame on us all. Today is a day future generations will turn away from in history books and shed a quiet tear. For today was the death of humanity.

Update: See this post by Gamso and this by Philip Bump at The Atlantic Wire. Both must reads.

When everyone is a criminal, you don’t need the Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment to the Constitution of the United States. By now, it should be painfully obvious that the Fourth Amendment doesn’t apply to anyone, because there are no more “people” left in the United States, only criminals and potential criminals. Our government spies on us willy-nilly, our legislators erode our rights on a daily basis under the banner of protecting the children and our courts continually perpetuate the notion that there are two groups in the US: “us” and “them”. It is also becoming increasingly clear that “us” refers only to law enforcement and “them” is anyone else.

Yesterday, in Navarette v. California [PDF], Justice Thomas wrote a 5-4 decision in which he upheld a police officer pulling over a car and then finding marijuana.

Now, as Popehat explains, the law before Navarette was as follows:

The story so far

It seems that not everyone was aware that since the beginning of March, I’ve been writing a semi-regular column in the Connecticut Law Tribune, a weekly legal newspaper. I’ve collected links to the extant articles in this post and all future posts will be tagged with the category “ct law tribune”. Thanks for reading.

 

The Unexamined Trial

A free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate.

So wrote Thomas Jefferson in 1774, foreshadowing his more famous quote about the “inherent and inalienable rights” of men, in the Declaration of Independence.

To me, what Jefferson meant by that is that we, as humans and citizens of a great free democracy have certain inherent rights that are ours by the very nature of our existence and these rights are not dependent upon the charity of ministers, politicians and judges.

Yet, for the most part, the realm of criminal law has continually drifted away from this Jeffersonian concept of “self-executing” rights and toward a more passive, dormant view of individual liberties and freedoms that need to be invoked to be awakened into performing their duties as our guardians. The right to remain silent now only applies if you break that silence and state out loud that you wish to remain quiet. The right to an attorney has to be unequivocally and explicitly invoked. The police cannot enter your home without a warrant except when they can and may do so even over your objection.

There is, then, a new generation of jurisprudence that has turned our jurists into something akin to DMV clerks whose primary function is to determine whether the forms have been filled out correctly.

But for those that don’t practice criminal law, let President Jefferson remind you why you should care:

What is true of every member of the society, individually, is true of them all collectively; since the rights of the whole can be no more than the sum of the rights of the individuals.

It is thus critical that each and every one of us is aware of the ministerial treatment given to our rights. And the primary way in which courts have done that is to make the defense attorney the steward of those rights and placed her in the driver’s seat.

Of course that makes sense, you will no doubt say. The attorney is in the best position to safeguard those rights and to make sure that they are exercised as needed. True, but when you change the very nature of the rights to make them not self-executing, but rather dormant, awaiting the utterance of an incantation by a defense attorney, is when you strip the judge of her traditional role of overseer of due process and justice and hand that responsibility to the defense attorney.  By shifting the responsibility of ensuring a fair trial to the defense attorney instead of the judge, you’re making jurists nothing more than glorified legal clerks.

Yet another prosecutor “accidentally” suppresses exculpatory evidence

No, of course violations of Brady v. Maryland aren’t a problem; no, of course, no prosecutor ever would intentionally hide evidence that tended to show that the person accused may not be guilty; no, of course, the system that we have is great.

And yet. Yet again.

Say hello to Dejuan Hammond, who was 5 days into a trial accused of murder. Hammond had just finished sitting through the testimony of his ex-girlfriend, Princess Bolin, who gave two interviews to police implicating him.

Or did she?

Maybe now it’s clear that prisons aren’t the place for teenagers

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I suppose it takes a blatant misstep by a governmental agency to draw attention to any injustice and so it seems is the case with Jane Doe, the transgender self-identifying girl who has been transferred from DCF1 custody to the adult women’s prison by way of the men’s young-adult prison.

Don’t get me wrong, I’m glad that this attention is being paid to the state of our juvenile detention facilities, our prisons and their inadequacy in meeting the needs of troubled teenagers, but just remember as you read about Jane Doe and her predicament that there is probably no substantial difference between her story and that of hundreds of other teenagers in state custody other than her gender identity.

Her story, unfortunately for us in the business, is depressingly familiar:

[She] first entered [state care] at age 5 because her family members were incarcerated, sexually abusive or addicted to drugs.

Jane reports that by age 15, she had been raped dozens of times (including at facilities she was sent to live at by DCF), sold for sex, beaten up and addicted to crack cocaine.

Her behavior eventually turned violent, as chronicled by DCF, who reports that the teenager “has an extensive history of violence,” including stabbing a female peer with a fork, four assaults or threats of assault while in a pre-trial detention facility in Bridgeport, and 10 assaults on staff while at the state’s psychiatric center for children.

Another CT town will put cameras on its school buses

Apparently this is a thing. School buses are now mounting cameras on their outside to capture the license plates of cars that do not stop for the school bus.

Fine, but if you get a ticket, remember to read up on the law. For instance, revisit my post from 2008 in which I informed you that you don’t have to stop for a school bus that’s on the other side of a divided road.