DNA exonerates another in CT; mis-ID the culprit

On Monday, Hubert Thompson walked out of Hartford Superior Court a free man. He felt the sun hit his face, breathed fresh air and went where the hell he damn pleased. He had just been granted a new trial after serving well over half a decade in prison for a rape he didn’t commit.

After DNA taken from the victim was discovered to still exist in a vault somewhere, his attorney sought to have it tested. The results excluded him as the source of the DNA and implicated another man. On Monday, his motion for a new trial was granted [I don’t have a copy of the actual motion, but if you go that page, you can see a copy of the order page, which has some details on it].

[I’ve been sitting on this post for 3 days now, since there was absolutely no media coverage whatsoever and I didn’t want to find myself in the enviable position of being the source of a news story that frankly half a dozen “news” organizations shouldn’t gotten their hands on this week. That it took 4 days before the intrepid folks at CT News Junkie tracked down this story independently speaks volumes to the focus of the “mainstream” news outlets, which are quick to splash sensationalist headlines of people’s arrests but reluctant to find out about real stories of injustice even when repeatedly informed of them. This is why independent news outlets like CTNJ and New Haven Independent have the drop on most traditional news media.]

How did Mr. Thompson get arrested, charged and convicted, you might ask, despite the title of this post? A faulty identification by the victim, ‘natch. Just in time, too, as the legislature today holds a public hearing on another eyewitness identification bill that would improve upon the one passed last year. But it also comes at the right time in the context of the death penalty debate, serving to remind us and our legislators that even here in the land of steady habits, we are not perfect. We make mistakes and one day, these mistakes are going to converge in a death penalty case. That we’ve been lucky so far is no reason to maintain faith in the infallibility of our particular death penalty scheme.

Thompson was convicted in 1998 of a rape and kidnapping that occurred in 1994. He was sentenced to serve 12 years in prison. At the time there was no usable DNA evidence, but the victim identified Thompson as the perpetrator.

Just this month, the State lab finished testing on the victim’s underwear to find that it excluded Thompson and implicated another man. Which is fantastic for Mr. Thompson, but just imagine, for a second that there was no testable DNA remaining. He’d still know he was innocent, but no one would believe him. He’d probably serve 12 years and be left to the ravages of the system with no way of proving his innocence.

There are people like that in our prisons. People who are innocent, but have no way of proving it. And a large number of them are convicted based solely on eyewitness testimony. Why do we continue to rely on this faulty mode of evidence? Why do juries? People: if you’re reading this and you’re on a jury, be extremely skeptical. There may be no white knight in 5, 10, 15 years to save an innocent man. Maybe it’s time we all started requesting instructions on the dangerousness of eyewitness testimony. We should ask that juries be instructed that 75% of wrongful convictions involved an identification of the exonerated. Something has to be done.

Just not what State Rep. Hewett wants:

However, Rep. Ernest Hewett, D- New London, said Thompson’s case lends support to a different proposal he’s pushed in the past. Hewett wants to allow the pre-conviction collection of DNA data at the time of a felony arrest.  “Can you imagine if we increased our database to arrestee DNA, how many people we’d get? They’re just walking the streets,” he said. “Those people that are running wild out there, continuing to commit crimes, their profile would be in our database.”

This, apparently, is his pet project. I’ve written in the past about how this would run afoul not only of our basic Constitutional rights, but also the principles underlying those rights and would only serve to push us closer to war with Oceania [and a debate on this bill last year produced, in my estimation, the “Best. Quote. Ever“].

Hewett, as you can see from prior posts, is prone to saying things that make little sense. He says that Hubert Thompson’s DNA exoneration, – and for that to work, they’d had to have DNA from the victim, the suspect and Mr. Thompson – this particular case, lends support to the idea that we should take DNA from people when they’re arrested. Apparently he missed the part where they didn’t test the DNA in 1998 because there wasn’t any usable DNA in the rape kit, not because they didn’t have Mr. Thompson’s DNA or that of the real suspect.

As time went by, extraction methods and protocols improved, allowing the lab to extract DNA from samples previously thought to be unusable. It’s that advancement in technology that permitted the exoneration of Mr. Thompson, not him suddenly deciding 5 years into a 12 year sentence that “hey, you know, maybe I should start working on this whole ‘getting out of serving time for a crime I didn’t commit’ thing”.

We’re all allowed to have positions on things and our pet projects – God knows I have so many – but can’t we at least expect our elected officials to be able to understand, articulate and properly apply theirs?

 

 

Prison isn’t what you think it is, and other death penalty half-truths

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.

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?

—-

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.

—-

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.

—–

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

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.

 

Taxing the system

“We should just put everything on the trial list. That’ll learn ‘em” is an idea that every young, wide-eyed, idealistic criminal defense lawyer has when she is beginning the slow descent into disillusion. I first heard it when I was interviewing for a job in my third year of law school. I said it recently, out of frustration with the State’s adamant refusal to acknowledge the glaring holes in their case. It is a dangerous idea and so it surprised me to see it espoused in the editorial pages of the New York Times by someone who claims to be a civil rights lawyer (more on her later).

The idea, for the uninitiated, is simple enough: 90% of criminal cases resolve via plea bargain; innocent people end up in jail; the system is rigged. So let’s fight it with insurrection. Overload the system, the system crumbles, justice is served. No state is equipped to handle the volume of 100% of cases going to trial. There isn’t enough money in the world to make that happen.

It’s appealing, sure. But only in theory. And the greatest evil the theory seeks to fight – the rigged system – is the greatest reason this idea is dangerous if ever implemented:

“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.

In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.

The system is rigged alright. Rigged so badly that cases with almost no evidence are rarely dismissed, that people who do exercise their right to a trial often end up with significantly higher sentences as punishment for the impudence of exercising those rights, that juries are predisposed to convict because innocent people don’t get arrested.

An idea like this can only originate from the mouth of a non-practicing academic: one who operates only in theories and not in the harsh realities of being in the trenches.

When I brought this up recently, a colleague looked at me and said “which client are you willing to sacrifice and how many?” The answer is none. As Norm so appropriately puts it:

Only fools, the naive and bad propagandists look for “justice” in the criminal courts. Clarence Darrow nailed it a century ago: “There is no justice in or out of court.” All that exists are interests. A criminal defense lawyer who puts his sense of justice ahead of his client’s interest has no business appearing in court. None.

Because our clients are often guilty and more than that will be found guilty by juries. They will be sentenced more severely than if they’d taken a plea. That is reality. A reality that we, as lawyers, don’t have to live. In this pursuit of wreaking havoc on the system, thousands will end up in jail, their lives ruined, their families’ lives ruined. Our job, primarily, is to serve the interests of a client. There may be times when a client’s desires provide a forum to take a stand against the rigged system. But unless that happens, it is a disservice to suggest that we disregard the consequences of our holy struggle in pursuit of an elusive fix.

Only someone who hasn’t had to repeatedly stand by clients as they are led away to serve weeks, months and years would offer up those same clients as lambs to the slaughter. Only someone who purports to be a civil rights lawyer but uses the phrase “court-appointed lawyer” when “lawyer” would suffice would propose an idea to destabilize the system at the expense of real, living, breathing people without acknowledging the disastrous consequences.

[Update:] Upon further reflection, I should state that there is a valuable message in this approach: that we should not be afraid to try cases, to stand up to poor offers and to essentially hold the State to its burden. You try cases that are worth trying, that have a shot at success, that present little additional downside to the client. And there are cases that you must try: where the client wants it and where there’s no functional difference to the client between losing after trial and pleading guilty to whatever offer may be on the table. The common thread, obviously, is picking the one that benefits the client the most. Sadly, we are in the crisis management and mitigation business. Clients don’t come to us to uphold some lofty ideal; they come to us to stop the tide as best as possible. It would be malpractice and a disservice to require them to put aside their best interests because we need to make a point.

Do it when you’re arrested, not when you’re defending someone else’s liberty.

There are ways to fix the system, albeit slow and mostly ineffectual: talk to your legislators, educate the community, run for a seat on the highest court. This is not one of them.

My struggle is against the system that wishes to incarcerate them. I won’t join it in the name of a mirage.

 

[H/T: Bobby G.]

 

A solitary epiphany

“They treat me like an animal, so I’m going to act like one”, a client once said to me at the end of a two hour meeting in which we had discussed his life and the host of disciplinary problems he was experiencing in jail. “I’m not an animal”, he continued, “but in here, when you’re surrounded by the smell of piss, shit and blood every day and when they [the guards] spit at you and tell you you’re not human, but an animal. you become one”. He ended with the strikingly poignant “fuck them”.

The client was in solitary. He had a concrete cell with a thick metal door and no window. He was fed through a slot in the door and there was a one inch wide and 5 inch long “window” on the door of his cell that looked out onto a narrow corridor and other similar doors. He was, at times, chained in his cell. He’d had a TV for a bit, but they’d taken him away. He’d had a few books, but they wouldn’t allow him to have more than one or two at a time. Toilet paper was scarce. He could only take a birdbath. He hadn’t been out of his cell in days. He only got one hour a day, by himself in a cage, in a concrete “courtyard” where the walls stretched 30 feet upward like a chimney and an opening at the top that was covered with a grate, also like a chimney. Sunshine was something you imagined, not experienced.

Whether he, or any other client of mine deserved to be held in those conditions is something I will not discuss. But their experience, their conditions are common. In this State and throughout the country. At CT’s Northern Correctional Institution – the only Level 5 facility in the state – there are 310 staff members for 352 inmates. I don’t know the exact number, but I’m willing to bet that a large majority of them are held in solitary confinement or its equivalent.

At least 25,000 prisoners — and probably tens of thousands more, criminal justice experts say — are still in solitary confinement in the United States. Some remain there for weeks or months; others for years or even decades. More inmates are held in solitary confinement here than in any other democratic nation, a fact highlighted in a United Nations report last week.

The concept of solitary confinement has some appeal, if only superficially. Isolate a troublesome inmate as a punishment and hope that they reflect upon their actions that landed them there. Deprive them of human interaction and they’ll learn to behave well with others.

But anyone willing to give the concept more than a minute’s thought can point out the serious flaws with this argument. Depriving someone of human interaction and depriving them of humanity are two entirely different beasts, one far more dangerous than the other. As anyone who’s ever been laid up sick at home for days on end – or someone who’s ever gotten stuck in an elevator or between locked doors in a jail – can attest, the sense of isolation and abandonment seriously distorts our mental health.

And our prisons are full of people – diagnosed or otherwise – who suffer from mild to severe mental illnesses. Solitary confinement only serves to exacerbate and fine tune.

Only lately, it seems, has the message begun to get through:

Many states continue to house inmates with mental illness in isolation. Some inmates appear to function adequately in solitary confinement or even say they prefer it. But studies suggest that the rigid control, absence of normal human interaction and lack of stimulation imposed by prolonged isolation can cause a wide range of psychological symptoms including insomnia, withdrawal, rage and aggression, depression, hallucinations and thoughts of suicide, even in prisoners who are mentally healthy to begin with.

States are closing their supermax prisons, taking people out of solitary and the results are surprising:

They allowed most inmates out of their cells for hours each day. They built a basketball court and a group dining area. They put rehabilitation programs in place and let prisoners work their way to greater privileges.

In response, the inmates became better behaved. Violence went down. The number of prisoners in isolation dropped to about 300 from more than 1,000. So many inmates were moved into the general population of other prisons that Unit 32 was closed in 2010, saving the state more than $5 million.

The transformation of the Mississippi prison has become a focal point for a growing number of states that are rethinking the use of long-term isolation and re-evaluating how many inmates really require it, how long they should be kept there and how best to move them out. Colorado, Illinois, Maine, Ohio and Washington State have been taking steps to reduce the number of prisoners in long-term isolation; others have plans to do so. On Friday, officials in California announced a plan for policy changes that could result in fewer prisoners being sent to the state’s three super-maximum-security units.

Unfortunately, as is the case with most criminal justice reforms, this paradigm shift comes not of some fundamental epiphany regarding the way we treat those among us, but from economics. They’re just too damn costly. And that’s fine, I suppose, for it brings about a favored result. But it does nothing to correct a greater problem prevalent in our correctional systems: that there’s very little correction and rehabilitation going on. There needs to be a change in attitude towards inmates. Most of them – almost all, in fact – will be released some day. They will rejoin us in society. They will live among us and try to work side-by-side with us.

Will they come out with a greater disdain for society and its rules and the better nature of us all? Or will they come out believing that no matter what, they’re still animals, and having had that drilled into their heads for years and decades, decide to act accordingly?

While celebrating the shift away from harsh, torturous conditions, I fear that the only actual difference is a change of scene for this play. The content will remain the same. And until we – all of us – accept and understand that the near inhuman treatment of others only makes us like them and them like us, safety will only be an illusion. And humanity a forgotten ideal.

Pardon me

Just before he left office in January 2012, Mississippi Governor Haley Barbour pardoned a whopping 198 people at once. Despite the fact that only 10 of them were still incarcerated, the pardons set off a firestorm and gave birth to a lawsuit seeking to invalidate the pardons, not because they weren’t deserved or that the Governor didn’t have the authority to issue them, but rather because he allegedly hadn’t followed the notice requirements.

Today, the Mississippi Supreme Court issued a 6-3 ruling [PDF] holding that the pardons were valid because to rule otherwise would violate the separation of powers. All the opinions together total 77 pages, but they are worth reading from start to finish because they provide an in-depth analysis of the separation of powers and our system of checks and balances. The opinions are an enlightening walk into history underscoring the pivotal importance of the independence of the three branches of government. The granddaddy of all separation cases, Marbury v. Madison, is front and center.

Of course, while this furor isn’t about the fact that almost two hundred criminals were pardoned, it really is. People are angry for nothing other than the simple reason that some “lawless convicted felons” (a quote from the operative dissent) got some supposed windfall.

But what really, does this pardon do? Does it negate the crime? Does it negate the years of punishment? Of course not. All it does is gives some people a chance at rebuilding lives unburdened by the stigma and trappings of a criminal conviction. You can argue that some of these 198 don’t deserve it. You can argue that some people deserve to have less than meaningful opportunities as punishment for what they’ve done. You can argue that the Constitution shouldn’t give a Governor unchecked power to do as he pleases in this regard. Heck, you can amend the Constitution to do just that.

As one concurrence points out, that’s not the issue. The issue, simply, is whether judiciary can even begin to examine the exercise of authority that exclusively belongs to the executive? As the majority eloquently puts it:

the controlling issue is not whether Section 124 requires applicants for pardons to publish notice – it clearly does. The controlling issue is whether the judicial branch of  government has constitutional authority to void a facially -valid pardon issued by the coequal executive branch, where the only challenge is compliance with Section 124’s publication requirement.

In other words, the procedure for exercising executive power is within the province of the executive alone. I’m not sure which side I come out on in this issue. It’s certainly not an easy one, nor one that was made lightly, I suspect. On the one hand, the implications of holding that courts can and should review executive decisions are staggering. Can you imagine courts reviewing and inquiring into every vote taken in every legislature throughout the country? The focus of the courts’ review has to be the content of the laws passed by the legislature and the actions taken by the executive, not the process by which those laws came into creation.

But, on the other, is the danger that facially void laws come into effect: what of a bill that is signed by the Governor that has not been passed by both chambers of the legislature? That, after all, is also merely the process by which laws are made.

There is a distinction, I suppose, but one that is ever so slight. And that’s what makes this opinion fascinating. It a decision of pure Constitutional interpretation that allows us all to act as if it were still 1803.

Seeing as how I mentioned Marbury, I have to link to this re-enactment again:

We need to talk about an injustice

While it was happening, I heard from many on Twitter that Bryan Stevenson‘s TED talk on injustice was riveting and a must watch. It’s now available online and I’ve linked to it below. This is your homework for the day. Watch it, think about it and we’ll come back tomorrow to talk about it (and injustice).