The Blackstone Ratio at the Supreme Court

My colleague David Feige makes the following observation about the role of the Blackstone Ratio in our criminal justice system:

[In Kansas v. Marsh, Scalia] concluded that "The rate at which innocent people are convicted of felonies is less than three-hundredths of 1 percent - .027 percent, to be exact". Scalia sleeps well knowing our system works so brilliantly. The problem, of course is that .027 percent is a hoax, and . . . I [am] struck once again that a justice generally considered to be so bright could get something this important so fundamentally wrong. But one need only look at the study Scalia cites (by Joshua Marquis, a stalwart of the prosecutorial lobby) to understand the error of his ways.

Marquis came up with the number that Scalia adopted much like a toddler solving a problem in a kindergarten math workbook: He took the total number of exonerations, (north of 200 now) picked a gratuitous multiplier (10 purely for rhetorical purposes), and then divided by 15 million—the total number of convictions during the period of years he considered. . . . As I've previously pointed out, here's why that's a ludicrous methodology.

So how should one "do the math?" Another colleague of mine, Michael Risinger, was recently cited in Justice Stevens' concurrence in Baze v. Rees for his work on the issue.

Risinger explains his methodology (and applies it) in this piece. He states:

If one is at all serious about trying to determine the empirical truth about the magnitude of the wrongful conviction problem, one must make an attempt to associate the denominator with the same kind of cases represented in the numerator. . . . I have tried to do just that. Using only DNA exonerations for capital rape-murders from 1982 through 1989 as a numerator, and a 407-member sample of the 2235 capital sentences imposed during this period, this article shows that 21.45%, or around 479 of those, were cases of capital rape murder. Data supplied by the Innocence Project of Cardozo Law School and newly developed for this article show that only two-thirds of those cases would be expected to yield usable DNA for analysis. Combining these figures and dividing the numerator by the resulting denominator, a minimum factually wrongful conviction rate for capital rape-murder in the 1980’s emerges: 3.3%.

As Justice Stevens has stated, "Abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses."

Posted by Frank Pasquale at 09:37 PM | Comments (0) | TrackBack

Tex-ternalities and the China/Europe Spectrum

I've recently come across these three facts about Texas:

1) About 60% of US executions occur in Texas.

2) About 20% of children in Texas do not have health insurance--almost twice the national average.

3) Texas produces more greenhouse gas emissions than California and New York combined.

When I first saw these figures, I thought that Texas may be burdening the US with some "reputational externalities" abroad, manifest in books like Vernon God Little. The judges who awarded it the Booker Prize called it a "coruscating black comedy reflecting our alarm but also our fascination with America."

Some economic theories predict that these externalities will eventually be internalized. For example, there are many stories about a European condo-buying boom in New York; I haven't seen as much on residential real estate purchases by overseas buyers in Texas. According to Anup Malani, “The value of a law [may] be judged [in part] by the extent to which it raises housing prices.” So perhaps more highly valued laws elsewhere in America will push up housing prices, comparatively enriching those property owners.

On the other hand, perhaps Texas's policies are a bid to flatter China by imitation. Pollution in places like Shenzhen is a big problem (and that's just the tip of the iceberg). Executions are common. And China's decisions about health care in the 1980s and 90s might warm many laissez-faire hearts: "From 1978 to 1999, the central government's share of national health care spending fell from 32 percent to 15 percent [and] the central government drastically reduced its ability and commitment to redistribute health care resources from wealthy areas to poor areas."

Looking at world trends, a modern-day Tocqueville might think that the US's future lay in political development of either a Chinese or EU variety. Texas appears to be a red state in more ways than one.

Posted by Frank Pasquale at 08:57 PM | Comments (3) | TrackBack

Probation for Murder: Justice Served or Excessive Prosecutorial Discretion?

A few days ago, I blogged about a series of articles in the Dallas Morning News about the many instances where murderers received probation in Texas. Over at Grits For Breakfast, Scott Henson has a provocative argument that probation isn't always inappropriate for murder:

As I wrote in a "first impression" about the series, it's possible to:

identify several recurring situations where murderers frequently received probation: a) Prosecutors had weak or circumstantial cases and the defendant may not have done it, b) the defendant was guilty via the "law of parties" but didn't actually kill anyone themselves, c) the defendant was elderly, sick or incapacitated to the point where they were no longer a threat, and d) the victim was a worse person than the murderer and basically "needed killin'," so juries sympathized and gave the defendant another chance.

While Dallas News columnist Gromer Jeffers identifies what's wrong with reason A for granting probation in murder cases, who thinks reasons B, C, or D are not sometimes justified? Following Bennett's lead, let's think more closely about category D, in particular, the ones whose victims "needed killin'." Consider the case of Synnissa Gabriel who murdered Hosia Abdallah, her estranged boyfriend:

She told police in 2005 that Mr. Abdallah had stalked her and vandalized her home, in violation of a protective order. Then she tracked him down and shot him several times.

Heath Hyde, who prosecuted the case, said he offered a deal because the victim had a long history of violence against women. That made it unlikely jurors would sentence his killer to prison, he said. Defense attorney Nancy Ohan described her client as "the classic case of the battered woman ... there was a definite mental break."

So a battered woman who continued to be stalked and harassed in violation of a protective order finally took matters into her own hands and gunned down her assailant. Why'd she get probation? Because prosecutors believed jurors would conclude the victim "needed killin'" - in other words, that justice had been served by the defendants' actions. It may not be true under the law, but in the gray-area balancing act jurors do in their own minds while making life or death decisions, it's true in point of fact.

In some other cases, defendants had possibly viable self-defense claims or otherwise could credibly portray themselves to a jury as protecting themselves. Not all the cases find a sympathetic killer and a much-scarier victim, but when they do, is it wrong for a jury to sympathize with the defendant?

Isn't that what juries are about, letting members of the public come to their own conclusions about what constitutes justice?

Is this just the jury system at work? Or is it evidence that prosecutors have too much discretion? Even accepting Scott's argument that juries are about letting the public come to its own conclusions about justice, the Synnissa Gabriel case didn't involve the public making the decision -- instead, the prosecutor decided. I'm not opining on the merits of Gabriel's case, but I will note that I am sympathetic to the battered woman's syndrome defense. That said, however, the immense power of the prosecutor in this case -- to offer a plea for probation for what would ordinarily be a first degree murder -- takes the matter out of the hands of juries and the courts, as well as sidesteps the criminal statutes that the state has passed through its elected officials. Plea bargaining is a necessary evil in the criminal justice system -- without it the system would probably collapse -- but it has gotten out of hand, giving prosecutors such an immense power and making the criminal justice system not one about statutes, or about courts, or about juries -- it's about prosecutors and their astounding discretion.

In the end, regardless of whether justice may have been served in Gabriel's case with probation, it is the process that makes me very uneasy.

Photo credit: Falaschini

Posted by Daniel J. Solove at 01:23 PM | Comments (2) | TrackBack

Bootstrapping Against Capital Punishment

We've been fairly called out for giving insufficient attention to the ongoing quiet revolution in capital punishment law. It is true: our criminal law coverage is underdeveloped. My excuse – as usual – is incompetence. DP law presents a host of complicated doctrinal problems: sounding off at random to the latest development is dangerous. On the other hand, no one said blogging was supposed to be safe.

Today, Doug Berman comments on the NYT story on capital punishment costs. The story offers anecdotal evidence that the judiciary has responded to underfunded capital defense units by shutting down prosecutions. If the trend continues, "states unwilling to pay the huge costs of defending people charged in capital cases may be unable to conduct executions." Doug sums up:

Consequently, states that do not adequately fund capital defense get sub-standard efforts that lead to more costs on the back end during appellate review. Indeed, as the posts below highlights, any capital punishment system is necessarily a very costly endeavor.

My cynical response to these observations starts with the observation that stringent judicial review of capital claims hinges largely on Justice Kennedy's continued status as swing Justice. The executing States would move quickly to reduce capital defense guidelines given even subtle signals from the Court that ultimate merits review would be unavailing.

Moreover, it seems odd to me to claim that the death penalty is expensive and therefore inefficient when, of course, it is expensive primarily as the result of a self-conscious litigation strategy by folks like Steven Bright and Brian Stevenson. The death penalty doesn't have to be expensive: abolitionists have made it so on purpose. By setting ever-higher standards for effective capital defense through litigation and by example, abolitionists have made death penalty prosecutions more difficult for states to swallow. Of course, abolitionists can have mixed motives: a standard that increases cost will also likely reduce wrongful conviction in any individual case. But it is odd that the article spent so little time examining the possibility that costs aren't a byproduct of the search for innocence but instead a direct result of what we might think of a litigation strategy to impose a constitutional tax on capital prosecutions. The article says – without further explanation – that "Lawmakers say [a particular judge] and the defense lawyers are deliberately driving up the costs to make sure that the death penalty is too expensive for the state." Well, no kidding!

Increasing costs is good strategy if your only goal is to prevent executions. But it is a bad strategy – as least when compared to the innocence project - at increasing public support for abolition. And it is a worse strategy if your concerns are more broadly directed. Legislatures will resent being bootstrapped out of their preferred sentencing means. And it is unlikely that the death penalty funds taken from indigent defense organizations by spiteful legislatures will ever be restored.

(Image source: Wikicommons)

Posted by Dave Hoffman at 12:01 AM | Comments (3) | TrackBack

The Department of Ill-Advised Job Titles

UC Berkeley's Boalt Hall School of Law has just announced the creation of a Lethal Injection Fellowship. I applaud the institutional commitment to this work - the fellow will create and manage a clearinghouse of information regarding lethal injection challenges - but the title is a bit ghoulish.

Or perhaps the discomforting title was strategic. It will certainly create some unusual interview chat as fellows go off to find their first post-fellowship position.

UPDATE: A spelling error has been corrected.

Posted by Dan Filler at 02:51 PM | Comments (3) | TrackBack

Death Not So Different?

Hugo Bedau's classic book Death is Different commented on the qualitative difference between capital punishment and other penalties. But there appears to be a growing trend to blur the distinctivenss of crimes provoking the death penalty. Consider the following examples:

1) At least five states now authorize the death penalty for child rape.
2) China has sentenced a former drug regulator to death for corruption and bribery charges.
3) Doug Berman has noted that the logic of the hard-core cost/benefit approach of Sunstein and Vermeule may well justify the death penalty for drunk driving.

Even death penalty advocate Robert Blecker concedes that the penalty may have grown too expansive given the way felony murder expands its scope.

What are the cultural trends driving an expanding scope for executions? I can think of a couple offhand. First, at least in America, there is a growing sense that prison is a living hell for just about anyone in it, and there must be some way of isolating out the "worst of the worst" with an even more gruesome penalty.

Second, and far more speculatively, I wonder if secularization of society has anything to do with it--not just in the sense that churches have been eloquent voices for mercy and redemption, but in a fading social conviction that there is some "ultimate justice" done after death. Without such reassurance, it may make perfect sense to seek an "eye for eye," a settling of accounts in the only reality that matters.

Posted by Frank Pasquale at 12:32 PM | Comments (6) | TrackBack

Roman Law and the Virtual Death Penalty

Criminal law is not really my area of interest, but some reading in Roman law has got me thinking about the death penalty. I've always found Roman history -- particularlly the Republican period -- very interesting and were I better at languages I would love to have been a classicist. Roman politics, especially in the late Republic, was a full contact sport as it were. Bribery, organized violence, assination, and -- most importantly -- criminal prosecution were an ordinary part of political hard ball.

If you read the texts of various Roman laws, particularlly very early legal texts like the Twelve Tables, it is awfully bloody minded stuff. (My favorite provision is the one that allows a debtor's creditors to divide shares, meaning literally that they could dismember his body for non-payment of debts, presumeably on a pro rata basis.) In practice, however, the Romans were remarkably fastidious about killing one another. There was no system of incarceration, and generally speaking citizens were never executed. On the other hand, numerous Roman laws did call for the death penalty. In practice, however, someone sentenced to death was given several days before the sentence was carried out in which they could either kill themselves (this was a way of preserving the family estate) or go into exile. Indeed, by the late Republic the assumption was that a death sentence, particularlly for a political crime such as treason, was a de facto sentence of exile.

I suspect that moderns are incapable of really feeling what exile meant for an ancient Roman, the horror of being seperate from the graves and shrines of one's ancestors, the loss of citizenship (which was a religious as well as a civic event; indeed there was precious little distinction between the concepts), etc. etc. Of course in the social breakdown of the late Republic, many an exiled Roman patrician was happy enough to enjoy life in some Greek speaking city like Athens or Rhodes. Still, exile was a death of sorts.

The interesting thing to me about the Roman practice of exile is that it seemed to allow the community to maintain the appearance and practice of capital punishment without actually killing anyone. The civitas could express its ultimate moral and legal condemnation -- "This many is worthy of death" -- without actually making the irrevocable step of strangling the guilty party, or at least not strangling all that many guilty parties. It was a kind of virtual death penalty.

Posted by Nate Oman at 02:35 PM | Comments (2) | TrackBack

The High Cost of Criminal Litigation

Doug Berman has a good post here (and here and here as well) on the costs of prosecuting capital cases. It appears there's been a big flap in Atlanta over expenditures for the defense of Brian Nichols, the fellow charged with killing several people in a rampage at the Fulton County Courthouse. Berman quotes an Atlanta Journal story suggesting that the cost of prosecuting Nichols will exceed the cost of the defense. I would expect as much. Notwithstanding complaints about the cost of indigent defense, prosecution of serious and complex cases costs a ton. The difference is that defense costs are fairly transparent: they are either funneled entirely through the court (in the case of court appointed counsel, and subsequent requests by counsel for costs related to litigation) or through a public defender's office (and perhaps the court as well.) It's easy to figure out how much it costs to defend a Brian Nichols. As Doug and the Journal suggest, costs of prosecution are much less transparent - but pop up everywhere...in police department budgets (and often across multiple different law enforcement authorities), prison budgets, state forensic lab budgets, court administration budgets, and potentially elsewhere as prosecutors seek assistance with their case.

At the end of the day, I'm not particularly troubled that very serious cases cost a lot. I worked for a couple of years at a large NY firm. Clients routinely spent over a million dollars in fees in a $10 million dispute. It's always struck me that, on balance, the decision to execute a person - or to send that person to prison for life - is just as important as guarding cash in the corporate till. To put it another way, I absolutely believe that Brian Nichols is as entitled to excellent counsel as was Phillip Morris (cigarettes) or Johns Manville (asbestos) or Dow Corning (breast implants). When students ask how I could represent criminals as a public defender (or as the query is usually phrased at cocktail parties, 'how can you defend those scum?"), one of the best explanations in terms of both accuracy and resonance with skeptics is equity: do rich people and corporations really "deserve" better counsel than poor people?

By the way, if you don't recall the Nichols case, it's the one where the defendant ended his siege by arriving at the home of one Ashley Smith. At first, it appeared that she subdued him with her newly discovered wisdom from The Purpose Driven Life. Much as Rick Warren loved this narrative, reality turned out to be somewhat more complicated. Here's how Wikipedia captures what happened:

Smith was held hostage for several hours in her own apartment, during which time Nichols requested marijuana, but Smith told him she only had "ice" (methamphetamine). In her book “Unlikely Angel: The Untold Story of the Atlanta Hostage Hero” Smith revealed that she “had been struggling with a methamphetamine addiction when she was taken hostage” and the last time she used meth “was 36 hours before Nichols held a gun to her and entered her home. Nichols wanted her to use the drug with him, but she refused.” Instead, she chose to read to him from the Bible and The Purpose Driven Life. She tried to convince Nichols to turn himself in by sharing with him how her husband "had died in her arms four years earlier after being stabbed during a brawl." Smith also writes that she asked Nichols “if he wanted to see the danger of drugs and lifted up her tank top several inches to reveal a five-inch scar down the center of her torso — the aftermath of a car wreck caused by drug-induced psychosis.... When news of his crimes was reported on television, Nichols looked to the ceiling and asked the Lord to forgive him. In the morning Smith cooked breakfast for Nichols.

Posted by Dan Filler at 12:00 AM | Comments (0) | TrackBack

Geographical Disparity And The Death Penalty

As Doug Berman noted, St. Louis University Law School, along with Washington University in St. Louis, put on a truly engaing conference on the issue of prosecutorial discretion and the Missouri death penalty. The conference was built around a study by Barnes, Sloss and Thaman that showed, among other things, a notable disparity in charging of first degree murder, seeking of death, and imposition of death, between different Missouri counties.

This leads to an interesting question: is there something problematic about intra-state geographic disparity in sentencing? Criminal law practitioners have long been aware of county-by-county disparities in sentencing. For example, when I was public defender in Philadelphia, it was routinely the case that a person who stole a car (for a first offense) would get probation in the city. Take that same car from the suburbs, however, and the defendant would go to jail. The same held true for shoplifting: suburban communities with big malls (and big mall revenues) were considerably tougher on retail theft.

The reality is that communities inevitably judge crime in context. As one panelist noted, a two kilo cocaine bust looks a lot different in Miami than in a small community in the middle of Virginia. And the sentence will likely reflect the uniqueness of the offense. One of the benefits of sentencing guidelines - if this is indeed a benefit - is the flattening of sentencing differences within a state. But perhaps local communities should exert substantial control over sentencing. After all, the citizens of Oakland and and those in Orange County probably don't agree about the proper sanction for, say, marijuana sales. When you level the field, urban communities - often home to unusally large numbers of minority defendants - may see sentences leveled up, not down. This is one of the pernicious aspects of federal sentencing guidelines. Vermnot defendants receive South Carolina sized sentences.

So what about the death penalty? Is geographic disparity with respect to the death penalty particularly noxious? Should there at least be statewide consistency for this sanction? I'm not sure. There are strong reasons to oppose use of capital punishment - first of which, it seems to me, is that the death penalty does disparately affect people based on race, class and disability (all of which are illegitimate bases for disparate treatment, in my mind. ) For me, however, local differences are a not-entirely-unfriendly aspect of our governmental system. So the main question becomes: does geographical disparity mask the unaccpetable sorts of difference based on race, class, or disability? (And I am most worried when the difference is inheres to the detriment of minorities groups; disparity that harms majority groups is at least slightly more likely to be managed through majoritarian process.) The Missouri study suggests that geography masks race; that is the question we should probably be asking.

Posted by Dan Filler at 03:16 PM | Comments (0) | TrackBack

Good Intentions, Bad Outcomes For Capital Defendants

Back when he was Alabama's Attorney General, Bill Pryor used to complain that big (Northern) firms only lined up to represent capital defendants at the point of collateral challenges. Why, he'd ask, don't they step up at the trial stage? A certain suspicion is present in this question, a suggestion that this decision is strategically designed to frustrate use of the death penalty. But as anyone experienced in criminal practice will tell you, it is easiest to prevent a death sentence at the trial stage - either by squeezing out a plea deal, winning at trial (really, almost impossible in capital cases, unless you roll the dice and give up any hope of showing forgiveness in the sentencing phase, should it occur), or "winning" life at the punishment hearing. (One caveat here: in Alabama, where judges override jury verdicts of life in order to further their own political ambitions, all the good lawyering in the world can lead to nothing. As a result, an Alabama capital defendant may actually do better on appeal than at trial. The fact that this is true shows the perversity of the Alabama override system.)

So why don't these excellent, well-funded counsel take cases at trial? There are presumably a few reasons. One is that trials are harder and more expensive to handle when your office is 1000 miles away. A second is that firms may actually prefer that their junior associates get the experience of working on what (probably incorrectly) appear to be more law-based collateral challenges. (They also aren't interested in giving up the large chunk of attorney time required to handle a trial.) But a third reason, I suspect, is that the lawyers in these firms just don't feel up to the task of trying a capital case. They don't think they have the proper background; they may even think it would be malpractice. It's easy to picture a partner at Simpson, Thacher saying "I've never tried a criminal case in my life...let alone one in Alabama."

It is one of the curiosities of capital work that the leaders in the field have successfully convinced many other good lawyers (and not just Big Law lawyers from out of state) that you shouldn't take a capital case without a commitment of serious time and a strong background in criminal and capital practice. They're right, of course. The problem is that when these good lawyers pass on capital cases, defendants in many jurisdictions end up with a mediocre or downright terrible lawyer. The attorneys who ultimately handle the case may have tried dozens of criminal matters, but they aren't necessarily sophisticated or talented practitioners. They may never gave given a thought to the difference between guilt/innocence and the penalty phase. They may accept mediocre attorney/client relations that make it impossible to sell a young client on a plea of life without parole. And they may dedicate what seems to them a reasonable 30 or 40 hours to prepping the case.

When I first considered starting a capital defense clinic at Alabama, a friend who'd formerly worked at a Death Penalty Resource Center counseled me against it. He correctly believed that I was too overtaxed to dedicate the time such a clinic truly required. But I created a model that worked - reasonably well, though not perfectly - because it struck me that, in Alabama, in the year 2002 (and still today), perfection really can be the enemy of the good. I'm not sure I was right in setting up that clinic, but I hope that if nothing else, we trained a few lawyers to worry about exactly these questions.

Posted by Dan Filler at 10:14 AM | Comments (5) | TrackBack

And So It Goes: Possible Reasons to Care About Saddam Hussein's Execution

Dan's post asks whether we should care. This morning I was reading arguments regarding whether the United States could or should hand Saddam Hussein over to the Iraqi government because of international law concerns. The New York Times reports that news agencies have been debating whether to show the event. Now CNN reports he is dead. As I watch CNN and write this brief post Anderson Cooper notes that the execution was videotaped and photographed and that CNN will review this media possibly to show it but with some warning regarding the contents before it runs the footage.

Perhaps the reason to care is precisely the sense that Dan offers: even when we might not care about the specific person and "the intentional killing of another human being [does] not generate deep discomfort" -- maybe especially at that point -- we should care and look to the questions of justice that we otherwise would consider. Isn't this in part what Arendt is addressing in Eichmann in Jerusalem: The Banality of Evil?

In other words, maybe we should slow down and see how we treat even the most extreme criminals rather than rapidly move from debates about international law to whether we should show or not show the execution not to mention indulging in the voyeurisitc reports of each moment before, during, and after the execution.

Then again to borrow a phrase from Vonnegut, and so it goes.

PS For those wishing to read the 298 opinion it is available at the Case Western Law Web site.

Posted by Deven Desai at 12:01 AM | Comments (3) | TrackBack

Sadaam Executed. Should We Care?

I think a lot about capital punishment, but I still haven't figured out what to think about the (apparently completed) execution of Sadaam Hussein. Although I am deeply troubled by the use of capital punishment in the United States, and have questions whether any system can consistently offer the assurances of fairness and accuracy commensurate with the sanction, I do not oppose the death penalty categorically. If the death penalty is appropriate, it seems to me that one must feel confident that the target is actually guilty, that he received a fair trial, and that he is culpable at the highest moral and practical level for the most serious crimes. When it comes to Sadaam, there is little doubt (as far as I can tell) that he is guilty of facilitiating mass killings. I don't know whether he received a fair trial and I don't know enough about him personally to know whether he is morally culpable on an individual level - although he doesn't appear to have much claim to most of the mitigators surfacing in a typical U.S. capital sentencing. At the end of the day, I don't have much sympathy for the guy.

So should I care if he is executed? Perhaps I should not only care, but be pleased. On some level, this sentence - which unlike most death sentences in the U.S., will actually be noticed both by the people we hope to reassure and those we hope to deter - communicates a fair amount about society's view of his conduct. In that sense, this outcome is probably better than having troops kill him while he was huddled in a bunker. And it is surely better for the U.S. that he be executed after an Iraqi trial, and by Iraqis, rather than through a U.S. military tribunal.

Maybe I shouldn't care, even if the penalty is wrong because these sanctions aren't ours to distribute. But that can't be quite right, since the current Iraqi regime is (at least partially) an American creation. And if the death penalty is unjustifiable murder, if I truly believed that to be true in all cases, I would have to be upset and angry, and probably feel compelled to take at least some small action in opposition.

I can't quite get to the bottom of my own emotions. The process seems like slow motion, a bit, though it is far faster than any American death penalty. (Isn't that oxymoronic? The American process is so slow that it doesn't even look like motion. In the end, the execution feels little different from a premeditated killing precisely because it is not part of a continuing, visible, inevitable process that leads directly to execution. Here, however, the process is swift enough that we can watch it unfold slowly before our eyes.) I fear that it will have negative political repercussions. I fear that it will reopen wounds that should stay closed, or close wounds that demand further inspection and investigation. I fear that the comfortable use of death in this case will reassure some people that the death penalty is appropriate for more mundane crimes.

But I don't feel much pity. And I don't feel a sense of injustice. So in some awful sense, I don't care much at all. And there's the rub. I deeply dislike the idea that the intentional killing of another human being would not generate deep discomfort in me. I seem to have found out why I don't oppose the death penalty categorically. But I'm not sure I'm proud of the insight.

Posted by Dan Filler at 12:00 AM | Comments (4) | TrackBack

Further Thoughts On Abortion, The Death Penalty, Mental Illness, and M'Naughten

In a recent post about mental illness and the death penalty, I attempted to raise the question of how some abortion opponents justify their support for executing people with mental illness. In particular, I wondered how such an inidividual would deal with some future research which allows us to predict whether a fetus will have an exceptionally high disposition to violence - and thus to murder. For the sake of this hypothetical, at least, imagine that this research actually tells us that a person with X genetic makeup will try to kill someone later in life. Could one oppose abortion of this fetus, while simultaneously approving execution of that person, in adulthood, when his overwhelming disposition ripens into an actual murder?

Rick Garnett offered comments which helped me recognize that my own language was imprecise. I asked whether such new research might logically provide a moral justification for "pre-emptive abortion" of a likely future killer. I now see that this sounds like I was making a utilitarian argument, which was not my intent. Rather, I meant to suggest a couple of things. First, we know that many people on death row have mental health issues - so many that one can now infer, and future research could conceivably establish, that many people on death row are there as a but-for result of their mental problems. Second, if one supports execution of individuals who would not be there but-for the mental problems, one essentially supports execution of people where free-will is not the sole, or even determinative, explanation for their acts. That is, one supports execution of individuals who are, in at least some sense of the word, innocents. Third, this argument suggests that the distinction between the "inncoent" fetus and the "guilty" murderer is far less clear cut. And it suggests that if the information we might need to know about a person to determine whether they will kill can be obtained pre-birth, any moral justification for execution at a later date might have at least some force at the earlier date as well. I am not claiming that one actually should abort for these reasons. I'm merely questioning how one can call the killing of the adult any more or less "retributive" than the abortion, if the factor that created culpability - say, a mental illness - existed both before birth and after. The only thing that changed was the actual fact of a killing, but a killing that was essentially beyond the offender's free will.

The obvious retort to all of this is that the criminal law does not allow execution - or even conviction - of an individual whose crime is caused by a mental disease or defect. The problem is that the dominant test for insanity today, the M'Naughten rule, provides a defense only when a person is not aware of the nature and quality of his act (e.g., he thought he was cutting a melon, but it was really a head), or, if aware, did not know the act was wrong. Notably missing from this standard (but present in the old ALI version of the insanity defense, which became far less common after the assassination attempt on Ronald Reagan) is a defense for individuals who cannot control their acts. Yet if support for the death penalty among abortion opponents hinges, as I suspect it must, on the idea of free will - the notion that the offender has transcended his early innocence and now makes decisions independently, and thus fully culpably - must not that abortion opponent exclude from execution any person who cannot control his act?

Posted by Dan Filler at 11:13 AM | Comments (1) | TrackBack

The Strategic Use Of The Death Penalty

A BBC Newshour report, this morning (autdio link) suggests that Indonesia's decision to execute three Christians yesterday, for their role in a 1998 Christian-Muslim conflict, might have been strategic. For example, there are several Muslims on death row for the Bali bombing. And other Muslims are facing trial, and potentially the death penalty, for the same Sulewesian rioting that gave rise to yesterday's executions. The commentators suggested that in order for the Muslim government to execute Muslims, it may have been strategically wise to execute the Christians first.

This may be a cynical use of death, but I wonder whether some states have run similar calculations. African-Americans are disparately represented on American death rows, vis a vis their percentage of the overall population. The race critique of capital punishment has had a fair degree of traction (compared, at least, to many other criticisms.) Do some jurisdictions attempt to protect their capital scheme from such attacks by executing whites at a faster rate than African-Americans, notwithstanding the overall demographic of death row? In Alabama, for example, from 1999-2005, across two gubernatorial administrations, 12 of 17 people executed were white. And from 2002-2005, all eleven people executed were white. This in a state where almost half of death row is populated by African-Americans. I recognize that each case proceeds at its own pace - to some degree - but I'm curious whether the goal of legitimizing capital punishment ever plays into the decisions of which individuals a state seeks to execute first. (And yes, I do think it's worth noting that at this final stage, there might actually be an anti-white bias in imposition of the sanction, notwithstanding my suspicion that - at earlier stages - the bias seems to cut the opposite way.)

This is not an accusation. I don't have any answers. I'm simply curious about the degree to which all decisions about the death penalty - from charging all the way to seeking a warrant - might be driven by the needs of external legitimacy, rather than by broader moral, or narrower individualized, concerns.

Posted by Dan Filler at 10:15 AM | Comments (2) | TrackBack

Mental Illness And The Death Penalty

The ABA's Florida death penalty assessment team, headed up by Chris Slobogin of the University of Florida, has released its report on the state's capital scheme. Unlike the Alabama team, this group did not endorse a moratorium in the state. It did, however, raise a number of concerns including (among others): the large number of exonerations, inadequate compensation for conflict counsel, racial and geographic disparities, and the large number of people with mental disability on death row.

Although we did not address this at length in the Alabama report, my experience suggests that a shocking portion of people on death row have some mental illness. I suspect that many people would be troubled to learn the degree to which death rows warehouse people with mental disabilities. There has been relatively little empirical work on this question, though a recent study prepared by the U.S. Department of Justice, Bureau of Justice Statistics, showed that 55% of male inmates in state prisons, and 44% of men in federal pens, have mental health problems. I feel pretty confident that death row inmates ore no less than typical on this front, and probably disproportionately evidence mental health problems. It is possible that these problems are the product of imprisonment itself - SuperMax prisons, for example, are brutal - but there is certainly research suggesting that most folks on death row have a pre-existing history of either mental illness, mental retardation, or brain injuries.

There are a several issues involved in the execution of people with mental illness. First, there are the moral questions. Is it fair to execute a person who makes decisions under the influence of brain illness or damage? Can such acts, no matter how heinous, ever carry sufficient moral culpability support death? A separate issue, for those who oppose abortion on the grounds of a predictable disability and simultaneously support the death penalty, is whether one can later support execution of a person whose behavior results, at least in part, from a disability that would not have justified abortion. If a person maintains these two positions, is she essentially arguing that the offender is allowed to be born on the chance that the disability will not result in a killing? But what if future research shows that particular disabilities are high predictors of future violence. Would a "death sentence" for the fetus then be justified?

There are also separate issues of the sort previously raised by the Court. Can a mentally ill person really assist counsel? Does execution of mentally ill people serve the purposes of punishment

Then there is the human rights issue. Does allowing execution of mentally ill people undermine our credibility as human rights activists around the world?

Some people will argue that these judgments are properly left to juries as they weigh aggravating and mitigating factors. Perhaps. As long as we have capital punishment, someone will have to make these tough calls at some stage - and I don't have any more faith in judges than twelve citizens. But the only way a jury can make a fair judgment is if the defendant's counsel effectively investigates and presents relevant facts. Sadly, based on recent ABA reports (such as the one from Alabama), too many defense lawyers aren't up to the task. And that makes it awfully hard for juries to do their job properly.

Posted by Dan Filler at 12:15 AM | Comments (11) | TrackBack

More On Execution Of The Innocent

Although Justice Scalia recently argued that there were no documented cases of innocents being executed, Theodore Shaw of the Legal Defense Fund offered a pretty convincing counter-argument on the point in Sunday's Washington Post. Shaw makes the case that there is good reason to believe that at least four innocent people have been executed since 1989 but his evidence does not include any DNA test results. I wonder if Scalia would dismiss these innocence claims as baseless, suggesting that nothing has been produced that would cause him to second-guess the jury's factfinding. If so, what would it take to convince him?

I suspect that this discussion points to the corrosive effect that DNA exonerations have had on the broader debate about erroneous convictions. None of the cases Shaw cites offered the lock-down certainty of scientific testing. But relatively few investigations or convictions turn on DNA evidence. If we conclude that the only true exonerations are those backed by DNA testing (or similar scientific proof), we will be turning our back on many equally problematic convictions. In effect, we will treating the judgment of the jury - grounded in a factfinding and presentation process potentially tainted by all sorts of problems, starting with bad lawyering - as the moral equivalent of DNA testing: virtually irrefutable. And this may be exactly Scalia's move in his Kansas v. Marsh dissent. If innocence cannot be proven through DNA, it can't be proven at all. That is, in the absence of DNA counter-evidence, juries are always correct.

I think Justice Thomas took the more intellectually honest position. People and criminal justice systems are imperfect. Some juries will convict innocent people. Some states will execute innocent people. And the Constitution says there's nothing the Supreme Court can do about it.

Posted by Dan Filler at 11:54 AM | Comments (6) | TrackBack

How A Public Defender Keeps Death (Sentences) At Bay

Some people have expressed surprise, and even doubts, that the Philly PD has managed to keep all of its clients off death row. The explanation is less grand, but perhaps more important, than one might think. The PD's - lawyers, social workers, and others assigned to these clients - simply work these cases harder than most appointed counsel. And they don't just do thorough investigations. They do the work that so many defense lawyers appear to dread: they spend serious time with their clients. (Let me say at the outset that, notwithstanding my broad criticisms of lawyers who handle indigent appointments, there remain many such attorneys who do good work. Many, but not nearly enough.)

Most criminal cases settle with a plea bargain. The same is true for the Philly PD. But to make a plea bargain work in a capital case, you have to do two things. First, you have to sell the DA on a deal. This means you must investigate the case thoroughly - and early on - so that you can explain to the DA why your client does not deserve death, and why you would have a good chance of getting either an acquittal on the capital charge, or a life sentence, if the case proceeded to trial. In non-capital cases, defense lawyers will often be far more secretive about some of these details, figuring that they'll do better with a jiury than with the prosecutor. Because trying capital cases is so risky, the better approach - with a DA who will talk (i.e., one who does not use every case as an opportunity to advance his or her political fortunes) - is often to bring out many of these factual and equitable claims in the negoitation process.

Perhaps even more than doing great investigation, you have to build close relationships with your client. One might assume that every defendant would be looking for a way to plead to a life sentence, in order to avoid death. But it turns out (no surprise, really) that the prospect of voluntarily accepting lifetime incarceration is a whopper. Death penalty advocates may believe that "life doesn't mean life", but most defendants think it does. And particularly for the 18 or 19 or 23 year old defendant, a life sentence may feel comparable to death. So the staff of the Philly PD's homicide unit actually create strong relationships with their clients, in order to garner the trust necessary to sell a plea bargain. It turns out that this is not only good from an instrumental view - getting a better sentence - but it's also better for the client's psyche. Rich or poor, most defendants are the same: they're afraid and unsure and need a great deal of information and reassurance from their lawyers. Unfortunately, few indigent clients ever receive that kind of treatment.

Individual appointed counsel, with bulging caseloads and relatively little expertise in capital cases, are likely to treat capital investigation and negotiation as a doppelganger of their non-capital practice. This is bad news since, too often, these attorneys generally provide sub-optimal representation. They don't like meeting clients very much, so they only visit when a particular need arises. They don't do much investigation in advance since they only need the results the night before trial. These lawyering deficiencies are consequential even in mundane cases, but their implications are much more serious in a capital matter.

Also, appointed counsel in capital cases often have an incentive not to settle: it's not good for business. One reason why private counsel want capital appointments (and fight to keep them even in jurisdictions with fully developed public defenders ready to handle these cases) is that they provide gobs of press attention. Even a lawyer who loses his capital trial gets a PR boost from repeated mentions in the media (particularly if he or she makes lots of boisterous statements in court and to the press). Many people assume that lawyers doing homicide cases are the "big fish" criminal attorneys in town. (It's similar to law students' assumptions that the 1L profs are the law school bigwigs.) Unfortunately, when you plead out a case before trial, you lose much of that publicity (and thus much of the benefit of taking these low-rate appointments.) I doubt many lawyers intentionally avoid pleas for this reason, but this perverse incentive - combined with other factors - cannot possibly be good for capital defendants.

Why do capital clients of the Philly PD fare better? The lawyers in the homicide unit are first rate, and I'd pick them to try my capital case over the great majority of other criminal lawyers. But it takes a lot more than trial skills to keep death at bay. And in those areas, the Philly PD truly shines.

Posted by Dan Filler at 10:54 AM | Comments (2) | TrackBack

Are We Too Obsessed By Capital Cases?

One of the recurring themes in Doug Berman's (incredibly valuable) blog is his concern that capital cases receive too much scrutiny. He doesn't deny the significance of the sanction, but believes that other sentencing issues - e.g., the new guidelines jurisprudence, the incredible overuse of long-term imprisonment, and the sense that a substantial number of innocent people may be pleading guilty to felonies - are of greater overall importance. (Of course, for all his protestations, Sentencing Law and Policy is a go-to address for news about capital punishment issues.)

I think he raises an important matter, and rather than take issue with him, I'd like to thicken the discussion a bit. Why are capital cases important? A few reasons include: their irreversibility (once the sanction is actually imposed); the gravity of the sanction; the degree to which death penalty policy seems even less teathered to good-government/empirically driven analysis than other sentencing policy (I would take substantial issue with John McGinniss's claim that empirical data on crime has produced some clear truths about effective responses to crime - check out Dan Markel's preliminary thoughts here); the degree to which an ongoing desire to empower states to execute twisted broader criminal justice jurisprudence; and the fact that the use of capital punishment has consequences for America's ability to claim moral authority in many international debates and disputes.

That said, Doug is absolutely correct that far more individuals are devastated by other aspects of American criminal justice policy. Whether the issue is racial or economic justice, the over-use of imprisonment, the over-use of criminal laws generally, problematic use of discretion, or the poor quality of counsel (and, in the case of juveniles, the actual absence of counsel in many cases), capital punishment issues are only the tip of the public-policy-problem iceberg.

So why keep harping on it? First, I think that capital cases can provide a starting point for the discussion of broader issues, if only because the consequences are so serious. So, for example, there are real reasons to worry that the Strickland ineffective assistance standard fails to guarantee defendants competent representation. But the case for change can be appear more compelling when you explain that these deficiencies can cost a human life. Second, I think there is a moral imperative to continually interrogate any process that involves intentional killings by government - whether that is capital punishment, torture, or even war. Sometimes the government must kill, but it is essential that citizens continually challenge government to justify and constrain that choice. Finally, and most simply, I think the reasons I set out up front justify serious attention to death.

But I certainly don't think that capital punishment should use up all the oxygen of criminal justice debate. Doug's blog does a great job of highlighting the many other issues worthy of serious attention. All of us who write about criminal law issues try to keep the spotlight on the manifold ways that criminal justice policy needs significant improvement. And I think there is a legitimate critique that many individual lawyers and organizations expend vast resources on capital work, while shortchanging the many other issues worth their attention. (Capital punishment is, in many ways, the abortion issue for the left; just as anti-abortion advocates feel they reach their highest personal calling blocking women from terminating pregnancies, many death penalty abolitionists feel the same way about their habeas corpus work.) But many of these committed abolitionists wouldn't turn their energy to other criminal law injustices, even if the Supreme Court (or the WTO) declared the penalty a no-go. They would find other grand and dramatic battles to fight, probably outside the criminal justice system.

Personally, I'm going to try to keep up a mix of commentary about crime and society. Death penalty is one of many important issues on the table. If I am too obsessed, it is only by a degree - and is perhaps the result of my own present immersion in the issue as a result of the ABA death penalty assessment project. But I do think Doug's caution is well-founded, a good reminder that we should never get lost in any one rabbit hole when we are trying to find a herd.

Posted by Dan Filler at 12:13 PM | Comments (4) | TrackBack

Is Erroneous Conviction More Likely In Capital Cases?

Dissenting in Kansas v. Marsh, Justice Souter made the controversial claim that "among all prosecutions homicide cases suffer an unusually high incidence of false conviction." He explained this phenomenon as due to "the combined difficulty of investigating (capital cases) without help from the victim, intense pressure to get convictions in homicide cases, and the corresponding incentive for the guilty to frame the innocent". Doug Berman, at Sentencing Law and Policy, takes serious issue with this claim. writing:

Not only do I think that this assertion is wrong, but I think it is sad and dangerous that the four "liberal" Justices might actually believe it is true.

Unfortunately, like a couple of his commenters, I think there is a good chance that Souter is right and Doug is wrong. Why? At least six reasons.

1. The plurality, if not majority, of criminal cases involve a crime witnessed by a police officer where arrest followed immediately. In these cases - from drug cases, to DUI, to disorderly conduct - error rates are likely low. This is true for two reasons. First, notwithstanding their competitive urges, officers have relatively little incentive to lie. (This may be a bit less true in officer assault cases, where disciplinary or tort consequences for offender injuries hinge on asserting that the defender was the cause of the problem.) Second, when the arrest follows immediately after the offense, there is very low risk of misidentification. Civilian assaults - including homicides - involve seriously higher risk of jury error. In assault cases involving unknown assailants, identification errors are a significant problem. The incidents are often quick and unexpected, and witnesses have little opportunity to observe what really occurred. Cross-racial identification problems infect the accuracy of ID's in some cases. Poor line-up and photo array techniques further undermine accuracy of these identifications. And despite all these problems, witnesses are typically very confident that their testimony is accurate. Unfortunately, juries often rely on this confidence factor to "believe" eyewitnesses; the problem is that confidence is not a proxy for accuracy. Witnesses are sure they're telling the truth, but they are often wrong. Thus capital cases, and cases lacking officer observation more generally, involve more guilt error than average.

2. Capital juries are likely to be less sympathetic to the defense because they are death-qualified (i.e., only people who are willing to impose death are permitted to be jurors in a capital case.) This eliminates a not insignificant portion of the population that is most attractive to the defense.

3. In capital cases, defense attorneys frequently do not mount serious innocence defenses during trial for fear that, if the defendant is convicted, he or she will appear less remorseful at the punishment phase. This is basic strategy in any capital case. The sentencing tail typically wags the guilt/innocence dog.

4. Lawyers in many capital cases are lousier than the norm. Seem hard to believe? With the exception of public defenders (I've argued the virtues of PD's here), indigent defense does not (on the whole) draw top practitioners. The reasons are simple: compensation is low and social status of criminal defense attorneys is lower. In a place like Philadelphia, most indigent defense work is done by public defenders. But most capital work (in Philly, as well as in many - if not most - jurisdictions with public defenders) is done by appointed counsel. This is because the private bar wants capital cases. They provide an opportunity for lawyers to get their names in the paper. They have the potential to generate business. Sadly, capital cases benefit even more from sophisticated public defense than smaller matters. PD's have an economy of scale, have existing investigation and social work resources, and have a hierarchy that allows the office to direct capital cases to their strongest lawyers. The proof is in the pudding. In Philly, the PD has not had a single client get a death sentence in the roughly 15 years in which it has handled capital cass. But the Philly PD only gets about 20% of these matters; private counsel cannot claim a similar record.

5. Souter's explanations are right. There is is immense pressue for any potential defendant in a capital case to blame another party. There is virtually no downside to doing so. The lack of an actual victim makes accuracy much harder to achieve. And the public puts far more pressure on police and DA's to close these matters than serious non-homicide crimes. This pressure results in both premature action and error-prone investigatory techniques like badly run lineups and photo arrays and high pressure interrogation.

6. Habeas corpus proceedings are not particularly effective at identifying guilt error. They are much better at identifying procedural problems - from bad lawyering to improper policing. For example, it is near impossible to claim ineffctiveness of counsel for an attorney who puts on a watered down case at the guilt phase, when she does so for the purpose of saving the defendant at the punishment stage. And it is near impossible to have a post-conviction court revisit the testimony of an eyewitness on the grounds that there was a cross-racial ID, and data shows that these are inaccurate a shockingly high percentage of the time.

There are aspects of homicide prosecutions that reduce error as well, of course. These include more aggressive search for evidence, more extensive use of DNA testing, and state requirements that indigent counsel be minimally qualified. But in the end, I don't think these things compensate nearly enough for the risks of error otherwise built into capital prosecutions.

This does not mean the death penalty is an unacceptable sanction. But it does mean at least two things. First, society has a duty to work really hard - much harder than it has - to do these cases right. And second, it means that society must accept that inncocent people will be executed. The majority in Kansas v. Marsh is aboslutely right; imperfect systems will produce imperfect results. The only person who can honestly say she's made peace with the death penalty is one who can accept the periodic execution of an innocent person. That risk is not necessarily unbearable, but it cannot be denied.

Posted by Dan Filler at 12:50 PM | Comments (7) | TrackBack

Scalia v. Souter On The Death Penalty

Today's Supreme Court decision in Kansas v. Marsh, a case involving the constitutionality of Kansas's death penalty statute, delivered more than one might have expected of a (relatively) minor case. At issue was a statute that called for a jury to impose death if the DA proved, beyond a reasonable doubt, that mitigators did not outweigh aggravators. Put another way, the question was: can a state constitutionally impose death where the jury concludes that neither the mitigators nor the aggravators outweigh each other - that is, it's an evidentiary tie. (There's a more complete summary of the case at Scotusblog.) But what makes this case interesting and arguably important so much the legal issues, but the way the justices approached them.

Dissenting, Justice Souter argued that a sentencing sheme must produce morally justifiable results. He did a tour around some of the reasons to question the accuracy of America's death penalty system: exonerations of people on death row, the increased use of DNA to undermine capital sentences, and "the combined difficulty of investigating (capital cases) without help from the victim, intense pressure to get convictions in homicide cases, and the corresponding incentive for the guilty to frame the innocent." Souter spent a total of three and a half pages making these particular claims about accuracy, and concluded "in the face of evidence of the hazards of capital prosecution, maintaining a sentencing system mandating death when the sentencing finds the evidence pro and con to be in equipoise is obtuse by any moral or social measure."

Responding to this, and in the pragmatic voice of McCleskey v. Kemp (where the Justice Powell concluded that a racially biased death sentencing system does not violate the Constitution), Justice Thomas wrote that "because the criminal justice system does not operate perfectly, abolition is the only answer to the moral dilemma the dissent poses. This Court, however, does not sit as a moral authority. Our precedents do not prohibit the States from authorizing the death penalty, even in our imperfect system." Put another way: innocent people may be executed, but probably not that many, and there's not much we can do.

Justice Scalia, however, got quite exercised. He attempted to slice and dice the various arguments, studies and reports relied upon by Souter. To Souter's three and a half pages, Scalia offered eleven pages of retort. He also hinted to his real concern: that Souter's opinion would give comfort to foreign abolitionists. He wrote:

There exists in some parts of the world sanctimoniouscriticism of America’s death penalty, as somehow unwor-thy of a civilized society. (I say sanctimonious, because most of the countries to which these finger-waggers belong had the death penalty themselves until recently - and indeed, many of them would still have it if the democratic will prevailed.) It is a certainty that the opinion of a near-majority of the United States Supreme Court to theeffect that our system condemns many innocent defendants to death will be trumpeted abroad as vindication of these criticisms. For that reason, I take the trouble to point out that the dissenting opinion has nothing substantial to support it.

Interesting stuff. Here are a couple of things that came to my mind reading the opinions.

1. The difference Alito makes. Most people will read this decision and conclude that Alito turned the outcome around. This is probably correct. But Souter's opinion changed as well. Had SOC been around for this case, Souter could never have included the recent data about exonerations and innocence in the opinion. I have great difficulty believing she would have signed on to that. This evidence has been hanging around for a few years, and it almost seemed like Souter was looking for a time to trot it out. As the dissent pointed out, this wasn't a case about guilt or innocence, but rather sentencing. It is entirely possible to imagine that an innocent person would get a death sentence even under the most rigorous of sentencing standards. Sentencing standards don't reduce erroneous convictions. Souter's argument only makes real sense - as the dissent notes - if its goal is to reduce the number of people who receive death sentences (and thus the number of people for whom systemic errors would be fatal.) That's not a narrow procedural ruling; that's a whole different attitude towards death as a sanction.

2. Which leads to my second point. This may be a 5-4 decision, but it wasn't even close. Although the media may report it as a tight vote, in fact the majority and dissent were miles apart. If SOC had joined Souter, I think the majority would have written a narrow opinion relying on purely legal claims. Since Souter had no chance of winning a fifth vote, he made a critical move: he introduced empirical data from the real world (but almost certainly not from the trial record) into his analysis. I don't know why he did it. Perhaps he believes it time for these issues to be debated in society, and wanted to use an opinion as a platform to spark debate. Perhaps he believes that these issues must be introduced into the jurisprudence now so that they can flower in 10 or 20 years. Perhaps he worries that there will not even be four votes for this opinion in a year or two, and wanted to make these points while they can still be described as the view of a strong 4-vote minority. Or maybe he thinks that, a couple of years from now, Justice Kennedy will revisit these questions. Whatever the reasons, he can't have thought he'd win any votes with this opinion.

3. Which leads to the next question. Why did Scalia explode? I suspect he did so because he fears Souter's opinion was designed for all these purposes, as well as to spur further international debate on America's use of capital punishment. Indeed, the international dimension of this case - which Scalia highlighted - is surely a big issue for him. Notwithstanding his old world love for American policy independence, the New World Order - discovered by 41 - increasingly calls for America to comply with international norms. The Constitution may not forbid capital punishment, but it's easy to imagine that some future international trade pact will. So maybe Scalia is taking this chance to make the case on behalf of the USA that, with respect to error at least, the death penalty ain't so bad. I agree with MJ, commenting over at Orin's place, though. I suspect that Scalia's opinion was so much of a "smack-down" that the rhetoric may undermine its value. It certainly undermined his ability to garner a second vote.

Posted by Dan Filler at 06:51 PM | Comments (5) | TrackBack

The Problem Of Jury Override In Capital Cases

The ABA death penalty assessment for Alabama highlighted several serious concerns regarding the role of the jury in capital cases. First, judges can override jury recommendations of life. Second, a 10-2 vote – two short of unanimity – is sufficient to support a death recommendation. And, in a slightly different vein, surveys of jurors in capital cases suggest that these jurors are utterly confused about the applicable law. In this post, I’ll attempt to provide further analysis on the issue of jury overrides. (This is my fourth post about the ABA assessment. Others are here, here, and here.)

In Alabama, capital juries only recommend a sentence; the final decision on life or death belongs only to the judge. Alabama is one of only four states that allow a judge to sentence a defendant to death when a jury has rejected this sanction and imposed life. (Some people thought that Ring v. Arizona ended this practice, when it provided that juries – not judges – must find aggravators beyond a reasonable doubt. Because of the structure’s of Alabama’s death statute, however, Alabama courts have thus far upheld Alabama’s override statute.) Of these four states, Alabama is the only jurisdiction that selects judges in partisan elections. Jury override is designed to allow judges to regulate the use of death to insure that the punishment is not imposed arbitrarily or unfairly.

It turns out that in Alabama, 90% of all judicial overrides of jury verdicts impose death against the advice of the jury. Why is this?

It is conceivable that judges are eliminating arbitrarily imposed life sentences, insuring that death is imposed fairly across cases. But one would probably expect more of a 50-50 split if this were the motivation. Perhaps as an artifact of Alabama politics, judges are simply more supportive of death as an effective sentence than juries – though Alabama juries hardly appear to be wilting violets when it comes to imposition of capital punishment.

A shadow possibility, one that would require significantly more research to establish, is that there is a race/politics issue. Alabama is about 25% African-American. African-Americans tend to be more liberal than whites, or at least support Democrats with much greater frequency. Indeed, it appears that a majority of Alabama’s John Kerry supporters were African-American and, conversely, only a tiny portion of George Bush’s support came from African-Americans. Although these political preferences aren’t a pure proxy for one’s view on the death penalty, they do suggest that African-Americans are more likely to be ambivalent about the death penalty. While race distributions vary county by county, it seems likely that many juries would contain both white and black citizens. Judges, on the other hand, are elected on a county-wide basis, and almost every county in Alabama is majority white. Although I do not know the precise numbers, I believe that African-Americans are substantially underrepresented among circuit judges in the state. (For example, as far as i know, thre isn't a single African-American Republican circuit judge in the state. And there isn’t a single African-American on any state-wide court.) As a consequence, we might expect judges to be more conservative than juries. To the degree that the sentencing decision is informed in significant part by one’s political view of capital punishment, we might expect judges to disagree with juries quite frequently. If this is the explanation for the number of overrides, it introduces a bit of a democratic conundrum – do we use judges as juries to marry political preferences with fact-findings. Whatever the constitutional requirement, it is clear that most other states have resolved this by assigning the death sentencing taks to a jury of a defendant's peers.

The likeliest possibility, however, is arguably most problematic. It may well be that some judges are imposing death as a political tool rather than as instrument for individualized sentencing. It seems some judges use capital sentencing power as way to establish their political bona fides on the politically charged issue of capital punishment.

For example, as noted in the ABA report, “the day after overriding a jury recommendation of life without parole and sentencing George Martin to death for the murder of his wife, Judge Ferrill McRae’s campaign advertisements ‘touted McRae’s record on sentencing defendants to death’ and mentioned George Martin by name.”

For these judges, the decision to impose death does not flow from their personal convictions married to the facts of a particular case. Rather, they are motivated in significant part by the desire to win re-election. Even if this is not in fact their motivation, the use of capital sentencing decisions in campaigns – particularly in a state where 90% of overrides go against a defendant – certainly creates the impression that capital sentencing by judges is not an individualized, non-political process.

The ABA recommended elimination of Alabama’s jury override provision. Whatever the potential benefits of override, it is doubtful that they are being realized in Alabama.

Posted by Dan Filler at 05:52 PM | Comments (2) | TrackBack