Archive for the ‘Capital Punishment’ Category
posted by Danielle Citron
Last week, I blogged about Mr. Marvin Wilson’s capital sentence, scheduled for today, and the Texas Court of Appeals’ egregious replacement of science with literature to determine Mr. Wilson’s mental capacity. John Steinbeck’s son, Thomas Steinbeck, has released the following statement about the Marvin Wilson case and the Briseño decision, which cites his father’s work:
”On behalf of the family of John Steinbeck, I am deeply troubled by today’s scheduled execution of Marvin Wilson, a Texas man with an I.Q. of 61. Prior to reading about Mr. Wilson’s case, I had no idea that the great state of Texas would use a fictional character that my father created to make a point about human loyalty and dedication, i.e, Lennie Small from Of Mice and Men, as a benchmark to identify whether defendants with intellectual disability should live or die. My father was a highly gifted writer who won the Nobel prize for his ability to create art about the depth of the human experience and condition. His work was certainly not meant to be scientific, and the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability. I find the whole premise to be insulting, outrageous, ridiculous, and profoundly tragic. I am certain that if my father, John Steinbeck, were here, he would be deeply angry and ashamed to see his work used in this way.”
Mr. Wilson’s scheduled execution has been condemned by numerous prominent groups and organizations, including the American Association on Intellectual and Developmental Disabilities, Amnesty International, Human Rights Watch, Texas Senator Rodney Ellis, Texas Representative Lon Burnam, and others. The New York Times, and the Dallas Morning News have editorialized that the execution must be stopped.
Now, the Supreme Court needs to step in and stop the execution.
Only in Texas: the Grave Error of Using Literature Rather than Scientific Methodology to Assess Mental Retardation in a Capital Sentence Case
posted by Danielle Citron
On August 7, Texas plans to execute Marvin Wilson, a man who received a 61 on the standard Wechsler full-scale I.Q. test, a score placing him below the first percentile of human intelligence and far below the I.Q. threshold for mental retardation (MR). His adaptive functioning registers at an even lower percentile. In 1998, a Beaumont jury convicted and capitally sentenced Mr. Wilson for the 1992 murder of Jerry Williams, which allegedly occurred after a fight at a gas station.
Despite enrolling in special education classes throughout his childhood, Mr. Wilson failed the 7th grade. He received mostly Ds and Fs when he repeated it, as well as when he was socially promoted to 8th and 9th grades. He dropped out of school for good in the 10th grade. Friends and family swore affidavits stating that, as a child, he frequently clamped his belt so tightly that he cut off blood circulation, that he couldn’t use simple toys such as tops and marbles, and that he sucked his thumb into adulthood. According to the MR expert who assessed him, Mr. Wilson continues to be unable to perform even the simplest tasks without assistance.
In 2002, Atkins v. Virginia categorically barred states from executing offenders with MR. The Supreme Court observed that people with MR are less culpable for their crimes and that they are not equipped to mount effective criminal defenses. As a result, they are particularly vulnerable to wrongful convictions, inflated culpability assessments, and erroneous findings of leadership in multi-party crimes. In defining MR, Atkins relied on the scientific criteria set forth by the leading clinical authorities, including what was then known as the AAMR (the American Association on Mental Retardation). The AAMR thereafter changed its name to the AAIDD (the American Association on Intellectual and Developmental Disabilities).
Texas has executed more than four times as many people as any other state in the modern era. It is now poised to carry out the particularly egregious execution of Mr. Wilson—one that underscores the jurisdiction’s ongoing status as this country’s most extreme outlier on all issues pertaining to capital sentencing. Mr. Wilson was diagnosed with MR by Dr. Donald Trahan, a court-appointed, board certified neuropsychologist with 22 years of clinical experience as an MR specialist. (See this addendum to his report as well). At Mr. Wilson’s MR hearing, the state presented no evidence whatsoever; it has never offered any expert opinion, in any form, challenging Dr. Trahan’s clinical diagnosis. The state court actually reasoned that Mr. Wilson did not have MR because he “functioned sufficiently in his younger years to hold jobs, get a drivers license, marry and have a child.” In the absence of judicial or executive intervention, Texas will execute Mr. Wilson next Tuesday, pursuant to the bizarre criteria that its state courts use to identify offenders with MR.
Utilizing the AAMR/AAIDD’s clinical criteria for mental retardation, Dr. Trahan met with Mr. Wilson for eight hours, reviewed his school and medical records, and administered or evaluated a battery of leading neuropsychological testing. He examined Mr. Wilson’s memory, language development, adaptive skills, conceptual reasoning, practical skills and other scientifically-recognized indicia of mental functioning. Taking into account all of that data, Dr. Trahan concluded that Mr. Wilson clearly had mild MR.
Texas, however, has translated the Supreme Court’s categorical ban on executing offenders with MR in a way that does not, in practice, exempt most offenders with that intellectual disability. Instead, Texas has improvised a set of “Briseño factors” (named after the Texas decision that announced them) to determine which defendants with MR actually receive the Atkins exemption. The Briseño factors are not used by any scientists or clinicians in medical practice, and they are not recognized by the AAMR/AAIDD. The Texas Court of Criminal appeals—the state supreme court for the purposes of criminal adjudication—has actually indicated that it formulated the Briseño factors with Steinbeck’s Lennie in mind. Although literature can tell us much about society and law, by my lights, it should not replace or disregard well-accepted scientific measures of evaluation. That no doubt seems obvious to our readers, but no so to the Texas Court of Criminal appeals.
As the AAIDD wrote in their recent brief in Chester v. Thaler, another case involving the Briseño factors that is pending before the Supreme Court: “[The Texas] impressionistic ‘test’ directs fact-finders to use ‘factors’ that are based on false stereotypes about mental retardation that effectively exclude all but the most severely incapacitated.”
I’m thankful to my colleague Lee Kovarsky, an extraordinary habeas scholar and tireless advocate, who has been representing Mr. Marvin and for his incredibly hard work on Mr. Marvin’s cert petition.
posted by Stanford Law Review
The Stanford Law Review Online has just published a Note by Doug Lieb entitled Regulating Through Habeas: A Bad Incentive for Bad Lawyers?. The author discusses the potential pitfalls in a pending DOJ rule that provides for fast-track review of a state’s death row habeas petitions if the state implements certain sanctions for lawyers found to be legally ineffective:
The most important—and most heavily criticized—provisions of the Antiterrorism and Effective Death Penalty Act restricted federal courts’ ability to hear habeas petitions and grant relief to prisoners. But the 1996 law also included another procedural reform, now tucked away in a less-traveled corner of the federal habeas statute. It enables a state to receive fast-track review of its death row prisoners’ federal habeas petitions if the U.S. Attorney General certifies that the state provides capital prisoners with competent counsel in state postconviction proceedings.
Now, a pending Department of Justice (DOJ) rule sets forth extensive criteria for states’ certification for fast-track review. Piggybacking on a federal statute that does the same, the proposed DOJ rule encourages states to adopt a seemingly commonsense measure to weed out bad lawyers: if an attorney has been found legally ineffective, remove him or her from the list of qualified counsel eligible for appointment. Unfortunately, such removal provisions may do more harm than good by jeopardizing the interests of ineffective lawyers’ former clients. This Note explains why removal provisions can be counterproductive, argues that rewarding the implementation of these provisions with fast-track habeas review is especially unwise, and offers a few recommendations.
The lesson, at a minimum, is that policymakers should be wary of one-off regulatory interventions into indigent defense, considering the hydraulic pressure that a new requirement might exert elsewhere in the system. Leaders within the public defense bar might also wish to think carefully about their expressions of support for ineffective-attorney-removal provisions. And, while some scholars have considered the ethical obligations of predecessor counsel when faced with an ineffectiveness claim, rigorous empirical study of lawyers’ actual responses to allegations of ineffectiveness may be needed to develop sound policy. Do most attorneys actually understand themselves to owe continuing duties to former clients, or do most do what they can to protect their professional reputations against charges of deficient performance? (And are those with the latter attitude more likely to be ineffective in the first place?) The practical effect of regulatory interventions, including removal provisions, turns on the answer to these questions.
None of this is to suggest that it’s in any way acceptable for an ineffective lawyer, let alone an incorrigibly awful one, to represent a capital—or non-capital—defendant or prisoner. The point is the opposite. Even a well-intentioned patchwork of regulation through habeas is no substitute for an adequately funded system that trains, compensates, and screens counsel appropriately. If kicking ineffective lawyers off the list may do more harm than good, the goal should be keep them off the list to begin with.
Read the full article, Regulating Through Habeas: A Bad Incentive for Bad Lawyers? by Doug Lieb, at the Stanford Law Review Online.
July 12, 2012 at 10:30 am Tags: habeas petitions, ineffectiveness of counsel, Law Practice Posted in: Capital Punishment, Civil Rights, Criminal Procedure, Law Practice, Law Rev (Stanford) Print This Post No Comments
posted by Frank Pasquale
Venture capitalist Eric X. Li published a remarkable opinion piece last week, entitled Why China’s Political Model Is Superior. Given that French parents have recently supplanted Chinese ones in the merry-go-round of elite media idees fixes, we can only hope that milder, Gallic paternalism will eventually displace Li’s “Wolf Father” state. In the meantime, let’s take a look at Li’s argument.
Li starts with a hard-to-dispute premise: America talks a good game about democracy, but its billionaire primaries are embarrassing and its substantive legislation is often corrupt. He then makes some sweeping claims:
In Athens, ever-increasing popular participation in politics led to rule by demagogy. And in today’s America, money is now the great enabler of demagogy. As the Nobel-winning economist A. Michael Spence has put it, America has gone from “one propertied man, one vote; to one man, one vote; to one person, one vote; trending to one dollar, one vote.” By any measure, the United States is a constitutional republic in name only. Elected representatives have no minds of their own and respond only to the whims of public opinion as they seek re-election; special interests manipulate the people into voting for ever-lower taxes and higher government spending, sometimes even supporting self-destructive wars.
For anyone familiar with the George Mason school of anti-democratic theory, there is little controversial here. But for the democrat, the answer to such problems is a popular movement, however hopeless it can seem among an apathetic populace.
Read the rest of this post »
posted by Danielle Citron
My brilliant colleague Lee Kovarsky is an expert on the theory and practice of habeas corpus. He’s a wunderkind. One can find him, in any given week, arguing habeas petitions before an appellate court, working on the first habeas casebook entitled Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation with his co-author Brandon Garrett, and, as I imagine is true this week, grading civil procedure exams. Professor Kovarsky is also writing ground-breaking articles. Here is the abstract for his most recent work entitled Original Habeas Redux, published by the Virginia Law Review:
In Original Habeas Redux, I map the modern dimensions of the Supreme Court’s most exotic jurisdiction, the original habeas writ. The Court has not issued such relief since 1925 and, until recently, had not ordered a case transferred pursuant to that authority in over fifty years. In August 2009, by transferring a capital prisoner’s original habeas petition to a federal district court rather than dismissing it outright, In re Davis abruptly thrust this obscure power back into mainstream legal debate over both the death penalty and the Supreme Court’s appellate jurisdiction.
Scrambling to understand how the authority has evolved since its nineteenth-century heyday, commentators have been severely limited by the absence of any data reporting the attributes of the original petitions themselves. I have filled that empirical void by collecting and organizing the only modern original habeas data, and this Article presents those results for the first time. The data shows that the vast majority of original petitioners are criminally confined, but that they are not collaterally challenging that confinement in their initial habeas proceedings. Original writ procedure is now primarily a vehicle for litigating “successive” habeas corpus petitions that are otherwise subject to severe jurisdictional limits in the federal courts.
I argue that, in light of the writ’s history and the data I have compiled, Davis is not a blip in an otherwise constant state of original habeas inactivity. I observe that the availability of original habeas relief has historically exhibited two over-arching characteristics: (1) that the Supreme Court’s Article III appellate power to grant it is basically coextensive with Article III judicial power common to all federal courts; and (2) that the Court does not actually exercise that authority when it may avail itself of jurisdictional alternatives. I also present data confirming that the availability of conventional appellate jurisdiction exerts the dominant influence on the modern original habeas docket’s composition. I ultimately advance what I call the “capital safety valve paradigm”–the idea that original habeas should and likely will emerge as a means to ensure that the death penalty is not erroneously imposed.
posted by Kyle Graham
Goodwin Liu now has been an associate justice of the California Supreme Court for just over three months. And while he has not yet written a majority, dissenting, or concurring opinion, the (very) early returns suggest that the comparisons between Justice Liu and former Chief Justice Rose Bird that circulated at the time of his nomination to the court may have been a tad overstated.
Bird’s tenure as chief justice ended in no small part because of her perceived absolutist stance on the death penalty. Just yesterday, the California Supreme Court reversed two capital convictions, finding that the trial court had improperly discharged a juror. Was this the work of Justice Liu, reviving the spirit of the Bird court? Well, no. The unanimous opinion was authored by Justice Carol Corrigan, a Schwarzenegger appointee.
Meanwhile, just last month the court unanimously affirmed judgments of death in two separate cases. Though neither matter raised particularly complex issues, Justice Liu’s votes in these cases belie suggestions that, if placed in a position to review capital cases, he would “overrule death penalty convictions given any excuse, no matter how far-fetched.”
posted by Amanda Pustilnik
Is psychopathy a birth defect that should exclude a convicted serial killer and rapist from the death penalty? Are the results of fMRI lie-detection tests reliable enough to be admitted in court? And if a giant brain tumor suddenly turns a law-abiding professional into a hypersexual who indiscriminately solicits females from ages 8 to 80, is he criminally responsible for his conduct? These were the questions on the table when the International Neuroethics Society convened a fascinating panel last week at the Carnegie Institution for Science last week on the uses of neuroscience evidence in criminal and civil trials.
Moderated and organized by Hank Greely of Stanford Law School, the panel brought together:
- Steven Greenberg, whose efforts to introduce neuroscience on psychopathic disorder (psychopathy) in capital sentencing in Illinois of Brian Dugan has garnered attention from Nature to The Chicago Tribune;
- Houston Gordon (an old-school trial attorney successful enough not to need his own website, hence no hyperlink), who has made the most assertive arguments so far to admit fMRI lie-detection evidence in a civil case, United States v. Semrau, and
- Russell Swerdlow, a research and clinical professor of neurology (and three other sciences!). Swerdlow’s brilliant diagnostic work detected the tumor in the newly-hypersexual patient, whom others had dismissed as a creep and a criminal.
In three upcoming short posts, I will feature the comments of each of these panelists and present for you, dear reader, some of the thornier issues raised by their talks. These cases have been reported on in publications ranging from the Archives of Neurology to USA Today, but Concurring Opinions brings to you, direct and uncensored, the statements of the lawyers and scientists who made these cases happen … Can I say “stay tuned” on a blog?
November 20, 2011 at 12:39 pm Tags: law & neuroscience, neuroethics Posted in: Bioethics, Capital Punishment, Criminal Law, Evidence Law, Health Law, Psychology and Behavior, Uncategorized Print This Post One Comment
posted by Gerard Magliocca
I thought I would flag an interesting issue from U.S. v. Fell, 571 F.3d 264 (2d Cir. 2009) (denial of rehearing in banc). Two people commit three murders and cross state lines in the process. Federal prosecutors in Vermont (the state that is deemed to be the proper venue for trial) decline to seek the death penalty in part because Vermont does not have the death penalty. The DOJ overrules this decision and orders that the death penalty be pursued. A Vermont jury convicts and sentences the defendants to death.
What are the federalism implications of this case? One thought is that if a state bars capital punishment, federal prosecutors should take that into account when deciding what sentence to seek. They would not, however, be bound to reject capital punishment just because the state does not have it. Another is that the application of the death penalty in a state that does not have it is “unusual” and raises a valid Eighth Amendment claim for anyone who receives that federal sentence. A third idea is that obtaining a “death qualified” jury in a state that opposes capital punishment requires the dismissal of so many jurors that it creates a Sixth Amendment claim. Finally, one might say that all three of these questions depend on the nature of the offense. If somebody assassinates the President or sets off a dirty bomb in a state that lacks capital punishment, few would be troubled if the feds superseded state law. A crime that looks like a garden-variety murder, however, might be a different story.
posted by Kaimipono D. Wenger
According to a new press release from the UK/Iraqi advocacy group Iraqi-LGBT, Iraq will begin executions this week of dozens of criminals held for capital crimes. One of those “crimes” is homosexuality, and there are believed to be several death-row prisoners who are slated for execution in the next month, simply for the crime of being gay. The Iraqi government is not discussing the details of these prisoners’ cases.
I can’t vouch for the veracity of this report — it’s on several blogs right now, but has not yet been verified by any mainstream news source that I could find. But the report is sufficiently alarming that I thought our readers might want to know about it. (And it is very much in line with the reports that have been coming out of Iraq for years, that “morality police” death squads have targeted and killed many gay Iraqis.)
posted by Carissa Hessick
There has been some interesting fall-out from the NY Times article I blogged about yesterday. DOJ has admitted that it erred in failing to file a brief in support of the Kentucky statute that proscribed the death penalty for child rape, and it has indicated that it may support a petition from the state of Louisiana to rehear the case. More coverage and commentary can be found in the New York Times, as well as at the Volokh Conspiracy and at Doug Berman’s Sentencing Law & Policy.
posted by Frank Pasquale
[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.
posted by Frank Pasquale
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 Daniel Solove
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 Dave Hoffman
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 Dan Filler
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 Frank Pasquale
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 Nate Oman
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.
posted by Dan Filler
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
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
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.