Archive for the ‘Capital Punishment’ Category
Federalism and the Death Penalty
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the President or sets off a dirty bomb in a state that lacks capital punishment, few would be troubled if the feds superseded state law.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.
August 20, 2009 at 8:06 am
Posted in: Capital Punishment
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A very disturbing report
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.)
March 30, 2009 at 7:57 pm
Posted in: Capital Punishment, Current Events
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More Coverage on Factual Error in Child Rape Decision
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.
July 3, 2008 at 5:19 pm
Posted in: Capital Punishment, Supreme Court
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The Blackstone Ratio at the Supreme Court
posted by Frank Pasquale
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.
April 22, 2008 at 9:37 pm
Posted in: Capital Punishment, Criminal Law
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Tex-ternalities and the China/Europe Spectrum
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.
December 26, 2007 at 8:57 pm
Posted in: Capital Punishment, Criminal Law, Current Events, Economic Analysis of Law, Environmental Law, Politics
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Probation for Murder: Justice Served or Excessive Prosecutorial Discretion?
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
November 21, 2007 at 1:23 pm
Posted in: Capital Punishment, Criminal Law, Criminal Procedure
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Bootstrapping Against Capital Punishment
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)
November 5, 2007 at 12:01 am
Posted in: Capital Punishment, Criminal Law, Law Practice, Legal Ethics
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The Department of Ill-Advised Job Titles
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.
June 20, 2007 at 2:51 pm
Posted in: Capital Punishment
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Death Not So Different?
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.
May 29, 2007 at 12:32 pm
Posted in: Capital Punishment
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Roman Law and the Virtual Death Penalty
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.
May 4, 2007 at 2:35 pm
Posted in: Capital Punishment, Criminal Law, History of Law
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The High Cost of Criminal Litigation
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.
March 26, 2007 at 12:00 am
Posted in: Capital Punishment, Criminal Law
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Geographical Disparity And The Death Penalty
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.
March 5, 2007 at 3:16 pm
Posted in: Capital Punishment, Criminal Law
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Good Intentions, Bad Outcomes For Capital Defendants
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.
February 22, 2007 at 10:14 am
Posted in: Capital Punishment
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And So It Goes: Possible Reasons to Care About Saddam Hussein’s Execution
posted by Deven Desai
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.
December 30, 2006 at 12:01 am
Posted in: Capital Punishment
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Sadaam Executed. Should We Care?
posted by Dan Filler
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.
December 30, 2006 at 12:00 am
Posted in: Capital Punishment, Criminal Law, International & Comparative Law
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Further Thoughts On Abortion, The Death Penalty, Mental Illness, and M’Naughten
posted by Dan Filler
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?
September 26, 2006 at 11:13 am
Posted in: Capital Punishment
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The Strategic Use Of The Death Penalty
posted by Dan Filler
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.
September 22, 2006 at 10:15 am
Posted in: Capital Punishment, Criminal Law
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Mental Illness And The Death Penalty
posted by Dan Filler
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.
September 21, 2006 at 12:15 am
Posted in: Capital Punishment, Criminal Law
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More On Execution Of The Innocent
posted by Dan Filler
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.
July 5, 2006 at 11:54 am
Posted in: Capital Punishment, Criminal Procedure
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How A Public Defender Keeps Death (Sentences) At Bay
posted by Dan Filler
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.
July 5, 2006 at 10:54 am
Posted in: Capital Punishment, Criminal Law
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