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, [...]]]> 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.

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 [...]]]> 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.”

Moderated and organized by Hank Greely of Stanford Law School, the panel brought together:

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 [...]]]> 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.

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 [...]]]> 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.)

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

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

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

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

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

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

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

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 [...]]]> 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.

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 [...]]]> 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

Today, Doug Berman comments on the ]]> 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)

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.

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? [...]]]> 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.

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

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

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

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

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 [...]]]> 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.

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 [...]]]> 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.

Rick Garnett offered [...]]]> 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?

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 [...]]]> 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.