The Faculty Lounge

Chief Justice Roberts and the post-Kennedy SCOTUS

Mark Joseph Stern has an interesting piece on Slate about a death penalty case that hints at the new ecosystem of the post-Kennedy Supreme Court. The case is Madison v. Alabama and the justices heard oral argument yesterday. The issue before the Court is whether the Eighth Amendment permits the state of Alabama to execute Vernon Madison, a 68-year-old, legally-blind inmate whose vascular dementia prevents him from remembering his 1985 murder of a Mobile police officer.

The Arkansas Death Penalty Saga

Things are indeed weird and complicated on the capital punishment front over in Arkansas. Corinna Lain does a nice job laying out the details over at Prawfs.  

EJI Report: Lynching as Terrorism

The Equal Justice Initiative released a major report yesterday on lynching as terrorism, titled  Lynching in America: Confronting the Legacy of Racial Terror.  Like the EJI report from 2013 on the slave trade in Montgomery, this is a remarkable piece of applied history.  It comprehensively documents almost 4000 lynchings of African-Americans as part of the terrorist campaign against blacks to enforce Jim Crow and white supremacy.  Lifting from the EJI web page: 

EJI researchers documented 3959 racial terror lynchings of African Americans in Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas, and Virginia between 1877 and 1950 – at least 700 more lynchings of black people in these states than previously reported in the most comprehensive work done on lynching to date.

Lynching in America makes the case that lynching of African Americans was terrorism, a widely supported phenomenon used to enforce racial subordination and segregation.  Lynchings were violent and public events that traumatized black people throughout the country and were largely tolerated by state and federal officials.

Bryan Stevenson and the people at EJI do great work in so many areas.  Just based on the summary document available online, there is a lot of important research and analysis in this report.  In addition to the painstaking historical research involved, as a piece of history-based advocacy it makes a powerful case for how capital punishment and the criminal justice system more generally today are the direct consequence of the racial terrorism that was lynching.  The report also advocates for public history and the use of historical markers to remember the victims and the fact of our own collective responsibilities, something about which Al and others on this blog have written about so effectively.  The NYT also has an editorial on the report today that's worth a look. 

Executed Against The Judgment Of 12 Jurors

Mark Bookman has an interesting essay up at The Atlantic about judges who override juries and impose death.  Alabama remains ground zero for that phenomenon.  

Uncle Of North Korean Leader Kim Jong-un Executed

That will teach North Korean leaders to think twice about colloborating with...China.

Toward Teaching Prison Law...and Punishment & Prison: A Bibliography

Preamble:

“When we return to the search for a more humane and rational response to crime, we must keep in mind that the prison is tied to other social and political arrangements that limit what changes are possible. The criminal justice system in general is at least partially involved, directly and indirectly, advertently and inadvertently, in repressing groups and classes of people and in maintaining unfair social, political, and economic relationships. Fundamental changes in its operation are impossible unless some higher degree of social justice has been achieved and the criminal justice system is relieved of these tasks. [….]

One of the important obstacles that must be removed is the public conception of the prisoner. Presently, this conception is formed from the rare, but celebrated and horrendous crimes, such as mass murders by the Manson cult, Juan Carona, or the ‘Hillside Strangler.’ Whereas prisoners like George Jackson, viewed as a heroic revolutionary fighting back from years of excessive punishment for a minor crime (an eighty-dollar robbery), shaped the conception of the prisoner in the early 1970s, persons like ‘Son of Sam’ do so today. These extraordinary cases distort the reality. Most prisoners are still in prison for relatively petty crimes, and even those convicted of the more serious crimes must be understood in the context of society in the United States. What we need is a new theory of crime and penology, one that is quite simple. It is based on the assumption that prisoners are human beings and not a different species from free citizens. Prisoners are special only because they have been convicted of a serious crime. But they did so in a society that produces a lot of crime, a society, in fact, in which a high percentage of the population commits serious crime. Those convicted of serious crimes must be punished and imprisoned, because it is the only option that satisfies the retributive need and is sufficiently humane. Knowing that imprisonment itself if very punitive, we need not punish above and beyond imprisonment. This means that we need not and must not degrade, provoke, nor excessively deprive the human beings we have placed in prison. It also means that we must not operate discriminatory systems that select which individuals should be sent to prison and, once incarcerated, who should be given different levels of punishment.

Since we assume that convicts are humans like us and are capable of myriad courses of action, honorable and dishonorable, we also assume that they will act honorably, given a real choice. This means that we provide them with the resources to achieve self-determination, dignity, and self-respect. This theory continues to be rejected not because it is invalid, but because it challenges beliefs and values to which large segments of the population comfortably cling. [….] In pushing this theory, I admit that many prisoners, like many free citizens, act like monsters. But they are not monsters and often choose to act like monsters when their only other real option is to be totally disrespected or completely ignored, while being deprived, degraded, abused, or harassed.” [emphasis added]
—John Irwin, Prisons in Turmoil (1980)

The following proposal strikes me as worthy of wide attention and careful consideration:

Sharon Dolovich, “Teaching Prison Law,” 62 Journal of Legal Education 218 (2012), UCLA School of Law Research Paper No. 12-26. Available: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2171884

Abstract:

“To judge from the curriculum at most American law schools, the criminal justice process starts with the investigation of a crime and ends with a determination of guilt. But for many if not most defendants, the period from arrest to verdict (or plea) is only a preamble to an extended period under state control. It is during the administration of punishment that the state’s criminal justice power is at its zenith, and at this point that the laws constraining the exercise of that power become most crucial. Yet it is precisely at this point that the curriculum in most law schools falls silent. This essay argues that that silence is a problem, and that American law schools should expand their curricular offerings to include some class or classes covering the post-conviction period. There are innumerable arguments supporting this reform. These include the sheer number of people in custody, the extreme vulnerability of this population and its enormous unmet legal need, and the fact that any law student who is planning a career in criminal justice — and thus involved in the process by which people are sent to prison — should be exposed to the realities of the American penal system and its governing legal framework. This essay canvasses these and other reasons for the proposed reform, suggests what a course in Prison Law might cover, sketches the possible contents of a broader post-conviction curriculum, and argues that the current gap in the course offerings of most law schools only reinforces the invisibility of vast carceral system currently operating in the United States and the millions of Americans caught up in it.”

See too Giovanna Shay’s post at PrawfsBlawg from last year: “Why Do Law Schools Overlook the Incarcerated?”

Some relevant websites and blogs:

California Correctional Crisis

Center for Justice and Reconciliation (Prison Fellowship International)  

Death Penalty Focus

Death Penalty Information Center

“Evolving Standards of Decency:” A Prisoners’ Rights Law Blog    

Justice Policy Institute

The Real Cost of Prisons Project  

Sentencing Law and Policy    

The Sentencing Project   

Vera Institute of Justice

Women’s Prison Association (WPA)

A timely summary of the state of affairs in my home state: “Crime and Punishment in California”

In the spirit of the proposal, here is a basic bibliography on “Punishment & Prison:”

Kovarsky on Impending Execution

Danielle Citron wrote about this yesterday over at co-op and Frank Pasquali wrote about it at balkinization. Professor Lee Kovarsky of the University of Maryland has more details on the troubling facts surrounding the impending executation of Marvin Wilson.

Since the Supreme Court lifted the effective moratorium on the death penalty in 1976, Texas has executed more than four times as many people as any other state. On yet another issue, Texas is poised to break new ground in capital sentencing: it is defining the category of offenders with mild mental retardation (MR)—offenders that are supposed to be exempt from execution under the Eighth Amendment—out of existence. Marvin Wilson is scheduled for lethal injection in one week, despite the fact that he 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 mild MR. His adaptive functioning actually registers at a level consistent with a more severe variant of MR.

In 2002, Atkins v. Virginia categorically barred states from executing offenders with MR. The Court observed that people with MR are less culpable for their crimes and that they are not equipped to defend themselves at the guilt or punishment phases of their capital trials. In defining MR, the Supreme Court relied on the clinical criteria set forth by the leading clinical authorities. Indeed, all variants of clinical MR definitions have shared roughly the same criteria for nearly 100 years.

 Under that framework, Mr. Wilson was evaluated by Dr. Donald Trahan, a court-appointed, board certified neuropsychologist with 22 years of clinical experience as an MR specialist. After meeting with Mr. Wilson for eight hours, reviewing his school and medical records, and administering or evaluating a battery of leading neuropsychological testing, Dr. Trahan concluded that Mr. Wilson clearly had mild MR. 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.

Although the Supreme Court barred states from executing offenders with MR, Texas courts have created their own test for the condition— the so-called “Briseño factors” (named after the case that announced them). The Briseño factors are not recognized by clinicians or medical professionals, but Texas uses them to determine which defendants with MR will actually receive the Eighth Amendment exemption that Atkins announced. Texas courts developed the factors because, unlike in most other death-penalty jurisdictions, the Texas legislature has not bothered to define the condition statutorily. The factors constitute wildly under-inclusive criteria for MR. 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.” 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. On two separate occasions, the state court observed that Mr. Wilson could not have MR because, among other things, he had a wife and a child.

Attorneys for Mr. Wilson have filed a petition for a writ of certiorari with the U.S. Supreme Court, asking it to consider whether the Briseño factors represent an unreasonable application of Atkins. Without judicial or gubernatorial intervention, Texas courts will have successfully hollowed Atkins into a rule that protects virtually no offender capable of going to trial.

 Here are some relevant links: the CERT PETITION, the NEUROPSYCH REPORT, the NEUROPSYCH REPORT ADDENDUM, and the STATE FINDINGS.

Capital Punishment News: North Carolina Destroys Racial Justice Act

Thanks to an override of governor Beverly Perdue, the North Carolina death penalty is safe from statistical scrutiny.  The state  legislature acted right before the holiday to radically reduce the scope of NC's signature Racial Justice Act.  The Act, adopted in 2009, allowed the use of extensive statistical evidence to establish that an individual death sentence was imposed as a result of race.  The fresh modifications shrink the field of data that can be considered in a case and prohibit use of statistics alone to establish race bias.  

To be clear, this simply returns North Carolina to a situation akin to - and slightly better than - other states imposing capital punishment.  But it also provides stiff tonic to policy advocates who imagined that states might choose to be thoughtful about race and capital punishment notwithstanding Justice Powell's legendary wimp-out decision in McCleskey v. Kemp. 

ABA Issues Assessment Of Missouri Death Penalty

The American Bar Association has just issued its assessment of the death penalty in Missouri.  You can find the various parts of the report here.   The assessment team was co-chaired by Professor Stephen Thaman from Saint Louis University Law and Professor Paul Litton of the University of Missouri - Columbia Law.  The report calls for reform in a number of areas, notwithstanding the fact that committee members diverged in their "views about the weight to be placed on the various ABA recommendations."  On balance, it appears that the death penalty system in Missouri has some serious issues in a several respects- which is, unfortunately, the norm rather than the exception, in death penalty states.

Do District Attorneys Campaign in the Courtroom?

Some thoughts here.

"I Am Here to Stop the Execution of Troy Davis."

So said my friend Stephen Dear just before getting arrested a couple of weeks ago outside the prison where Troy Davis was about to be executed.

This Huffington Post account of the arrest -- and Stephen's optimistic view about the movement to abolish the death penalty -- is quite moving.  Stephen is the Executive Director of People of Faith Against the Death Penalty.

Meanwhile, In Tehran: Iran In Midst Of Mass Execution Spree

Even as our attention is turned to Cairo,  awful news continues to roll out of Iran.  Earlier this week, Iran hanged a Dutch-Iranian woman -Zahra Bahrami (s0metimes spelled Sahra Baahrami) - on allegations of drug smuggling.  She had gone to Iran to be with her daughter who was undergoing chemotherapy.  She also attended the street demonstrations in December of 2009.  Naturally, the government produced a confession from the woman - her supporters argue that it was coerced - though  the government's true motivation is probably related more to the national security charges the government leveled against her.   

But Bahrami is one of many.  It appears that Iran has executed 66 people in the last month, and over 40 more people in December.  An NPR story about the issue is here.  Another account is here.

Even assuming that the executions are mostly for drug offenses, and involve dissidents only at the margins, this assertion of government power still has the potential to chill dissent.  And those of us concerned about the fairness of the death penalty ought not ignore injustices abroad.  Whatever our views of the efficacy of America's current strategy on a nuclear Iran, the Iran mass execution crisis deserves separate and serious attention.

Judge Sharon Keller: The Story Continues (but perhaps now concludes)

Continuing the story that we have been posting on for some time (most recently this post from July 17, 2010):   a judicial panel has ruled that the State Commission on Judicial Conduct did not have the authority to issue a "public warning" against Texas Court of Criminal Appeals Judge Sharon Keller.

Story here and here.

Teresa Lewis Is Dead. Outcome Is Right, More Or Less.

Score a victory for the death penalty.  Tonight, Virginia executed 41 year old Teresa Lewis, a woman with an IQ of 72.  Her confederates - the two men who pulled the trigger, killing Lewis' husband and stepson - got life in prison.  There were all sorts of problems with this case - most notably that the judge's principled basis for attributing superior blame to Lewis (that she was a mastermind) was quite unlikely given her IQ.  Of course, when he imposed the sentence (after  Lewis plead guilty and accepted a bench trial at the penalty phase), the judge didn't know details about Lewis's limitations - none of the mental health experts testified.  Indeed, the defense put on minimal evidence at sentencing and the following quote  suggests that the lawyer's theory was "let's see if we can score a break":

Your Honor, Mrs. Lewis's family is here. Mr., well her father and her brother and her sister, and they would all testify that they love her and they care about her, and they don't want her to die, but Your Honor, we don't see the need to call them. The Court's used to that kind of testimony and we would rest at this point.

Lawyers make strategic calls all the time.  Can't blame them for that.  Judges often act with less than perfect information.  Can't blame them for that.  Lewis didn't actually have mental retardation - she was a good two to four IQ points north of having MR.  No problem there.  The actual triggermen got life - but perfect equity is impossible.  Both trial and initial post-conviction counsel appear to have been mediocre.   But lots of attorneys are mediocre.

You can't let the drive for perfection defeat the good.   If you're going to pick, pick, pick away at these cases, you'll never execute anyone. Imperfections are human and occur in even the most high stakes criminal practice.  The whole process is simply an approximation of fairness and accuracy.  Death penalty supporters worthy of respect are willing to open their eyes and own this reality.

These folks happen to believe that when it comes to death sentences, you make a tough decision and live with it.  Or die with it, as the case may be.  

Judge Sharon Keller (Update)

Last February, Dan blogged about Texas Court of Criminal Appeals presiding judge Sharon Keller and her decision concerning a last-minute appeal from a prisoner on death row.

In January, I mentioned that a special master presiding over Judge Keller's ethics trial had issued a 16-page report on the matter.

Yesterday the  State Commission on Judicial Conduct decided not to remove Judge Keller from office.  Instead the Commission issued a "public warning" to her. 

You can read more on this story here and here.  The "Commission's Findings, Conclusions and Order of Public Warning" is available here.

Killing the Death Penalty

Loungers with an interest in the death penalty may wish to read an editorial by my former colleague (now at crosstown UH) Adam Gershowitz (pictured).  A teaser:  "The real problem with the death penalty is that it is terrible public policy that the voters of Texas should reject."  The full editorial, which appeared in the Sunday edition of The Houston Chronicle, is available here.

The Autobiography of an Execution

Houston law professor David Dow (pictured), the founder of the Texas Innocence Network, has authored The Autobiography of an Execution, being published this month.

From the website description:

As a lawyer, David R. Dow has represented over 100 death row cases. Many of his clients have died. Most were guilty. Some might have been innocent. The Autobiography of an Execution is his deeply personal story about justice, death penalty, and a lawyer’s life.

From a review that appeared in yesterday's local newspaper:

Dow is not the first anti-death penalty advocate to criticize the criminal justice system in print, and he probably will not be the last. But his book is especially worthy, whatever a reader's opinion about the morality of the death penalty. His candor seems so absolute that readers on both sides of the debate can gain real insight into the thought process of an experienced advocate.

Professor Dow discusses his latest book in this YouTube video.  And GQ.com offers a look at the first twenty pages of the book here.

Final Statements of Death Row Inmates in Texas

On page 60 of the 11/30/09 issue of Newsweek, the magazine lists the frequency of some of the words found in the final statements of prisoners executed in Texas since 1976 (over 440 men and women).

The word (and variations thereof) used most often?

 "Love" (630 times).

Others on the list include "sorry" (211), "peace" (95), "innocent" (45), and "not guilty" (4).

Difficulties with Death Penalty

I don't know if people outside of Ohio have heard about the situation this week in the case of Romell Broom who was to be executed earlier this week for a murder committed some 25 years ago.  The governor was forced to order a temporary halt to the execution when the execution team was physically unable to insert shunts into the inmate's veins through which the lethal injections would be applied.  The execution team apparently tried to insert the shunts for 2 hours and then the governor was called.  A reprieve has been granted until sometime next week, although it was not clear from the news reports exactly how this matter will proceed.  A report from the Cleveland Plain Dealer is here.  Has this ever happened before in other death penalty states?  Is there a protocol for it?  It's obviously troubling on a number of levels, not the least of which is how one might feel about the death penalty in the first place.

Taboo Trades and Forbidden Markets

On Monday, I blogged about the announcement by the UK's Human Fertilisation and Embryology Authority that it will reconsider its restrictive caps on payments to egg and sperm donors, due to donor shortages and the resulting reproductive tourism.  The proposed change is prompting heated debate across the UK about the propriety of markets not only in eggs and sperm, but in organs and blood, as well.  For example, callers weighed in on the topic for an hour yesterday on the BBC’s World Have Your Say.  Click here to download the podcast: Download World have your say-1.  (HT: Jennifer Jenkins)

I previously blogged about the issue of “immoral” markets here, although I prefer the term “taboo” or “forbidden” markets.  That’s what I call the course I teach on this topic each spring (“Taboo Trades and Forbidden Markets”) and the (waiting-to-be-published) volume of Duke’s Law & Contemporary Problems organized around that theme (Show Me the Money: Making Markets in Forbidden Exchange). 

But what does the term “taboo trade” or “forbidden exchange” mean?  We might distinguish (at least) three separate categories of items and activities in which the law forbids or restricts exchange: (1) illegal ones, (2) inalienable ones, and (3) those that are both legal and alienable, but in which exchange for profit is banned or limited. Sometimes exchange is forbidden as a means to restrict access to an item or activity considered dangerous or harmful to society (illegal drugs, some types of weapons).  In these cases, the ban on exchange is largely incidental to the overriding goal of public protection from harm. Illegal items and activities are simply prohibited altogether—their possession, acquisition, and exchange forbidden whether acquired by gift, purchase, or any other method. 

Other items, activities, or entitlements are legal but inalienable. Although possessing these items or participating in these activities is legal—perhaps, admired—the right to possess the item or engage in the activity cannot be transferred to another for any purpose, commercial or otherwise. Exchange (for any motive) in these items and activities is, therefore, forbidden—not because we consider the items and activities harmful to society, but because they are so closely tied to the individual’s rights and responsibilities as a member of the community that the state does not allow their separation (e.g. the right to vote for holders of public office or the right to freedom of speech).

Finally, commercial exchange is sometimes restricted in items and activities that are neither illegal nor inalienable, but that nevertheless cannot be sold for profit, a trait sometimes referred to as market-inalienability. The law frowns on, or may ban outright, the mixing of items and activities that are viewed as inherently noncommercial—even sacrosanct—with the crasser aspects of pecuniary markets. It is this third category of activity that I term “forbidden exchange,” and that has held a particular fascination for researchers across a wide range of disciplines, including the contributors to this volume, perhaps because it seems so inconsistent with our default norms that the voluntary exchange of goods and services for payment is not only permitted, but encouraged.

The volume contributors were asked to consider the consequences of making - and restricting - markets in various types of this third category of traditionally forbidden or contested exchange, including human blood, organs, eggs, sperm, reproductive services, and labor. What are the problems with, objections to, defenses of, impediments for, developments in, and challenges facing markets in these traditionally forbidden or contested areas of commercial exchange? What is the effect of prohibiting or impeding commercially-motivated transactions in these areas? As we move toward greater market-based exchange in some of these items and activities, what outcomes might we expect? What must those markets look like, who will intermediate them, and how must the legal regime governing the market participants be structured in order to guard against our traditional fears of market-based approaches to exchange in certain areas of life?

The contributors and their topics (with a link to the paper if it has been posted to SSRN) are:

Rene Almeling (Yale, sociology) --- eggs

David E. Bernstein (George Mason, Law) – labor

Clark C. Havighurst (Duke, law) -- blood

Melissa B. Jacoby (UNC, law) – fertility markets

Kimberly D. Krawiec (Duke, law) – eggs and sperm

Thomas C. Leonard (Princeton, economics) -- labor

Julia D. Mahoney (Virginia, law) -- organs

Hugh V. McLachlan (Glasgow Caledonian University, School of Law & Social Sciences) – surrogacy

Elizabeth S. Scott (Columbia, law) -- surrogacy

J. Kim Swales (University of Strathclyde, economics) -- surrogacy

For a more detailed discussion of the concept of “forbidden exchange,” as well as descriptions of the papers for which downloads are not yet available, see the volume foreword, here. 

Related Posts:

 U.K. To Reconsider Payments to Egg and Sperm Donors

On Immoral Markets