Former Justice Stevens: Death Penalty No Longer Constitutional

A New York Times article quotes former Justice Paul Stevens as expressing his strong objection to the death penalty.

The actual comments were published in the New York Review of Books, in which Stevens reviewed David Garland’s new book Peculiar Institution. The NYT faithfully summarizes this interesting public declaration as follows:

In 1976, just six months after he joined the Supreme Court, Justice John Paul Stevens voted to reinstate capital punishment after a four-year moratorium. With the right procedures, he wrote, it is possible to ensure “evenhanded, rational and consistent imposition of death sentences under law.”

In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional.

But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.

In a detailed, candid and critical essay to be published this week in The New York Review of Books, he wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.

What does this mean in the age of lethal injection litigation? Who knows? And, to what extent does Stevens’ grim observation of the personnel change in SCOTUS hold true after the recent appointments of Sotomayor and Kagan? Thoughts from our readers welcome.

Harris’ Election Bodes Well for Medical Marijuana

The Attorney General race outcome has interesting implications as to the prosecution of medical marijuana dispensaries, and marijuana activists are pleased and optimistic.

Before the results were published, the Sac Bee reported:
Both candidates opposed Proposition 19, the initiative to legalize marijuana for recreational use.

But Harris said she personally knew people “who have benefited” from medical marijuana – while Cooley praised a proposed ban on dispensaries in Los Angeles County and efforts by the city of Los Angeles to rein in its medical pot trade.

“Communities throughout the nation are waiting to see how we handle storefronts illegally pushing pot,” he said.

Cooley argues that pot shops violate state medical marijuana laws, which define dispensaries as members-only nonprofits run by medical marijuana patients.

Harris’ campaign manager, Brian Brokaw, said Wednesday that Harris “supports the legal use of medicinal marijuana but thinks California needs to bring consistent standards about ownership and operations of dispensaries.”

How such consistent standards can be enforced, in the shadow of federal illegality/nonprosecution, is a good question, that merits more attention to Harris’ policies in the future.

Harris is Attorney General Elect–Good Tidings for Re-Entry?

By now many of our readers probably already know that Steve Cooley has conceded the race to Kamala Harris, who is California’s Attorney General Elect. What does this mean for the criminal justice system?

Over the last two years I’ve been baffled, and somewhat amused, by progressive and radical activists who have expressed their disappointment in Obama. Their expectation that dramatic radical change would occur overnight, and that all of its features would please them, was, to be frank, absurd. Even progressive politicians are politicians, and they operate in a world of constraints and coalitions. Anyone anointing a politician as the messiah is setting herself for a sore disappointment.
I therefore urge our readers to recall Harris’ promises to voters. These included a commitment to fighting hate crime, preventing prevalent phenomena like identity theft, raising the violent felony conviction rate, actively fighting gang-related crime (particularly among juveniles), and addressing quality of crime issues through community courts and mental health outreach. She opposes the death penalty and is committed to reentry solutions as a way to reduce recidivism and alleviate overcrowding. This platform is very promising, and certainly cause for cheer over the election results. Harris is a smart, principled, fair and honest public official. However, being California Attorney General differs greatly from being San Francisco District Attorney. She will be operating on a difficult, polarized political map. It is our responsibility to ensure that she does her job.

“We Don’t Want Another Garrido”

The Sac Bee reports:

[Newly formed law enforcement teams] are designed to apprehend parolees who have become fugitives or are otherwise violating terms of their release.

“We’re going to look over the fences. We don’t want another Garrido,” Greg Shuman, who supervises a Sacramento-based California Parole Apprehension Team, told agents heading out for one sweep. “It’s no-tolerance. Anything, any violation, they’re going to jail.”

Five teams were created this year in different parts of California, while five more will start in January.

Money to fund them comes from savings created by a law that took effect this year. That law eliminated parole supervision for thousands of ex-convicts, some of whom served time for serious crimes.

It allows agents to focus on the parolees that state corrections officials consider the greatest risk to the public. Supervising fewer people lets agents concentrate their attention on sex offenders, gang members and violent criminals, said Robert Ambroselli, who heads the Department of Corrections and Rehabilitation’s adult parole division.

The move to use budget savings from early release to target high-risk offenders is, of course, a sensible one. But are these folks high-risk offenders? The article mentions that 480 out of the 900 parole violators who have been arrested recently are sex offenders, which, according to CDCR’s own recidivism report, are the lowest risk group among released inmates. That is, if one does not count parole violations. Whether any risk has been prevented by a registered sex offender’s arrest would depend on whether the parole violation that led to the arrest is, indeed, a crime in its own right, or some technical violation.

This surge in law enforcement energy might explain the following curious story that appeared this week in the San Jose Mercury News:

Lawrence Joseph Brown, 52, was taken back into custody in Tustin just 30 miles from the California Institution for Men in Chino.


“We had investigators following him, and he was in a car with a woman,” a violation of a stipulation of his parole, Orange County District Attorney Tony Rackauckas told The Associated Press in a phone interview.

The woman was Ruby Huggler, a woman Brown had stayed with during a brief parole earlier this year, and Rackauckas said he believed she picked him up from the prison.

This week I showed my students Fritz Lang’s 1931 masterpiece M. In one of the movie’s best scenes, Lorre, a child murderer and sex offender, is apprehended by the mafia, and “tried” by a kangaroo court trying to decide whether to execute him or hand him over to official law enforcement. His speech, and their reactions to it, is truly fascinating, and goes to the heart of the question here–do we believe that these offenses come from evil, or from disease, or both. Our persecution of released sex offenders seems to suggest the latter; we rearrest them because we are concerned about compulsion. A student of mine once called this unique perception of guilt “culpable sickness”. Feeding our fears of the unknown and unexplainable is important, but it is more important to deal with actual recidivism than with imagined and feared recidivism. I hope we are, indeed, preventing dangerous and risky reoffending by directing our energy toward these released offenders, rather than merely substituting one form of oppressive and wasteful enforcement with another.

Attorney General Race: Kamala Harris’ Lead Strengthens

As the vote counting progresses, it appears that Kamala Harris has established a lead that would make it very unlikely that Cooley will catch up. If Harris, indeed, wins the race, that would mean that Jerry Brown will work with someone who has somewhat less traditional approaches to criminalization, law enforcement, and reentry. We’ll have to wait and see.

Damien Echols Receives New Trial: Evidence Gate Wide Open

Today, in an Arkansas Supreme Court decision that will thrill supporters of the West Memphis Three, Damien Echols received a new evidentiary hearing, in which all evidence, including the DNA evidence that exculpates him and implicates others in the murder, will be considered.

Echols and co-defendants Misskelley and Baldwin were the subjects of the documentaries Paradise Lost and Paradise Lost 2: Revelations. Having read much about the case, I am convinced of their innocence and very much hope that the new hearing will provide the defendants long-overdue justice.

Impending Executions?

This OC Register article comes to us via our friends at the Sentencing Blog. According to the article, seven death row inmates have exhausted their legal recourses and could potentially be executed in the near future. interestingly, the article contains a hint on the focus of anti-death-penalty litigation in the near future:

The state’s attempt to execute convicted rapist/murderer Albert Greenwood Brown, Jr., of Riverside – who has been on Death Row since 1982 — failed in September when the CDC’s only dose of the lethal-injection drug passed its expiration date. It would have been California’s first execution in five years.

Since then, CDC officials have been scrambling to find an additional source of sodium thiopental to get the executions back on track.

Last month, prison officials announced they had secured enough of the powerful drug to carry out four executions, potentially putting the seven killers who have exhausted their appeals at risk.

Opponents of the death penalty, however, are expected to challenge the propriety of how and from whom prison authorities obtained the latest batch of the drug. The CDC has declined to say where it obtained the drug. The only U.S. manufacturer of the drug can’t make more because of raw-material supply issue, the Los Angeles Times reported.

Making the source of a chemical the focal point of the death penalty debate is a further step in what I previously referred to as the farcical nature of the entire debate. And yet, it can be a last resort in litigators’ scramble to dig up arguments that have not been made yet.

The Status of Legalization: Guest Post by Brandon Yu

Our guest poster, Brandon Yu, is a Managing Editor of AllTreatment, an online rehab center directory and substance abuse information resource.

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After much months of national attention, California Proposition 19 has failed by 8 figures in nearly a 600,000 vote difference. The Proposition, which was supposed to legalize marijuana in the state of California for recreational use, was opposed since the beginning by elected officials of both parties, including Democratic Senators Barabar Boxer and Diane Feinstein and Republican Governor Arnold Schwarzenegger. The federal government likewise said it would “vigorously enforce” federal drug laws vigorously against Californians that grow or sell marijuana for recreational use.

Proponents noted many benefits of legalization. The passing of the proposition would have generated $1.4 billion a year in tax revenue, resulting significant savings for state and local governments and boosting the economy in the process. Some believed it would also reduce drug-related violence and take revenue away from drug lords. However, opponents argued that it would raise the cost for programs in substance abuse due to the supposed increase in marijuana use, and that the state’s medical marijuana program would flounder since people would gain the drug through other means.

So what does the prospects look like for legalization in California, let alone the status for the country’s future?

Marijuana laws in California have grown increasingly more relaxed in the year leading up to the proposition. Though he did not support the legalization proposition, Governor Schwarzaneggar signed a bill into law that downgraded marijuana possession from a Misdemeanor to a simple Civil Infraction during his final months as governor.

Bordering states looked to California to set an example. Measures in South Dakota and Arizona had measures that advocated for medical marijuana, but both were similarly rejected. Foreign countries, particular Mexico, had also been looking to how California would react to legalization. Mexican President Felipe Calderon, whose country had been entrenched in a drug war for the last half decade, was considering legalization in order to put money out the opposition’s pockets. The Mexican drug cartels make anywhere from $20 billion-$30 billion annually off drug trafficking alone, with marijuana comprising of 60 percent of that income. Legalization would have reduced that number dramatically by $12 billion.

Despite the setbacks, the legalization movement is stronger than ever. Marijuana legalization had been defeated before in California. In 1972 a similarly titled Proposition 19 also failed when put at the hands of voters. However, that proposition failed by a much higher margin, with a 66.5/33.5 No/Yes differential, a considerable difference than the 54/46 resulted from Tuesday.

Proponents are vowing to get a similar one on a ballot in the near future despite Proposition 19’s failure. Some exit polls have shown that some Voters think that marijuana should be legalized, in a margin of 49%-41% with 10% undecided, suggesting that voters had more issues with the wording of the proposition rather than legalization.

Blame, Accountability, Criminalization

My amazing day at CELS ended with two papers about assigning criminal accountability and criminalizing, which were particularly thought provoking in the respective aftermaths of the Mehserle trial and the failure of Prop 19. First came Janice Nadler and Mary‐Hunter Morris’ paper The Psychology of Blame: Criminal Liability and the Role of Moral Character. Nadler and Morris conducted a series of fascinating experiments in which respondents were required to express their views on criminal culpability and causality in scenarios they were provided with; respondents were provided with some background about the offenders’ moral character, and Nadler and Morris concluded that this extraneous information colored their opinion regarding culpability. The questions from the audience yielded an excellent discussion about the situations in which moral character “leaks” into the legitimate justice system, such as in discussing an offender’s motive.

The following paper was The Plasticity of Harm: An Experimental Demonstration of the Malleability of Judgments in the Service of Criminalization, by Avani Mehta Sood and John M. Darley. Sood and Darley provided their respondents with a series of rather colorful scenarios, asking them whether they saw them as violating social norms, whether they were harmful, and whether they would criminalize them. Respondents tended to ascribe harm to situations they wanted to criminalize. Sood and Darley then proceeded to provide respondents with scenarios that did not tend to invoke a lot of harm rationales, priming half of them with an instruction according to which “U.S. courts have ruled that for something to be a crime it has to cause harm.” Respondents that were primed with this instruction tended to come up with more harm rationales for their scenarios, some of them rather creative and farfetched. The paper reminded me of the harm arguments brought up against Prop 19, and the amount of pseudo-harm arguments we have heard, and are likely to continue hearing, about same-sex marriage.

CELS is a fantastic conference, I learned a lot and had a terrific time. Now, it’s back to my students and… to the California correctional crisis.