More on Plata/Coleman Oral Arguments

A few more details on the oral arguments for the benefit of our readers:

The State’s case, presented by Carter Phillips, started with strong statements regarding the receiver, and how his appointment and deeds were remedy enough. Phillips caught much flak on this from Justices Ginsburg and Sotomayor, who pointed out that the receiver himself declared several times that his efforts at improvement would be futile without a decrease in population.

Justice Sotomayor left little doubt as to where she stood on the state’s failure to provide care (and generated some rudeness from Justice Scalia):

JUSTICE SOTOMAYOR: So when are you going to get to that? When are you going to avoid the needless deaths that were reported in this record? When are you going to avoid or get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you are going to deliver care that is going to be adequate?
Your Honor.
JUSTICE SCALIA: Don’t be rhetorical.
MR. PHILLIPS: I’ll do my best. Thank you, your Honor.

Justice Kennedy, who as many commentators said is key in this case, seemed to accept the idea that overcrowding is the cause for the medical crisis.

JUSTICE KENNEDY: Overcrowding is the principal — overcrowding is the principal cause, as experts have testified, and it’s now time for a remedy. The Court can’t — has to at some point focus on the remedy, and that’s what it did, and that it seems to me was a perfectly reasonable decision.

And elsewhere:

But I think it means that overcrowding must not be ordered unless that is the only efficacious remedy in — in a permissible period of time. And it seems to me there is massive expert testimony to support that proposition on the part of the prisoners.

Justice Breyer also seemed to be sympathetic to the appellees, from a pragmatic standpoint:

I mean, I read the newspaper. It doesn’t seem to me California has been voting a lot of money for new programs. The — the — what is it — what is it specifically that would happen that would cure this problem were we to say — I mean, a big human rights problem — what would we say — what would happen if we were to say, no, this panel’s wrong? What would happen that would cure the problem?

Justice Kagan highlighted the main problems with judicial review – to some extent providing support for the original three-judge panel and its dedication:

JUSTICE KAGAN: Mr. Phillips, my trouble listening to you is that it seems as though you are asking us to re-find facts. You know, you have these judges who have been involved in these cases since the beginning, for 20 years in the Plata case, who thought we’ve done everything we can, the receiver has done everything he can; this just isn’t going anywhere and it won’t go anywhere until we can address this root cause of the problem. And that was the view of the judges who had been closest to the cases from the beginning and the view of the three-judge court generally. So how can we reach a result essentially without, you know, re-finding the facts that they have been dealing with for 20 years?

Phillips: there have been big developments, but the state itself limited discovery from 2008 onward.

Phillips also distinguished the medical from the mental health problems. The Coleman problem, as he stated, was worse; and he said,

if the Court were to conclude ultimately that Coleman ought to go back for another analysis based on the problems there, I could understand that. And it would be a very different prisoner release order under those circumstances because then you would have to take out all of the evidence with respect to Plata and let that play out.

Questions to Don Specter, arguing for the appellees, focused on the fact that the “cutoff date” was 2008 and things may have vastly improved since then, as well as on the percentage of reduction.

By contrast to Justice Kennedy, Justice Alito expressed his opinion that there was a disconnect between overcrowding and medical care.

You could have a prison where the — the cells themselves are crowded, and yet there are other facilities available for medical care and plenty of staff to attend to those things. So what’s the connection?

He then pressed Specter to reflect on the fact that the released inmates are not necessarily of the class that is arguably compromised. Specter explained that population reduction could be done by a variety of ways, conceding that transferring inmates out of state is one possible way. (not talking about overcrowding in itself as making the operations difficult).

Justice Roberts seemed to lean toward a 145% capacity solution and pressed

The other issue on which Specter had to answer questions had to do with the public safety angle. Note the Justices’ shock at the California recidivism rates. They must truly be disconnected from the world they live in. I found this exchange particularly illuminating, and to be honest and personal, quite distressing.

JUSTICE ALITO: In general, what is the recidivism rate?
MR. SPECTER: Well, overall, the risk is around 70 percent, but for low-risk prisoners the risk is 17 percent who reviolate.
CHIEF JUSTICE ROBERTS: I’m sorry. I couldn’t — what was the first -­
MR. SPECTER: The first number when you take all parolees, all together, it’s 70 percent.
CHIEF JUSTICE ROBERTS: 7-0?
MR. SPECTER: 7-0, because — within three years. That’s what — the situation we have now, and that’s the situation that the governor, the secretary,and the court described as a failure. With parole reform you could reduce that number in many ways, and the Court described how you could do that. But the lowest –
JUSTICE ALITO: What is the lowest? It’s 17 percent.
MR. SPECTER: 17 percent, and California has a risk assessment instrument which the Court found – which the Court found could be used to make sure that what happened in Philadelphia doesn’t happen again. If I understand it -­
JUSTICE ALITO: Well, I understood that of the low-risk — if only the low-risk people are released, around 3,000 of them are going to commit another crime.
MR. SPECTER: They — but they don’t have to be released, first off. I want to make sure I emphasize the point that this is a crowding reduction measure. You don’t have to release 30,000 prisoners.
JUSTICE ALITO: They don’t have to be released if you can build enough cells -­
MR. SPECTER: Or you can divert, or you can improve the parole system so that parole violators don’t commit so many crimes. If you offer rehabilitation alternatives, if you provide a number of diversion into the community, there are a number of options short of releasing prisoners. And the 70 percent figure concludes -­
JUSTICE ALITO: The 17 percent figure goes exactly to my concern. This is going to have — it seems likely this is going to have an effect on public safety. And the experts can testify to whatever they want, but you know what? If this order goes into effect, we will see. We will see, and the people of California will see. Are there more crimes or are there not?
MR. SPECTER: Well, if it’s based on the experience in other jurisdictions, the court found we wouldn’t. And I wanted to say — to clarify one point, Your Honor: The 70 percent figure includes — doesn’t always include crimes. It includes lots of technical parole violators. People who have missed their appointments, for example. So it’s not as grave as some of the figures that are informed by the other side.

In rebuttal, Justice Kagan pressured phillips on whether the state could safely reduce population within five years.

My impression, overall, is that many of the Justices already have their minds made up, and that the oral arguments might have done little beyond furnishing them with ammunition for writing the decision. The big mystery, as Rory pointed out yesterday, is whether Justice Kennedy, who seems to see the causal connection between overcrowding and abysmal health care, will also approve of the remedy.

Historic Arguments in the California Prison Overcrowding Cases – A Guest Post by Rory Little

This morning the U.S. Supreme Court heard oral arguments in what has become known as the “California prison overcrowding cases.” The Court has not heard a case challenging prison conditions and court supervision in decades, and the 1996 Prison Litigation Act (“PLRA”), designed to restrict federal court supervision, has been unexamined until today. The Court accepted the State’s appeal (not certiorari) in two consolidated California cases. It then granted a highly unusual extra 20 minutes to the normal hour-long argument, and ran even beyond that until Chief Justice Roberts blew the final whistle. It was an historic moment in the history of these decades-long cases, and in the area of prison litigation in general.

Although an audiofile will not be available here until this Friday, observers report that the Justices were interrupting each other and even raising their voices, an unusual display of frustration in that august body. Indeed, at one point Chief Justice Roberts calmly cut off Justice Sotomayor (who had interrupted Justice Ginsburg’s question), saying “I’m sorry, could you answer Justice Ginsburg’s question first?” (The transcript is available here).

But the Justices’ reactions at this argument are not surprising – the underlying cases have generated similar frustrations and emotions for some two decades, as unconstitutional conditions in California’s state prisons have defied solution despite an unprecedented amount of executive, legislative, and judicial concentration.

At issue is the order from a special three-judge federal trial court, issued after over 70 prior orders failed to correct problems in the prisons, that directs the State to find a way to reduce its prison population to 137% — that’s right, “reduce” to 37% over design capacity. It is conceded that California’s prisons have not provided constitutionally adequate medical and mental health services to its inmates for many years. The conditions are “horrible,” as photographic evidence in the record shows. The district court found – and no one really disputes – that the problems all run back to the dramatic overcrowding of California’s prisons.

And because of the California’s seemingly intractable budget problems – as well as legislative gridlock and partisan intransigence – the huge amounts of money necessary to fix the prisons (or construct new ones) is simply not going to happen. “Pie in the sky,” said Justice Scalia today. As Justice Sonya Sotomayor remarked today, “I don’t see how you wait for an option that doesn’t exist.”

However, fifteen years ago Congress’s unhappiness with federal courts “taking over” state prison systems led to enactment of the 1996 PLRA. Now, the very existence of the PLRA, which anticipates special three-judge district courts and recognizes the possibility of court “population reduction” orders, indicates that Congress understood that, at some point a State’s unconstitutional conditions, and inability or refusal to repair them, might still lead to court supervision. The central question today was whether California’s prison system, and the three-judge court’s multi-year patience in ordering the State to fix the problems without success, warrants the reduction order ultimately entered early in 2010, after a number of prior “warning orders” went unheeded.

Also unusual is the contrast between the lawyers who presented the arguments today. The State’s agents hired Carter Phillips, a well-known Supreme Court advocate who clerked for Chief Justice Warren Burger and has argued over 60 cases before the Supreme Court. Indeed, few advocates could get away with what Phillips did this morning:
JUSTICE ALITO: Mr. –
MR. PHILLIPS: Can I just finish this?
JUSTICE ALITO: Yes.

The prisoner plaintiffs hired Paul Clement, also an established Supreme Court litigator who served as U.S. Solicitor General under President George W. Bush. However, the California prisoners have been represented throughout the litigation below by San Francisco lawyer Don Spector, longtime head of the Prison Law Office, and it was Specter who presented their case in the Supreme Court today. (Although the Court was reviewing two cases, it mysteriously denied a motion for Clement and Specter to split the argument – another unusual wrinkle). Although Specter has argued many cases in his quarter-century at Prison Law, he had argued only one Supreme Court case (Yeskey v. Penn (1998), which he won summarily). Today’s cases (Plata and Coleman) present a far more difficult challenge. But Specter, steeped deep in the details of this complicated litigation, did a masterful job. He even got a laugh from the normally reserved Chief Justice (transcript p, 48). Indeed, his intricate knowledge of the facts and record paid off in a number of exchanges with Justices Scalia, who seemed plainly allied with the other side, and Roberts. And with 11 amicus briefs filed on behalf of three times as many groups, the arguments did not suffer from a lack of effective advocacy for any party.

California and Phillips clearly wanted the Court to focus on the “federalism” aspects of allowing a federal court to direct the reduction of a State prison population. But Justice Sotomayor quickly set a detail-oriented, fact-specific tone for the argument: she directed Phillips early on to “slow down from the rhetoric and give me concrete details.” The argument then proceeded on that level for the bulk of its over 80 minutes. (Justice Scalia, however, had some fun with Justice Sotomayor’s earlier remark: when she asked Phillips “When are you going to avoid the needless deaths that were reported in this record?,” Justice Scalia interjected (ostensibly directed at Phillips and not his fellow Justice) “Don’t be rhetorical.”)

In the end, decision in the case appears to focus on Justice Kennedy (who is so often the necessary fifth vote that observers call it “the Kennedy Court”). And while he did not show his hand entirely, he did interrupt Phillips’ argument that the district court acted “prematurely,” as follows: “The problem I have with that, Mr. Phillips, is that at some point the Court has to say: You have been given enough time; the constitutional violation still persists…. Overcrowding is the principal cause, and it’s now time for a remedy.” Justice Kennedy also opined that “there is massive expert testimony to support … the prisoners,” and asked why the district court’s order was not “perfectly reasonable.”

Predicting results from oral argument is a dubious enterprise at best. And certainly some Justices, notably Justices Scalia and Alito, expressed skepticism. (Justice Thomas was characteristically silent.) But Justice Kennedy’s remarks demonstrate that the Court faces a sensitive challenge here: unless it wants to become the appellate master for prison litigation around the country as state budgets become increasingly stressed, it needs to demonstrate restrained deference to federal trial judges that provide years of hearings and opportunities for beleaguered state prison systems before they act. As the newest Justice, Kagan, remarked, “”You have these judges who have been involved in these cases … for 20 years ….[H]ow can we reach a [different] result without re-finding facts…?”

Indeed, one can speculate that if this case had not come from the Ninth Circuit, and had not had red-flag liberal Judge Stephen Reinhardt on the three-judge panel, the Court might not have even found appellate jurisdiction (or summarily affirmed). On the other hand, Congress did set strict limits in the 1996 statute, and the High Court needs to interpret just what they may mean in the reality crucible of a hard case. California has argued that the three-judge court was itself convened in violation of the statute. As Specter respectfully noted at one point regarding Phillips’ argument, “my friend and I have a disagreement.” The PLRA deserves Supreme Court resolution.

In the end, Specter’s argument presented the starkest argument: “unless you reduce the crowding, nothing else is going to work.” The district judges involved had issued over 70 previous orders, and appointed two different “receivers” for the prison system, all to no avail. If any set of unconstitutional prison conditions and unresponsive state reactions can ever satisfy the PLRA’s stringent requirements, it would be this one. Yet, as the Chief Justice inquired repeatedly, how can the state reduce prisoner population without endangering public safety, as the PLRA requires? These tensions are why the Court decided to hear the unusual argument session it hosted today.

So stay tuned. A decision is unlikely to issue until late spring. And it seems likely that the case will be remanded with directions to consider amending the Order in various ways. Prison population and conditions are always a dynamic moving target, and wholesale affirmance here seems unlilkely. But whatever the result, these arguments provided a fascinating window into the arena of prison litigation, as well as the working of the “new” Supreme Court whose near majority was appointed a decade after the PLRA was enacted.

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.

Upcoming Film Event: Presunto Culpable (Presumed Guilty)


This Tuesday, the World Affairs Council, the Berkeley Center for Human Rights and the ACLU of Northern California will be hosting a special screening of the terrific film Presunto Culpable (Presumed Guilty). Filmmakers Roberto Hernández and Layda Negrete, currently graduate students at UC Berkeley and also lawyers in Mexico, have documented the horrors of a criminal trial in Mexico, in which justice is derailed and denied by a perverse justice system that, by law and by fact, presumes defendants are guilty and prevents them from confronting their witnesses. The film follows a particularly horrific example of such travesty of justice: the trial of this José Antonio (“Toño”) Zúñiga for a murder he did not commit. The filmmakers, whose film was crucial in exonerating Zúñiga, will speak at the event (yours truly will moderate the discussion). It’s a wonderful, thought-provoking film, and you are all encouraged to attend.

When? This Tue, 10/26, 6:00 PM – 8:00 PM (check-in starts at 5:30, please arrive early for registration)

Where? World Affairs Council Auditorium, 312 Sutter Street , Second Floor, San Francisco

To RSVP, please click here.

Religious Freedom: Is a Courthouse Holding Cell a “Pretrial Detention Facility”?

While this is not a correctional issue per se, it raises interesting questions. Today’s Chron reports:

A panel of the Ninth U.S. Circuit Court of Appeals in San Francisco ruled 2-1 in May that Orange County deputies hadn’t violated Souhair Khatib’s rights by making her take off the religiously mandated headscarf for security reasons when she was placed in the holding cell.

But the court said Monday that a majority of its 27 judges had voted to set that ruling aside and refer the case to an 11-judge panel for a rehearing in December.

The dispute affects thousands of inmates throughout the nine-state circuit who are taken to holding cells before being brought to court, said Khatib’s lawyer, Becki Kieffer. She said it was the first such case to reach a federal appeals court.

Kieffer argued that the majority in the three-judge panel’s ruling had misinterpreted a federal law that broadly protects inmates’ religious freedoms.

The law prohibits government agencies from imposing a “substantial burden” on the right to practice one’s religion in a prison, jail or pretrial detention facility. The issue in the case is whether a courthouse holding cell, where inmates are held up to 12 hours before hearings, is a pretrial detention facility.

Mehserle Trial: Waiting for the Verdict

The jury is out on Johannes Mehserle’s trial in L.A. for the fatal shooting of Oscar Grant on New Year’s Eve 2009. In Mehserle’s tearful testimony, he explained that he had confused his taser with a gun.

I don’t know whether the change in venue from Oakland to L.A. has indeed been successful in guaranteeing less of a political context; here in the Bay Area, the trial is closely followed by the media and seen as a microcosm of race/police relations in Oakland. In this broader context, and based on past experiences, a variety of community organizations in Oakland call for nonviolence upon announcement of the verdict, whatever it may be. I particularly like this statement from the ACLU of Northern California, which acknowledges that, as in any situation of this genre, it takes two to tango, and calls not only to residents to keep their calm but also to the police to maintain restraint when reacting to riots.

Aaron Vargas and the Limits of Accountability

(image courtesy the San Francisco Chronicle)

Yesterday’s Chron covered the sentencing of Aaron Vargas, convicted of murdering his neighbor, Darrell McNeil. After the murder, allegations surfaced according to which McNeil had abused Vargas since the latter was a young boy. Vargas, who expressed regret about the killing and testified that he did not go into McNeil’s home with the intent to shoot him to death, was supported throughout his trial by family and friends who put together a website and organized a petition on his behalf.

From the Chron piece:

Vargas’ family and defense team had hoped he would be sentenced to the 16 months he has already served in county jail, plus probation, and go free Tuesday. They would have settled for perhaps a five-year sentence.

But they said they never thought he would get anything so close to the maximum 10 years in state prison available under the plea deal the former odd-job worker struck in April with the district attorney in exchange for pleading no contest to voluntary manslaughter. Prosecutors had sought 50 years to life in prison before the plea deal.

. . .

“I’m very satisfied with the sentence,” said Assistant District Attorney Beth Norman. “This was a difficult case, and I don’t think anybody could come away relieved.”

Vargas argued that he hadn’t intended to kill McNeill, just to scare him away from bothering him and his family. Judge Brown bought only part of it.

While expressing little doubt that Vargas was raped by McNeill, Brown said that “to grant probation in this case would put a stamp of approval on the defendant’s actions, which I cannot do.”

“The use of violence to correct a wrong only encourages more violence,” the judge said.

This terrible tragedy raises important and difficult questions, which go to the core of how we define accountability, how we operationalize sympathy, and how we value human lives in comparison to each other. As we know, the establishment of guilt in a criminal trial is a binary decision – guilty/not guilty – and criminal defenses specify very narrow terms under which an otherwise criminal act is justified and excused. Having been abused in the past does not award a defendant a complete carte blanche; to be acquitted for self defense, the danger to the defendant must be immediate and grave. However, with sentencing or charging we can be more flexible and some states are more lenient toward convicted murderers who were abused by their victims in the past. This doctrine was developed as “battered woman syndrome” or PTSD under the umbrella of mental problems that do not amount to a full insanity defense. In this case, the social reaction is rather interesting. It may be that some of the public rage about the sentence has to do with the gender aspects of this case. It is more probable, however, that the broad sympathy for Vargas comes from our antipathy toward the least-liked group of offenders: Child molesters and rapists. It is a difficult question whether we want our criminal law to reflect the idea that a child rapist deserves what he or she gets if murdered by his/her victim. The question of sentencing flexibility is a bit easier: we could still officially condemn murder, and yet find a way, sentence-wise, to not make the murderer pay the price in such situations. But whether we contemplate guilt or sentence, we are still asking, in essence, the same question: Is killing a child molester more understandable than killing someone else? More justified ? Or, for those of us who would punish murderers out of retributivism, is the life of a child molester worth less than the lives of other potential murder victims?

Changing Discourses in Anti-Death Penalty Advocacy

Several people at the World Coalition Against the Death Penalty meeting asked me to post my plenary panel remarks online; I hope you find them interesting.

——————————————

Good morning everyone,

This gathering is a historical event, an attempt to place this country, whose pride and shame so often lie in its exceptionalism and uniqueness, in a global context, as part of a global movement. I looked at the program and it promises to be a fascinating day of examining world trends and exploring the ways in which the United States, an industrialized democracy whose execution statistics dwarf those of many developing nations, might fit into a paradigm of nation-wide abolition. Before we embark upon this important journey, though, I thought I would offer a few comments that might touch on this U.S. exceptionalism. More accurately, I would like to discuss the strategies and arguments that death penalty abolitionists, academics and activists, have used over the last decades, and situate them in the unique context of U.S. bipartisan politics, the legal profession, and the centrality of race in U.S. criminal justice policy.

Anti-death penalty discourse around the world often appeals to notions of humanitarianism, human rights, and morality. This family of arguments, which dates back centuries to rationales offered by Cesare Beccaria in his 17th century book Delle Crimen y Delle Penne, has always been part of the abolitionist agenda in the United States. However, over the years, American discourse has also included three non-humanitarian arguments, which have taken a place of prominence in public discourse here about the death penalty. I would like to present the three of them and talk about the unique U.S. conditions that produced them as part of the discourse. The three arguments are:

1) The lack of deterrent effect of executions;
2) the rate of wrongful convictions among those sentenced to death;
3) and the cost of administering the death penalty.

I presented the arguments in a rough chronological fashion. If you look today at activist websites about the death penalty, you are likely to find all three of these arguments represented, but each of them occupied center stage in public discourse for a while, later giving way to a new non-humanitarian argument.

Our love affair with deterrence arguments came in the heels of the 1976 Supreme Court decision in Gregg v. Georgia, which reinstated the death penalty after a four-year moratorium. This is well known, of course, to many people interested in the death penalty. What is somewhat less known is the role that an empirical study by Isaac Ehrlich, published shortly before the decision in Gregg, played in bringing this development about. Ehrlich used econometric calculations to show that each execution prevented eight murders. His study was extensively cited by the Supreme Court as an argument for the death penalty. Ehrlich’s study was not an outlier and its timing was not a coincidence. Its seeds were sown in the late 1960s, when the rise in crime rates, and fear of crime, were central features of the Nixon campaign. During this era, crime control and law enforcement became a regular feature of the U.S. political game, and particularly of the right/left divide. This played out in important ways during the 1970s, when a meta-research conducted by Robert Martinson found that rehabilitative programs in prison did not reduce recidivism. The general disillusionment with rehabilitation—until then a feature, at least in terms of rhetoric, of the U.S. sentencing and correctional system – pushed policymakers back to the traditional paradigm of aims of punishment, seeking retribution and deterrence. This was aided by the rise of punitive, fear-driven discourse, particularly in connection with the nascent war on drugs of the 1980s. Under such conditions, it was unavoidable that anti-death penalty discourse would address this issue. Critique of Ehrlich’s model emerged almost immediately. His methodology was heavily criticized. And several permutations of the deterrence arguments persist to this day. Last year I went to the Empirical Legal Studies conference, and, indeed, two teams of researchers were still battling minute econometrical details, trying to prove or discredit the deterrent effect of the death penalty. The methodological aspects of the debate would be lost on the general public, and the political motivation behind the argument was rather obscured; ironically, the better people got at producing models that predicted or disproved deterrent effects of the death penalty, the less interesting their work got in terms of its public appeal. In other words, the debate about deterrent effect has lost some of its steam and has been relegated to the realm of specialized, sophisticated scholars.

A new argument, however, emerged on the horizon. In the late 1980s and early 1990s, anti-death penalty discourse was fuelled by arguments pertaining to mistakes in convictionsk, made particularly tragic in the context of the death penalty because of its irreversibility. Several developments made the wrongful conviction and exoneration argument possible and important at the time. First, proving innocence seemed to be a dream finally attained through the introduction of DNA as an inexpensive, realistic option for the broad population of criminal defendants. It is important to point out that, despite the mystique of DNA, most exonerations of wrongfully convicted inmates did not occur through DNA testing, but rather through discrediting eyewitness identification. The early and mid-1990s were good years for the field of criminal psychology, yielding “white paper” about the unreliability of lineups and eyewitness identification, as well as a discredit of testimony by hypnosis. The success of U.S. television programs based on criminal forensics and science, particularly the CSI franchise that started showing in 2000, reflect the great hope awarded in the public imagination to science and the body as a means for uncovering the truth. The potential of scientific techniques in correcting wrongful convictions was harnessed by another important development: The emergence of clinical education in law schools, and particularly the emergence of innocence projects, in which students pursued, pro bono, wrongful conviction claims on behalf of inmates. The first Innocence Project was founded in 1992 in Cardozo School of Law under the leadership of Barry Scheck and Peter Neufeld, and offered, perhaps for the first time, the promise of scientific arguments to support abolition. There is one more important factor to keep in mind as we consider the emergence of exoneration and wrongful conviction arguments as anti-death penalty discourse: the growing public acknowledgment of the part played by race in the criminal justice system in general and on death row in particular. As our attention to wrongful convictions grew, we became more aware of the particular ways in which racial minorities in the U.S. were particularly vulnerable to intrusive police techniques, identification mishaps, racist jury panels, and vindictive judges, particularly in certain regions of the country. Not only were most people on death row members of racial minority groups, the stories of exonerees revealed how their racial identity impacted the prognosis of their criminal cases.

The exoneration argument was, however, not without its flaws and weaknesses. First, contrary to the grand promise of science and its appeal to the public (now known in the U.S. as the CSI Effect), DNA methods lost some of their iron-clad hold in court, if not on the general public. Wrongful conviction scholars find it increasingly difficult to gauge the exact number of wrongfully convicted people in prison in general, and on death row in particular. Do we count cases in which multiple eye-witnesses have recanted? Do we count cases in which police interrogation was abusive and coercive, even if we do not know whether it yielded the truth? While the public perhaps continued to perceive science and forensics as good ways to weed out the innocent, a growing discourse of fear and punitivism took hold. This seemingly contradictory trends are easy to explain when one considers that punitiveness gains legitimacy if it is guaranteed that those suffering from it are the guilty. Add to this the enlistment of the nascent victim advocacy movements to support the agenda of punitive politics (which I know many brave people in this audience, who have been victimized by crime, actively resist) and you’ll get a perfect punitive storm, pushing various reforms such as the Three Strikes Law. While the death penalty is unique, it should be seen in the context of this discourse of fear. Under such conditions, politicians of all stripes were concerned, and still are, about not appearing “soft on crime”, and in many regions of the U.S., opposing the death penalty is unthinkable for symbolic reasons as well as for reasons of realpolitik.

This challenge, of not appearing “soft on crime” while rejecting punitivism in general and the death penalty in particular, may have been addressed by the third non-humanitarian anti-death penalty discourse: The issue of cost and expense. With the recent financial crisis, the expenses associated with punitive sentencing regimes and mass incarceration have revealed to the public what was previously an invisible, underground “city” of corrections. The public is much more aware of incarceration conditions in general and conditions on death row in particular. Proposals to expand the San Quentin death row made headlines in California newspapers. And media discussions have led to a rising profile of the typically lengthy death row litigation. It should be mentioned, ironically, that as the costs of lengthy appeals and habeas corpus writs become a subject of public concern, the actual legal opportunities for post-conviction remedies grow narrow. Habeas corpus litigation in the U.S. has been gradually curbed, and overworked courts are more reluctant every day to hear death row appeals. Nevertheless, the argument seems to be that the death penalty, as it is administered today in the U.S., is no more than life imprisonment under difficult, expensive conditions, and accompanied by incessant litigation. This is a premise that budget-conscious politicians, whether conservative or progressive, can get behind with less risk to their public image.

Why do U.S activists use these arguments? Primarily, because they work. They are uniquely tailored to the realities of a bipartisan political system, in which, for various historical reasons, the death penalty has come to be a political issue. This is often difficult to understand for those unfamiliar with the U.S. context. After all, in Western democracies that abolished the death penalty the political divide is no longer an issue. And of course, once the death penalty has been abolished it is much more difficult to reinstate than it is to keep in place where it still exists. In non-democratic countries that still have the death penalty, the need to persuade the government to abolish it is irrelevant. The unique position of the U.S. as a punitive democracy is what necessitates this family of utilitarian arguments. If the human rights argument has been disabled due to fear and rhetoric, the public is spoken to through the lowest common ground: its wallet.

The proof is in the pudding. Recently, New Mexico abolished the death penalty, prominently citing issues of costs. Numerous U.S. states have placed moratoria on executions for the same reasons. Support for abolition, as well as for other nonpunitive measures such as drug legalization, skyrockets when they are presented as revenue-enhancing measures. California periodicals are peppered with editorial pieces by conservative politicians arguing that the costs of lengthy litigation and safe confinement are too much to spend if executions continue being administered at the current rate, thus supporting a cheaper solution: life without parole. The cost argument, therefore, holds the promise of persuasion.

The costs of using the cost argument, however, are a little less tangible. Everytime an argument against the death penalty is based solely on issues of cost, non-deterrence, and possible mistake, anti-death penalty activists accept their adversary’s rules of engagement and play their game on their terms. And while cost arguments are not fake or misleading – the costs are true – there is something misleading about presenting them at the forefront of what used to be, and should always be, a concern for our fellow human beings, be they offenders, victims, or correctional personnel. As a movement, we need to make a decision whether, and to what extent, we are willing to play this game to obtain the desired outcome, and what is the combination of strategy and ideological conviction that we can live with best. Thank you.

Grant Trial and Jury Composition

News are beginning to trickle in to the Bay Area about Johannes Mehserle’s trial for the murder of Oscar Grant at the Fruitvale BART on New Year 2009. This morning’s paper reports on the evidence for the prosecution, and yesterday’s paper reported on the jury selection, which yielded a panel devoid of any African American jurors, to the dismay of Grant’s family and activists in Oakland.

The question is one of framing: Is this incident to be seen as one particular moment in time, or as part of a trend of bad relationship between the police and minority groups? Arguably, even if we are to accept the narrower former prism, juror race is not irrelevant. As we discussed elsewhere, studies consistently show race bias, and a recent one showed that white males are particularly punitive against black defendants. Will they be forgiving of a white defendant in an incident with inter-racial features? Given the jury composition and the secrecy of jury deliberations, whatever the decision is, we will not be able to know the reasons for it with any degree of certainty.

The details on Mehserle’s trial come in the heels of a sobering piece in the New York Times, according to which the jury selection process in Southern States seems to block black jurors from panels. Indeed, even after Batson v. Kentucky, the 1986 case that opened the door to considering racial bias in the use of peremptory challenges, it is still possible to circumvent the accusation that racial motivations shaped juror choice by providing “racially neutral” reasons for exclusion. These reasons need not be particularly sound or convincing.

As an aside, the Los Angeles panel does feature some members of minority groups, including four Hispanic jurors. It may be that, in L.A.’s particular racial map, Hispanic and Latino men and women are in a better position to appreciate the broader problems of police interactions with minorities than the Oakland activists predict.

There seems, however, to be some support for the change-of-venue decision. Coverage in the Los Angeles Times seems to be much less prominent than in the San Francisco Chronicle.

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Props to Cullen Wojcik for alerting me to the New York Time’s piece.