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.

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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.

SF Public Defender: Justice Summit

On May 19 I attended the San Francisco Public Defender’s 2010 Justice Summit, at the SF Public Library. Jeff Adachi eloquently introduced a day of 3 panels, one Clara Foltz impersonator, a TV PSA, and free lunch. The PSA video was a startling, professionally-produced 15-second spot promoting the abstract concept of the public defender (“PD”).

The first panel, “Ordinary Injustice,” offered a scathing critique of every level of our criminal justice system. The title was taken from the book of the same name by Amy Bach, who spoke first and stole the show with firsthand stories of miscarriages of justice in rural courtrooms. She also noted that these problems affect everyone, not just those caught up in this system, because our tax dollars become the collateral consequences. Laurence Benner made the point that this injustice will inherently remain so long as local politicians are entrusted with funding our indigent defense system. Kenneth Tanaguchi, Fresno PD, mentioned thatjustice suffers in counties using contract defenders because of their innate conflict of interest: turning a profit will trump clients’ best interests when criminal defense services are auctioned. John Terzano, Justice Project ED, explained prosecutorial misconduct as a product of prosecutors’ discretion, lack of accountability, and entrenched culture. Sam Webby described his series of stories for the San Jose Mercury-News about the San Jose’s defendants going without representation at their first (and usually only) appearances, which led to a change in policy: now those courtrooms have lawyers in them everyday for the first time.

The second panel discussed PDs’ public relations problem: “Public pretender or public crusader?” Former prosecutor Jonathan Shapiro, now famous for The Practice and Boston Legal, started controversially by telling the audience of PDs to cut their ponytails, lose their earrings, and wear dark suits with white shirts and red ties. His main point was that PDs need more self-promotion, and collective national representation to educate the public on their purpose and worth. Jami Floyd of tv’s The Best Defense agreed that the media contributes to misperceptions of the PD’s role, because of the pro-prosecution bias in the assumption that defendants did something wrong (violating innocent-until-proven-guilty). A New Yorker, she argued that reforming draconian drug laws is the best issue to start with reshaping the PD’s image. Criminal defender Gerald Schwartzbach drew applause for, “You don’t fight crime by cutting social services,” and for, “Putting a black robe on a jackass doesn’t get you a judge,” and for, “The whole criminal defense bar, public and private, needs to circle the wagons” and unify to improve its reputation/image. Carol Dee Huneke of PD Revolution (pdrevolution.blogspot.com) pointed out that even though emotionality usually favors victims, occasionally it works for defenders, and then they ought to call the media.

The third panel focused on prisoner re-entry services, from the mixed viewpoints of service providers, former prisoners, and advocates. It was pretty depressing, as highlighted by Eliza Hersh of the East Bay Community Law Center’s Clean Slate program: “There’s not really such a thing as a ‘clean slate’ in California.”

Leaniency: The Criminal Process in Times of Scarcity

As regular readers probably know, I have been thinking a lot about the many ways in which the financial crisis has shaped changes in the criminal process. Most of my energy was devoted, recently, to thinking about its impact on the correctional apparatus; in my article Humonetarianism: The New Correctional Discourse of Scarcity (which I started shaping on this very blog!) I argued that the crisis provided a rare opportunity to revisit a forty-year-old punitiveness wave; it gave politicians permission to adopt non-punitive policies with less concerns about appearing “soft on crime”. The most striking example of this is the passage of the (admittedly watered-down version of) Governor Schwarzenegger’s early release plan, based on comprehensive parole reform and good credits.

This does not mean, of course, that the considerations behind our correctional policy have really become less punitive in any deep or meaningful way. Our discourse has not fundamentally changed; moreover, the solutions we have approved are far from being systematic. California still does not have a sentencing commission. Various serious concerns about prison overcrowding, such as the overrepresentation of minorities, have not been properly addressed. Not much consideration, if any, has been given to the aims of punishment with regard to old and infirm inmates (beyond the issue of cost of their medical expenses). Nevertheless, as studies in punitivism repeatedly show, the public tends to be much less punitive in surveys and experiments when presented with the costs of punishment.

Keeping track of humonetarianism made me more aware of the impact of cost and scarcity on other stages of the criminal process. And, indeed, there is some evidence of crisis-mode budgeting which is changing the nature of the criminal process. This is not real leniency or a turn away from severity, but it often manifests itself in the way of decriminalization, changes in prosecutorial policies, etc, among other phenomena. Which is why I call it “leaniency”. One glaring example is the fact that, perhaps for the first time, there is a real chance that California voters might legalize marijuana. As I recently found out from Quintin Mecke, who is Assemblyman Tom Ammiano‘s Communications Director (who spoke recently at Hastings), they’ve been seeing increased support of their marijuana legalization/regulation proposal in polls whenever they link it with taxation and increased revenue for the state from marijuana sales.
Other aspects of leaniency have to do with the decreased budgets of the police, prosecution, and defense. All these agencies have to adopt lean, smart policies about work if they are to survive. Beyond the hiring crisis in D.A. and P.D. offices, there is evidence that prosecutorial policies have changed to allow less cases into the criminal process; in some counties, some offenses are not being charged. Public Defenders focus their efforts on cheaper case management, avoiding involvement in mechanisms such as problem solving courts, which tend to suck up resources and time. Has there been an increase in plea bargains? I have no idea, but I would not be surprised if there has. In what other ways is a cheap criminal process different? Is it merely an updated version of Herbert Packer‘s crime control model, or is something else going on? Your comments appreciated.