The Criminal Justice Realignment will figure prominently in our posts this year, with a special focus on the recent news regarding cuts that may endanger many juvenile programs. The most serious concern stemming from the cuts is that juveniles will be tried as adults. Some thoughts on the proper direction to take from Selena Teji and Emily Luhrs are posted here.
In an interview in today’s Los Angeles Times, California Chief Justice Tani Cantil-Sakauye expressed her concerns about the death penalty and encouraged a public debate about its abolition.
“I don’t think it is working,” said Cantil-Sakauye, elevated from the Court of Appeal in Sacramento to the California Supreme Court by former Gov. Arnold Schwarzenegger. “It’s not effective. We know that.”
California’s death penalty requires “structural change, and we don’t have the money to create the kind of change that is needed,” she said. “Everyone is laboring under a staggering load.” In response to a question, she said she supported capital punishment “only in the sense I apply the law and I believe the system is fair…. In that sense, yes.”
But the chief justice quickly reframed the question.
“I don’t know if the question is whether you believe in it anymore. I think the greater question is its effectiveness and given the choices we face in California, should we have a merit-based discussion on its effectiveness and costs?”
I think that is a terrific distinction between the judicial role of applying the law and the public and legislative law of reevaluating and changing it.
Those who have been following up on death penalty practices in California recall that, after a six-year hiatus, CDCR instated new proceedings. Now, a Marin County judge has found the new proceedings unconstitutional, which might mean a longer delay.
A judge on Friday threw out California’s new lethal-injection protocols, which have been six years in the making, because corrections officials failed to consider a one-drug execution method now in practice in other death penalty states.
The action by Marin County Superior Court Judge Faye D’Opal sends the state back to square one in redrafting procedures for lethal-injection executions. The death penalty has been on hold for six years in California after a federal court ruling deemed the previously used three-drug method unconstitutional because it might inflict pain amounting to cruel and unusual punishment.
D’Opal said in her 22-page ruling that the state’s failure to consider replacing the former execution practice with a single-injection method violated state law and ignored the courts’ and public criticism of the previous protocols.
Readers who are fed up with the new moves to tinker with the machinery of death, and who find themselves exasperated with the prospect of a CDCR appeal of Judge D’Opal’s ruling, might find the SAFE voter initiative to abolish the death penalty in 2012 an attractive option. It would certainly put an end to the quibble over technicalities.
If you are on the fence about this, perhaps the humonetarian argument from the L.A. Times story will convince you:
A three-year study published earlier this year by a federal judge and a Loyola Law School professor reported that taxpayers have spent $4 billion to carry out 13 executions since capital punishment was reinstated in 1978, and that it costs at least $184 million a year to maintain death row and the capital defense system.
Werner Herzog’s new documentaryInto the Abyss takes us on a nightmarish trip into the lives of criminals and victims in the aftermath of a triple murder that happened in Texas ten years ago. Michael Perry and Jason Burkett, teenagers at the time, were convicted of murdering Sandra Stotler and tied to two more homicides of teenage boys. The murders, according to the police and some witnesses, were committed with the sole objective to steal cars.
Eight days before his execution, Perry speaks to Werner Herzog in prison about his faith and his life behind bars. Also included in the documentary are Stotler’s daughter (sister of Adam Stotler, another one of the victims), Jason Burkett who did not get the death penalty, and Burkett’s father, who, incredibly, is also serving a forty-year sentence and who was handcuffed to his own son on the way from court. Witnesses and death row personnel speak about the meaning of life and death for them. And Burkett’s wife, who met him after he was imprisoned, speaks of their life together.
To me, the film was not a heavy-handed, idealistic or pragmatic critique of the death penalty. Instead, it presented a much subtler argument based on the futility of death — of law, really — to truly ever encompass and address the abyss of sadness and dysfunction that permeates the lives of all the people involved. Strikingly, everyone featured in the documentary — victims and defendants — is surrounded by imprisonment and death. Jail is a fact of life, as is victimization in dreadful accidents and violent altercations. So much loss and grief, to which more loss and grief is added through the crime and, subsequently, through the punishment.
I found Ms. Stotler’s words at the end to be absolutely fascinating. She says she would be satisfied with life without parole, and nonetheless, she got something out of attending the execution. It brought her some closure and relief. As Herzog invites her to reflect on the source of the closure and relief, she says, “he was just a boy. I had made him into that monster, and then I saw him, and he was just a boy.” Who knows how much relief, mercy, and grace would have been attained had Perry reached out to the family of his victims.
A subtle, profound, and thought-provoking piece, Into the Abyss is highly recommended to those who want to think about the death penalty, victimization, and criminality beyond crude partisan abstractions.
A new study conducted by Craig Haney of UC Santa Cruz finds that, while a majority of Californians still support the death penalty, there is a marked decline in the percentage of supporters compared with the previous extensive survey, conducted in 1989: Support has declined from 79% in 1989 to 66% in 2011. This trend is in step with the national trend (see Gallup graphic to the left). From the UC Santa Cruz website:
The proportion of adult Californians who view themselves as “strong” supporters of the death penalty has dropped from 50 percent in 1989 to 38 percent today. Conversely, fewer than 9 percent were “strongly opposed” to capital punishment 20 years ago, compared to 21 percent today.
“These changes appear to be related to changes in the way Californians view the system of death sentencing, rather than just the punishment itself,” said Haney.
For example, the poll revealed much greater concern about the possibility of executing innocent people: 44 percent expressed concern this year, compared to only 23 percent in 1989. In addition, the number of respondents who believe the death penalty is a deterrent to murder dropped from 74 percent in 1989 to only 44 percent today. Similarly, the number of people who did not believe that prisoners sentenced to life without parole would actually stay in prison until they died dropped to about 40 percent, compared to 66 percent who held that belief in 1989.
These findings suggest a series of political implications for the supporters of SB490, a voter initiative to abolish the death penalty in California expected to be placed on the ballot in 2012.
First, it appears that, as we have said before, criminal justice reform is often incremental. It is difficult to get a broad coalition of death penalty opponents on a platform of human rights, and the support of several parties, including, possibly, victim families and law enforcement personnel, depends on maintaining a strong option of life without parole. Doug Berman has recently made a strong argument that the strong push against the death penalty has the unsavory effect of bolstering life without parole. Berman’s 2008 paper on the topic masterfully argues that the Supreme Court devotes a disproportionate percentage of its energy to the minutes of the “machinery of death” rather than dealing with more other important criminal justice issues on its docket.
And third, humonetarianism has the potential of converting even more Californians to the opponents’ cause. Haney found, disturbingly, that
nearly half the respondents in the 2009 survey, compared to 54 percent in 1989, thought the death penalty is cheaper to implement than life without parole, although the reverse is true.
This misconception can be easily corrected by a well-designed campaign. If costs are, indeed, a springboard to reform in California, a solid argument comparing the costs of the death penalty to life without parole would go a long way toward broadening public support for SB490.
What could possibly be left to say on the aftermath of Troy Davis’ execution? Words on the evil of the death penalty? On innocence and guilt and doubt? On the inability of the law enforcement mechanism to accept the possibility of mistake? Just in case you missed some of the commentary, here were my favorite picks:
Yesterday, my criminology students and I discussed Norbert Elias‘ The Civilizing Process. Written in 1939, the book was forgotten for several years as Elias’ career was derailed by the second World War. A Jewish European scholar, Elias worked in exile and relative obscurity until he arrived in England, where he resumed an important place in the sociological universe. Still woefully undeacknowledged among the pantheon of sociological giants, Elias’ work deserves much praise and recognition.
In The Civilizing Process, Elias argues that the 18th century was a “watershed” time that saw a profound top-down change in European society: From a society of knights to one of courtiers. This change, the reaction to the formation of the modern centralized state, was accompanied by a profound change in etiquette and social sensibilities, including the development of various subtleties in interpersonal interaction, table manners, bodily functions, and the like. Among other things, says Elias, our bloodthirstiness and daily exposure to violence have decreased. While life in the middle ages included a daily unmitigated experience of violence and a relishing of violence, we came later to see it as distasteful.
But the state changed its practices, too. Following Elias, excellent Dutch historian Pieter Spierenburg’s The Spectacle of Suffering points out the change in how executions were carried out in Europe. The “watershed” years, and the years to follow, saw fewer and fewer executions, and a marked toning-down of the pomp and circumstance that surrounded them. According to Spierenburg, the society of courtiers increasingly lost its taste for public corporal rituals and moved away from them.
So, what do we have now? Perhaps the ultimate sublimation: An execution that is nothing more than a sad coda to years of quiet confinement and increasingly technical litigation. Conducted away from the public eye, its only witnesses are those closest to the case–the offender’s family and the victim’s family–arguably the parties who retain some of that pre-civilizing, raw connection to the act and the social connection. The story is mitigated by its sanitized media coverage. As Austin Sarat argues in When the State Kills, the coverage removes our visceral connection to the violence we delegated to the state; and as Frank Zimring argues in The Contradictions of American Capital Punishment, it masks its origins in lynching and public relishing of violence.
The true strength of the protest in Troy Davis’ case was in breaking this boundary of sublimation and sanitation. Millions of people around the world were moved by Davis as a symbol of human suffering. They did not fail to recognize this act for what it is, even when carried out away from the public eye and using advanced chemicals, needles and machines. They saw the racial overtones and origins of the practice and the way they played out in this particular case; and they did not shy away from expressing their utmost distaste with it and the deep ways in which it offended their sense of justice. Distressing as this was–an unsatisfying coda to the tragic death of Mark McPhail, who deserved a better police force and a better inquiry as to his slaying–the public reaction, a vehement expression of our distaste for the modern “machinery of death” and ability to see it for what it is, was an important moment in American history, whose ramifications may bear fruit in the ballot box and in the courtroom.
—— Props to my Theoretical Criminology students, whose commentary yesterday prompted much of this post.
The Supreme Court rejected Troy Davis’ last minute appeal for a delay. The New York Times reports:
The United States Supreme Court rejected a last-ditch request to step in late Wednesday to stay the Georgia execution of Troy Davis, who was convicted of gunning down a Savannah police officer 22 years ago, after Mr. Davis filed an eleventh-hour plea Wednesday with the high court. His execution, by lethal injection, had been set to begin at 7 p.m., but Georgia prison officials waited for the court’s decision late into the evening. It took the court more than four hours to issue its one-sentence order.
This is a dark day for truth, justice, mercy, and the appellate process. Thank you to everyone who signed petitions, emailed, shared information about the case on social networks, and offered help through Amnesty, the NAACP, and other organizations. May this be the last time a probably innocent person is put to death.
Six months after the Supreme Court previously refused all attempts to stop the execution of Georgia inmate Troy Anthony Davis, his lawyers on Wednesday filed a new plea seeking to head off the state schedule to put him to death Wednesday evening. . . [i]n urging the Justices not to delay execution any further, the state Wednesday evening said that Davis’s lawyers had waited too long to challenge an execution that had been scheduled 15 days ago.
The brief (read it in full here) asks for a delay so that a writ of certiorary can be filed that will point out “substantial constitutional errors.” It argues that “newly available evidence reveals that false, misleading and materially inaccurate information was presented at his capital trial in 1989, rendering the convictions and death sentence fundamentally unreliable.”
The state’s reply (read it in full here) is that Davis’ appeal “presents no new evidence or argument.”
—– Props to Billy Minshall for alerting me to this development.
Today, CNN features the excellent video above on Troy Davis’ case, including interviews with the victim’s family and with a juror from the original trial. It also provides a rich background on the racial overtones of the case. The plot is thicker and murkier than it appeared on the newspaper coverage, and this piece does a good job of exposing it.
As a coda, I want to offer a thought experiment. Having read plenty about this case, I am fairly convinced that Davis is factually innocent. But if he were guilty – and he’s been in prison for the last two decades, scheduled for execution four times – does all that not count as punishment for homicide? The problem with our administration of the death penalty is that it is not merely execution; it’s life imprisonment under atrocious conditions with an execution thrown in at the end as a coup-de-grace for good measure. It is an unconscionable system.
So, fight for Troy if you believe, as I do, that he is innocent; and I do hope you come to that conclusion upon learning more about the case. But think on whether this system makes sense for guilty people, too.
