Almost a month ago we reported of a historic settlement ending Ashker v. Brown, the class action suit regarding conditions in solitary confinement. What remains is to figure out exactly what the settlement means. And who better to illuminate the matter than UC Irvine’s Keramet Reiter, an expert on solitary confinement and the editor of the recently published anthology Extreme Punishment?
The settlement attracted national attention and is still being celebrated by prisoners, their families, and legal advocates. Perhaps it will be a model for other states to reduce or eliminate prison conditions the United Nations has conclusively defined as torture. One settlement agreement, however, cannot sweep away decades of abusive prison policies. First, it is a settlement, not a legal opinion. At best, the settlement is a non-binding model of what other jurisdictions might attempt. Second, even though prison officials withdrew many of their claims about the dangerousness of SHU prisoners by agreeing to the provisions of the Ashker settlement, these beliefs have hardly been renounced. The genuine fear prison guards experience in coping with hunger strikes, managing mental illness, or dealing with prisoners like Hugo Pinell must be acknowledged and addressed, so that they are motivated to strategize to support, rather than resist, reform. Third, the data collection and monitoring associated with the settlement is scheduled to conclude in two years—and may never be made public in the first place. The practice of solitary confinement has historically been defined by discretion and invisibility, and is therefore hard to investigate, control, and reform. So the practice of solitary confinement could easily retreat back into the shadows in two years, absent longer-term requirements to institutionalize transparency.
We plan to continue monitoring the post-Ashker developments.
This morning, the Ninth Circuit (Judges Graber, Rawlinson and Watford) heard oral argument in Jones v. Davis (formerly Jones v. Chappell). As you may recall, the original case was decided by District Court Judge Cormac Carney, who found the death penalty in California unconstitutional because of the severe delays in its application. The decision was appealed by the Attorney General, and nothing much happened since then in terms of addressing the delays on death row. What did happen more litigation relying on Jones–notably, Andrews v. Davis before the Ninth Circuit and People v. Seumanu before the California Supreme Court. At today’s hearing, the Government representative argued that Jones was barred from benefitting from the delay in his case for two reasons: 1. It is a claim purporting to create a new rule, not brought up before, and as such is barred by Teague v. Lane.
A little bit of background: New substantive rules apply retroactively. For example, if a certain behavior ceases to be a criminal offense, whoever is still doing time for that offense will probably be let out immediately. But for new procedural rules, appellants can benefit from them only if these rules come into being while their case is still “alive”, that is, still under direct review. In the diagram to the left, the rule change can benefit people in situations (1) and (2), but not (3). Note that, if the new rule came into being when (2) was still under direct appeal, but now (2) is arguing for it in a habeas proceeding, (2) still gets to benefit from the rule. (3), however, does not–his case became final before the rule change.
What about announcing a new rule on Habeas? According to Teague v. Lane (1989), the dilemma is as follows: the defendant who is asking for the new rule is, essentially, (3) from the previous diagram. That is, he would not be able to benefit from the new rule if it were announced today in someone else’s case. Which also means that all the people who are similarly situated to this defendant–whose cases are final and on habeas–will not benefit from the new rule. Since the court doesn’t want to just announce the rule and not enforce it, or to enforce it only in the particular case and not in those similarly situated (inequality), it reached the bizarre conclusion that it will simply not announce new rules on Habeas–unless these rules fundamentally change criminal justice, either in terms of legalizing previously prohibited behavior or being a “watershed rule of criminal procedure.” Jones’ representative, Michael Laurence from the Habeas Corpus Resource Center, argued that the issue at stake here is substantive, not procedural. That is, the application of the death penalty is not merely a change in procedure, but rather a fundamental issue of applying the death penalty, as it was regarded in Furman v. Georgia (1972), Atkins v. VA (2001), and Schriro v. Summerlin (2003), the latter specifying that “rules that regulate the manner of punishment” are considered substantive, rather than procedural. Even if it is a procedural rule, it is essentially a reframing of the problem of arbitrariness, which led to the death penalty abolition in Furman, and therefore not a “new one” but merely the application of an old one. In response, the government’s representative argued that the arbitrariness claim, in this context, is a “new rule”, and moreover, a procedural one. There hasn’t been precedent directly on point claiming that arbitrariness can manifest itself in delay, and since this is a new question, it cannot result in a new rule on Habeas under Teague. There was some back and forth about whether the court’s decision in Andrews, which rejected a Jones-based claim, should be used to interpret whether the rule is new or old. 2. Even if it’s a claim relying on an old rule, Jones has not exhausted his argument in state court (in fact, never brought this up in state court) and is therefore barred from raising it in federal court under the Habeas provisions in section 2254. As 2254(d)(1) says, (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1)
resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]
This was not the case here, claims the government; Jones didn’t even go to state court, and cannot therefore challenge the sentence at the federal court. Jones’ representative argues that Jones benefits from an exception to the exhaustion clause, which appears in 2254(b)(2)(b)(ii): (b)
(1)An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—
(A)
the applicant has exhausted the remedies available in the courts of the State; or
(B)
(i)
there is an absence of available State corrective process; or
(ii)
circumstances exist that render such process ineffective to protect the rights of the applicant.
This may seem very technical, but there’s actually a lot of anger beneath the technicalities. As Jones argues through Laurence, the California Supreme Court would not have provided a cure to the delay, but rather delayed things even further. In 1997, the Ninth Circuit found that 140 people on death row were unrepresented, and released them from the timely submission obligations under AEDPA. Now, there are 358 unrepresented people. The wait for an attorney can be 16 (!!!) years, and after that, litigation can last 8-10 years (!!!)–all this time, obviously, spent by the applicant on death row. Amazingly, the only office limited in its number of lawyerly hires, the Habeas Corpus Resource Center, can only hire 34 (!!!) lawyers, which is a woefully inadequate number of people to handle 758 (!!!) cases. Before and after Jones, the California Supreme Court did nothing to remedy this situation, argued Laurence, and therefore there was no point in trying to “exhaust” the claim in state court. That would be, literally, exhausting. In response, the government representative said that the prospective delays in state resolution of such issues is speculative. There was also a bit of back and forth on the merits, with the government resisting the assertion that death penalty in California is “arbitrary” but rather that cases are carefully examined. I’m hoping that, no matter the result in the Ninth Circuit, this case will go to the Supreme Court, where the dysfunctional application of capital punishment in the state might find a receptive ear in Justice Kennedy and in Justice Breyer, who explicitly said, in Glossip v. Gross, that he would welcome an opportunity to address the constitutionality of the death penalty on the merits.
Just in time for the fiftieth anniversary of the Voting Rights Act, a legal team comprised of various rehabilitation and reentry organizations has triumphed in returning the right to vote to 50,000 men and women who are under mandatory supervision!
A little bit of background: The California Constitution disenfranchises felons who are “imprisoned or on parole”. In League of Women Voters of California v. McPherson, the First District Court of Appeal ruled that these categories did not include people who were in jail as a consequence of violating felony probation. After Realignment, thousands of non-serious, non-violent, non-sexual felons were sentenced to jail terms. A prior litigation effort on their behalf was unsuccessful (though we raised some important questions that were left unanswered.)
The current litigation effort was more modest, but also perhaps more realistic, seeking to restore the right to vote not to all realigned felons, but only to those under mandatory supervision. Folks under supervision serve time on the outside, under conditions strongly resembling probation. The prospective voters’ advocates were successful on the first round. The former Secretary of State appealed, and just as the parties were ready to go forward, the current Secretary of State, Alex Padilla, withdrew his appeal, with the outcome that voting is restored. And here’s what Secretary Padilla had to say–here at CCC we wholeheartedly concur:
“Passage of the Voting Rights Act was not easily won,” Secretary Padilla said. “People marched. People struggled. People died. They bravely sacrificed for each other – for friends, family, for our country so that each of us could be empowered with the opportunity to participate meaningfully in our democracy.” “Civic engagement and participation in the election process can be an important factor helping former offenders reintegrate into civil society. If we are serious about slowing the revolving door at our jails and prisons, and serious about reducing recidivism, we need to engage—not shun—former-offenders. Voting is a key part of that engagement; it is part of a process of becoming vested and having a stake in the community,” Padilla added. “The United States Supreme Court eloquently proclaimed, “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” “Our California Supreme Court has made similar pronouncements: “No construction of an election law should be indulged that would disenfranchise any voter if the law is reasonably susceptible of any other meaning.” “Today’s announcement is in line with these statements, the arc of California history, and the spirit of the Voting Rights Act,” Padilla said.
On September 3, 2008, Marcos Venicius Amon Barbosa finished his 48-hour shift at the shipyard. Before driving home, he stopped for a drink. Shortly after he resumed his trip, he ran a red light at an intersection in Vitoria, killing one woman and injuring eight more people.
Today, six years after the event, I attended his trial for vehicular manslaughter at the First Criminal Department of Vitoria. I was graciously invited by the prosecutor, Daniela Moysés, whom I had met the day before on our prison tour. Prior to her impressive legal career, Daniela had been a civil engineer, which requires five years of study in Brazil, and after a few years of working as the engineer of the court system she decided to change direction and studied law at UFES (another five years of education!). After passing a special competition for a prosecution position, she worked for several years in a rural area, and transferred to Vitoria as a special jury prosecutor.
In Brazil, jury trials are reserved only for crimes against life that involve criminal intent or recklessness. The state selects 25 people to serve on a jury, and they serve for two months. Every trial requires only seven jurors, which are elected from the 25-person panel by way of lottery. Employers have to eat up their employees’ two-month absence, even though they are unhappy about it. It is a big commitment, which is why Judge Victor Ribeiro Pimenta started the hearing by thanking everyone for their service.
At this point, after several weeks, the judge, the prosecutor, and the jurors know each other fairly well, and the judge told me that he tries to make it a positive experience for them even though the trials revolve around heavy matters. So, he joked with them a bit before the defendant was brought in.
Escorted by the military police, the defendant sat in front of the court on a chair with no table. His attorneys sat at a table to his left, requiring them to get up and approach him if they wanted to tell him something or confer with him. Today, he had three defense attorneys, all private, to speak on his behalf.
Then, the judge ran the lottery. He put labels with the jurors’ names in a special box, shook it, and removed labels one by one.
For each juror who was selected, the judge asked the defense attorney and the prosecutor if they had any objections. Each side gets three strikes, all peremptory, and they don’t need to offer an explanation. The prosecutor objected once, to a man whom she and the other prosecutors had seen falling asleep at the trials. I asked whether the challenges are sometimes used strategically. Daniela said that, in a drunk driving case, she preferred female jurors, whom she felt would be less sympathetic to a drinking man then male jurors. She got four women and three men. As each newly selected jurors stepped to the jury box—two rows of chairs behind tables—they wore black robes. The judge then announced the “jury winner”—the juror whose number had come up most frequently in the history of that particular panel—and awarded her a box of chocolates as gratitude for her service.
Everyone smiled and clapped. It was a nice, warm gesture to alleviate the stress and gravity of the trial to follow, and was very characteristic of the way Judge Pimenta runs his courtroom, always adding a smile and levity to the situation. Of course, the only person not laughing was the defendant, and conscious of his anxiety, Daniela muted her reaction to the joviality. Judge Pimenta swore the jurors one by one.
From the moment of selection, the jurors are prohibited from communicating with each other about the case. Deliberations are forbidden, and each juror votes secretly according to his or her own conscience.
Prior to the jury selection, the prosecution and defense conferred briefly on testimonies. Out of the eight surviving victims, four showed up for the trial. One of them testified that the traffic light was yellow when the defendant’s vehicle entered the crosswalk. The defense wanted that victim to testify. However, said the judge, if that’s the case we’ll want to testify all of them, and the rest will testify the light was red. Daniela didn’t want the witnesses to testify; she was concerned that they would go off on tangents and be unhelpful. One of them even said, shortly after arriving to the courtroom, that she did not want to see the defendant. The bottom line was that no witnesses testified at all.
The jurors were handed copies of the accusatory document, which already includes summaries of the evidence against the defendant and the judge’s “pronúncia” – the decision to bring the case to the jury in the first place. They were given some time to read it, and one of the court workers brought in a big tray with little cups of strong coffee for everyone to sip while they read. All parties, except the defendant, were served coffee, and small trays of cookies for everyone followed. Food is very meaningful in Brazilian culture, and eating together is an important social ritual. At cookie time, Daniela explained to me that the judge had the discretion to close the case based on police evidence, and sometimes does, and also the discretion to decide that the case was not befitting a jury panel and should be sent before the judge.
After the jurors familiarized themselves with the facts, the judge asked the defendant a few questions about his work, familial status, etc. He explained to the defendant that he had the right to testify and very respectfully presented everyone—the jury, the prosecutor, even me—to the defendant, as if we were all seated in the judge’s living room. He then asked the defendant whether he wanted to testify. The defendant replied that he did not, and that his testimony in the police station—in which he admitted to being drunk and falling asleep behind the wheel—could speak for him. He was visibly anxious and very miserable.
The judge allowed the prosecutor to speak, and she started by acknowledging every single person—even me—by name. She smilingly introduced the defense attorneys, referring to each by name, and gently needled them about being “three against one”. She started by expressing thanks to the jurors for their important service, and ended by saying to the defendant that we all wanted justice and that we were hoping to be fair to him.
Then, she proceeded to present to the jury her theory of the case. In the absence of witnesses, the attorneys were allowed to give lengthy speeches to the jury, walking them through the evidence. I was told that, had there been witnesses, they would first be examined by the judge to give their version, then by the prosecutor, and then by the defense attorneys. Parties are allowed to cross-examine the other side’s witnesses. Attorneys could object to questions and the judge could disallow them, and often judges would disallow questions on their own, not prompted by a party’s objection. In general, the judge plays a much more active role in conducting the trial, getting up frequently from his chair, conferring with the attorneys, addressing the jury, and attending to administrative matters (it also is possible that Judge Pimenta is particularly lively and engaged.)
In this particular case, the speeches pertained to an interesting question of substantive criminal law. Brazilian law allows for two types of criminal intent: a desire that the result occur, which is the equivalent of first/second degree murder mens rea in American common law, and awareness of the possibility that the result might happen. According to the prosecutor, this case fell into the latter category. Because the defendant had just left his shift and then decided to go drinking, he must have been aware of the possibility that he could commit an accident, and therefore assumed the risk of doing so. She combined her explanations of criminal doctrine with testimonies of the victims in the case, and the defendant’s own testimony in the police station. The jury attentively followed her, flipping through their materials. While obviously sympathetic to the victims and their suffering, the prosecutor was also sympathetic to the defendant, especially given the long time that had passed since the accident. After her speech was finished, she and I discussed her theory of the case. Brazil does not have plea bargains, except in very small cases, where they are legally proscribed “discounts” for pleading guilty and/or for providing information about the crime. Had the Brazilian system allowed them, she would probably had agreed to a guilty plea to a lesser charge of homicide, even though she thought her theory of the case was sound and the defendant acted with “conscious negligence” (the equivalent of recklessness in common law), because of the time that has passed since the accident and its effect on the defendant. She therefore told the jury that her argument was doctrinal-technical, but that they should vote with their conscience. She thought that her lucid but tempered argument may have communicated to the jury that, as opposed to other homicide cases they had seen during their two-month tenure, this one was not one of the serious ones.
After the prosecutor finished, the first of three defense attorneys, Joao Angelo, rose to speak. Like the prosecutor, he started his speech with a very gracious address to everyone in the room (including me). He thanked the prosecutor for her “calm and respectable” presentation (perhaps hinting to the jury that even the prosecutor was not out to get the defendant.) He then proceeded to argue the case. He spoke mainly of two things: the fact that the defendant obviously had not desired the lethal outcome and did not seek it, and the suffering he had been through in the years since the accident. Some of the argument was legal, but for the most part it was a plea for clemency. Criminal procedure in Brazil allows the prosecutor the opportunity for rebuttal, but doing that opens the door for a subsequent rebuttal by the defense. Because she didn’t feel the case merited a severe outcome, Daniela quietly made the decision not to rebut.
After the defense attorney’s speech, we all broke for lunch. When the judge invited me to eat with them—which was very kind of him—I didn’t quite know where we were headed. It turns out that, on days in which trials are heard in the morning, everyone—the judge, the prosecutor, the defense attorneys, the jurors—share lunch together in the courtroom, sitting around a large table. The court employee in charge of the jury, who also wears a little black robe, arranges for a very nice and rich meal, and so we all chatted amicably around the table, eating roasted chicken, rice, vegetables, plantains, and manioc flour. There was a tacit agreement that no one spoke about the case, and people just had a nice, companionable lunch together for almost an hour before the trial resumed.
When we returned to our seat, the two remaining defense attorneys proceeded with their argument. Their arguments were fairly theatrical and exaggerated, but their essence was the same as that of the first attorney: that the defendant should receive clemency. The second attorney even mentioned that the aftermath of the accident drove the defendant to a suicide attempt, which was not proven in any external materials (and the jury might or might not have believed.) He was divorced after the accident, but we did not know whether the divorce was related to the accident. The prosecutor felt that the attorney misquoted her, arguing a point of law she hadn’t actually made, but she clearly prioritized fairness in the defendant’s case over an ego battle and decided to let it go.
As the defense attorneys argued their case, the judge typed up a list of interrogatories for the jury. It was titled “Quesitos”, and for each of the nine victims it listed four questions:
1.Had the victim suffered an accident?
2.Did the defendant drive the vehicle that caused the victim’s death?
3.Did the defendant assume the risk that he might cause the accident?
4.Does the jury choose to absolve the defendant?
Questions 1-2 are matters of fact (and clearly were not in dispute in this case). Question 3 is a matter of law, and Question 4 is a matter of ethics and morals. The breakdown of jury decision into interrogatories is new to Brazilian law, introduced in a 2008 amendment. The judge shares the interrogatories with the parties and revises them if they express reservations he accepts.
After the attorneys were done, the judge emptied the room of audience (especially of the crime victims, because the vote is secret and there is concern about retaliation) and addressed the jury. He explained that he didn’t need their vote with regard to each victim, because the accident was the same. He also said that, since questions 1 and 2 were not in dispute, they were going to assume an affirmative answer to both, and start with question 3. He would ask question 4 only depending on the result of question 3. Each juror was handed a green ballot by the court employee, consisting of “sim” and “não” options. The judge asked question 3, again briefly explaining assumption of risk, and the jury voted. A court employee collected the ballots in a wooden box and closed the lid. The judge shook the lid and counted the votes. After 3 “sim” and 4 “não” responses, the deciding seventh vote was “não”, and the defendant was therefore declared not to have assumed the risk. The judge concluded that, in light of this decision, question 4 was not necessary. Daniela explained that, even though the interrogatory separates between the legal and ethical questions, juries frequently combine their answer in the legal vote.
With that, the jury’s part of the trial was over and I had to rush to the airport, but the judge and parties still had some work left to do. In the absence of a vote of intent, this was no longer a jury case, and the judge convicted the defendant of negligent homicide. The punishment was 4 years, but it was substituted by community work, and the defendant agreed to pay each of the living victims $250,00 dollars. The prosecutor walked away from the case feeling the decision was fair. Since the case presented a rather meaty legal question, as well as special personal considerations, no one was surprised that the vote came close. The jury faced a genuine dilemma and faithfully made an effort to follow the case and decide fairly.
“Is it crazy?” my friends, local academics and lawyers, asked me as they graciously gave me a lift to the airport. Crazy? I thought. Not really; that is, not necessarily less or more crazy than an American trial, or of any way which human beings orchestrate to pass judgment on their peers.
Many thanks to Daniela Moysés for inviting me to join her workday, to Judge Victor Pimenta for accepting me so kindly into his courtroom, and to everyone else involved in their trial for their graciousness.
I have disappointing news to share: the Attorney General has decided to appeal in Jones v. Chappell.
I am not surprised, but I am very disappointed, just as all of you must be. Whoever has taken part in reaching this decision is not supporting the law or defendants’ rights; they are supporting wasteful, unconscionable expenditures of $130 million annually on a lengthy incarceration in a dilapidated facility, complete with decades of state-funded post-conviction litigation. This is a very sad day for any reasonable, conscious Californian.
The next frontier will be in the Ninth Circuit, where odds that we will prevail are not very good, but not non-existent. Please follow up on our coverage of this issue,and do not be discouraged: we will fight on, in litigation and through legislative and political means, and we will see nationwide abolition in our time.
On Monday morning, I drove to Sacramento and submitted this petition, calling on Gov. Brown and Attorney General Harris not to appeal the decision in Jones v. Chappell, in which Judge Carney of the U.S. District Court found the death penalty in California unconstitutional. It started as a small plea on Facebook, and without any pushing or prompting from me found its way to the Daily Kos and to the Daily Journal (twice). By the time I submitted the petition, it was 2,198 signatures strong. That’s me on the left with the gubernatorial bear.
There are still 12 days left for the Attorney General to appeal the decision, and as I explained here, if her office does not do so, it doesn’t mean the death penalty in California is effectively abolished, but it would be a great start of a series of legal and political moves that could spell its demise. I’m beginning to think that the death penalty can’t be executed; rather, it has to die a slow death from a chronic disease (delays, costs, malfunctions)–much like the vast majority of the inmates on death row.
I think everyone understands this, even if they don’t like it, and that includes death penalty proponents, who seem to be freaking out about the prospect of $130 million annually in savings and folks being put in general population serving life without parole (which they do anyway, just without the expenditure.) And it seems that death row supporters in California are beginning to freak out at the not-unlikely possibility that the Attorney General is going to leave this decision alone. First was this post on Crime and Consequences, inviting district attorneys to risk their jobs and eat up their lives by appealing a decision their boss might not appeal against her officer’s discretion (really?). But then, the decision was actually appealed. Yesterday. Not by the Attorney General. By a guy named Robert Justice.
Don’t believe it? Here’s the notice of appeal.
I bet you’re wondering who these mysterious appellants are, and what gives them standing, given that they are not Jones OR Chappell OR the Attorney General. Well, the signatures on the petition give away their interest in seeing the death penalty continue its slow limp into the sunset. Mr. Soos and Mr. Justice are “citizens of the State of California”.
First thing’s first: this is obviously not going to work. Unless Mssrs. Soos and Justice have some truly acrobatic standing argument up their sleeve, the issue of standing in a case like this has already been decided by the Supreme Court. If the Attorney General does not support our 1978 voter initiative to reinstate the death penalty, citizens have no standing to do so in her stead, not even if they’re the ones who fundraised and pushed the initiative in the first place. This is going to be thrown out of court for lack of standing faster than I can say “Hollingsworth v. Perry.”
I will give Dr. Justice credit for his enthusiasm regarding the political and legal process. It’s good to see citizens of California spend energy and resources on vital matters of public importance, such as his previous legal endeavor, which involved trying to get the State of Hawaii to reveal President Obama’s birth certificate (yes, it’s the same guy. He’s a birther).
The Hawaii court said, “while Dr. Justice may have a strong desire to personally verify President Obama’s eligibility, pursuant to article II, section 1 of the United States Constitution, to serve as President of the United States, such desire does not constitute compelling circumstances within the meaning of HRS ÿÿ 92F-12(b)(3). Dr. Justice does not have the power or authority to determine President Obama’s eligibility. Only the Congress of the United States has the power to remove a sitting president. Indeed, Dr. Justice has not alleged any factual basis for his implicit contention that President Obama may not be a natural-born citizen of the United States. Dr. Justice has not stated an overpowering or urgent need for the records to protect the life or safety of an individual in a medical or other emergency.” I expect Dr. Justice’s newest foray into the exciting world of legal standing will meet with similar success.
But let’s get serious for a bit. I want to give Robert Justice the credit that he doesn’t seriously think he has standing, and that this might be his attempt to persuade, or shame, our elected officials into doing his bidding. Anticipating some arguments from death penalty supporters, here goes:
The Attorney General has to do what the people want.
No. No, she doesn’t. Not when the people’s will goes against what’s fair and just and makes sense. Remember Jack Conway, Attorney General of Kentucky? This is him, courageously saying that he is going to do the right thing and refrain from appealing a decision that same-sex marriage bans are unconstitutional “even if some disagree.”
The people want the death penalty to remain.
What we know from the last election is that the percentage of people who want the law to remain is the lowest it’s been in decades: 53 percent. And it will continue to go down, in the same way that support for same-sex marriage went up. The population is getting younger. And, as a French student reminded me this week, France abolished the death penalty before most of the public agreed with abolition.
The Attorney General should uphold the law.
Well, of course she does. But what counts as “law” is a changing, evolving thing. The death penalty was constitutional until 1972. That was “the law”. Then it stopped being “the law”, and became “the law” again in 1976. When Jack Conway declined to defend a bigoted, homophobic law, he expressed his opinion–that the court’s decision was law now. Similarly, a decline to appeal Judge Carney’s decision makes it “law”, and opens the door to more changes and processes that may make abolition “law” in the entire state of California.
The Attorney General owes it to us to see this through, so we can have a Ninth Circuit decision up or down.
That’s an interesting one, and I’ve heard it from several people I respect. But I think we all understand that litigation involves strategy. Appeals are discretionary for a reason, and it is a legitimate opportunity to employ strategy and shape the law of the future–whether by appealing or by refraining from appealing.
This is the end of the death penalty. Isn’t it healthier if it comes about by means of extensive public debate?
First of all, this is not the end of the death penalty, for reasons I explain in detail here. There is still plenty to be done and plenty of room for extensive public debate to take place. But public debate about this has been going on for centuries, and many arguments have been made on the pro and con sides for the last forty years in particular. We’ve discussed deterrence, racial discrimination, innocence, botched executions, ad nauseam. In some ways, it’s befitting that the death penalty perish in the same way that most of its subjects perish–namely, slowly, quietly, of natural causes, exhaustion and dysfunction.
________ Props to the anonymous kind soul who provided some of the sources for this post.
Today’s Daily Journal story about our petition. Please click to enlarge.
On July 16, US District Court Judge Cormac Carney issued a decision in Jones v. Chappell (2014), vacating Ernest Dewayne Jones’ death sentence. But this was far from a decision in a particular case: Judge Carney declared the death penalty in California unconstitutional, citing the lengthy delays in its administration.
As the decision notes, since the reinstatement of the death penalty in California in 1978, only 13 people have been executed. Meanwhile, 95 inmates have died of natural causes or suicide, 39 were granted relief from their sentence, and the remaining 748 are languishing on Death Row, some of them for decades. More than 40% of the condemned population has been on death row for more than 19 years, and nearly all of them are still engaged in expensive, lengthy litigation—direct and collateral review proceedings—funded by the state. The arbitrariness in the administration of executions, according to Judge Carney, echoes the historical concerns in Furman v. Georgia (1972), and undermines any deterrence arguments, to the extent that these are still credible.
But while Judge Carney believes that these delays have made the promise of capital punishment an empty one to California citizens, to jurors, to victims and their loved ones, he does not believe that these defects can be remedied simply by streamlining the death penalty and executing inmates faster. He convincingly argues that much of the delay in litigation is the state’s fault, but points out that all efforts to reform post-conviction remedies have failed, and that cutting them would increase the grave risk of mistakes and wrongful executions. While the order pertains only to Mr. Jones, generalizing Judge Carney’s conclusions to all those affected by a system that “serves no penological service” is unavoidable.
The unavoidable question is, what next? The ball is currently in Governor Brown and Attorney General Harris’ court. They must decide whether the state will appeal the decision to the Ninth Circuit. A day after Judge Carney’s decision, I started a petition on Change.Org, asking Attorney General Harris not to appeal the decision, which, as I write these words, bears 2,078 signatures. The Governor and the Attorney General are not known to be fans of capital punishment, and I believe that a refusal on their part to stand behind the death penalty can communicate an important symbolic message that has the potential to place us on the much-awaited path to abolition. It would signal that our state government is fiscally responsible, and unwilling to continue wasting $100 million annually (according to the Legislative Analyst’s Office calculations) on the incarceration of a few people in a dilapidated facility, paying for expensive conditions and litigation, with or without an execution at the end. It would signal an acknowledgment that consistency and fairness are important tenets of our penal policy. It would signal that the botched execution of Joseph Rudolph Wood in Arizona—and the botched executions of many others, estimated as 3% of executions every year—indicate that there is no way to divorce the infliction of death from the infliction of suffering, even behind a sanitized, medicalized window-dressing. It would signal that, like Justice Blackmun in 1980s, we have tired from “tinkering with the machinery of death” and have finally acknowledged its profound dysfunction. And it would signal that these new considerations join the old abolitionist arguments, based on ethics, racial equality, and innocence concerns—in ushering in an era of abolition.
But beyond the symbolic message, there are the practical consequences associated with the State’s decision whether to appeal. Should the Attorney General appeal the decision, the Ninth Circuit might affirm it, in which case it will apply to the entire State of California, rendering the death penalty effectively abolished. However, the current Supreme Court makeup does not seem promising to the abolitionist cause, and an appeal of the Ninth Circuit decision will, in all likelihood, reverse Judge Carney’s decision. A possible appeal of such a decision to the Supreme Court will, likely, reverse the decision. The best scenario, therefore, for abolition would be a final, affirming decision on the Circuit level, without a subsequent appeal—but that scenario depends on a favorable Ninth Circuit panel and the Attorney General’s restraint in appealing that decision.
If, on the other hand, the Attorney General decides not to appeal the decision, we will find ourselves in an interesting situation. As many California residents recall, the Governor and Attorney General did not appeal Judge Vaughn Walker’s District Court decision, according to which Proposition 8, which amended the California constitution to forbid same-sex marriage, was unconstitutional. Supporters of the initiative, who appealed the decision in their stead, were found by the Supreme Court to lack standing, and Judge Walker was left as the final decision on Proposition 8’s constitutionality. Lest our short memory confound us, California’s death penalty is also the product of a voter initiative: Proposition 7, the Death Penalty Act, of 1978. Moreover, some of the original supporters of Proposition 7 have now joined the abolitionist cause, so even if they had standing, they would probably lack the motivation to fight the decision.
There is, however, an important legal difference: Judge Walker’s order was an injuctive relief against the state. Judge Carney’s decision merely vacates Mr. Jones’ death sentence. In the absence of an appeal to the Ninth Circuit, further legal and political steps would be required to move from a particular case to a de-facto abolition of the death penalty in California.
The easiest situation would be that of inmates under sentence of death who have a pending federal habeas claim in the Central District, who could argue their case should be heard by Judge Carney, as a “related case”. The decision would be up to Judge Carney’s discretion, though it seems clear from the tenor of his decision that he meant for it to have an impact beyond Jones’ case alone. Also, the decision raises the question whether other Central District judges can ignore it in similar cases if Judge Carney does not, for some reason, find that they are “related”.
Inmates outside the jurisdiction of the Central District would face more of an uphill battle. Judge Carney’s decision, while of persuasive value, is not binding in other district, nor could they benefit from an “issue preclusion” claim, as they were not original parties to the action. This is where the good will of the Attorney General’s office and the other District Courts would come into play; surely we wouldn’t want to see the death penalty effectively ended in one California district and have other inmates on death row. Another possible scenario would be that, in order to correct the grave injustice of having some inmates benefit from a general decision while others don’t, the Governor could commute the sentences of all death row inmates to life without parole, and with the support of the California Attorney General, we could enter another period of moratorium.
The possible legal outcomes of Jones, therefore, run the gamut from one inmate’s victory to a de-facto moratorium in California. The eventual impact of the decision depends on the sound discretion and good will of many actors in the legal and political arena in the state. Last, but not least, of these actors is the public. In 1978, 71% of California voters supported the death penalty amendments. After many years of delays, mistakes, discrimination, litigation over chemicals, and expenses, support for the death penalty plummeted to 53% in 2012. Whether the courts and administration will bravely turn the tables before the public tide is completely reversed remains to be seen, but a comparative perspective shows that the road toward abolition—toward progress—is a one-way street. Let’s get this done.
Hidden from sight and forgotten from mind, American prisons in the last forty years have been horrific Petri dishes for medical neglect, interpersonal cruelty, and unspeakable conditions. California, which incarcerates the largest number of inmates (albeit not the largest per-capita), has been particularly notable for its abysmal incarceration practices, so much that, when commenting about his first impression of supermax institutions, Judge Thelton Henderson said to criminologist Keramet Reiter, “what was surprising to me was the inhumanity of the thing.” Jonathan Simon’s new book offers the general public a sobering look into California prisons through the prism of federal court decisions, which encourages humanism and empathy and does not allow the reader to look away.
The book tells the story of several federal court decisions that tackled, head-on, the crux between mass incarceration and prison conditions. It begins with Madrid v. Gomez (1995), which exposed the conditions at supermax institutions and critiqued their application to the mentally ill, and proceeds with Coleman v. Wilson (2009) and Plata v. Schwarzenegger (2009), which addressed, respectively, serious mental and physical health care neglects, culminating in the Supreme Court decision in Brown v. Plata (2011), which affirmed the connection between the mass incarceration project and its outcome—extreme prison overcrowding—and the conditions behind bars. Simon’s account of the decisions, and the horrific abuse and dehumanization that brought them about, highlights two main themes. The first is the nature of American incarceration (and California incarceration in particular) as a veritable human rights crime of massive proportions, pulling it out of the American tendency to view things through an internal, exceptionalist lens. The second is the inherent connection between mass incarceration and prison conditions, which are frequently discussed separately in academia and public policy. To Simon, both are manifestations of an overall correctional mentality of “total incapacitation”: a systemic fear of crime and blanket assumption of dangerousness, coupled with insecurity about the ability to correctly gauge risk, which leads to indiscriminating incarceration of high-risk and low-risk individuals for lengthy periods of time without consideration of the conditions of their incarceration, or of the logistics necessary for their humane confinement. The court decisions reviewed in the book, argues Simon, signal a departure from this ideology, which he defines as a “dignity cascade”: a willingness to relate to the inmates as human beings who are entitled to more than “bare life”, but to personal safety, health, and human company.
Indeed, Simon’s book itself can be seen as an important contributor to a “dignity cascade”. Written in an engaging, accessible style, and providing the personal stories of plaintiffs in prison condition cases, Simon humanizes the individuals involves and evokes empathy and care for their preventable, horrible plight, while still making the bigger point that the violations are a systematic problem rather than isolated occurrences. While the book does not clarify the extent to which Simon attributes intent, or design, to the correctional officials, it certainly drives home the point that cruelty is the rule, rather than the exception, and the need to change that through a deeper commitment to treating humans with dignity and respect regardless of their transgressions.
There are a few places, however, in which Simon and I part ways. One of them is in his historical account of the path to total incapacitation, which paints the rehabilitative period in California corrections in what I think are overly rosy hues—especially when he ties the medical approach to incarceration to the eugenics movement. I also think that Simon gives the court decisions, which are undoubtedly important, too much significance in the overall scheme of California corrections. I wish I could be persuaded that these few decisions, the most recent of which and the focal point of the book was decided 5:4, were powerful enough to create a veritable “dignity cascade”. The book cites extensively dignity-promoting language from Justice Kennedy’s opinion in Plata, but does not include the parts in Justice Scalia’s dissent in which he referred to the inmates as “specimens”—a shameful opinion that I find hard to ignore with four Supreme Court Justices behind it. Even federal judges who are hailed as champions of inmate rights don’t always make decisions that promote dignity; in the fall of 2013, Judge Henderson (of Madrid v. Gomez fame) cleared the path to force-feeding inmates in solitary confinement who were protesting against indefinite segregation. Moreover, attributing the change in California—namely, the Criminal Justice Realignment—solely to the decision in Plata ignores the lengthy political machinations behind the Criminal Justice Realignment, which were driven by budgetary concerns and by other pressures as well as by the court’s decision. This is particularly problematic given the state’s acrobatic wiggling out of responsibility and its inability, and unwillingness, to follow up on the decision, almost to the point of contempt of court. While the language of the opinions themselves is important and meaningful, I wish we were offered more political and legal backstage access to the litigation, as well as more credit to the grassroots activism of inmates themselves, included but not limited to the hunger strike.
While I am less optimistic than Simon about a veritable transformation of public opinion about the mass incarceration project through federal court decisions, I find his call for dignity and for acknowledgment of the vast human rights violations incredibly inspiring, and like him, and anyone invested in the promotion of human dignity, I hope to see the spirit of John Howard’s progressive prison reform, and of the 1960s Warren Court decisions, channeled into this new era of prison litigation. After reading Mass Incarceration on Trial, no one can remain in a state of denial or indifference to the plight of fellow human beings, and this book is an important contribution not only to their dignity, but also to our own.
In the last few days, we’ve made a huge effort to circulate a petition to Governor Brown and Attorney General Harris, asking them not to appeal District Court Judge Carney’s decision that the death penalty in California is unconstitutional. We’ve just hit 500 signatures, and I’ve sent the petition to the Governor and the AG. Thank you for your support, signing, and sharing!
What happens next?
Our elected officials decide whether they want to pursue an appeal to the Ninth Circuit.
What if California appeals the decision?
Then, we’ll have to take our chances with the Ninth Circuit. The hope is that we’ll draw a favorable panel, who will affirm Judge Carney’s decision. It’s possible, albeit not very probable. Regardless of the result, a further appeal to the Supreme Court is unlikely to yield a good result for abolitionists.
The best of all worlds would be a decision from the Ninth Circuit affirming the death penalty’s unconstitutionality, and THEN a commitment from the Attorney General that she would not appeal the decision. If that is the case, the decision will apply to all of CA, and would basically mean that the death penalty has been abolished. But for that to happen we have to be lucky twice: the Ninth Circuit has to go our way and the AG has to decide not to appeal that decision. That’s quite a gamble.
What if our elected officials hear our plea and do not appeal the decision?
In that case, we’re left with a great, favorable decision, but by a District Court, which means it doesn’t create immediate effect in all of California. But we also gain an important political advantage: we have a great decision, that became final, AND the political gravitas of the AG’s support for the result. That, then, allows us to consider political pressure on the Governor’s office to commute current capital sentences, which do not conform to constitutional standards, as well as a valuable weapon against various proposals to “fix” the death penalty.
What are the odds that there will be an appeal?
Hard to tell. As you may recall, last time the State did not defend its laws in federal court was in the context of Prop 8, and the initiators of the proposition were ruled by the Supreme Court not to have standing. What this means is that if the AG does not want to defend CA’s death penalty, no one else can do so in her stead.
There is, however, a difference: Prop 8 was a voter initiative, and so the AG could more easily disengage from it by not appealing. Even though the AG is, personally, an opponent of the death penalty, she may think that solid administrative principles require seeing this thing to its end. And maybe she, too, is hoping that if she appeals the decision, the Ninth Circuit will rise to the occasion and decide the case for abolition.
In other words, your guess is as good as mine.
What can we do now?
Keep talking about this with friends of all political persuasions. Talk about the botched execution in Arizona; talk about the immense toll that incarcerating these folks and tending to their litigation effort is taking on the CA budget (to the tune of $150 million annually.) Talk about how we can see abolition in our lifetime, if we run with this ruling and make the most of this opportunity to drag our penal system to the 21st century.
Astounding news: half an hour ago, US district court judge Cormac J. Carney issued a decision in Jones vs. Chappell declaring the death penalty in California unconstitutional.
Judge Carney’s decision rests primarily on administrative grounds, namely, on the delay and uncertainty on California’s death row. Judge Carney points out that, since the reinstatement of the death penalty in California in 1978, only 13 people have been executed. Meanwhile, scores of inmates have died of suicide or natural causes, and 748 inmates are still on death row, litigating their case in pursuit of post-conviction remedies. These delays, writes Judge Carney, short-change the meaning of the death penalty and break its promise to the victims’ families, the citizens and tax payers of California, and the inmates themselves, who spend years, and frequently decades, in a state of uncertainty. Under these circumstances, California’s death penalty is no more than life without parole, with or without an execution at the end.
A cynical perspective on the decision would be that all the state needs to do is to streamline the death penalty and execute death row inmates faster. Indeed, that is what the California District Attorney’s Association has advocated recently. However, Judge Carney spends a considerable amount of time discussing the existing appeals and habeas corpus proceedings, and finds them constitutionally adequate. He comes to the conclusion that the only solution to California’s death penalty’s unconstitutionality is to abolish capital punishment in California altogether.
The big question is what happens next. Presumably, the warden is represented by the California Attorney General. However, Kamala Harris is personally opposed to the death penalty, and never sought it while she was the San Francisco County District Attorney. If the state does not appeal this decision, it has huge consequences not only in California, but nation wide. California’s death row is the largest in the nation. State-wide abolition, judicial or legislative, creates a critical mass of abolitionist states and might mean the end of capital punishment in America. But even if the state appeals to the Ninth Circuit, the decision is a prime example of the anti-punitive thinking that has become the mark of recession-era politics. Note that the decision does not go into death row conditions, humane execution methods, or any other dignity-based argument. Even though money is not explicitly mentioned, this is classic humonetarionism. Judge Carney is not arguing that the death penalty is inhumane; he is arguing that it is badly managed. As I point out in Cheap on Crime, these types of arguments have become far more persuasive in policy making and frequently succeed where classic human rights reasoning failed. It is of enormous importance that this logic has permeated not only the policy making arena, but judicial reasoning as well.
