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“Once Imposed, Death Cannot Be Undone”: What Do You Think Now, Justice Scalia?

To the Honorable Antonin G. Scalia, Associate Justice of the Supreme Court of the United States:

Dear Sir:

Twenty-one years ago, your then-colleague, the late Justice Harry Blackmun, wrote what became a famous dissent to a Supreme Court decision not to review a Texas death penalty conviction. In it, Blackmun declared that he had become convinced “the death penalty experiment has failed” and said he considered capital punishment irretrievably unconstitutional.

The death penalty, he wrote, “remains fraught with arbitrariness, discrimination … and mistake. … From this day forward, I no longer shall tinker with the machinery of death.”

You mocked him for this stance in an opinion concurring with the majority, invoking as justification for capital punishment the horrific 1983 case of an 11-year-old girl who was raped then killed by having her panties stuffed down her throat. “How enviable a quiet death by lethal injection,” you wrote, “compared with that!”

A few months later, the very case you had referenced came before the court. Henry Lee McCollum, a mentally disabled man who was on death row in North Carolina after having been convicted of that rape and murder, applied to the court for a review of his case. You were part of the majority that rejected the request without comment.

The demagoguery of your response to Justice Blackmun is pretty standard for proponents of state-sanctioned death. Rather than contend with the many logical and irrefutable arguments against capital punishment, they use a brute-force appeal to emotion. Certain crimes, they say, are so awful, heinous, and vile that they cry out for the ultimate sanction. For you, Sabrina Buie’s rape and murder was one of those, a symbol of why we need the death penalty.

As you have doubtless heard, it now turns out McCollum was innocent of that crime. Last year, he and his also mentally disabled half-brother Leon Brown (who had been serving a life sentence) were exonerated by DNA evidence and set free. A few days ago, McCollum was pardoned by North Carolina Gov. Pat McCrory.

The case against him was never what you’d call ironclad. No physical evidence tied him to the crime. The centerpiece of the prosecution’s case was a confession McCollum, then a 19-year-old said to have the mentality of a child 10 years younger, gave with no lawyer present after five hours of questioning. “I had never been under this much pressure,” he told the News & Observer newspaper in a videotaped death row interview, “with a person hollering at me and threatening me … I just made up a false story so they could let me go home.”

But he didn’t go home for over 30 years. You and your colleagues had a chance to intervene in that injustice and chose not to. Not incidentally, the real culprit avoided accountability all that time.

The argument against the death penalty will never have the visceral, immediate emotionalism of the argument in favor. It does not satisfy that instinctive human need to make somebody pay — now! — when something bad has been done. Rather, it turns on quieter concerns, issues of inherent racial, class, geographic, and gender bias, issues of corner-cutting cops and ineffective counsel, and issues of irrevocability, the fact that, once imposed, death cannot be undone.

Those issues were easy for you to ignore in mocking Blackmun. They are always easy to ignore, right up until the moment they are not. This is one of those moments, sir, and it raises a simple and obvious question to which one would hope you feel honor bound to respond. In 1994, you used this case as a symbol of why we need the death penalty.

What do you think it symbolizes now?

 

By:Leonard Pitts, Jr., Columnist for The Miami Herald; The National Memo, June 15, 2015

June 16, 2015 Posted by | Antonin Scalia, Death Penalty, SCOTUS | , , , , , | 1 Comment

“Higher Courts Let Prosecutors Get Away With Murder”: Supreme Courts Bear Responsibility For Conduct They Accept From Attorneys

For anyone studying the bubbling issue of prosecutor misconduct, the LAT states—Louisiana, Arkansas, and Texas—form a good lab. March alone brewed up:

—belated charges against a prosecutor in Texas, where the defendant was executed a decade ago;

—soul-searching in Louisiana, where a prosecutor bemoaned his win that sent an innocent man to prison;

—and absolution in Arkansas, where the state’s Supreme Court informed me that a prosecutor who withheld critical evidence from a man on trial for his life did not violate any rules of professional conduct.

The Texas case centered on Cameron Todd Willingham, who was executed in 2004 for the arson murder of his three young daughters. Now the State Bar of Texas has filed a formal petition accusing the prosecutor of obstructing justice by making false statements and concealing evidence favorable to Willingham’s defense.

“Before, during and after the 1992 trial, [Jackson] knew of the existence of evidence that tended to negate the guilt of Willingham and failed to disclose that evidence to defense counsel,” the bar said.

It won’t help Willingham, who protested his innocence to the end. But the move suggests that at least some Texans are paying attention.

Next door in Louisiana, a former prosecuting attorney reflected on a conviction he’d won that kept a man on death row for 30 years—and held himself accountable.

“As a prosecutor and officer of the court, I had the duty to prosecute fairly,” attorney A.M. “Marty” Stroud III wrote to a Shreveport newspaper. “Part of my duty was to disclose promptly any exculpatory evidence relating to trial and penalty issues of which I was made aware. My fault was that I was too passive. I did not consider the rumors about the involvement of other parties…”

Stroud agreed that Louisiana owed significant monetary compensation to the man whom he’d helped convict. Yet, he wrote, “The state does not accept any responsibility for the damage suffered by one of its citizens. The bureaucratic response appears to be that nobody did anything intentionally wrong, thus the state has no responsibility. This is nonsensical.”

Noting that evidence that would have cleared the defendant was available at the time of the trial, Stroud wrote: “The easy and convenient argument is that the prosecutors did not know of such evidence, thus they were absolved of any responsibility for the wrongful conviction.”

Stroud dismissed that argument. And he refused to absolve himself.

Last year, 125 men and women were released from prison because they were wrongfully convicted, according to a report by the National Registry of Exonerations. Two-thirds of those cases were overturned because prosecutors either reopened investigations themselves or cooperated with other investigators to ensure that justice was done.

But supreme courts, who bear the ultimate responsibility for the conduct they will accept from attorneys, have stood by like indulgent parents, tolerating outrageous behavior and even ruling that others must too.

(In the infamous Louisiana case of Connick v. Thompson, the U.S. Supreme Court decided in 2011 that a prosecutor could not be held liable for withholding evidence in a murder case because the defendant, who was a month from execution before the withheld evidence was discovered, had not shown that the prosecutor’s office displayed “deliberate indifference” to its duties.)

Echoes of that protectionism can be heard in the Arkansas case of Tim Howard, who will be retried later this month for a double murder that occurred 18 years ago near where these three states join. As I wrote here before, Howard is being retried because after he was sentenced to death, investigations turned up potentially exculpatory evidence that had been withheld from his attorneys.

I know firsthand how loath state officials have been to hold his prosecutor accountable. Four years ago, when I learned of the withheld evidence, I wrote an article for my newspaper first. Then, as a citizen, I wrote a letter to the state supreme court’s Committee on Professional Conduct, complaining about what the prosecutor, Tom Cooper, had done.

Supreme courts routinely sanction lawyers for offenses as minor as misspelled words in briefs or as serious as defrauding clients or showing up drunk in court. I thought that withholding evidence in a death case constituted a gross violation of the court’s Rules of Professional Conduct.

While I didn’t say as much in my letter, I viewed Cooper’s failure to turn over key evidence as horrific neglect, at best. To my mind, it rose to the same level as that of a surgeon who killed by failing to sterilize an instrument, or a driver who ran over a kid while texting. Given the high stakes of a capital trial, there seemed no kinder way to spin it.

The director of the court’s Office of Professional Conduct promptly notified me that he would wait for a court to rule on whether the misconduct I alleged—and which the state’s attorney general by then had tacitly acknowledged—had actually occurred.

The letter also informed me, in all caps and bold type, that I must not disclose the nature of my complaint to anyone, including, ironically, members of the news media. If I did, the letter warned, I could be held in contempt of court and “punished by fine or jail.”

While Howard’s case wound its way back to court for a ruling, I reflected on the Arkansas Supreme Court’s threat. I concluded that it was unlawful, a violation of First Amendment.

I wrote to the committee explaining my concern, but after receiving no response I filed a federal civil rights lawsuit against the state Supreme Court’s Committee on Professional Conduct. That was in 2011.

Arkansas’s attorney general represented the committee. My attorney, Jeff Rosenzweig, argued that the boiler-plate letter I’d received, which went to all persons filing complaints about attorneys, constituted prior restraint and struck at the heart of free-speech protections—protections that were voted into the Bill of Rights particularly so that citizens could discuss their elected officials.

The state never did admit error. But in January 2013, we settled. I withdrew my lawsuit and the court ordered that henceforth the content of complaints could be discussed.

The following November, the judge hearing Howard’s claim about the withheld evidence concluded that misconduct had indeed occurred, though he softened his ruling by opining that the misconduct had been “inadvertent.” Nevertheless, he vacated Howard’s conviction, opening the way for the new trial that will take place this month.

As soon as the judge announced his finding of misconduct, I wrote again to the Office of Professional Conduct. Pointing out that a court had now made a finding of misconduct, I would renew my complaint against Cooper.

Sixteen months passed without a response. During that time I learned that, of the hundreds of attorneys the committee has sanctioned during the past 25 years, not one has been a prosecutor.

I began to think that my letter about Cooper, like my earlier ones about the First Amendment, would be totally ignored. But in the middle of March, just three days after my article about Howard’s upcoming trial appeared here, a letter from the director of the Office of Professional Conduct arrived at my office.

Could it be? A judge had found misconduct serious enough to warrant a new trial for a man who’d spent 16 years on death row, and would the state Supreme Court’s Committee on Professional Conduct finally break with its long tradition and actually punish a prosecutor instead of threatening those who dared to complain about one?

Nope.

This latest letter advised me that, though my complaint against Cooper was “carefully reviewed,” “sufficient evidence” had not been found that Cooper—the former prosecutor who is now a judge—had violated even one tiny rule of professional conduct.

No doubt most defendants facing a judge would love to murmur the word “inadvertent” and be graciously forgiven. But that doesn’t work in America’s courts—unless you’re a prosecuting attorney.

 

By: Mara Leveritt, The Daily Beast, April 6, 2015

April 7, 2015 Posted by | Criminal Justice System, Prosecutors, State Supreme Courts | , , , , , , | Leave a comment

“When We Do Unto Others”: Good News, Maybe; Firing Squads Are Not Tourist Attractions

We should have seen this coming, I suppose.

We are, after all, the can-do country. Nobody is going to tell us what we can and cannot do, even as they make it impossible for us to do what we used to do before they said we couldn’t do it anymore. If this sounds a bit muddled, welcome to the desperate illogic behind our devotion to capital punishment.

It turns out the collective conscience of the civilized world does not share our affection for government-sanctioned murder. We don’t call it that, of course. We refer to it as the “death penalty,” as if calling murder something other than murder makes it all right when we do unto others precisely what we’ve insisted they shouldn’t have done to someone else.

For many years, our weapon of choice has been lethal injection, a deadly cocktail of paralytic and anesthetic drugs, combined with potassium chloride. The idea is to make death look peaceful so that no one involved in the process has to go home feeling like he or she just killed somebody.

Over time, prisons have to come to depend on third-party providers for their lethal injections. Until recently, that is, when suppliers announced they would no longer provide the primary anesthetic for executions. So now, here we are, facing a nationwide shortage of drugs needed to do the deadly deed.

Here comes Utah, where the state legislature has just received the governor’s blessing to bring back firing squads if lethal drugs aren’t available.

A modern-day firing squad is not the stuff of old movies, where the condemned man stood spur-to-spur and ramrod straight, puffing on a last cigarette dangling from his lips. Associated Press reporter Brady McCombs describes with horrifying detail just how these executions unfold in Utah.

The prisoner is strapped to a chair with a target pinned over his heart.

Let’s all take a moment and imagine that.

About 25 feet away, five shooters hide behind a wall and slide their .30-caliber rifles through slots. The gunmen are volunteers. As McCombs reported, so many gunmen volunteer that priority goes to those from the area where the crime was committed. Sort of like squatter’s rights, with ammo.

One of the guns is loaded with a blank. This apparently is meant to protect any shooter later seized by conscience over his eagerness to volunteer to kill an unarmed man strapped to a chair with a target pinned over his heart. Nothing shoos away a dark moment of the soul like the reassurance that we will never know for sure if our bullet blew up the heart of a fellow human.

Utah State Rep. Ray Paul sponsored the bill to bring back the firing squad. He assured the Associated Press last year that this isn’t nearly as awful as it sounds to those whose own hearts fibrillate at the thought of a person strapped to a chair with a target over his heart. Here, in the United States of America.

Paul’s advice: Settle down, all of you.

“The prisoner dies instantly,” he said. “It sounds draconian. It sounds really bad, but the minute the bullet hits your heart, you’re dead. There’s no suffering.”

Lest he sound callous, he added this: “There’s no easy way to put somebody to death, but you need to be efficient and effective about it. This is certainly one way to do that.”

(Psst, Team Paul: You really need to work on messaging.)

There’s a glimmer of hope for those who oppose this barbaric practice.

It’s called tourism.

Consider the following sample of headlines on Wednesday, March 25.

The Salt Lake Tribune: “Does firing squad law tarnish Utah’s image?”

ABC News: “Critics worry firing squad law will tarnish Utah’s image.”

U.S. News and World Report: “Critics worry decision to bring back firing squad as execution backup will hurt Utah’s image.”

Dare I suggest a theme here?

Could it be that people who like to swoop down glistening ski slopes and explore the cavernous wonders of nature aren’t keen on states with firing squads manned by an overabundance of volunteer gunmen?

Might they might even take their billions of tourism dollars elsewhere?

David Corsun is director of the University of Denver’s Fritz Knoebel School of Hospitality Management. He told AP — go AP, by the way — that large organizations tend to avoid states that are drawing flak for recently passed laws. I may enjoy a little too much his conclusion about Utah’s post-firing squad tourism prospects: “Unless it’s Smith and Wesson,” he said, “I don’t think they are going to be racing to that controversy.”

So, maybe—just maybe—the one thing that can stop Utah’s firing squads before they start is the almighty dollar.

As motives go, not particularly inspiring, but let’s commiserate another day.

 

By:Connie Schultz, a Pulitzer Prize-Winning Columnist and an Essayist for Parade Magazine; The National Memo, March 26,

March 27, 2015 Posted by | Death Penalty, Lethal Injections, Utah | , , , , , | Leave a comment

“Sobering Findings”: Study; Killers Are Less Likely To Be Executed If Their Victims Are Black

Black people are much more frequently executed for killing white people than white people are for killing black people, and capital punishment is rarely used at all when victims are black — especially when they’re male.

That’s according to a paper that’s set to be published in the journal Politics, Groups, and Identities.

The researchers —  Frank BaumgartnerAmanda Grigg, and Alisa Mastro —compared homicide victim data with data on the victims of every inmate executed in the US from 1976 through 2013 (that’s 1,369 executions).

Here’s some of what they say the data revealed:

While 47 percent of all homicide victims were black, blacks made up 17 percent of the victims of inmates who were executed.

As a London School of Economics blog post on the paper pointed out, “this suggests not only that blacks are treated particularly harshly for the murder of whites, but also that homicides with black victims are treated less seriously than those with white victims.”

This comparison of the race of all homicide victims to the race of homicide victims of individuals who were later executed makes that even clearer and further illustrates the connection between a victims’ race and his or her killer’s fate:

The researchers found that it was exceptionally hard to find examples of killers of black male victims who were executed. “Black men, especially among the relatively young, have a statistical risk of homicide victimization many times higher than any other racial or gender group, ” they wrote, “but their killers rarely face the death penalty.”

They titled the paper #BlackLivesDontMatter, altering the #BlackLivesMatter hashtag that’s been used in protests against police-involved deaths of African-American men, to reflect the sobering findings.

 

By: Jenée Desmond-Harris, Vox, February 25, 2015

February 26, 2015 Posted by | African Americans, Criminal Justice System, Racial Justice | , , , , , | Leave a comment

“The Lion Of Liberalism”: Remembering Mario Cuomo, 1932-2015

When I met Mario Cuomo in the summer of 1978, he was already a celebrated public figure, if not yet a political powerhouse. We were at the Democratic state convention in Albany, where I was reporting for the Village Voice, and he was pondering an offer from New York governor Hugh Carey, then seeking re-election, to join the ticket as lieutenant governor. Mario frankly didn’t much trust Carey, who needed him more than he needed a largely ceremonial promotion from his then-position as secretary of state.

But in the end he accepted the deal, both because he believed that New York needed a Democratic administration, regardless of his personal feelings toward the governor — and because he knew that this step would advance his own political career.

That was my introduction to the Cuomo style of “progressive pragmatism” – and to a charming, thoughtful, highly literate, and occasionally volatile figure who became one of the most compelling orators of the late 20th century.

His speech at the 1984 Democratic convention, delivered at the zenith of Ronald Reagan’s reign, remains a remarkably inspirational assertion of progressive values against conservative complacency and cruelty. His address at Notre Dame on religious belief and public morality that same year courageously defended the independence of Catholic elected officials from subservience to church doctrine on reproductive rights.

In recent years, it has been fashionable to draw contrasts between Mario, who passed away yesterday at the age of 82, and his older son Andrew, who was sworn in for a second term as governor of New York only hours earlier. According to the conventional wisdom, Mario was liberal while Andrew is conservative; Mario was too self-doubting to run for president, while Andrew is too self-confident not to run, someday.

Whatever the differences in personality between father and son, however, Mario’s reputation as the conscience of the Democrats grew more from what he said than what he did. “We campaign in poetry but we govern in prose,” he famously remarked – and much of his governance was prosaic indeed.

He spoke out bravely against capital punishment, for instance, yet built more prison cells than any governor in state history. He approved tax cuts, held down spending, and was proud of his balanced budgets – even while the number of homeless on New York’s streets swelled during his administrations. But he borrowed billions to stimulate spending and create jobs with major public works in environmental protection, education, roads, bridges, and mass transit.

As a columnist for the Voice, I didn’t always agree with his priorities, to put it mildly, and wrote many columns criticizing his policies. More than once I picked up a jangling telephone to hear an angry, argumentative Governor Cuomo railing on the line, without the pleasantry of a “hello.” It was an experience that other reporters shared from time to time. But I have met very few elected officials who were as kind or as genuine.

And I’ve known few politicians as engaging in conversation, or as erudite without pretension. He wrote wonderful diaries of his first campaign for governor, published by Random House in 1984, and could speak as cogently about the history of Lincoln’s presidency as the philosophy of the Jesuit visionary Teilhard de Chardin. But he was still a tough lawyer who went to public schools and grew up on the streets of Queens.

Among the most amusing Cuomo anecdotes is one from the 1977 New York City mayoral campaign, when he is supposed to have confronted Michael Long, the unsavory chairman of the state’s Conservative Party, on a street corner – and knocked him out with a single punch. (Long later claimed this report was an “embellishment,” but I heard it straight from an impeccable source.)

Exaggerated or not, that little legend captures the feisty essence of Mario Cuomo – a man of passionate intellect and spirit, who sought to make his values real in this world. He worked diligently and spoke powerfully, reminding millions of Americans about values we ought to cherish. I have no doubt he will rest in peace.

 

By: Joe Conason, Editor in Chief, The National Memo, January 2, 2015

January 3, 2015 Posted by | Democrats, Mario Cuomo, Politics | , , , , , , , , | Leave a comment

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