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“A Pattern For The Court”: SCOTUS’s Meaningless Death Penalty Rules

Monday evening, the state of Florida executed John Errol Ferguson. This was not an act of injustice because Ferguson was innocent—he brutally killed eight people. It was an act of injustice because Ferguson was mentally ill. The Eighth Amendment forbids his execution.

In 2008, the Supreme Court held that a person cannot be executed if he or she is insane at the time of his or her execution. To the extent that the term has meaning, it’s hard to imagine that it doesn’t apply to Ferguson, who experts have testified has a “genuine belief” that he is the “prince of God” and has the power to control the sun. Stephanie Mencimer of Mother Jones details Ferguson’s history of mental illness:

Ferguson’s story, and long-documented record of mental illness, starts back in 1965, when records show Ferguson was suffering from hallucinations. In 1971, he was committed to a state mental hospital after being diagnosed as a paranoid schizophrenic. For the next several years, court-appointed doctors repeatedly reported that Ferguson was psychotic and in need of long-term hospitalization.

In 1975, a court-appointed psychiatrist reported that Ferguson was “suffering from a major mental disorder and is extremely dangerous to himself and others. He is dangerous to the point where he is considered homicidal … He should be in a maximum security ward … He should not be released under any circumstances.”

As Mencimer goes on to explain, Ferguson was nonetheless released from custody, a decision and failure of judgment that cost eight people their lives. Yet Florida continues to deny the obvious about Ferguson’s paranoid schizophrenia. Despite its earlier command, the Supreme Court allowed him to be executed without comment.

This kind of outcome is becoming a pattern for the Court, as we saw earlier this year with respect to its formal holding that executing someone with a severe mental handicap violates the Eighth Amendment. The Supreme Court’s prohibition on executing the mentally handicapped or severely ill have become more of a Potemkin village façade of fairness than the real thing because of its refusal to define or enforce any kind of substantive standard to determine whom the rule applies to. The Court’s deference to state determinations—no matter how implausible they are—means that the only states that won’t execute those with severe mental incapacities are those already committed not to doing so. Any state that lacks that commitment can proceed as before.

This is illustrative of the larger problem with the death penalty: The American criminal-justice system does not appear capable of rationally designating only those most clearly culpable of heinous crimes for execution. It remains true, in the memorable phrase of Justice Potter Stewart, that capital punishment as applied by the states is “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” Some people are executed while others found guilty of more horrible crimes in the same state are not, and some people who are executed are probably not guilty of anything. The Supreme Court’s occasional gestures towards making the death penalty less arbitrary have done almost nothing to alter this fact.

And yet, as Sarah Muller of MSNBC points out, not only is Florida refraining from tightening its procedures, it’s actively seeking to speed up executions with its “Timely Justice Act.” It’s become increasingly hard to imagine that the Supreme Court will stand in the state’s way, which will have the effect of making an already unjust and error-prone process for killing people even more so.

 

By: Scott Lemieux, The American Prospect, August 7, 2013

August 8, 2013 Posted by | Death Penalty, SCOTUS | , , , , , , , | Leave a comment

“Make Peace With God”: Embattled Federal Judge Called For Texas To Execute 8 To 12 Times As Many Inmates Per Year

According to a complaint filed last week against federal appellate Judge Edith Jones, Jones suggested that African-Americans and Hispanics are predisposed towards violent crime and that the death penalty is a public service because it allows inmates to “make peace with God.” Should these allegations against Judge Jones be proven, they will be only the latest examples of a career’s worth of nonchalance regarding executions. Indeed, as far back as 1990, a much younger Jones proposed a series of reforms to Texas’ execution procedures that would have increased that state’s execution rate by as much as twelve times.

In an article for the Texas Bar Journal entitled “Death Penalty Procedures: A Proposal for Reform,” which is available through the legal research service HeinOnline, Jones decries a capital punishment system in Texas which she views as too inefficient, in large part because judges delay executions by taking time to review death sentences to determine that they were lawfully handed down. Indeed, at one point Jones blames the slow rate of executions on “the frequent, human reaction of most judges . . . to defer a decision if any element of a case raises doubts, or to grant a temporary stay for further consideration.”

To speed along Texas’ ability to kill death row inmates, Jones proposes that Texas schedule “four to six executions per month, commencing six months to one year from the date” those execution dates are made public. Notably, in the five years prior to when Jones wrote this piece, Texas executed an average of just under six inmates per year, so the immediate impact of her proposal would have been to multiply the state’s execution rate eight to twelvefold.

It’s also worth noting that Texas’ execution rate did spike significantly in the years after Jones wrote this piece. Most significantly, during the four years after Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, which limited the ability of death row inmates to challenge their sentences in federal court, Texas executed an average of 33 people per year. Nevertheless, in the modern era of American death penalty law, Texas has never executed the 48 to 72 people per year suggested by Jones’ piece. The deadliest year for Texas inmates was 2000, when 40 people were executed. 15 people were executed last year. Nevertheless, Jones concludes her list of proposals for expediting Texas’ executions by suggesting they could be viewed as “too lenient” because they would “take more than four years to conclude all the currently pending capital cases.”

A decade after publishing this proposal, Jones joined two opinions claiming that a man whose attorney slept through much of his trial could nonetheless be executed.

Even without Jones’ proposal for a wave of executions, Texas has a higher execution rate than any other state. More than one third of all U.S. executions took place in Texas since 1976, when the Supreme Court announced the modern constitutional regime governing death penalty cases.

 

By: Ian Millhiser, Think Progress, June 10, 2013

June 12, 2013 Posted by | Death Penalty, Federal Courts | , , , , , , , | Leave a comment

Only Conservatives Can End The Death Penalty

Every so often, one capital case makes a public spectacle of the American machinery of death. Last week, it was the controversy over Troy Davis, who was executed in Georgia after years of impassioned argument, organizing and litigation.

I honor those who worked so hard to save Davis’s life because they forced the nation to deal with the  imperfections and, in some instances, brutalities of the criminal justice system.

Yet after all the tears are shed, the repeal of capital punishment is still a political question. Can the politics of this question change? The answer is plainly yes.

It’s hard to imagine now, but in 1966, more Americans opposed the death penalty than supported it — by 47 percent to 42 percent. But the crime wave that began in the late 1960s and the sense that the criminal justice system was untrustworthy sent support for capital punishment soaring. By 1994, 80 percent of Americans said they favored the death penalty, and only 16 percent were opposed.

Since then, the numbers have softened slightly. Over the past decade, the proportion of Americans declaring themselves against capital punishment has hovered around 25 to 32 percent. The mild resurgence of opposition — caused by a decline in violent crime and by investigations raising doubts about the guilt of some death-row prisoners — has opened up political space for action.

Liberals are not going to lead this fight. Too many Democratic politicians remember how the death penalty was used in campaigns during the 1980s and ’90s, notably by George H.W. Bush against Michael Dukakis in 1988. They’re still petrified of looking “soft” on crime.

Moreover, winning this battle will require converting Americans who are not liberals. The good news is that many are open to persuasion. Gallup polling shows that support for capital punishment drops sharply when respondents are offered the alternative of “life imprisonment, with absolutely no possibility of parole.” When Gallup presented this option in its 2010 survey, only 49 percent chose the death penalty; 46 percent preferred life without parole.

And a survey last year for the Death Penalty Information Center by Lake Research Partners showed that if a variety of alternatives were offered (including life without parole plus restitution to victims’ families), respondents’ hard support for the death penalty was driven down to 33 percent.

If a majority is open to persuasion, the best persuaders will be conservatives, particularly religious conservatives and abortion opponents, who have moral objections to the state-sanctioned taking of life or see the grave moral hazard involved in the risk of executing an innocent person.

Despite the cheering for executions at a recent GOP debate, there are still conservatives who are standing up against the death penalty. In Ohio this summer, state Rep. Terry Blair, a Republican and a staunch foe of abortion, declared flatly: “I don’t think we have any business in taking another person’s life, even for what we call a legal purpose or what we might refer to as a justified purpose.”

Last week, Don Heller, who wrote the 1978 ballot initiative that reinstated the death penalty in California, explained in the Los Angeles Daily News why he had changed his mind. “Life without parole protects public safety better than a death sentence,” he wrote. “It’s a lot cheaper, it keeps dangerous men and women locked up forever, and mistakes can be fixed.”

The most moving testimony against Troy Davis’s execution came from a group of former corrections officials who, as they wrote, “have had direct involvement in executions.”

“No one has the right to ask a public servant to take on a lifelong sentence of nagging doubt, and for some of us, shame and guilt,” they said. “Should our justice system be causing so much harm to so many people when there is an alternative?”

Political ideology has built a thick wall that blocks us from acknowledging that some of the choices we face are tragic. Perhaps we can make an exception in this case and have a quiet conversation about whether our death-penalty system really speaks for our best selves. And I thank those conservatives, right-to-lifers, libertarians and prison officials who, more than anyone else, might make such a dialogue possible.

By: E. J. Dionne, Opinion Writer, The Washington Post, September 25, 2011

September 27, 2011 Posted by | Equal Rights, GOP, Ideologues, Ideology, Justice, Politics, Racism, Republicans, Right Wing, Teaparty | , , , , , , , , | Leave a comment

Lynch Law Lives On Stage And In Troy Davis Execution

When  you visit Atlanta, ask about the death of Troy Davis, an execution by  lethal injection as miles of people across land and sea kept a vigil until it  came to pass at 11:08 p.m. last Wednesday evening.

Nice  to know law and order—or do I mean lynch law and  order?—prevails in the  stubborn deep South, whatever the world thinks.  Davis was put to death despite  a slew of supporters, including  dignitaries and law enforcement experts, who  found shades of reasonable  doubt in his murder case.

In  a stroke of amazing timing and relevance, Georgia’s capital city is the setting  of a tragical musical, Parade,  based on a true story of a 1915 lynching.  I just saw the brilliant  production on opening night at Ford’s Theatre on 10th Street here in Washington—the very  spot where Abraham Lincoln was shot at close  range, by someone he never  saw coming in the dark. A vengeful son of the South,  an actor, played a  Shakespearean scene for all he was worth—MacBeth, Lincoln’s favorite.

On  that tragic April night, Lincoln was heartily enjoying a comedy. Similarly, all  seems bright at first in this Ford’s Theatre play. Parade’s exuberant  ensemble  charms with spring songs, costumes, and revelry as the curtain  opens on  Atlanta’s celebration of “Confederate Memorial Day” in April  1913.  But the holiday itself reveals the defiance of Atlanta’s white  society, keeping  the anti-Yankee candles burning.

The  theatre director, Paul R. Tetreault, expertly captures the  tableau of a wounded  world that tells itself, over and over, that it  was never vanquished, despite  the festering sore of the Recent  Unpleasantness.

An  old guard culture, hostile to outsiders, was the downfall for a  Jewish New  Yorker in his early 30s, Leo Frank, who made a good living  as a factory superintendent.  He was accused and arrested of a gruesome  child murder. Playwright Alfred Uhry,  author of Driving Miss Daisy, wrote  the book for the Broadway play,  launched onstage in 1998. Uhry has  family ties to the story, in true Southern  storytelling style. There  are no secrets down there, except the ones they  choose to tell years  later.

Parade is no picnic as it wends its way through the Southern   justice system on a murder case that became a national cause, like the  Davis  case. Frank was found guilty of fatally strangling a girl worker  in his pencil  factory. When he was sentenced to hang, there was an  outcry from quarters who  felt a virulent strain of anti-Yankee  anti-Semitism played a part in the  verdict.

The  governor of Georgia a century ago, John Slaton, went against the  will of  Atlanta’s townspeople. His character, portrayed by Stephen F.  Schmidt, exhibits  courage and pathos, clear about the consequences of  bucking the establishment. Governor  Slaton reviews the conflicting  evidence in Frank’s case and grants him  clemency: life imprisonment  instead of death by the state’s hand. That is  precisely what Georgia  state officials refused to do for Troy Davis.

Lead  actor Euan Morton telegraphs Frank’s desperate plight with  impressive  restraint. Jenny Fellner, the actress who plays his wife  Lucille, sparkles  onstage with her singing voice and her journey to  loving her husband, locked up  and alone, more than she ever did.

Relentlessly,  the end closes in. A well-connected mob of white men  break into the jail where  Frank is held, to take him for a long night  ride. It was a well-planned thing.  In the show as in life, the hooded  men string Frank up—as he prays in Hebrew—and hang him, with picture  postcards to show for it all. Very nice.

So  if you get to Marietta, ask them about the tree where Frank was  hanged. Yes,  Georgia has lots of colorful local history, and the fun  part is trying to see  where the past ends and the present begins. Both  the Davis and Frank  convictions were reviewed by the U.S. Supreme  Court, which denied relief or  mercy in both cases. Oliver Wendell  Holmes, the famous justice, scolded Georgia  for what he called a form  of “lynch law” in Frank’s trial. But he was  a damn Yankee in the  minority.

Tetreault  and others chose this timely tale to inaugurate The Lincoln Legacy Project,  an initiative to spark a national dialogue on overcoming violence based on hate  or bigotry. Parade’s history  lesson could not be more sobering. Early in  the 20th century,  lynchings of black men were at an all-time high in the  Southern states  (including Maryland.)  This was a spur to the founding of  the National  Association for the Advancement of Colored People (NAACP) in 1909.  Ari  Roth of Theater J, a partner in co-producing the play, notes Frank met  the  same fate as so many black men at the hands of mobs. Parade, Roth  said,  is a “galvanizing reminder of what can go wrong in our country  when hate  speech and raging angers aren’t tempered and set to rest.”

Amen.  And let the conversation begin.

By: Jamie Stiehm, U. S. News and World Report, September 26, 2011

September 27, 2011 Posted by | Bigotry, Human Rights, Justice, Politics, Racism, Right Wing, States | , , , , , , , , , | 1 Comment

With The Death Penalty, “Probably” Isn’t Good Enough

The death penalty is a barbaric anachronism, a crude instrument not of justice but of revenge. Most countries banished it long ago. This country should banish it now.

The state of Georgia was wrong to execute convicted murderer Troy Anthony Davis as protesters and journalists kept a ghoulish vigil Wednesday night — just as the state of Texas was wrong, hours earlier, to execute racist killer Lawrence Russell Brewer.

That’s hard for me to write, because if anyone deserved a syringe full of lethal poison it was Brewer. He was an avowed white supremacist who had been convicted, along with two accomplices, of the 1998 hate-crime murder of a black man, James Byrd Jr. They offered Byrd a ride, beat him up and then killed him by chaining his ankles to the back of their pickup and dragging him for more than two miles. When police found Byrd’s body, it was dismembered and decapitated.

“I have no regrets,” Brewer said in an interview with Beaumont, Tex., television station KFDM this year. “I’d do it all over again, to tell you the truth.”

Sweet guy, huh? Still, I can’t applaud his death at the hands of the well-practiced Texas executioners. It’s not that I believe his life had any redeeming value, just that the state was wrong to snuff it out.

The Davis case drew worldwide attention because of questions about the evidence of his guilt. Davis was found guilty of killing a Savannah, Ga., police officer, Mark MacPhail, in 1989. The conviction was based almost entirely on eyewitness testimony, and in the two decades since that trial, seven of nine witnesses have at least partially recanted.

The case became a cause celebre. Luminaries who could never be accused of being soft on crime — such as former FBI Director William Sessions and former GOP Rep. Bob Barr — argued that Davis should not be executed because of doubt about his guilt.

Wednesday night, in his last words, Davis told MacPhail’s family that “I did not personally kill your son, father and brother. I am innocent.” Then a deadly cocktail of drugs was pumped into his veins.

The Davis case makes a compelling case against the death penalty — but not because it is exceptional. On the contrary, it’s fairly ordinary.

Despite what you see on “CSI,” there isn’t always DNA or other physical evidence to prove guilt with 99.9 percent certainty. Jurors often have to rely on witnesses whose field of vision may have been limited — and whose recall, imperfect to begin with, degrades over time. Even when there’s no “reasonable doubt” about the defendant’s guilt — the standard for conviction — there’s often some measure of doubt.

And there are questions of process. Were witnesses coerced into testifying against Davis? A few say now that they were. Did prosecutors prove their case? The jurors certainly believed they did. Could racial bias have been a factor? Unlikely, given that the jury included seven blacks and five whites. Should Davis’s attorney have done a better job of presenting a defense? Almost surely.

It’s a mixed bag. I can’t ignore the fact that over the years, not one of the many judges who examined the case concluded there had been a true miscarriage of justice. This suggests to me that Davis was probably guilty.

But “probably” isn’t good enough in a capital case — and this is why the death penalty is flawed as a practical matter. Someone who is wrongly imprisoned can always be released, but death — to state the obvious — is irrevocable.

In scores of cases across the country, newly examined DNA evidence has proved that inmates jailed for rape or other sexual crimes were in fact not guilty. It is not just likely but certain that some defendants now on death row are innocent. Even if only one is eventually executed, that will be a tragic and unacceptable abuse of state power.

There was a chilling moment in a recent GOP candidates’ debate when Texas Gov. Rick Perry was asked about having authorized 234 executions, more than any other governor in modern U.S. history. The crowd, drawn largely from Tea Party ranks, cheered this record as if it were a great accomplishment. “I’ve never struggled with that at all,” Perry said, referring to execution as “the ultimate justice.”

But he should struggle with it. We all should.

 

By: Eugene Robinson, Opinion Writer, The Washington Post, September 22, 2011

September 23, 2011 Posted by | Conservatives, GOP, Government, Governors, Human Rights, Politics, Right Wing, States, Teaparty | , , , , , , , , , | Leave a comment

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