Two Readings of Scalia

by publius

The Supreme Court did a rare thing yesterday -- it ruled favorably on an original writ of habeas corpus (one that is initially filed at the Supreme Court).  Specifically, it ordered a district court in Georgia to review the defendant's "actual innocence" claim.  Original writs have been summarily rejected for decades.  This is a rare, strange bird we're seeing.

Scalia dissented.  And a commenter asked:

I would be very much interested in any thoughts you have regarding Scalia's recent dissent in a Georgia death penalty case in which he argues that "This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."

Is this as insane as it sounds?

The answer is . . . maybe.  I'll explain below the fold (wonky).  And I appreciate the advice I've received on these matters from Lee Kovarsky, an Acting Assistant Professor at NYU School of Law (all errors remain my own though).

There are basically two potential interpretations of Scalia's words here.  Under one interpretation, Scalia's argument is very reasonable.  Under the other, it's not.  Let's start with the former.

To back up, remember that habeas is a remedy.  To obtain this remedy (i.e., release, new trial), you must first show that some right has been violated, such as the right to effective assistance of counsel.  So keep this distinction between the right and the remedy in mind.

Believe it or not, evidence of "actual innocence" has never been recognized as an independent ground for habeas relief.  As Scalia correctly notes, the Court has never held that such evidence entitles you to a new trial or release.

And there's a reason for that. To claim that "actual innocence" triggers habeas relief gives rise to an extremely complex set of constitutional and statutory questions, and has all sorts of wide-ranging implications.  (Just trust me). 

Another concern is that it would essentially constitutionalize motions for new trials.  In other words, it would greatly expand federal habeas review, which is currently sharply limited by federal statutes.  More precisely, it would expand it to guilt determinations, rather than to analyses of constitutional error.

Scalia is also more fundamentally deferential to state courts.  If defendants got to raise their innocence claims in state courts in a fair trial, then Scalia is ok with that.  He's less comfortable with trying to "know" things that lie outside the procedures of the trial process.  If the procedures were fair, that's the best we can do.

Essentially, then, the reasonable interpretation is that Scalia isn't necessarily saying we can execute the innocent.  I don't think he would go that far -- if the defendant is 100% innocent, even Scalia would agree, one hopes, that execution is unconstitutional.  Instead, Scalia is saying that this is an inappropriate case to take such a huge and unprecedented step.  In this sense, Scalia's statement isn't quite as harsh as it sounds.  It's more of a statement of fact.

But, there's another interpretation that makes Scalia's words more unreasonable.

Under this interpretation, Scalia is probably ignoring some very strong evidence that this guy is innocent.  The Court hasn't ruled favorably on one of these writs in decades.  Quite clearly, at least 6 Justices were convinced he had a strong claim, or they wouldn't have taken such a drastic step. 

Scalia, then, may be saying that even a hypothetical 100% innocent defendant could not get habeas relief.  If so, that's obviously problematic.  And possibly insane.

If this latter interpretation is correct, then Scalia is simply assuming that state procedures (clemency, etc.) are sound and would never allow this nightmare scenario happen.  If so, I'd encourage him to come visit Texas sometime.

[UPDATE 2:00 PM -- Josh Patashnik at TNR has more commentary here.]

Comments

[knowdoubt]

Yes, and it might be worth noting that the great red state of Georgia has been "blessed" with the appointment of:

David Nahmias who clerked for current U.S. Supreme Court Justice Antonin Scalia, a job he took following graduation from Harvard Law School. He also worked as an appellate lawyer at the law firm Hogan and Hartson with now Chief Justice John Roberts . A native of Georgia, Nahmias then returned to the state to serve as U.S. Attorney for the Northern District after the appointment by President Bush in 2004.

May God help the citizens of the sorry State of Georgia. Bush, the gift (of SCOTUS) that just keeps on giving.

[Ginger Yellow]

"If this latter interpretation is correct, then Scalia is simply assuming that state procedures (clemency, etc.) are sound and would never allow this nightmare scenario happen. "

Isn't that entirely consistent with Scalia's position on the exclusionary rule??

[Ugh]

I don't think Scalia would have any problem, at least from a legal perspective, of a 100% innocent person were executed as long as the relevant constitutional processes were followed. In fact I think he has said as much.

[Hartmut]

And I can't remember the Constitution to explicitly ban the execution of innocents (actually I do not know of any that does, although those that offcially abolish capital punishment imply it).

[Henry]

In Herrera v. Collins, 506 U.S. 390, 427 (1993), Scalia and Thomas said that it is not unconstitutional to execute the innocent after they have had a fair trial. Specifically, they said that it does not violate due process or constitute cruel and unusual punishment.

[Snarki, child of Loki]

"...Scalia is simply assuming that state procedures (clemency, etc.) are sound and would never allow this nightmare scenario happen. If so, I'd encourage him to come visit Texas sometime preferably as a death-penalty defendant."

Fixed yer quote

[michael todd]

The concept of a fair trial in which the innocent are found guilty and sentenced to death is a little foreign to me.

How many people on death row have been exonerated by iron clad DNA evidence?

Innocent Americans losing their right to life itself because twelve men and women screwed up, or because the public defender was not competant.

Must of been the original intent of the founders.

[Hartmut]

As the old cliche goes:
Let's hang him!
No, let's give him a fair trial and then hang him!

[cleek]

Scalia seems like the kind of guy who would say this with a smirk and a sneer. i bet he delighted in explaining to his mother that her order for him to "clean his plate" clearly allowed him to throw all his peas into the trash before proceeding with said cleaning; she didn't define "cleaning" ! hah hah silly mother!

he's a pretentious petulant pedant. a dick, in other words.

[jonnybutter]

Thank god we have at least two Justices who make decisions strictly on principle and never make one which applies only to one case.

[pain perdu]

Thank god we have at least two Justices who make decisions strictly on principle and never make one which applies only to one case.

You're being facetious, right?

[Joe]

This isn't really complicated. As Henry noted, Scalia is on record:

There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.

Scalia does not think an innocence claim arising after a duly (due process upheld) carried out trial should be able to be raised via federal habeas. There is some shred of reason to that sentiment, but it is clearly not a sound constitutional path. See, e.g., Justice White concurring in Herrera v. Collins.

[yes, what "sound" means is different at times from what the SC decides]

A bare actual innocence claim IS a very special case. Even Blackmun's dissent in Herrera set up a high bar for success. Rehnquist was careful however to not totally take the possibility away. As Justice Stevens notes in his concurrence in the Troy Davis case:

The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing. Simply put, the case is sufficiently “exceptional” to warrant utilization of this Court’s Rule 20.4(a), 28 U. S. C. §2241(b), and our original habeas jurisdiction. See Byrnes v. Walker, 371 U. S. 937 (1962); Chaapel v. Cochran, 369 U. S. 869 (1962).

When William Sessions and Bob Barr support your right to be heard, "substantial risk" does come to mind. Also, as some might have read, the NYT had an article on the issue of lower court judges being concerned about death penalty cases. One of the judges cited was also cited in Stevens' opinion here.

[jonnybutter]

You're being facetious, right?

I was trying to be as pointedly facetious as I possibly could be.

[Marty]

Or you could assume that Scalia is perfectly consistent with a long line of cases that decided this:

Believe it or not, evidence of "actual innocence" has never been recognized as an independent ground for habeas relief. As Scalia correctly notes, the Court has never held that such evidence entitles you to a new trial or release.

And there's a reason for that. To claim that "actual innocence" triggers habeas relief gives rise to an extremely complex set of constitutional and statutory questions, and has all sorts of wide-ranging implications. (Just trust me).

and realize this case cracks open those floodgates.

[jonnybutter]

italics out

[Jonny Scrum-half]

I'm not an expert in criminal law or habeas corpus review. But I think that Scalia's position makes a lot of sense. There's a difference between questions of right/wrong and questions of Constitutionality. It's perfectly Constitutional for a judge/jury to get a case "wrong." The fact that the death penalty applies makes the bad decision that much worse, but it doesn't make it unconstitutional.

I assume that Scalia correctly looks at the Constitution as a framework for the process of deciding cases (at least in questions involving habeas review).

For example, in building a bridge, the builders (and the government that commissions it) can be confident that a certain number of people will die. Those are "innocent" people, but we go forward with the bridge anyway, while taking whatever reasonable precautions to minimize the chances of death/injuries. We can't make the system perfect, such that we can guarantee no deaths, but we decide that building the bridge is more important than the near-certainty that some people will die during construction.

The legal system as a whole is analogous to that -- we can't make a perfect system with no mistakes, at least so long as human beings are the decision-makers. But the Constitution guarantees certain safeguards to minimize the risks of mistakes, which are called "due process." If a convicted defendant received due process, the fact that he's innocent doesn't make his execution unconstitutional. It just makes it a mistake, and a horrible tragedy.

By the way, what does it mean for a defendant to be "100% innocent"?

[Catsy]

Begone!

[jonnybutter]

and realize this case cracks open those floodgates.

Of course, Marty, you aren't saying it's OK to execute someone you know is innocent. No! You're just 'making a statement', right? Thanks a lot.

Capital Punishment is state terrorism, precisely because there will always be mistakes and a certain number of innocent (or not deserving of the penalty) people will inevitably be killed. For sociopaths (sorry that word is overused, but it does sometimes apply) like Scalia and Thomas, this is a feature, not a bug. I'm so sorry that a complex set of constitutional and statutory questions might be raised, but if we didn't have such a barbaric practice as the death penalty, we wouldn't be here.

[Catsy]

Bleah, too early for HTML. Let's try that the traditional way.

[tgirsch]

Begone?

[Sapient]

"If a convicted defendant received due process, the fact that he's innocent doesn't make his execution unconstitutional. It just makes it a mistake, and a horrible tragedy."

I guess it all depends on how one defines "due process". If one sees it as a mechanical application of procedural protections, without any determination as to result, that's one thing. If one sees it as a means to an end - the end being justice, and justice (in criminal cases) being the correct determination of guilt or innocence of the defendant, then due process is violated on its face when there's a "mistake".

The problem is that it's impossible for any system to afford a defendant endless opportunities for appeal - there has to be a "final" judgment eventually, or there could be no system. However, when the "final" judgment is so easily and demonstrably subject to challenge (because of a new technology, for example), it seems that due process was patently insufficient, whether the standard operating procedures were followed or not.

[gwangung]

Or you could assume that Scalia is perfectly consistent with a long line of cases that decided this:

Believe it or not, evidence of "actual innocence" has never been recognized as an independent ground for habeas relief. As Scalia correctly notes, the Court has never held that such evidence entitles you to a new trial or release.

And there's a reason for that. To claim that "actual innocence" triggers habeas relief gives rise to an extremely complex set of constitutional and statutory questions, and has all sorts of wide-ranging implications. (Just trust me).

and realize this case cracks open those floodgates.

Then a fair statement is that it's better that one innocent person gets punished than 100 guilty people get to use a particular procedure in court?

[Marty]

"Of course, Marty, you aren't saying it's OK to execute someone you know is innocent. No! You're just 'making a statement', right? Thanks a lot."

I am saying that it is not the Supreme Courts job, never has been, to make that determination. If capital punishment is bad, then the legislature owns that responsibility, one exercised in many states.

I was making a statement. It seemed clear to me.

[gwangung]

I guess it all depends on how one defines "due process". If one sees it as a mechanical application of procedural protections, without any determination as to result, that's one thing. If one sees it as a means to an end - the end being justice, and justice (in criminal cases) being the correct determination of guilt or innocence of the defendant, then due process is violated on its face when there's a "mistake".

Hrm. I like this formulation better.

I think focussing on the process as opposed to the end is quite Pharisee-like. There is considerable value to maintaining a set of processes to be applied universally, but one shouldn't forget that the uniformity of application is also there to serve the ends and coming up with a just decision.

Being Pharisee-like fits into the modern conservative ideology, I'm afraid. And ultimate rigidity doesn't serve the ends of justice, particularly if improvements in technology and technique can help determine guilt or innoncence. The procedure may be fair, but it cannot be just if the data going into it is incomplete or false.

[Catsy]

I don't think Scalia would have any problem, at least from a legal perspective, of a 100% innocent person were executed as long as the relevant constitutional processes were followed. In fact I think he has said as much.

He's said as much. And this, right here, is one of the reasons Scalia is a monster and his approach to law is morally and intellectually bankrupt.

It is impossible to have a system of justice that does not make mistakes. There are human beings involved with the process from start to finish, and human beings are fallible. A sane and just approach to law recognizes this, and errs on the side of caution when the consequences of error would deprive someone of their liberty, let alone their life. A judge with--dare I say it--empathy and compassion, when presented with a case where narrowly following the letter of the law (or one possible interpretation of it) would result in a manifestly unjust outcome, will look for ways to make the outcome just while staying within the law. This is all the more true in the SCOTUS, where cases rarely reach their desk if they only have one simple, easy answer.

Scalia doesn't care. He's not the least bit interested in protecting the rights of the accused. The only thing that matters to him is process, that the right letters are dotted and crossed. And even then, he's more than willing to get creative with the law when it comes to his own ideological preferences.

I've met jackholes exactly like him in person before in the corporate world. Insufferably smug about how closely they follow the letter of process, entirely without concern for whether or not that process produces a healthy outcome or how it affects anyone less important than them, and full of contempt for anyone who dares suggest that every process exists in aid of a purpose, and that if it fails at that purpose then hewing blindly to it is no virtue.

[Sebastian]

What is happening to the other safeguards in the 100% innocent cases? Where are the governor's pardons for instance? (I know it sounds snarky but I'm serious).

[publius]

Seb - that's sort of Scalia's position. he thinks the various state procedures (including clemency) would never really allow such a thing to happen.

I frankly don't think much of state governments or state judiciaries (particularly in certain states), so i don't think his faith is empirically justified. but that's certainly a big part of what's driving this debate

[jonnybutter]

I was making a statement. It seemed clear to me.

Yes, it was clear. But what's your point? This is about the State executing someone it knows to be innocent (or probably innocent). I don't think that is justifiable, period. You?

The death penalty is a very clarifying topic. It separates conservatives (in the American sense of the word) and libertarians (in the non-American sense of that word) from people who call themselves those things, but who are really authoritarians. (I am NOT calling Marty 'authoritarian' - I just think he wants to evade responsibility).

The Law is a tool. If you decide that fidelity to the tool clearly trumps fidelity to the job the tool was designed for, you're in jackass territory, and it's even worse (not better) if you are well educated and have a lot of a particular kind of intelligence, like Nino. Everybody carelessly makes that kind of mistake from time to time. Nino thought about it.

Of course, he isn't (and certainly Thomas isn't) going to be perfectly consistent, which means that they probably think the Death Penalty is a good idea precisely because it's somewhat arbitrary. That isn't 'conservative', folks - that's authoritarian.

[Jenna Moran]

It doesn't sound snarky, Sebastian. I've been wondering that myself.

I think that if the Supreme Court deals with a case where someone's innocence is 100% demonstrable, then as a matter of conscience, they should *also* help the defendant in question. But their foremost concern and role in such a case is not to save the defendant but to redress the structural problem that has led to a person whose innocence is 100% demonstrable being unable to earn release with that demonstration. 100% demonstrable innocence in someone without legal recourse is also a 100% adequate demonstration that some element of the legal process is not functioning correctly.

[Marty]

"Yes, it was clear. But what's your point? This is about the State executing someone it knows to be innocent (or probably innocent). I don't think that is justifiable, period. You? "

I think it is a natural consequence of an imperfect system of justice, I believe the Supreme Court is not where you should be focusing your ire. The states, all the way up to the Governor's right to pardon, have safeguards to protect against this.

It just isn't the Supreme Courts job, nor could they possibly have the time to adjudicate guilt and innocence (or even possible innocence) in all capital cases.

In th end, I do believe in capital punishment (what I think you wanted to know).

[hairshirthedonist]

This reminds me of something I've done as an engineer.

When installing a complex system, one where you don't specify every physical detail of system, but you specify what the system should do and how well, you set a standard for Mean Cycles Between Failures (MCBF). (There are other standards, like Mean Time Between Failures, but I stick with MCBF for this discussion.)

If the system meets the MCBF standard over some acceptance period, the system is accepted and no major overhauls are required. This is an acknowledgement that no system is 100% perfect and that you must accept a system with some number of errors.

That doesn't mean that you don't fix the errors themselves, though. If some component of the system produces some number of errors, even though that doesn't push the system's MCBF into unacceptable territory, you still fix that particular component to eliminate the errors.

That's how I, as an engineer and non-lawyer, see this. You fix this problem as an isolated incident and you leave the system as it was. It not a binary choice between a) accepting whatever happens and doing nothing and b)trashing the entire system.

You don't drive your car around with a flat tire, nor do you have your car towed to the junk yard and scrap it because the tire is flat. You fix the tire and keep driving.

Maybe I'm missing something.

And maybe Sebastian's question is simply about the best way to go about fixing the flat. Do you get a brand new tire brought out and put it on the rim right now? Probably not. Do you have it towed and get that done somewhere else? Maybe. Do you put a spare on and drive home to get a new tire later? Probably. Do you plug the tire or shoot some fix-a-flat into it and replace it later? Maybe.

The bottom line for me is, you gotta do something. You don't execute someone you think is innocent.

[gwangung]

I think it is a natural consequence of an imperfect system of justice, I believe the Supreme Court is not where you should be focusing your ire.

Why not?

If there is a problem of a systemic nature, we are agreeing that it is inarguable that it should be fixed. What we are arguing about is where should it be done.

Because this seems to be a systemic nature, mechanisms such as pardons do not seem to be an appropriate solution, because they are one-offs. One-offs are not appropriate to apply to systemic problems. And because the problem seems to be in the nature of how the court system handles input, handles innocence, it does not seem appropriate, either, to hand it off to the legislative or executive branch.

[anandine]

Wouldn't execution of the innocent be cruel, if not unusual, punishment?

[MNPundit]

Well wouldn't it be the case that having police lie about evidence as shown here, violates the right to a fair trial?

[cleek]

if your beautiful clockwork system kills innocent people, your system is broken.

[Gary Farber]

"Yes, it was clear. But what's your point? This is about the State executing someone it knows to be innocent (or probably innocent). I don't think that is justifiable, period. You?"

I think it is a natural consequence of an imperfect system of justice

[...]

In th end, I do believe in capital punishment (what I think you wanted to know).

In summary, you believe that it's better for the state to kill a few innocent people, rather than for the state to stop killing all the guilty people we'd like to and simply imprison them for life, instead. Do I have this wrong?

[Gary Farber]

knowdoubt: "Yes, and it might be worth noting that the great red state of Georgia has been 'blessed' with the appointment of David Nahmias"

knowdoubt didn't bother to mention appointment to what. It's a temporary appointment to the Georgia Supreme Court until elections to that position are held next year.

[raoul]

Not true- there is only one way to read Scalia- the second way- he did not say that we needed a different case or anything close to that- the first proffered interpretation reflects wishful thinking and it is not supported by what the good judge wrote- see below what Stevens said about it- but one thing about the postings here- there are lot of recklessly carefree individuals who appear not to care whether innocent people are executed- these people represent the downfall of American civilization.

Stevens said that, under Scalia's argument, it would not matter how persuasive the evidence was. "Imagine a petitioner in Davis's situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man," Stevens wrote. "The dissent's reasoning would allow such a petitioner to be put to death nonetheless. The court correctly refusesv to endorse such reasoning."

[jonnybutter]

In th end, I do believe in capital punishment (what I think you wanted to know).

Of course that isn't want I wanted to know. Obviously, you don't want to answer the question I did ask. That's OK. You aren't obliged to. But it's not really fair to be coy about it - to half-answer it. I know full well that there are legitimate competing interests in this case - otherwise there would be no story.

The State executing someone it knows to be innocent is one of the most un-American things I can conceive of. I hope this case is another nail in the coffin - as it were - of the death penalty in the US. The practice is just indefensible from both a conservative and liberal pov. I know the difference between the narrow question and the more basic one here...

[Pithlord]

I don't think the hypothetical of "what if we 100% know the person is innocent" is very helpful. Courts can't "know" anything except through legal processes. It's the flip side of the ticking time-bomb. It only works as a philosophical question becausee you can stipulate knowledge in philosophical questions.

But that doesn't get Scalia off the hook. The question is whether a legal process resulting in death can be "due" if it doesn't allow any possibility of post-conviction entry of evidence of factual innocence. That's (a) a question the Fourteenth Amendment puts right in the lap of the federal judiciary; and (b) a question for which sensible people would have to answer "no." The example of improvements in DNA technology that can pove mistaken identity seems really clear to me.

[Marty]

"In summary, you believe that it's better for the state to kill a few innocent people, rather than for the state to stop killing all the guilty people we'd like to and simply imprison them for life, instead. Do I have this wrong?"

No, you have this correct. And in your "instead" we would imprison innocent people for the rest of their lives. I do believe the numbers of innocent people executed to be quite small (as the numbers of people executed are quite small).

I have changed this particular position in my thinking at least twice over the last thirty years, so it remains a moral dilemma for me.

Also, in the case of someone's obvious innocence I believe there should be adequate protections at the state level.

[Marty]

"In the end, I do believe in capital punishment (what I think you wanted to know).

Of course that isn't want I wanted to know."

I am sorry, and perhaps dense today, what question haven't I answered?

[The Crafty Trilobite]

hairshirthedonist, the problem with your 'fix-the-tire' analogy is that when a court does something, it creates precedent. Your analogy to fixing a code problem in a complex system is more apt -- except that every fix makes the system more complex. The new 'code' created by the decision will, at a minimum, make every subsequent 'run' longer and more expensive, because many prisoners with unmeritorious innocence claims will try to use the new precedent.

Making outcome-based decisions also weakens the Court as an institution. We need some entity that can make the 'umpire' calls, but the more that people think the umpire is playing favorites, the less inclined they are to obey him.

I have not read Scalia's dissent, but I expect his concerns are along these lines. The problem is, Scalia is at least as prone as any other judge to one-off, outcome-based decisions. It's just that his favored outcomes have nothing to do with mercy or compassion. So he will, for instance, override Florida's courts to install a President he favors, but he won't, for instance, override Georgia's courts to save an innocent man's life.

Judges are human and they are going to indulge their policy preferences from time to time. That being so, I would much rather see some empathy on the bench than Dick Cheney in judge's robes.

[JanieM]

And in your "instead" we would imprison innocent people for the rest of their lives.

No. People serving life sentences who are later found to be innocent after all can be released. People executed and later found to be innocent cannot be brought back to life.

[John Miller]

"No, you have this correct. And in your "instead" we would imprison innocent people for the rest of their lives. "

Not necessarily. After all, innocent people have gotten out of prison once their innocence is proven. Once someone has been executed, it is rather hard to bring them back when they are found innocent.

Besides, give an innocent person the choice of life imprisonment or execution, I think the vast majority would go for the former.

[Gary Farber]

"I do believe the numbers of innocent people executed to be quite small (as the numbers of people executed are quite small).

Worldwide, 2005:

Executions around the world are nearing record levels, and the Unites States is among the four countries which account for 97 per cent of the total, a report has found.

The report says China easily operates the most stringent capital punishment regime, with an estimated 3,400 executions last year. In second place, Iran executed at least 159, Vietnam at least 64, and 59 prisoners were put to death in the US.

So we're only #4. At least we're in nice company, eh?

2007:
[...] Countries with the Most Confirmed Executions in 2007
1. China (470) 4. Pakistan (135)
2. Iran (317) 5. United States (42)
3. Saudi Arabia (143) Again, good company.

People exonerated while on death row: that's 114 people since 1973.

Known probable innocents executed.

[gwangung]

No, you have this correct. And in your "instead" we would imprison innocent people for the rest of their lives. I do believe the numbers of innocent people executed to be quite small (as the numbers of people executed are quite small).

You do realize that this stance runs squarely counter to the philosophical underpinnings of the US legal system, right?
What is the legal philosophy that you wish to replace it with?

Also, in the case of someone's obvious innocence I believe there should be adequate protections at the state level.

Are there? And are they one-off, or are they systemic in nature?

[Joe]

The pardon power was raised. A good point to address.

"Unlike most states, the Governor [of GA] does not have the clemency power."

http://www.crimeandconsequences.com/crimblog/2009/08/the-davis-original-habeas-peti.html

As discussed there, a conservative leaning blog/expert in this area, the Georgia Board of Pardons and Paroles did not do much to explain its rejection of Davis' case, which he found troublesome. Likewise, as Stevens sarcastically noted in the oral argument of Herrera (found at Oyez.com), pardons and such are not very popular in Texas.

Ideally, the states should have a process to deal with cases like this, and governors etc. have taken their jobs seriously even after the courts have rejected appeals. But, some fall thru the cracks, especially in certain states.

The courts provide an important safeguard in such cases. This includes if you are, like some of Davis' supporters here, not a total opponent of the death penalty.

[russell]

Courts can't "know" anything except through legal processes.

Short of a straight-up moral objection, that would be the strongest argument against capital punishment that I can think of.

As Janie, John, and Gary note, there is no possibility of remedy once you're dead. None that any court or legal system can offer, anyway.

[Gary Farber]

The general case.

[...] Since Innocence and the Death Penalty: Assessing The Danger of Mistaken Executions was released in 1993, 21 more cases have been added to the list of mistaken convictions in capital cases. Seventeen of those releases occurred after the original report's release, and the other four were cases which would have been included in the original report had the information about these releases been known earlier. In the twenty-one-year span of the first report, there was an average of 2.5 releases of innocent defendants per year from 1973 to 1993. The 17 releases over the past three and a half years represents a pace of 4.8 releases per year, almost twice the pace of the previous report.

For the original 48 cases, it took an average of approximately six and a half years between conviction and eventual release. With the 21 additional cases included in this report, the average time spent on death row before release is now about seven years. This length of time is important because both state and federal legislation in recent years will shorten the length of time death row inmates have before their execution. Currently, the average time between sentencing and execution is eight years. If that time is cut in half, then the typical innocent defendant on death row will be executed before it is discovered that a fatal mistake has been made.

[...]

What follows is the list of 21 individuals who had been sentenced to death and for whom there is now convincing evidence of their innocence. All of these defendants were formally exonerated. These cases are in addition to the 48 cases of innocence discussed in the original report. (See Appendix). [To be clear: 69 cases. -- gf]

A second group of cases consists of eight individuals whose capital convictions have been reversed, but there has been no formal exoneration. In some of these cases there may be a re-trial, in other cases the charges may be officially dropped later. If the defendant is finally cleared, that case would be added to the list of cases in the first category. This list is not an exhaustive compilation of all reversals in death cases, but rather a collection of prominent cases in which exoneration appears probable.

A third group consists of eight cases in which the defendant has been taken off of death row and evidence of innocence has emerged, but a conviction against him or her in the underlying charges remains. Some of these cases are the result of compromise between the prosecution, which threatens to seek the death penalty again after a reversal on appeal, and the defense, which is claiming complete innocence. In order to avoid the uncertainty, expense and trauma of another trial, the defendant agreed to plead guilty to a lesser charge in exchange for immediate release. In other cases, a governor, troubled by a defendant's possible innocence, has commuted the death sentence to a life sentence. Again, this list is not exhaustive of all cases in which the death sentence was lifted.

Finally, the report discusses a few cases which may fall into one of the above categories in the future, but for now remain unresolved.

Long detailed list of cases follows.

[...] Since 1973, approximately 6,000 people have been sentenced to death.

During this same period, 69 people have been released from death row with substantial evidence of their innocence. This translates to a rate of over 1 innocent death row inmate for every 100 death sentences. As the analysis above indicates, the rate may be considerably higher, since extraordinary efforts are generally needed to free a death row inmate, and most inmates do not have those extra resources available to them.

Professors Radelet and Bedau reported 416 cases this century of mistaken convictions in "potentially capital cases," that is, those whose crime could merit the death penalty, assuming such a law was in place.

While those authors point out that there probably have been many other erroneous convictions, their rate of about 4.5 innocent persons convicted each year in capital cases is comparable to the rate of 4.8 persons per year released from death row in recent years. This is some indication that the problem of critical mistakes in capital cases is persistent and very difficult to eradicate.

Another view of the scope of the problem of error in the criminal justice system is contained in a 1996 Department of Justice Report on the use of DNA evidence. The report catalogs numerous cases, mostly from the late 1980s, in which previous convictions were overturned upon DNA testing. Some of these cases involved defendants on death row.

In commentary accompanying the report, Peter Neufeld and Barry Scheck note how often the police focus on the wrong suspect:

Every year since 1989, in about 25 percent of the sexual assault cases referred to the FBI where results could be obtained . . . the primary suspect has been excluded by forensic DNA testing. . . . The fact that these percentages have remained constant for 7 years, and that the National Institute of Justice's informal survey of private laboratories reveals a strikingly similar 26-percent exclusion rate, strongly suggests . . . underlying systemic problems that generate erroneous accusations and convictions.

The fact that 1 out of 4 defendants accused of a serious crime such as sexual assault is innocent, or that at least 1 out of 100 of those actually sentenced to death is innocent, is disturbing.

I agree.

(For clarity I removed footnote links to the above, which may be read at the linked full report.)

I don't, myself, think the state should be in the business of killing innocent people.

I don't have a moral problem with killing people guilty of heinous crimes.

But that's theory.

I have a moral problem with a highly imperfect system that convicts innocent people, doesn't fairly protect the rights of innocent people, has a racial bias inherent in its system, and then kills innocent people, and that we do this knowingly.

Moreover, I think being locked up for life in maximum security is less merciful.

If we had an omniscent being in charge of our justice system, and we knew that only people truly guilty of horrific murders were being executed, I'd be okay with that.

But we're not capable of having such a system. We're not even close.

[Joe]

This is interesting:

The Ohio Parole Board, by a voe of 5-2, recommended to Gov. Ted Strickland that he commute Getsy’s death sentence to life in prison. The governor, however, refused, saying that the evidence of Getsy’s crime was too strong to warrant clemency. Getsy was sentenced to death for the 1995 murder of a Hubbard, Ohio, woman, Ann Sarafino. He also was convicted of the attempted murder of her son Charles.

http://www.scotusblog.com/wp/sotomayors-first-vote-on-death-penalty/

[Gary Farber]

"Also, in the case of someone's obvious innocence I believe there should be adequate protections at the state level."

There should be, but there aren't, and we know that. (I'll give as many cites on that as you can stand.)

So how about a compromise?: we put a moratorium on the death penalty until such time as we know that there are adequate protections at the state level against innocent people being convicted with a finding of the death penalty being warranted?

It's not an elimination of the death penalty: it's just a postponement until such time as we have adequate protections for innocent people.

[Marty]

"So how about a compromise?: we put a moratorium on the death penalty until such time as we know that there are adequate protections at the state level against innocent people being convicted with a finding of the death penalty being warranted?

It's not an elimination of the death penalty: it's just a postponement until such time as we have adequate protections for innocent people."

ok

[hairshirthedonist]

hairshirthedonist, the problem with your 'fix-the-tire' analogy is that when a court does something, it creates precedent. Your analogy to fixing a code problem in a complex system is more apt -- except that every fix makes the system more complex. The new 'code' created by the decision will, at a minimum, make every subsequent 'run' longer and more expensive, because many prisoners with unmeritorious innocence claims will try to use the new precedent.

I can appreciate that, CT. Thanks. It makes me wish for some minimal code change that will only affect some very small number of cases. Perhaps a ruling based on some particular systemic crappiness that has been established in this case and that would not necessarily be present in future unmeritorious claims. But maybe that's beyond the question at hand for the court. I don't know. Then again, how do you just let the guy die?

[jrudkis]

My biggest problem with the death penalty is not that I care about the rights of a murderer, or whether it is a deterrent, or how much it costs. I simply do not trust our government enough to decide life and death. Just like I don't want the government to be in charge of my health care, retirement, or sexual choices, I don't want the government to choose life and death, where the inevitable mistake is one that can never be corrected.

I have never understood why those with a view of government as being inept, corrupt, and parochial would then insist that it should have the power to kill.

Some have argued that it is juries, not the government, that sentence defendants to death and therefore Conservatives can trust the results and not think about the government aspect.

However, the jury generally only sees the evidence provided by the government. Few defendants can compete with the government financially to provide counter evidence or exculpatory evidence. Crime scenes are controlled by the police and evidence found there (or not found there) is due to the government. Government crime labs have had continuous scandals due to government experts falsifying reports or just doing sloppy work.

Elected judges and prosecutors are rewarded for convictions and death sentences (by reelection). They are not impartial.

And these are the same juries that most Conservatives think give wildly outrageous awards based on junk science to plaintiffs, and yet they trust them with someone's life?

[Gary Farber]

"Elected judges and prosecutors are rewarded for convictions and death sentences (by reelection)."

This is another example of the limitations of my enthusiasm for democracy.

I want to be able to elect my representative to every legislature I am subject to (community, municipal, county, state, federal).

I want to be able to elect the executive of every level of government I'm subject to (see previous list.)

I don't want to be able to, and I especially don't want my fellow citizens, to be electing the judges and prosecutors I and they and the rest of us will be subject to.

The first two categories I want subject to political, mass pressure. The last two categories I do not want subject to political, mass, pressure.

That is, I want members of those last two categories to be as insulated from popular mob enthusiasm as possible.

Yes, appointed judges and prosecutors are still subject to pressure and influence, by those who appoint them; this can be ameliorated by spreading the authority for such appointments out to qualified, independent boards, rather than appointments by a single executive, or a legislature; and, yes, this still leaves indirect influences and pressures; no system is perfect; but I think such indirect approaches are more insulating, and thus better, than direct public pressure via elections (and being subject to both the need for fundraising, and generally the need to gain the approval of the local political machine, since few people pay attention to judicial elections, anyway, unless they're being demagogued).

This is, to be sure, a matter of personal opinion.

[Jonny Scrum-half]

1. I don't have a problem with abolition of the death penalty. I just don't think that it should/can be done by a Court finding that the death penalty is unconstitutional (even "as applied"). It's clearly not unconstitutional; the text of the Constitution permits the government's taking of life so long as it is pursuant to "due process of law."

2. I think that Scalia, and everyone else taking the minority view on this thread, certainly would have a moral problem with the idea of an innocent person being executed. I would hope that, were there to be evidence that established a convict's innocence, anyone in a position to prevent an unjust execution would find a way to do so.

3. I understand the problem with "government" having the power to incarcerate and execute people. But I don't know what society would look like in the absence of that power. Even though many mistakes are made, I would guess that the large majority of convicts are, in fact, guilty of their crimes. If we didn't have the current system in-place, we'd need some other system, or else there'd be real problems with criminals and thugs. What's the proposal for replacing our system?

[jrudkis]

"I understand the problem with "government" having the power to incarcerate and execute people."

I don't think anyone would argue that the government, despite potential errors and abuse, has to have the authority to incarcerate. The argument is that the government does not need to have the ability to execute. Errors in incarceration can at least be mitigated by release and when necessary cash. Death is hard to fix.

[idlemind]

Uh, Jonny, who said anything questioning the governments ability to incarcerate after due process? All I've seen is the claim that the death penalty is of a different nature and should be treated (and perhaps excluded) as such.

[Gary Farber]

"I understand the problem with
'government' having the power to incarcerate and execute people."

Incarcerating and executing are two separate things.

"But I don't know what society would look like in the absence of that power."

Who, exactly, has proposed we eliminate the power of government to incarerate people?

"Even though many mistakes are made, I would guess that the large majority of convicts are, in fact, guilty of their crimes."

First, the nature of some of these crimes people are imprisoned for:

A study of FBI arrest and conviction data by a Washington think-tank has underscored a dramatic shift in US drug policy in the decade of the 1990s. "The War on Marijuana: The Transformation of the War on Drugs,", released Tuesday by the Sentencing Project, reports that from 1992 to 2002, the proportion of drug arrests involving marijuana increased from 28% to 45% of all drug arrests, while arrests for the much more dangerous cocaine and heroin decreased from more than half of all drug arrests to less than 30%.

After crusades against heroin in the 1970s and crack cocaine in the 1980s, total drug arrests continued to spiral upward from 1.1 million in 1990 to more than 1.5 million per year in 2002. Marijuana arrests accounted for more than 80% of the increase, the report found.

[...]
So far this decade, people have been picked up (or added to) arrest records for marijuana possession at a rate of more than 600,000 a year.

Although only 6% of marijuana arrestees were charged with felonies, some 27,000 pot criminals were serving prison sentences in 2002, giving the lie to the oft-repeated claim by law-and-order types that "nobody goes to prison for marijuana."

[...]

In fact, the study found, more than 6,600 people, or nearly one-quarter of imprisoned marijuana offenders, were doing prison time simply for possession, and apparently doing prison time simply for possession.

"Even though many mistakes are made, I would guess that the large majority of convicts are, in fact, guilty of their crimes."

And we know that, given the fact that we know of large numbers of innocent people being convicted, given the fact that the best known stats are on the most examined cases, which are death penalty cases, and murders, and that the stats would be far worse on lesser crimes, and given that we know false confessions are constantly generated, eyewitness identifications are highly unreliable, forensic evidence is frequently badly handled (it isn't the fantasy pseudoscience seen on CSI on tv), and plea bargains are constantly made by innocent people, we know that at least a large minority of people in jail are innocent of the crime of which they're accused.

Our "justice" system is a nightmare and a travesty, as are the conditions of our prisons. But hardly anybody cares until they're sent to one, in which case suddenly they become enthused for the cause of prison reform.

Try checking out all the state Innocence Projects, but note that they almost entirely concern themselves with murder cases and death penalties. Lesser penalties for lesser crimes go barely noticed.

2007:

THE FIRST innocent American defendant to be exonerated by DNA evidence was Gary Dotson of Chicago. Before his conviction was overturned on Aug. 14, 1989, he'd spent 10 years in prison and on parole. This year, on April 23, Jerry Miller obtained the 200th DNA exoneration, also in Chicago. He had served 25 years for a rape he did not commit.

Two hundred innocent prisoners exonerated by DNA — plus more than 200 other exonerations that did not involve DNA. That sounds like a lot. But over 18 years in a criminal justice system that sends hundreds of thousands to prison each year? How frequent are wrongful convictions?

[...]

But DNA testing requires biological evidence; it has only been useful in a fraction of rape convictions and a scattering of murder cases (if the killer bled). Rape and murder account for fewer than 2% of felony convictions and a much smaller percentage of all convictions.

As it happens, we're just beginning to learn something real about the rate of false convictions. The Virginia Department of Forensic Science recently found a large group of closed rape files with untested DNA, which will make possible the first systematic study of false convictions. So far, tests on a small preliminary sample are troubling: two previously unknown wrongful convictions out of 29, or an error rate of 7%.

We can also learn from death sentences, which are reviewed much more carefully than other criminal convictions, so more errors are caught. Of the 3,795 defendants sentenced to death from 1973 through 1989, 86 were freed because of DNA or other new evidence of innocence. That's 2.3%. Of course, some of those freed may be guilty, while others still on death row are no doubt innocent. So last year, Michael Risinger, a professor at Seton Hall Law School, did a study of death row DNA exonerations only. His results? Among defendants sentenced to death between 1982 and 1989 for murders involving rape, at least 3.3% were innocent.

The good news is that the great majority of convicted defendants in the United States are guilty; the bad news is that a substantial number are not. Is an error rate of 2% or 3% or 5% high or low? That depends on your point of view and your purpose.

If 1% of commercial airliners crashed on takeoff, we'd shut down every airline in the country. That would be nearly 300 crashes a day. If as few as 1% of criminal convictions are erroneous, right now there are more than 20,000 innocent defendants behind bars.

All well and good, if one isn't a friend or relative. Besides, they probably are guilty of some other crime.

Like smoking or selling marijuna.

[habeascounsel]

Contrary to Publius view, the meaning of Scalia's dissent is much plainer than that. Let's say Defendant X is convicted in a fair trial, has fair post-conviction review, and on the eve of his execution, we discover scientific evidence that shows that Defendant X had no connection with the crime whatsoever and Suspect Y is the guilty party. For political reasons of their own, the state courts and Governor refuse to intervene.

Scalia would say that Defendant X can, and as a matter of law, should be put to death, and that the US Constitution is not offended by the execution of this indisputably innocent man.

This view is monstrous and has never commanded a majority of the Supreme Court. In fact, as the votes in this case make clear, only the two most extreme members of the Court subscribe to it, and we can be quite thankful of that.

There is nothing inherently extreme or crazy about saying that upon the extremely rigorous showing suggested by Herrera (proof by clear and convincing evidence that an inmate is actually and factually innocent of the crime for which he was convicted) the federal courts can and should intervene, no matter how fair the process that resulted in the conviction. If push came to shove, my experience suggests that most federal judges would agree with this view, whether they are liberal or conservative, and that only the most extreme conservative idealogues would disagree with it.

[jrudkis]

Gary,

Yeah, but marijuana is a gateway drug that leads to twinkies, which leads to diabetes and death...so we have to nip it in the bud.

[Turbulence]

What I don't get is: why hasn't anything happened to the police and prosecutors who have been accused of coercing witnesses? I mean, when 7 out of 9 recant and some of them are explicitly claiming that the police bullied them into testifying the right way, shouldn't we prosecute them? Or are they legally immune? Is there a statute of limitations issue here?

In my legally naive view, everyone who coerced testimony in a capital case is guilty of attempted murder and everyone who knew about it but kept quiet is an accessory. Police and prosecutors are certainly going to continue these practices until a few of them are executed or imprisoned for life.

It seems like there are serious conflicts of interest involved in prosecutors going after other prosecutors and police forces they rely upon. Does anyone know of alternative legal structures used in other countries that work around these conflicts?

[Gary Farber]

I can only do four links per comment here, so let's talk more about this.

[John Spragge]

If you believe, in principle, in capital punishment, you pretty much have to agree with Scalia's "extreme" position. Unless you see capital punishment as an interim measure, then you have to concede that, assuming a non-zero probability of executing an innocent person and no limit to the number of executions, the probability of executing a factually innocent person approaches one (certainty). To support capital punishment, therefore, you have to accept that you will execute an innocent person sometime, and you must, therefore, believe that you can execute someone, even if they could potentially show their innocence, assuming they have had due process of law.

[wj]

Jonny, I rather think you are incorrect about Scalia having a moral problem with an innocent person being executed. I confess that I'm not a lawyer, and have not made an exhaustive study of his writings. But from what I can see, his overall position reduces to "the means justify the ends." So long as the correct process was followed, the actual outcome is simply irrelevant -- legally and morally.

I happen to think that that's a horrible position to take. (And in direct opposition to Christ's teachings, for those who claim to be Christians.) But it looks to be where Scalia is coming from.

[Nell]

Talk about forests and trees. I clicked the Volokh link, scanned comments, and finally, from the Scotusblog link, determined this is the Troy Davis case.

Huge and wonderful news. Wish Hilzoy were here to share.

Back to your parsing and lawyering, ObWi-ers.

[Jonny Scrum-half]

I mis-read jrudkis as having a problem with government's police power generally, not limited to executions. That's where my point #3 was coming from. Sorry about that error.

With respect to Gary Farber's point about the fact that (a) many people in prisons are there by mistake, and (b) way too many people are in prisons because of marijuana-related charges, I don't disagree with either of those statements. I think that marijuana (and maybe drugs generally) should be decriminalized, and I certainly understand that the system we have can be corrupt/unfair/etc. Since I started the discussion about the justice system by mistake, I won't elaborate further, except to say that I think that any complicated system run by people is going to have many serious problems.

[Sebastian]

John Spragge I don't think your argument holds well. I fully expect that people will be undiscoverably but wrongly convicted in fair trials for non-death penalty first degree murder cases. It is very likely that this error will never be discovered. They will die in prison. That isn't an argument against life imprisonment, nor is it an argument for keeping them in prison after they have been found to be factually innocent.

If it turns out that a person is factually innocent, they shouldn't be punished.

Now it doesn't follow that habeas review is a good way of dealing with that. But I think it is pretty clear as an 8th amendment matter that you don't get to execute people whom you know to be factually innocent.

Scalia's beef seems to be with how you know they are factually innocent which is a different story.

My general saddness isn't about capital cases (which are high profile) but about other long incarceration innocence cases. I believe that they tend to get less review than capital cases, tend to have less rigorous trials than capital cases, and are more likely never to be discovered.

The key problem is on a much lower level than habeas review. We need to figure out a way to get control of prosecutors and corrupt police officers (and if you read Balko corrupt forensic 'experts') who seem to be knowingly tampering with evidence and getting away with it. That will increase my confidence in the entire system--simultaneously increasing my confidence in the death penalty system.

[Gary Farber]

Sotomayor's first SCOTUS decision is joining a four-member minority dissent on a stay of execution.

But it's not as if these appointments are life or death.

[...] The full court turned down the last-minute appeal from lawyers for Jason Getsy late Monday evening by a 5-4 vote.

Getsy, 33 and a convicted hit man, is scheduled to die by lethal injection at 8 a.m. Pacific time today.

In a 1995 murder-for-hire attack, Getsy shot Charles Serafino seven times, though the victim survived. Ann Serafino, his mother, was killed in the shooting.

No one questioned Getsy's guilt, but his lawyers argued he should be spared because other participants in the murder-for-hire plot, including its architect, John Santine, did not receive the death penalty.

Last month, the Ohio Parole Board had recommended sparing Getsy's life on those grounds, but Gov. Ted Strickland disagreed on Friday. He said the more lenient treatment given the other defendants did not call for sparing the life of the shooter, Getsy.

The Supreme Court issued a two-line order Monday evening rejecting Getsy's plea for a stay of execution. Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor dissented and said they would have granted the stay of execution.

I suppose pro-death-penalty believers can look at this as a glass-half-full result.

If you believe in the death penalty, shouldn't the guy who paid for it get it, too?

I'm not going to lose sleep over Jason Getsy, but shouldn't we have some consistency in how death is meted out?

[Gary Farber]

"Back to your parsing and lawyering, ObWi-ers."

You're annoyed that we're focusing on principles, and the whole problem, Nell, rather than one case?

Would you rather that, when we discuss Guantanamo and Bagram and the former secret prisons, ignore the whole issue, and instead focus only on the results regarding one person, and scold us if we didn't for "parsing and lawyering"?

"I clicked the Volokh link, scanned comments, and finally, from the Scotusblog link, determined this is the Troy Davis case."

No one stopped you from clicking the Scotusblog link first. It's the first link publius gave, so why are you scolding us for having to go to a lot of trouble you didn't have to go to, and not talking about what you want us to talk about? What's stopping you from writing here, or at your blog, about Troy Davis?

I'm glad you're happy, and sorry you didn't bother to click on publius' first link first, but I don't see what it is people here have done that deserve snark about "[t]alk about forests and trees" and "your parsing and lawyering, ObWi-ers."

[Gary Farber]

"My general saddness isn't about capital cases (which are high profile) but about other long incarceration innocence cases."

I think being an innocent person thrown in jail for only eighteen months, or only three months, or even a week, can be pretty bad.

I'd venture to say that even most guilty people don't deserve what our prisons do to them. Call me a bleeding heart who is soft on crime.

(In case anyone isn't clear: I'm not opposed to prisons; I'd simply prefer, among other things, prisons not run as hellholes.)

[habeascounsel]

In the end, federal habeas is the only means many people have of freeing themselves if they have had an unfair trial or are actually innocent. The state courts, populated as they are by ex-prosecutors who often have to stand for re-election, often can't be relied upon to rectify their own mistakes.

Look at Ruben "Hurricane" Carter http://en.wikipedia.org/wiki/Rubin_Carter;
or Thomas Goldstein http://truthinjustice.org/goldstein-free.htm;
or Gloria Killian
http://truthinjustice.org/killian.htm

Or most of the people who have been exonerated after years in prison or on death row. Did the Governor release them, or the state court free them? Often not. It took a federal judge with lifetime appointment to make the politically difficult decision to overturn their wrongful convictions and sentences. Strip away federal habeas as a method to reverse state court errors and free the actually innocent and what will you get? Alot of people will be executed or rot away in jail who should be free.

I'm not a death penalty proponent by any means, but if governments are going to engage in the hubris of deciding who will live and die, the least they can do is provide meaningful and ongoing review of the fairness and justness of their capital sentencing decisions.

[Gary Farber]

Johnny Scrum-half: "2. I think that Scalia, and everyone else taking the minority view on this thread, certainly would have a moral problem with the idea of an innocent person being executed. I would hope that, were there to be evidence that established a convict's innocence, anyone in a position to prevent an unjust execution would find a way to do so."

He certainly has no moral problem with finding the Constitution says otherwise:

[...] Scalia wrote: “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

[Patricia Shannon]

I am familiar with the Troy Davis case because I am unfortunate enough to live in Georgia, and hope to be able to afford to move away. The mentality of many here seems to me pretty medieval. The fact that Troy Davis is still under sentence of death is no anomaly. A year or two ago, there was one of those cases of someone who had been in jail for a long time (maybe 23 years) being released because of evidence (I think DNA) that he was innocent. Within a few days, a Georgia legislator introduced a bill to reduce the number of jurors required to specify the death penalty from 12 to 6. I believe the bill was not passed, but I saw no evidence of large numbers of people being outraged.

[Marty]

"(In case anyone isn't clear: I'm not opposed to prisons; I'd simply prefer, among other things, prisons not run as hellholes.)"

While most minimum security federal facilities are not really quite hellholes, I agree with the point here. State prisons vary, city lockups also. I am not so much worried about medium and maximum security prisons for violent repeat offenders.

Actually emptying the prisons of most nonviolent offenders would be a good idea also. There should be better ways for them to repay their "debt" to society.

[Gary Farber]

habeascounsel: "In the end, federal habeas is the only means many people have of freeing themselves if they have had an unfair trial or are actually innocent. The state courts, populated as they are by ex-prosecutors who often have to stand for re-election, often can't be relied upon to rectify their own mistakes."

So would you say that at least this part of the ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996 was a bad idea?

[...] Title I of the Act substantially amends federal habeas corpus law as it applies to both state and federal prisoners whether on death row or imprisoned for a term of years by providing:

a bar on federal habeas reconsideration of legal and factual issues ruled upon by state courts in most instances;

creation of a general 1 year statute of limitations ;

creation of a 6 month statute of limitation in death penalty cases;

encouragement for states to appoint counsel for indigent state death row inmates during state habeas or unitary appellate proceedings; and

a requirement of appellate court approval for repetitious habeas petitions.

[Marty]

"He certainly has no moral problem with finding the Constitution says otherwise:

[...] Scalia wrote: “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

Since IANAL and do not know the answer to this question please bear with me.

Where is the point in our legal system where an appeal based on "new evidence" should be filed?

[Sebastian]

I don't however agree with you on the Getsy case. I certainly think that the guy who hired the hit man should be put to death too, but the fact that he isn't being put to death doesn't raise any particularly strong Consitutuional issues that involve stopping Getsy's execution. (Does due process require that we execute the hiring guy? That argument ought to be at least as strong as due process requiring that we not execute the hit man, but I stronlgy suspect I won't be seeing the Supreme Court case arguing that it was unconstitutional to stick him with life in prison, therefore, he ought to be put to death).

[Gary Farber]

"I am not so much worried about medium and maximum security prisons for violent repeat offenders."

Marty, does everyone who winds up in medium or maximum security prison deserve this? That is, do they deserve sexual slavery?

[...] His crimes were relatively minor and all nonviolent - burglary, a bad check, cocaine possession - but they were enough to send him to Allred, a maximum security prison 250 miles north of here, on the Oklahoma border. According to state prison records, Allred ranked second among the more than 70 Texas prisons in the number of sexual assaults in the two years ending in August 2003. It reported 50 out of 635, with the Telford unit in Bowie County first, with 59.

And what happens?

[...] According to court papers and his own detailed account, the Gangster Disciples and then other gangs treated Mr. Johnson as a sex slave. They bought and sold him, and they rented him out. Some sex acts cost $5, others $10.

[...]

At prison hearings, Mr. Johnson said, officials would take pleasure in his plight. They suggested that he was enjoying the rapes, he said.

Mr. Johnson said they told him he had two choices. One was to fight. The other was to engage in sex. The officials deny they mishandled the complaints and the ugly comments attributed to them.

[...]

"Six Texas inmates, separately and independently, gave Human Rights Watch firsthand accounts of being forced into this type of sexual slavery, having been 'sold' or 'rented' out to other inmates," the report said. Those inmates, and other Texas prisoners, told the group that sexual slavery "is commonplace in the system's most dangerous prison units." The group said it also "collected personal testimonies form inmates in Illinois, Michigan, California and Arkansas who have survived situations of sexual slavery."

[...]

Mr. Johnson was later sold to the Bloods and then to other gangs, he said. Once, a bidding war broke out. He was told he was worth $100 in the open market.

"They would prostitute you out, sell you for $5 or $10 of commissary," he said, referring to credit at the prison store. "Or cigarettes. Or cash money."

Once, Mr. Johnson was raped by eight men, one after the other, he said in the suit. He was raped in cells and stairwells, he said, but the showers were the worst. "It's like throwing a piece of meat to a pack of wolves," he said.

Throughout, he was called Coco. The other prisoners used feminine pronouns - she, her - when they talked about him.

[...]

On March 17, 2002, according to Mr. Johnson's court filings, members of a gang called the Mexican Mafia forced him and a mentally ill man known as Alazar to masturbate each other in the shower. They repeatedly forced Alazar to insert his finger into Mr. Johnson's anus and then to lick his own finger.

Thinking back on his ordeal in prison, Mr. Johnson said: "It broke my spirit. It broke my pride."

You seem to be a decent man, so I'd like to think that, knowing about this sort of thing, you might actually, in fact, have a problem with it.

And if you have time, I'd appreciate your reading this (it's Atul Gawande again!), and telling me why even the worst offenders should be given solitary confinement for over ninety days.

But you have to find time to read the whole thing before responding.

[Gary Farber]

"I am not so much worried about medium and maximum security prisons for violent repeat offenders."

A good part of my point is that medium, and sometimes even maximum, security prisons, are not, by the way, at all restricted to "violent repeat offenders."

But even the worst offenders should have some level of human rights. We're responsible as human beings, all of us, for what we tolerate in how we treat even the lowest among us.

Various religions have things to say about this, as well as non-religion-based systems of ethics. (If only we had a professor of ethics to comment!)

[habeascounsel]

I deal with the Anti-Terrorism and Effective Death Penalty Act (AEDPA) on a daily basis and there is no part of it that I don't find an abomination. I'm particalarly troubled by the fact that AEDPA deprives federal courts of the power to remedy many state court decisions that violate defendant's constitutional rights to a fair trial. Such state court decisions can't be reversed simply because they are wrong, they must be shown to be "unreasonably" wrong. This adds new meaning to the phrase "close enough for government work."

[Gary Farber]

And let's not forget what "three strikes" laws consists of.

[...] As a result, some defendants have been given sentences of 25 years to life in prison for such crimes as shoplifting golf clubs (Gary Ewing, previous strikes for burglary and robbery with a knife), nine videotapes (Leandro Andrade, received double sentence of 25 year-to-life for 2 counts of shoplifting), or, along with a violent assault, a slice of pepperoni pizza from a group of children (Jerry Dewayne Williams, four previous non-violent felonies, sentence later reduced to six years). In Rummel v. Estelle (1980), the Supreme Court upheld life with possible parole for a third-strike fraud felony in Texas, which arose from a refusal to repay $120.75 paid for air conditioning repair which was subsequently considered unsatisfactory.[8]

In one particularly notorious case, Kevin Weber was sentenced to 26 years to life for the crime of stealing four chocolate chip cookies (previous strikes of burglary and assault with a deadly weapon).[9] However, prosecutors said the six-time parole violator broke into the restaurant to rob the safe after a busy Mother's Day holiday, but he triggered the alarm system before he could do it. When arrested, his pockets were full of cookies he had taken from the restaurant.

[...]

It is possible for a defendant to be charged and convicted with multiple "third strikes" (technically third and fourth strikes) in a single case. It is also possible for multiple "third" strikes to arise from a single criminal act (or omission). As a result, a defendant may then be given two separate sentences that run consecutively,[11] which can make for a sentence of 50 (or 75, or 100) years to life. 50 years to life was the actual sentence given to Leandro Andrade.

This is our "justice" system.

This is Leandro Andrade, now serving 50-years-to-life sentence, which the SCOTUS says is just fine.

How dangerous is he? How heinous his crimes?

[...] On November 4, 1995, Andrade stole five videotapes from a K-Mart store in Ontario, California. Two weeks later, he stole four videotapes from a different K-Mart store in Montclair, California. Andrade had been in and out of the state and federal prison systems since 1982. By the time of these two crimes in 1995, he had been convicted of petty theft, residential burglary, transportation of marijuana, and escape from prison.

But videotapes (and now DVDs) are safer. (Should he have gone to jail for residential burglary? I don't know the specifics: maybe. How about less than fifty-years-to-life for all this, though?

Wouldn't a year do?

Or maybe even six months and probation, and then seeing what happens?

Would we all be that endangered if we didn't have the "three strikes" laws that function this way?

[Marty]

"But you have to find time to read the whole thing before responding."

I will, I have bookmarked it. And as I said:

Actually emptying the prisons of most nonviolent offenders would be a good idea also. There should be better ways for them to repay their "debt" to society.

This is an area I have some direct experience with, family in them and family as prison guards.

I was exposed to this from very early childhood. Prison of any sort is a bad solution for nonviolent offenders, being "grounded" rarely keeps someone from smoking pot, but often provides the same sort of outcome as war, or worse.

The allocation of prisoners to certain prisons creates horrific injustice and the ability to actually manage a rational prison system would be enhanced significantly if overcrowding didn't put guards at risk.

Much better screening of guards is also a requirement for these improvements. etc.

I'll constrain my rant until I have read the link.

[Gary Farber]

Sebastian: "I don't however agree with you on the Getsy case. I certainly think that the guy who hired the hit man should be put to death too, but the fact that he isn't being put to death doesn't raise any particularly strong Consitutuional issues that involve stopping Getsy's execution."

What about "nor deny to any person within its jurisdiction the equal protection of the laws"?

"(Does due process require that we execute the hiring guy? That argument ought to be at least as strong as due process requiring that we not execute the hit man, but I stronlgy suspect I won't be seeing the Supreme Court case arguing that it was unconstitutional to stick him with life in prison, therefore, he ought to be put to death)."

IANAL, and you are, Sebastian, but aren't there limits in the U.S. on the prosecution appealing sentences on the grounds that they're too lenient? I'll ask you before I google for my own answer.

[Marty]

"Would we all be that endangered if we didn't have the "three strikes" laws that function this way?"

Of all the things discussed in this or any legal thread, three strikes is an abomination. A ludicrous, ill thought out, lazy and cruel means of easing the strain on courts, thus shifting a small problem to the prisons where it is a big problem.

[Gary Farber]

"Actually emptying the prisons of most nonviolent offenders would be a good idea also. There should be better ways for them to repay their 'debt' to society."

"Much better screening of guards is also a requirement for these improvements. etc."

On these things we can agree.

[The Crafty Trilobite]

But, but, but better guards would cost money! How could we afford to pay all our lobbyists' contracts for new prisons? Which we need to stimulate the local economy, you know, and that's why three-strikes laws are such a great idea!

You, sir, are Soft On Crime. I hate to say it of a fellow American, but I think you are a Liberal.

[Marty]

"You, sir, are Soft On Crime. I hate to say it of a fellow American, but I think you are a Liberal."

I resemble that remark. Saving money on useless expenditures on more prisons is patently Conservative. Aside from the whole government setting standards for guards stuff that we could just keep between us.

(But I do like soft serve ice cream)

[S.R.]

1.The death penalty is an abomination and is a sure sign of a neanderthal, barbaric country.

2.The man is almost certainly innocent. Seven of the nine witnesses have recanted, saying the cops strongarmed them into saying Davis was guilty and of the two remaining one is now believed to be the actual triggerman. Georgia refuses to give him a new trial and wants to hurry up and murder Davis to bring a false sense of closure to the family of the dead off-duty cop.

Obama surely has heard of the Troy Davis case and knows at least the outlines of it. As president he has the power to commute his sentence and save this man's life. As an Uncle Tom sellout stooge of the ruling elite and happy face on more of the same conservative b.s. he's surely going to turn the other way while Troy Davis dies rather than appear "soft on crime" or that he's commuting his sentence because he's black. Barack Obama. Change you can believe in? Yeah, right. He's a ventriloquist dummy with David Rockefeller's hand up his ass.

[Marty]

"But you have to find time to read the whole thing before responding."

Gary,

I read the whole article. My reaction is that it barely scratches the surface of the evil done in our prison system in the name of maintaining order. It is the extreme, and while I agree that it is torture, I am not sure which torture is worse, solitary or being the weakest one in the yard.

But I should not quibble on the edges, there are horrible places to be incarcerated in our country, Guantanamo is probably not the worst.

[Joe]

"So would you say that at least this part of the ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996 was a bad idea?"

Over at Slate, a few defense lawyers on the message board over the years have pointed to the problems with this law in the trenches. Many lower court judges (both libs and conservatives in some cases) agree, as suggested by a recent NYT article on the death penalty on the appellate level.

The matter underlines the importance of Obama's picks for the lower courts. It also connects the "terror" and domestic crime.

[John Miller]

S.R. before you get bent oujt of shape, Obama can't do a thing. He can only pardon or commute for Federal offenses. Try to get a better understanding of things before you start coming down on the guy. There are enough other things to compalin about.

[Jim Parish]

As president he has the power to commute his sentence and save this man's life.

If I understand correctly, the President's pardoning power applies only to Federal crimes. Only the Georgia State Board of Pardons and Paroles has that power in this case.

[jonnybutter]

Seb: My general saddness isn't about capital cases (which are high profile) but about other long incarceration innocence cases. I believe that they tend to get less review than capital cases, tend to have less rigorous trials than capital cases, and are more likely never to be discovered.

Although i think capital punishment is, frankly, indefensible, I otherwise wholeheartedly agree with Sebastian here. While I'm lucky enough to not have had any direct personal experience with a state prison system, I have lived most of my life in a state which is worse than average in this regard (Illinois), and therefore know all too well what he's talking about. It is more widespread (and only slightly less repulsive than a death sentence) that people are routinely 'thrown away' into the prison system for the benefit of some ambitious prosecutor, often colluding with rancid cops. It stinks like the crime scene it is.

[Cal Gal]

" Perhaps a ruling based on some particular systemic crappiness that has been established in this case and that would not necessarily be present in future unmeritorious claims."

That's your Bush v. Gore right there. Scablia didn't have too much problem with that one, did he?

[Gary Farber]

"It is the extreme, and while I agree that it is torture, I am not sure which torture is worse, solitary or being the weakest one in the yard."

That's a good question.

Thanks for taking the time to read the whole thing, Marty.

"As president he has the power to commute his sentence and save this man's life."

Flatly wrong. Article II, Section 2 of the United States Constitution says that the President: "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

That's not "in the United States."

Davis didn't commit a federal offense. The president of the U.S. has no power to pardon or commute someone who has committed an offense against the laws of a state.

[Gregman2]

It's all in how the convicted is able to convince the habeas court. presumably it's via de novo evidence (except as the author notes) habeas courts only deal with procedure.

[Mike P]

To claim that "actual innocence" triggers habeas relief gives rise to an extremely complex set of constitutional and statutory questions, and has all sorts of wide-ranging implications. (Just trust me).

Okay, I trust you, but I still find this topic very interesting. Surely there must be some overview articles or books about the questions and implications. Any suggestions?

[jrudkis]

"shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

Gary,

Stop being such a strict Constructionist. "Against the US" can easily include any State within the Union. If I shoot your foot, did I not shoot "you?" Despite the discrete nature of having a foot, it is still an affront to you.

A Crime in GA is still a crime against the US, unless you are claiming that GA is not part of the US.

"Free the Pardon!"