The Arbitrary Execution of Tom Thompson

I knew if I wanted to see Tom one last time I had to leave for the prison soon. It was already late in the afternoon and at 6:00 pm, he would be taken from the visiting area to the death watch cell for his last meal. There he would remain until 25 minutes before midnight when he would be led to the execution chamber next door. There wasn’t anything left for me to do anyway, so I left my San Francisco office and drove over the Golden Gate Bridge to San Quentin State Prison.

The parking lot to the East Gate of the prison is just a few yards from the San Francisco Bay. Even after countless visits the contrast between the sweeping vista of the coastline and the grim reality inside the prison’s peach colored concrete walls is striking. I passed through security and walked slowly down the long path leading to the Main Visiting Room. I was let in through the two sets of heavy doors, and saw Tom, surrounded by family and close friends, presiding over a gathering that could only be described as surreal. Tom had been on death row for fourteen years, and the prison guards who knew him well seemed as traumatized as everyone else. They were overly solicitous, awkward, almost apologetic. Instead of the usual vending machine fare there was a platter of cold cuts for sandwiches and sodas on a long table. Although in a matter of hours he was going to be strapped to a gurney and lethally injected with poison, it was Tom who was trying to keep things light, with the corny jokes and over-the-top impersonations – Steve Martin as the “Wild and Crazy Guy” and Mike Myers as Austin Powers – with which I had become all too familiar.

Behind his silliness, Tom was thoroughly depleted from being the center of a spectacle that surrounded him as the fifth man about to be executed in California since the death penalty was re-instituted in 1977. A physically healthy 43 year old was going through the process of dying, and it was disorienting and  unbearably stressful. He had been enduring emotionally-charged visits from his friends and loved ones, for whom he felt the need to constantly perform. He met often with me and other members of the legal team to approve a list of execution witnesses (he was entitled to five) and to be kept abreast of last minute developments – of which there were few. He had been under 24 hour surveillance from guards for the past five days, making sleep impossible. In accordance with prison rules, he had been stripped of his “non-legal property.” He had no reading or writing material. He was denied his art supplies, which he had used for surprisingly impressive paintings over the years, including a portrait of Billy Idol he had given me a few months earlier.

We had been preparing for this moment for far too long, having gone through a similar process one year earlier when, despite a stay of execution, prison personnel proceeded methodically with its execution protocol until, with six hours to spare, they were finally assured that the Supreme Court would not disturb the stay. There was not much left to say. Tom, although hampered by waist chains, enveloped me as best he could in a big bear hug, and thanked me for all I had done. He told me that I should feel proud about putting up such a good and righteous fight. I replied that it had been an honor to have worked with him. I exchanged tearful goodbyes with his sister and mother. I walked out of the prison and returned to my office where I continued to file court papers with little chance of success and railed to reporters about injustice. All to no avail. Six minutes after midnight on July 14, 1998, Tom Thompson was dead.

*          *          *          *

Tom Thompson had no criminal record or history of violence when he was tried for the murder of Ginger Fleischli in 1984.  He was found guilty of murder and sentenced to death based largely on the false testimony of jailhouse snitches and the failure of his trial lawyer to challenge the bogus evidence of rape invented by the prosecutor.  (The rape special-circumstance provided the basis for the death penalty.)

An explosive scandal involving the Orange County D.A.'s office has only recently shed light on the extent of the unethical behavior routinely engaged in by its prosecutors to secure death sentences.  And Michael Jacobs -- the prosecutor in Tom's case -- has been revealed to be one of the more notorious.  Jacobs was fired in 2001 for insubordination and dishonesty.  The litany of his misconduct over several cases includes presenting false testimony, using unreliable informants, and hiding exculpatory evidence -- all of which he did in Tom's case.  And there was more.  Jacobs used contradictory evidence and arguments in two separate trials to convict first Tom and then Tom's roommate, David Leitch -- the victim's former boyfriend and a man with a violent past -- on inconsistent theories.  The reliability of many other Orange County cases has been called into question since the D.A. scandal broke -- and one murder conviction based on the false testimony of one of the very same snitches who testified against Tom has been reversed.  Of course, this all comes too late for Tom.

There are approximately 750 men and women on death row in California.  Tom Thompson is one of 13 who have been executed since the death penalty was reinstated 40 years ago.  While others sentenced to death around the same time languished on death row (several of whom continue to languish), his case jumped to the head of the class for no discernible reason.  And then a series of safeguards designed to ensure that the death penalty is fairly and reliably imposed -- state and federal appellate review and clemency -- completely and utterly failed. 

All death sentences in California are automatically reviewed by the California Supreme Court.  Tom's appeal was heard in 1988, two years after three liberal justices were recalled by the voters and replaced by an ultra-conservative governor with ultra-conservative justices.  The Court was thereby transformed almost overnight from one that was appropriately open to reversing cases based on meritorious claims to one that essentially rubber-stamped death penalty cases by finding virtually every error alleged in virtually every case to be harmless.  Accordingly, Tom's conviction and sentence were affirmed.

The case then moved to federal court, where in 1995, Tom's death sentence and rape-related charges were reversed based on a finding of ineffective assistance of trial counsel for counsel's inexcusable failure to adequately rebut the snitch testimony and other evidence that purported to establish rape.  The state appealed this decision to the U.S. Court of Appeals for the Ninth Circuit. 

It is not much of an exaggeration to say that the composition of the randomly drawn three-judge panel in the federal appellate courts is the most important factor in determining the life and death of a condemned inmate.  If at least two of the judges on the panel are essentially liberal, the death penalty will likely be reversed; if they are conservative it usually will be upheld. It is simply luck of the draw and, unfortunately, Tom got a very, very bad draw.  Despite what at the time was a majority of liberal judges on the Ninth Circuit, all three judges on Tom’s panel were extremely conservative Reagan appointees.  It was therefore not surprising -- but wholly arbitrary -- when the panel reversed the district court's ruling in 1996.

To mitigate such arbitrariness is another important safeguard -- en banc review, in which an 11-judge Ninth Circuit panel has the option to review a 3-judge panel's ruling.  Court papers were filed requesting rehearing en banc, which can only be granted after one of the active judges who sits on the Ninth Circuit calls for a vote and a majority of those judges then vote in favor of rehearing. Given the number of liberal judges on the Ninth Circuit at that time it would be unusual for there not to at least be one judge calling for a vote in a death penalty case.  However, on March 6, 1997, an order issued stating that the request for en banc review was denied because not one judge asked for a vote to rehear the case. After the U.S. Supreme Court denied review, an execution date was set for August 5, 1997. 

In the months that followed, evidence surfaced that corroborated Tom's long-standing version of events -- that he and the victim had consensual sex on the night of her death.  This included a statement from Tom's roommate, David Leitch, that was never turned over to the defense.  Such evidence completely undermined the prosecutor's rape-murder theory and called into question the credibility and integrity of the prosecutor's entire case.   Unfortunately, presenting this new evidence was severely hampered by a federal law that had just been enacted in the wake of the Oklahoma City bombing.  The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") was designed to thwart "frivolous appeals" but it cast far too wide a net and created virtually insurmountable hurdles to presenting new claims in federal court.  Another problem was that the federal judge who had originally granted relief had passed away and the case was assigned to a far more conservative judge who was completely unreceptive to this new evidence and rejected the claim. 

Another purported safeguard is clemency, a process in which the governor is empowered to act when the judicial system breaks down.  No California governor since Ronald Reagan, however, has seen fit to grant clemency in a capital case, and in Tom's case, Governor Pete Wilson proved no exception. Despite powerful and emotional pleas from family and loved ones, the lack of any prior criminal history, testimonials from prison guards about Tom's exemplary conduct at San Quentin, and serious doubts raised regarding the fairness of the trial and the subsequent judicial proceedings, Wilson denied clemency.  He ultimately based his decision on nothing more than a determination that Tom could not prove his innocence ("But at the end of it all, I am absolutely confident that he raped and murdered Ginger Fleischli").

On August 3, 1997, one night before Tom's execution was scheduled to take place, an 11-judge en banc panel of the Ninth Circuit issued a dramatic order.  The court explained that it was taking the highly unusual step of ruling after its earlier denial of review because of “exceptional circumstances” caused by a malfunction in the court’s review process -- a glitch in the court's communication system that resulted in the failure of any judge voting to review the case en banc the first time -- and because “we are convinced that the panel committed fundamental errors of law that would result in a manifest injustice.” The Ninth Circuit then vacated the three-judge panel opinion, and reversed the death sentence, holding that trial counsel's ineffectiveness was prejudicial and that the prosecutor’s use of fundamentally inconsistent theories at Tom and David’s separate trials was fundamentally unfair.

The state sought review in the U.S. Supreme Court, while the prison proceeded with its execution protocol.  With six hours to spare, the Supreme Court refused the state's invitation to summarily reverse the Ninth Circuit and allow the execution to go forward.  But it did agree to hear the state's appeal on December 9, 1997. 

The grand stairway of 53 steps, the massive Corinthian marble columns, the grandeur of the Great Hall, and all the pomp and circumstance attending the Supreme Court are surely designed to give lawyers a sense of awe and wonder as they go through the red-curtained entrance into the courtroom and sit just a few short feet from the nine justices.  One comes completely down to earth, however, as it becomes clear that at least a majority of those justices intend to make sure one’s client is executed. This seemed like a foregone conclusion in Tom’s case. When the high court decides to intervene in a Ninth Circuit case that has reversed a death sentence it is usually not to approve its ruling.  And thus, another safeguard proved ephemeral.  On April 29, 1998, by a bare 5-to-4 majority, the Court reversed the Ninth Circuit and ordered it to reinstate Tom's death sentence. Justice Kennedy (a former Ninth Circuit judge, himself) wrote the majority opinion, finding a “grave abuse of discretion” in the Ninth Circuit’s handling of  the case, and stressed the importance of “finality” of state judgments. Thus, even though Tom was not at fault, the Court rejected Tom’s claims on the technicality that the Ninth Circuit had waited too long to grant en banc review.  The Court never even addressed the validity of Tom’s substantive claims.  A new execution date was set for July 14, 1998.

The last hope was the separate appeal of the federal judge's rejection of the newly discovered evidence of innocence.  The case was heard by the same en banc panel that had granted relief earlier, but the court was no longer receptive.  It seemed chastened by the lashing it had received by the Supreme Court and shackled by the barriers to relief imposed by AEDPA.  At 11:00 p.m., on July 11, 1998, the court denied relief. Tom was executed two nights later.

*          *          *          *

Tom Thompson was represented by a trial lawyer who failed to take the steps required to afford minimally competent representation in a capital case. He was convicted and sentenced to death in a county where a cynical prosecutor could pick and choose among jail inmates who were willing and able to manufacture evidence to support the prosecution’s theory of the case. His death sentence was affirmed by a state court that at the time refused to meaningfully review death penalty cases. Relief in federal court was first denied because he unluckily drew a conservative panel and later because of legal technicalities that had nothing to do with the merits of his claims. Despite obtaining new evidence that suggested he was innocent, Tom was precluded from obtaining a new trial because of insurmountable legal procedures and the paramount importance of closure. 

Almost twenty years later, poor defense lawyers, unsavory prosecutors, disinterested courts and impenetrable procedural hurdles remain all too common elements in capital cases.  They are inherent aspects of an irreparably broken system.  Apart from the barbarity of the death penalty, the absence of meaningful safeguards to ensure that death sentences are not unreliably and arbitrarily imposed and carried out should be deeply disturbing to anyone who cares about fairness and justice. 

Meanwhile, here in California, the state supreme court is weighing whether to implement vote-approved Proposition 66, a cynical initiative that would do absolutely nothing to address the root problems with California's death penalty – arbitrariness and unreliability -- the problems which led to Tom Thompson's execution.  Worse, it would further undermine the already tenuous ability of the legal system to ensure that death sentences are fairly and consistently imposed and that innocent men and women are not executed.  If the challenges to Proposition 66 are rejected, it will pave the way for more Tom Thompsons.

(Originally published on December 18, 2015; here are other pieces on Tom Thompson -- My Opposite and  Final Hours)

California's Death Penalty Cannot Be Reformed; It Must Be Replaced: Yes on 62 And No on 66

Voters have an opportunity to finally put an end to California's failed experiment with the death penalty by passing Proposition 62, and replacing it with a sentence of life without the possibility of parole.

The history of California's death penalty is like a dystopian Goldilocks and the Three Bears story.  Its original death penalty law, codified in the late 1800s, was too hot -- with no guidelines for how or under what circumstances to impose death, it gave juries too much discretion.  It was struck down as unconstitutional in 1972. The next version was too cold -- taking the opposite approach with a mandatory death sentence that automatically imposed death when a defendant was found guilty of first degree murder, it provided for no discretion at all.  That law was found unconstitutional too. But unlike with Goldilocks, the death penalty scheme passed by California voters in 1978 -- the present law -- is far from just right.

As recently described in a Los Angeles Times editorial, California's death penalty is a "dysfunctional mess."  It has proven to be ineffective, unreliable and arbitrarily applied.  And it cannot be fixed. 

Among the many problems with California’s death penalty is that it leaves far too much power in the hands of individual prosecutors in individual county district attorney’s offices to decide which cases are "death worthy."  Indeed, one of the critical factors that determines who receives a death sentence is not the nature of the crime or record of the defendant but a wholly arbitrary one -- the county in which the crime happens to have been committed.  Remarkably, there are only a tiny fraction of counties -- sixteen -- in the entire country that account for most current death sentences, and five of them are here in California (Los Angeles, Orange, Riverside, San Bernardino and Kern). 

Another factor leading to arbitrariness is the quality of the defense team.  It has long been understood that the death penalty is generally reserved for those with the worst lawyer, not those who commit the worst crimes.  Defendants who are represented at trial by experienced, well-trained capital defense attorneys, particularly in public defender offices, are far less likely to get the death penalty than those represented by private lawyers who often suffer from conflicts of interest when it comes to spending time and money on developing a defense.  The differences are stark.  In Los Angeles, for example, thirty defendants represented by private attorneys have received a death sentence compared with four represented by public defenders. 

And, one can't talk about the systemic problems with the death penalty without talking about race.  It is simply a reality that one who kills a white person is far more likely to be subject to the death penalty than one who kills a person of color.  Add the ability of prosecutors to use peremptory jury challenges to strike African Americans and Latinos from juries, and the fact that most judges and prosecutors in counties where the death penalty is most frequently sought are white, and we are left with a system that is plagued by racial bias.

In sum, California’s current death penalty has proven to be an arbitrary and unreliable government program that has cost taxpayers $5 billion dollars while resulting in "just" thirteen executions – none in the past ten years.  All the while, 746 men and women languish on the largest death row in the country – a volume of death sentences that has clearly overwhelmed the judicial system. 

There are two death penalty initiatives on November’s ballot:  Proposition 62 will repeal the death penalty while Proposition 66 purports to reform it.

The backers of Proposition 66 are pushing another fairy tale.  In reality, Proposition 66 would take a broken system and make it worse by shifting the costs and burdens to ill-equipped lower courts and unqualified attorneys. It purports to speed up appellate review of death sentences by adding new bureaucratic layers to the process -- saddling local trial courts with the responsibility of adjudicating capital appeals and forcing attorneys with no experience with capital cases to take them.  A recent San Francisco Chronicle editorial called Proposition 66 a “highly complex, probably very expensive and constitutionally questionable scheme.”

Proposition 66 would do nothing to address the root problems with California's death penalty – ineffectiveness, arbitrariness, racial bias and unreliability. 

And even worse, Proposition 66’s proposed changes would actually slow down, not speed up, an appellate process that already takes 25 years or more. The nearly 750 people on death row are all entitled to qualified attorneys to handle their post-conviction challenges -- but there are simply not enough lawyers ready and, more importantly, able to do so.  But the answer isn't lowering the bar for the appointment of hundreds of untrained attorneys and increasing the number of courts that can consider challenges as Proposition 66 would do.  This would only lead to more problems, more delay and more unreliability -- and more costs.

And even assuming Proposition 66 could miraculously speed up the first part of the appellate process in state court, there is a second layer of mandated review in federal court after the state process concludes -- another bottleneck in which over 200 of California death row inmates are seeking review (a number that is itself larger than just about every other state's death row).  Proposition 66 does nothing to address the delays in federal court – and thus the delays in the system overall -- because California voters can’t set rules for the federal post-conviction process.

The Los Angeles Times described Proposition 66 as “a menu of mostly distasteful ideas” that is unlikely to “achieve the kind of fast-tracking” its proponents promise while likely to make the system “even more expensive.” It would undermine the already tenuous ability of the legal system to ensure that death sentences are fairly and consistently imposed and that innocent men and women are not executed.  This attempt at streamlining justice will simply not fix the intractable flaws of California's death penalty.

Proposition 62 provides a simple, commonsense solution to an unfixable death penalty system.  Replacing the death penalty with life without the possibility of parole, according to the non-partisan Legislative Analyst’s Office, will save taxpayers $150 million every year.  More importantly, Proposition 62 will finally put an end to this risky, discriminatory, arbitrary and dysfunctional mess. 

To volunteer, donate and/or learn more about Prop 62, click here. 

[Read more:  The Arbitrary Execution of Tom Thompson;  Another Poster Child For California's Dysfunctional Death Penalty]

Passion For Justice

Quin Denvir, a long-time criminal defense attorney -- with significant stints as the State Public Defender and the Federal Defender for the Eastern District of California -- embodied the zealous advocate, representing countless criminal defendants with fierce determination and more than occasional brilliance.  He and I were co-counsel for Tom Thompson, who was executed on July 14, 1998 -- a case that was fraught with legal errors, arbitrary rulings and mind-blowing unfairness with serious questions of Tom's guilt remaining unresolved.  (I've written extensively about the case, including here: The Arbitrary Execution of Tom Thompson) 

Quin died last week at the age of 76.  At his funeral yesterday, I heard for the first time that when the State of California was busy killing Tom, Quin was at the St. James Catholic Church in Davis, having asked the pastor to open the doors for him, weeping.  I found this story about this remarkably accomplished, greatly esteemed man with a deep faith in humanity and an intense passion for social justice confronting such stark inhumanity and injustice so deeply moving.  It is an image of my friend and colleague that I will not soon forget.

A couple of months before his death, Quin wrote a letter to Governor Jerry Brown (who had appointed Quin to be the State Public Defender during Brown's first term) urging him to commute the death sentences of the men and women on California's death row.  He pointed out that he had represented several death row inmates" and "lost one, Tom Thompson, [who] was very likely innocent of capital murder." Quin wrote that “the state should not make the moral choice to kill women and men because they themselves have killed.” He also pointed out that "the criminal justice system is an imperfect one, administered by men and women with their human frailties and susceptibility to public pressure and political tides. We accept those imperfections when life is not at stake, but we should not when there is the great risk that the death sentence will be imposed, as it has been in the past, in an arbitrary, discriminatory or unreliable manner." 

In his letter to the Governor, Quin appealed to Brown's Catholic faith: “Now, in Pope Francis’ Year of Mercy, I would like to see California stop its, as  [former Supreme Court] Justice Blackmun put it, tinkering with the machinery of death." He closed by saying,“I hope and pray that you will see this as the right thing, something that you can and should do."  Governor Brown never responded.

Reportedly, having been rebuffed by Brown, Quin next wrote to Pope Francis.  He never heard back from the Pope either.  But perhaps now Quin can go over the Pope's head and appeal to an even higher power.  If he can, I know he certainly will.  RIP.

The Unnatural Death Of Bernard Hamilton

After 35 years on death row, Bernard Hamilton died of "natural causes" at the age of 64.  How profoundly messed up is our system of criminal justice that I could even write such a sentence?  What an enormous waste of judicial resources.  What an enormous waste of taxpayer money.  What an enormous waste of time, emotion and hard work for the countless people who have tried to kill him and for those who tried to save him. 

California's death penalty system is so dysfunctional that even after 35 years, issues regarding the reliability of his conviction and the fairness of his death sentence have not been resolved.  And now they never will be because Bernard Hamilton has died of "natural causes" at the age of 64.

What madness.
 
In 1981, Bernard Hamilton was found guilty of the murder of a woman named Eleanore Buchanan and sentenced to death.  Although the facts of the crime are quite gruesome, the trial itself was a travesty.  (Most notably, Bernard was shackled throughout the trial, originally at his own lawyer's suggestion, calling into question both whether his lawyer could possibly represent him impartially and whether the jury would view him as anything but uncontrollably dangerous.) 

In the early 1990s, as a relatively young lawyer, I was assigned to work on Bernard's case.  By then, there had already been several dramatic twists and turns that were not untypical of the death penalty post-conviction process in California.

In 1985, the California Supreme Court reversed Bernard's death sentence because the jury was never instructed that it had to find an intent to kill before finding him eligible for the death penalty.  (The jury had found him guilty of intent to rob and kidnap, but not that the murder itself was intentional.)  The U.S. Supreme Court vacated that decision and sent the case back to the California Supreme Court for reconsideration.  Unfortunately by the time the case returned, the California Supreme Court's three liberal justices, including Chief Justice Rose Bird, had been recalled and replaced with three extremely conservative justices.  Not surprisingly, the newly transformed court reinstated Bernard's death sentence.

After state court remedies are exhausted, challenges can be made in federal court and that is where I became involved.  Ultimately, in 1994, we were able to win a reversal of Bernard's death sentence based on another instructional error.  The federal appellate court (The Ninth Circuit) agreed that the jury sentenced Bernard to death after having been misled about the likelihood that the governor could commute his sentence if the jury gave him LWOP instead of death.  (In fact, the governor did not have the power to do so.)

The San Diego District Attorney did not have to seek another death sentence.  Had he done nothing, Bernard would have been sentenced to LWOP.  Even back then, Bernard was in very poor physical health and showed signs of serious mental illness.  And despite the fears that led to his shackling during the first trial, Bernard had been a model prisoner in his years on the row.  But the D.A. sought death again, and Bernard was retried in 1995.  Remarkably, despite his impairments, he was permitted to represent himself and was again sentenced to death.  It took another 14 years for the California Supreme Court to review and uphold his death sentence on appeal.  Substantial challenges to his conviction and sentence were pending when he died. 

In 2008, the California Commission for the Fair Administration of Justice (CCFAJ), after its extensive study of the state's death penalty system, concluded that the process for reviewing death sentences was “plagued with excessive delay” in the appointment of post-conviction counsel and a “severe backlog” in the California Supreme Court's review.  Since the publication of this report, it has only gotten worse.  For the reasons explained here, California's death penalty scheme is irrevocably broken and the delay is due to the inherently dysfunctional nature of the process.

U.S. Court of Appeals Judge Arthur L. Alarcon and law professor Paula Mitchell  co-authored a ground-breaking study in 2011, concluding that "since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions."  A year later, an updated study revealed that "if the current system is maintained, Californians will spend an additional $5 billion to $7 billion over the cost of LWOP to fund the broken system between now and 2050. In that time, roughly 740 more inmates will be added to death row, an additional fourteen executions will be carried out, and more than five hundred death-row inmates will die of old age or other causes before the state executes them."

There are currently nearly 750 men and women on California's death row.  Like Bernard, they are far more likely to die of natural causes than to be executed.  Indeed, since 1978, 70 condemned inmates have died from natural causes and 8 from other causes.  25 have committed suicide.  13 have been executed.

What madness.

California's death penalty is a costly government program that doesn't work and can't be fixed.  But it can be replaced.  Headed for the ballot in 2016 is the Justice That Works initiative to replace the death penalty with LWOP - - and require defendants sentenced to LWOP to work in prison, with 60% of their wages going to victim restitution.  A Legislative Analyst's Office has determined that replacing the death penalty with LWOP would save California $150 million a year, by reducing the costs of trials and subsequent appeals.

To find out more, to volunteer and/or to donate click on this link:  Justice That Works.

[See also The Arbitrary Execution of Tom Thompson]

California's Dysfunctional Death Penalty Can't Be Fixed

California's death penalty scheme is a costly government program that doesn't work.  The approximately 750 men and women on death row are far more likely to die of natural causes than be executed.  Their legal claims, if considered at all, take roughly three decades to resolve, an excruciatingly long period of time that is due to the inherently dysfunctional nature of the process and not, as is commonly believed, from frivolous claims raised by zealous lawyers taking advantage of the process.

Paula Mitchell, a professor at Loyola Law School, recently published an article, Frivolity and the Death Penalty, demonstrating that the inordinate delay in death penalty cases is in large part caused by the adversarial nature of the system itself where "prosecutors . . .  typically do everything within their power to forestall or prevent discovery in post-conviction investigations, which is often what is needed during the appeals process to ensure that everyone has been playing by the rules."

Professor Mitchell's piece focuses on the Georgia case recently argued in the U.S. Supreme Court involving the prosecutor's use of juror challenges to strike all the African Americans from serving on the jury. As Mitchell explained, the case took close to thirty years to be heard because of the resistance of the prosecution to provide their files -- files which, when finally handed over twenty years after trial, appear to undermine the race-neutral reasons that were originally proffered for striking the jurors. 

The obstacles to obtaining critical information about the homicide, the police investigation and the trial from the prosecution (as well as from law enforcement) is certainly not unique to Georgia. Take Kenneth Clair, an African American languishing on death row for an Orange County murder that took place in 1984, where the lone eyewitness claimed the killer was white.  More than 30 years later, his lawyers are still fighting to obtain evidence in possession of the prosecution, including DNA results that could establish the identity of the actual perpetrator.

Delay caused by the resistance from prosecutors comes not only from their multi-faceted attempts to deny or at least narrow the requests for their files.  The California Attorney General also relies on a remarkably Byzantine post-conviction process, using every possible procedural loophole to avoid litigating the cases on their merits that results in years and years of delay.

For example every claim raised in post-conviction must be "exhausted' in state court before it can be presented in a habeas corpus petition in federal court.  However, the California Supreme Court is notoriously stingy when it comes to funding investigation and expert assistance so that it is often only once a case moves from state court into federal court that attorneys are able to develop critical evidence.  But if a federal claim includes even one newly discovered fact to strengthen it, the AG will insist that the case return to state court for exhaustion purposes rather than litigate the claim's underlying merits.  Then, after such claims are denied in state court -- which eventually and inevitably they are -- and the case returns to federal court, the AG will launch a new series of procedural arguments having nothing to do with the claim's substance as a basis for dismissal.

This is just one example of the countless ways the prosecution uses extremely complicated provisions to endlessly litigate procedural issues that have nothing to do with the ultimate issues of the case.  And because of this complexity and the many pitfalls waiting for an unwary attorney -- deadly pitfalls which can lead to the wholesale waiver of critical claims -- only attorneys with specialized knowledge and experience can be qualified to represent death row inmates on appeal and in post-conviction habeas proceedings.  But given the extensive training needed, the decades-long commitment, the stressful and high-stakes nature of litigating life and death issues, and the intensity of having to identify every potentially viable claim while struggling to obtain adequate funding, there is hardly a plethora of attorneys willing and, more importantly, able to do so.  And most of those who are willing and able already represent several of the vast number of inmates already on death row and are understandably reluctant to take on any more cases. 

This provides an additional basis for delay.  Indeed, after an inmate is sentenced to death in California it takes more than five years to find a qualified lawyer to handle the appeal (involving issues that arise from the trial itself) and several more years to find one to handle the habeas corpus proceedings (involving issues that must be independently and painstakingly investigated). 

Professor Mitchell, it should be remembered, co-authored a ground-breaking study in 2011, concluding that California's death penalty system was costing the state about $184 million per year.  The study found  that "since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions."  A year later, an updated study revealed that "if the current system is maintained, Californians will spend an additional $5 billion to $7 billion over the cost of [life without possibility of parole] to fund the broken system between now and 2050. In that time, roughly 740 more inmates will be added to death row, an additional fourteen executions will be carried out, and more than five hundred death-row inmates will die of old age or other causes before the state executes them."

Delay is an inherent part of capital litigation.  For the foregoing reasons and particularly in California, where virtually every homicide is eligible for the death penalty -- resulting in the largest death row in the country -- a fair, just and reliable review of death sentences is incompatible with a speedy, expedited process. 

California's death penalty can't be fixed; but it can be replaced with life without possibility of parole ("LWOP").  An initiative to do just that - - and that would require defendants sentenced to LWOP to work in prison, with 60% of their wages going to victim restitution -- may be headed for the ballot in 2016.  A Legislative Analyst's Office has determined that replacing the death penalty with LWOP would save California $150 million a year, by reducing the costs of trials and subsequent appeals.

On the other hand, a pro-death penalty group calling itself Californians for Death Penalty Savings and Reform has proposed its own ballot measure that clumsily attempts to solve the system's intractable problems without dealing with any of the root issues.  It would expand the pool of attorneys available to represent death row inmates and decentralize and streamline the process once attorneys are assigned.  Nothing in the proposal would provide funding to train this new group of lawyers.  And the so-called streamlining would not ease the procedural quagmire that causes so much of the delay.  Nor would it address the prosecution's resistance to providing its trial files.  What it would do is shorten the time to investigate and present claims, and limit possible avenues of revenue.  It thus promises to speed things up while providing less review and less skilled and experienced lawyers to navigate an impossibly complex process.  What could go wrong?

How Life And The Death Penalty Imitate The Marx Brothers

The Court:  We'll take up old business.
Defense Counsel:  I wish to discuss the [constitutionality of the death penalty]  
The Court:  Sit down, that's new business. No old business? Very well... We'll take up new business.
Defense Counsel:  Now, about the [death penalty] ....
The Court:  Too late, that's old business already. Sit down

Today, the Ninth Circuit Court of Appeal heard oral argument in the case of Jones v. Chappell, in which a federal district judge ruled that the administration of California's death penalty is irrevocably dysfunctional, resulting in systemic delays in which only the "random few" are executed in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. As U.S. District Judge Cormac J. Carney found, of the over 900 people that have been sentenced to death since the adoption of the death penalty in 1978, 13 have been executed, 94 have died of other causes. There are over 750 men and women on California's death row. The process for reviewing their death sentences takes an average of 25 years and is getting longer -- delays, as the court found, that are inherent in the system and not the fault of inmates themselves.

Anyone wishing to hear a spirited argument about this ruling and whether California's death penalty is constitutional did not hear it today.  Here's a clip:

.
The argument barely touched on the underlying merits of the case.  Instead, the focus was on whether the claim could even be considered at all under the Byzantine rules erected by the Supreme Court and Congress -- rules that are designed to thwart criminal defendants from challenging their state convictions and sentences in federal court.  Under these often insurmountable procedural hurdles, a claim cannot involve the application of a new rule that was not clearly established by the Supreme Court at the time a defendant's case became final in the state courts.  [UPDATE:  On 11/12/15, the  Ninth Circuit overturned the decision on this ground]  A claim has to be exhausted in state court before being raised in federal court.  If it has not been exhausted it is generally too late to do so.  [UPDATE:   One of the three 9th Circuit judges on the panel would have overturned the decision on exhaustion grounds]  And if it has been exhausted and the state court rejected the claim, it must also be rejected in federal court-- even if the state court erred -- as long as the state court's decision was not "unreasonable."

One often hears the cliché about criminals being released on technicalities. The reality is that far more often a defendant's righteous claims are tossed out based on technicalities. 
The infrequency of executions and the randomness with regard to which condemned inmates actually will be executed have made a mockery of the supposedly rational justifications for the death penalty.  Because it is “so wantonly and so freakishly” used, California’s death penalty has become a wholly arbitrary punishment in the same sense as the death penalty laws that were struck down by the Supreme Court in 1972 in Furman v. Georgia.

This is a critical issue going to the heart of whether the death penalty as applied in California is so dysfunctional as to be unconstitutional.  The fact that such a claim might not even be considered on its merits but, instead, could be dismissed on a technicality is further evidence of dysfunction.

Not so funny.

Justice Scalia's Poster Child For The Death Penalty Is Now A Poster Child For Abolition

Justice Harry Blackmun famously announced more than 20 years ago that he would "no longer . . . tinker with the machinery of death," expressing his deep frustration with a system that "despite the effort of the States and courts to devise legal formulas and procedural rules . . . remains fraught with arbitrariness, discrimination, caprice, and mistake." 

Blackmun made this painfully honest assessment in a dissent from the Court's refusal to review the death sentence of Bruce  Callins.  Blackmun explained that "rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved," he felt "morally and intellectually obligated simply to concede that the death penalty experiment has failed."  He understood that "no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies."  He concluded that:

The basic question-- does the system accurately and consistently determine which defendants "deserve" to die?-- cannot be answered in the affirmative. . . . The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

Blackmun's heartfelt statement stands in stark contrast to Justice Antonin Scalia's cold-blooded retort.  Scalia chided Blackmun for choosing the Callins' case -- involving the lethal shooting of a bar patron during a robbery -- as the vehicle to declare that the death penalty was unconstitutional.  Scalia asserted that "death-by-injection . . . looks even better next to some of the other cases currently before us, which Justice Blackmun did not select . . . for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared with that!"

The case that Justice Scalia plucked out as symbolizing how well the process works in determining who is deserving of death was that of Henry Lee "Buddy" McCollum. 

Back in 1994, several months after the Court denied review in the Callins case, it denied review in McCollum's as well.  Blackmun in his dissent from that denial noted that Scalia had previously questioned why he did not choose this as the case to announce his position on the death penalty.  Blackmun acknowledged that the crime was, indeed, "abhorrent" but that "there is more to the story, including that McCollum has an IQ between 60 and 69 with the mental age of a 9-year old, and that he was "far from the most culpable" of those purportedly involved in the crime.   Blackmun concluded:  "That our system of capital punishment would single out Buddy McCollum to die for this brutal crime only confirms my conclusion that the death penalty experiment has failed. Our system of capital punishment simply does not accurately and consistently determine which defendants most "deserve" to die."

There is even more to the story than Blackmun knew.  Turns out Henry Lee McCollum -- and his half-brother Leon Brown who had been convicted and sentenced to life -- were innocent. 

With no physical evidence tying them to the crime, these two mentally-disabled half-brothers had been convicted based solely on their confessions.  The confessions were written in long hand by the police and signed by McCollum and Brown, who shortly afterwards insisted they were tricked and bullied into signing them.  The confessions were, in fact, coerced and false.  Only recently was the North Carolina Innocence Inquiry Commission able to obtain DNA testing of a cigarette butt found at the crime scene -- testing which showed a match with a sex offender who lived near the crime scene and had been convicted of another rape-murder that occurred around the same time.

Last September, a North Carolina Superior Court judge vacated the convictions of McCollum and Brown, and ordered their release-- with the support of the prosecuting district attorney, the notorious Joe Freeman Britt, described by the New York Times as "the 6-foot-6, Bible-quoting district attorney who was later profiled by “60 Minutes” as the country’s 'deadliest D.A.' because he sought the death penalty so often."

And last week, North Carolina Governor Pat McCrory pardoned McCollum and Brown, stating: “Based on the available evidence I’ve reviewed, I am granting pardons of innocence to Henry McCollum and Leon Brown. It’s the right thing to do.”

 

Justice Scalia -- along with Justice Clarence Thomas -- has stated that the execution of innocent men or women after they were afforded a full and fair trial does not offend the Constitution.  He is surely not troubled in the least by the revelation that the condemned man he anointed as a shining example for the death penalty's efficacy was declared innocent after serving 30 years on death row -- or troubled that this innocent man would have been executed long ago if Scalia had his way.  The rest of us should be.

The Supreme Court Demands Its Pound Of Flesh

"The pound of flesh which I demand of him Is deerely bought, 'tis mine, and I will have it."  -- Shylock, The Merchant of Venice

In the 1970s, without any scientific testing, a state medical examiner from Oklahoma concocted a three-drug cocktail for use in executions.  The first drug, a sedative, causes unconsciousness so the inmate would feel no pain.  The second drug induces muscle paralysis and respiratory arrest, while the third drug stops the heart.  Among the many problems with this protocol is that by using a paralytic agent, there is no way to tell if the barbiturate is working effectively.  In other words, if the inmate is paralyzed it can't be discerned whether he (or she) is truly unconscious or is simply unable to scream out in pain.  This became an even more troubling problem when the drug initially used for sedation became unavailable, leaving states to scramble to find other even more unreliable alternatives. 

Today the Supreme Court heard argument in the case of Glossip v. Gross, to determine whether  the sedative, midazolam -- which was used in the so-called “botched” executions that occurred last year (which I wrote about here), could reliably induce a deep enough state of unconsciousness before the other drugs – which cause intense, severe pain – were injected.  Or as Justice Kagan put it, would the drug's ineffectiveness cause the inmate to feel like “burning alive, from the inside.”

 

What was most ghoulish about today's argument, however, was not the descriptions of executions or the hypothetical questions about burnings at the stake with inadequate anesthesia, but the blood lust of a majority of the Supreme Court.

The conservatives on the Court appeared far less concerned about the excruciating pain caused by the latest untested three-drug cocktail than for those poor state officials who have been forced to devise new methods of execution because death penalty abolitionists have been effective in persuading drug companies that their products shouldn’t be used to kill people.

Justice Alito:  “Is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?”

Justice Scalia:  Other drugs have been made unavailable “by the abolitionists putting pressure on the companies that manufacture them so that the states cannot obtain those other drugs. . . The abolitionists have rendered it impossible to get the 100 percent sure drugs, and you think we should not view that as relevant to the decision that you’re putting before us?”

Justice Roberts: “The case comes to us in a posture where it’s recognized that your client is guilty of a capital offense, it’s recognized that your client is eligible for the death penalty, that that has been duly imposed.  And yet you put us in a position with your argument that he can’t be executed, even though he satisfies all of those requirements.  And you have no suggested alternative that is more humane.”

Justice Kennedy asked counsel for the inmates to answer the question whether the resistance to the death penalty was a factor that the Court should consider in weighing the validity of a given protocol.

 Justice Thomas:  [  ]

 First, Alito and Scalia are wrong that there were ever “100 percent sure drugs” used in the lethal injection process that guaranteed executions were not causing excruciating pain.  Indeed, the problems with the original drug protocol has been the subject of litigation for years and was the basis for the halting of executions in California. 

Second, the notion that the drug shortage is due solely to the pressure put on drug companies by the anti-death penalty movement is not accurate.  It is also in large measure due to the fact that more evolved foreign countries where these drugs are being sought do not sanction the death penalty and have imposed restrictions on exporting drugs for such use. 
 

But this should all be irrelevant to the question before the Court -- whether the use of a particular method of execution creates a risk of pain sufficient to violate the cruel and unusual punishment clause of the Eighth Amendment. 

The answer should be obvious.  And it is becoming obvious to more and more Americans who, as an editorial in the New York Times put it, "are finding that there is no form of state-sponsored killing that can be civilized or humane."  According to the Times, "the search for more ways to kill may be losing steam as public views change. A recent poll by the Pew Research Center found that only 56 percent of Americans approve of capital punishment — the lowest level in four decades. Among Democrats the number is 40 percent."

Particularly in this light, the frustration – indeed, anger – from the Court's majority that states are being forced to use more painful methods because other alternatives are no longer available -- not stemming from any concern about the torturous effects on human beings -- but because what they perceive as a "guerrilla war" is thwarting states in their efforts to execute people, is deeply troubling, even somewhat creepy. 

Evolving Standards Of Decency: Two Steps Forward, One Step Back

"Evolving standards of decency" is a phrase used in Eighth Amendment jurisprudence to analyze whether a given practice is cruel and unusual.  While the Supreme Court has so far refused to find that capital punishment offends "the evolving standards of decency that mark the progress of a maturing society," it feels as if we are getting closer as the death penalty is increasingly seen as too fallible and too costly to remain on the books.

Popular support for the death penalty has fallen significantly.  Six states have repealed it over the last six years, leaving 32 states with the death penalty on their books.  (Nebraska may be next.)  In four other states, most recently Pennsylvania, governors have imposed moratoria on executions, recognizing the inherent problems with their death penalty schemes.  The rate of executions around the country is rapidly declining and imposition of death sentences is at a historic low.  Meanwhile ever more exonerations are uncovering deep flaws in the criminal justice system.  And studies and reports continue to reveal the racist underpinnings of the death penalty.  (Here's the latest on that subject from my friend Marc Bookman.)

Yet some states are going in the other, less evolved, more gruesome direction.  With pharmaceutical companies balking at having their products used in executions, there is a nationwide shortage of the drugs formerly used for lethal injection.  One would hope this would give state officials the plausible excuse to reconsider the efficacy, if not morality, of continuing to kill its citizens.  Alas, some are insisting on finding alternative, even more unsavory solutions (pun intended).  Like diabolical junior chemists, they cobble together their own untested lethal combinations or obtain drugs from unregulated and undisclosed sources and test them on their human subjects.

And so, executions go forward, each one with its own unique set of macabre circumstances that dehumanize executioner and executed alike.  The latest example is Missouri, which just put to death Cecil Clayton, a 74-year old man who suffered from dementia, had an IQ of 71, and was missing a significant part of his brain.  He was the tenth person to be executed this year in the United States (half of whom were people of color, by the way).  In case you're keeping score:  4 in Texas, 2 in Missouri, 2 in Georgia and 1 in Oklahoma.  And for a worldwide perspective, other verifiable executions in 2015 have taken place in Afghanistan, China, Iran, Indonesia, Jordan, Pakistan, Saudi Arabia and Somalia.

Kelly Gissendaner was set to be the first woman executed in Georgia in 70 years, after being denied clemency despite a remarkable transformation that included obtaining a theology degree.  Gissendaner endured hours of anticipatory terror while officials concerned with the "cloudiness" of the lethal drug, weighed whether or not to go forward with the execution anyway.  Doubts over the drug's efficacy finally led to postponement. 

Other states, frustrated with the difficulties in securing lethal drugs, are taking a different route to infamy.  Oklahoma's state house has passed a bill to allow use of a gas chamber (officially, death by "nitrogen hypoxia.")  And Utah's governor just signed a bill to bring back the firing squad (which Oklahoma also authorizes).  Electrocution, hanging and firing squads still remain on the books elsewhere.

Electric chairs and gas chambers were developed to be more humane than hanging, which was the most common method of execution in the U.S. until the end of the 19th Century.  These killing machines, however, proved pretty grisly in their own right, and gave way to lethal injection -- which medical science has belatedly shown is not nearly as painless as believed and, in any event, has become impractical.

The "evolving standards of decency" standard implicitly acknowledges that we are inexorably moving forward; that while we may not be there yet, we are evolving towards a point where the death penalty will become morally unacceptable.  Reverting  back to discarded and disreputable methods of killing seems like a last gasp (pun intended) effort to maintain an unsustainable, barbaric system.  It reeks of desperation and blood lust.

California's Death Penalty, Like Pennsylvania's, Is "Ineffective, Unjust And Expensive" (Only Moreso)

Governor Tom Wolf has imposed a moratorium on executions in Pennsylvania pending review of a task force report, stating that capital punishment “has been proven to be ineffective, unjust, and expensive."  Pennsylvania has 186 inmates on death row, and has executed three men since the death penalty was reinstated.  Former federal judge Timothy K. Lewis, who consulted with the Governor regarding the power to impose a moratorium stated that "at a minimum, we must take a step back to examine the effectiveness of a system fraught with racial disparity, constant reversals, and the infinite warehousing of prisoners who await a punishment that hasn't been imposed in our State in 15 years."

California has strikingly similar problems but on a far larger scale. Death sentences are more likely to be imposed not based on the severity of the crime but on race, county and the effectiveness of defense counsel. Approximately 750 men and women languish on death row for decades, costing taxpayers billions of dollars. There have been 13 executions since the reinstatement of our death penalty in 1977, and none since 2006. 

One difference from Pennsylvania is that California's scheme has been extensively studied and its dysfunction conclusively established.  In 2008, the bipartisan California Commission for the Fair Administration of Justice (CCFAJ) issued its report which found California's death penalty is “plagued with excessive delay.” According to CCFAJ's report, the lapse of time from sentence of death to execution constitutes the longest delay of any death penalty state and “most California death sentences are actually sentences of lifetime incarceration.  The defendant will die in prison before he or she is ever executed.”  At bottom there are just too many cases and not enough qualified lawyers to handle them.

Those findings were made seven years ago and the problems have only worsened.  More recently, U.S. District Judge Cormac J. Carney held in one capital case that the administration of California's death penalty is irrevocably dysfunctional, resulting in systemic delays in which only the "random few" are executed in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.  (This ruling is currently under appeal.)  Of the over 900 people that have been sentenced to death, 13 have been executed, 94 have died of other causes.  The process for reviewing their death sentences takes an average of 25 years and is getting longer -- delays, as the court found, that are inherent in the system and not the fault of inmates themselves.

In 2011, an extensive study headed Judge Arthur Alarcon determined that California's death penalty system has cost taxpayers roughly $4 billion "to fund a dysfunctional death penalty system."  But despite these vast expenditures, the current Chief Justice of the State of California Tani Cantil-Sakauye acknowledged, the death penalty is not effective and fixing its problems would require "structural changes" that the State cannot afford.

Governor Wolf joins the governors of Washington, Oregon and Colorado who, recognizing the inherent flaws in their capital punishment systems, have issued moratoriums in recent years.  Eighteen other states have abolished the death penalty outright.  It is well past time that California follows suit and replaces the death penalty with a more effective, just, less costly -- and more humane -- system.

I Stand Against The Death Penalty Because ...

it dehumanizes the condemned and condemners, fosters rather than abates violence, and is inherently arbitrary, discriminatory and unreliable.

As described in the New York Times, photographer Marc Asnin asked his fellow photographers to upload self-portraits with a caption of 140 characters or fewer describing why they oppose capital punishment.  The result is a powerful combination of pictures and words that convey the myriad reasons the death penalty is so abhorrent. 

With this inspiration, I decided to join the effort.  Here's the link to add your own selfie against the death penalty and to support this project.

An Open Letter To Kamala Harris

Dear Madam Attorney General:

I write to urge you to not appeal Jones v. Chappell, the recent federal court decision holding that the administration of California's death penalty is irrevocably dysfunctional, resulting in systemic delays in which only the "random few" are executed in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. 

As U.S. District Judge Cormac J. Carney found, of the over 900 people that have been sentenced to death since the adoption of the death penalty in 1978, 13 have been executed, 94 have died of other causes.  There are currently 748 death row inmates. The process for reviewing their death sentences takes an average of 25 years and is getting longer -- delays, as the court found, that are inherent in the system and not the fault of inmates themselves.

I had the good fortune of meeting you in 2007, at a Death Penalty Focus Awards Dinner when, as San Francisco District Attorney, you were given the Mario Cuomo Acts of Courage Award for declining to authorize death penalty prosecutions. 

Subsequently, when you campaigned for Attorney General, you acknowledged that California's death penalty system is flawed.  You argued that the death penalty has not made us safer and that the money spent every year on the death penalty could be far more productively used to fund programs which aim to stop recidivism. As you put it, "not housing octogenarians on Death Row could put 1,000 more cops on the street."

I imagine as Attorney General you now have an even clearer sense of how broken and how costly the death penalty is.  As the bipartisan California Commission on the Fair Administration of Justice found, the system continues to be "plagued with excessive delay in the appointment of counsel" and "a severe backlog in the review" of cases before the California Supreme Court.  

An extensive study headed Judge Arthur Alarcon determined that California's death penalty system has cost taxpayers roughly $4 billion "to fund a dysfunctional death penalty system that has carried out no more than 13 executions."  But despite these vast expenditures, the current Chief Justice of the State of California Tani Cantil-Sakauye acknowledged, the death penalty is not effective and fixing its problems would require "structural changes" that the State cannot afford. Her predecessor, Ron George, who was Chief Justice for 15 years, came to the same conclusion, describing California's death penalty scheme as "dysfunctional."

The infrequency of executions and the randomness with regard to which condemned inmates actually will be executed have made a mockery of the supposedly rational justifications for the death penalty – deterrence and retribution.  In a well-reasoned and well-documented opinion, a federal judge has now agreed:  "For all practical purposes ... a sentence of death in California is a sentence of life imprisonment with the remote possibility of death -- a sentence no rational legislature or jury could ever impose."

As Attorney General, representing the People of California, you have a duty to enforce and apply the law.  But where a court has found that law to be unconstitutional, you are well within your discretion to abide by the court's decision.  By not appealing a ruling that confirms what you have long stated -- that California's death penalty is broken -- you will again be taking the kind of principled position for which you were honored when we met years ago and for which you are so admired.

(Related post:  California's Cruel and Unusual Death Penalty)

Botched Executions and Devolving Standards of Decency

Another botched execution.  This one in Oklahoma where witnesses described an "agonizing scene" in which over the course of 43 minutes, Clayton Lockett writhed, convulsed and struggled to speak before his heart "essentially exploded."  Earlier this year, on January 16, 2014, Dennis McGuire was executed in Ohio, a fifteen minute exercise in torture during which McGuire gasped and choked  before dying.

The phrase "botched execution" should be removed from the lexicon.  Webster's defines "botch" in relatively innocuous terms such as "bungle," "foul up" and "repair ineptly."  There is nothing innocuous about what the director of the ACLU in Oklahoma described as "human science experiments" -- experiments that can only be described as torture.

These latest horrors stem from the use of untested and unregulated lethal injection drugs, and the secrecy surrounding how and from whom these drugs are obtained.  As detailed in an important New York Times op-ed, presciently titled Secret Drugs, Agonizing Deaths, after an American pharmaceutical firm stopped making thiopental, the anesthetic used for executions, and federal courts barred the importation of the drug from overseas, states began substituting pentobarbital.  But with the Danish manufacturer of pentobarbital refusing to allow the drug to be used for executions, states started obtaining it from compounding pharmacies, "which mix small batches of drugs to order, and whose products are not approved by the F.D.A."  Other states, like Ohio and Oklahoma, are going with other untried drugs, such as midazolam.  

The grisly results, not at all surprising given the lack of oversight and appalling lack of scientific or medical review, are morally repulsive.
 
The "feckless" justices on the Supreme Court, as The Atlantic's Andrew Cohen, describes them, long ago should have "stop[ped] the madness caused by the current generation of lethal-injection secrecy" and "establish[ed] standards that would require states like Oklahoma to share basic information about the drugs used to kill prisoners."  And lower court state and federal judges should have demanded more through review of the issues raised by the use of new, untested lethal drug combinations.

But, the execution protocol is just the last of the many levels in the capital punishment process -- the machinery of death, as Justice Harry Blackmun put it -- in which the inevitability of human error and human frailties cause unfairness, unreliability and cruelty.  Police, trial lawyers, prosecutors, judges, jurors, appellate lawyers, appellate judges and executioners are all capable of bias and discrimination, errors in judgment and honest mistakes.  So many variables lead to so many instances of wrongful conviction, arbitrary and unjust sentence and ultimately, agonizing scenes of torture.

 "Evolving standards of decency" is a phrase used in Eighth Amendment jurisprudence to analyze whether a given practice is cruel and unusual.  The Supreme Court has so far refused to find that capital punishment offends "the evolving standards of decency that mark the progress of a maturing society."  Meanwhile, the high court continues to allow execution after execution to go forward, more concerned with finality and swift punishment than justice and decency.  Indeed, Andrew Cohen notes, just  few months ago, Justice Scalia, during oral argument in Hall v. Florida, lamented the slow pace of executions in this country.

The notion of "evolving standards of decency" has always struck me as optimistic; as an acknowledgment that, while we may not be there yet, some day our society will evolve to the point where the death penalty will be unacceptable.  Unfortunately, with state officials still clamoring for vengeance and the Supreme Court as the arbiter of our evolution, we still have a long way to go.

Travesty of Justice: Nominee To Enforce Civil Rights Rejected For Fighting For Justice

"The Senate’s failure to confirm Debo Adegbile to lead the Civil Rights Division at the Department of Justice is a travesty based on wildly unfair character attacks . . . . Mr. Adegbile’s qualifications are impeccable. . . . His unwavering dedication to protecting every American’s civil and Constitutional rights under the law – including voting rights – could not be more important right now. . . The fact that his nomination was defeated solely based on his legal representation of a defendant runs contrary to a fundamental principle of our system of justice – and those who voted against his nomination denied the American people an outstanding public servant."  -- President Obama 

Debo Adegbile

In 1982, Mumia Abu-Jamal was sentenced to death for the killing of Philadelphia Police Officer Daniel Faulkner.  Abu-Jamal remained on death row for 30 years during an intensely fought battle in both the legal arena and public sphere which resulted in his death sentence being vacated.  Now almost 60 years old, Abu-Jamal is serving a sentence of life without the possibility of parole.

Serious concerns remain about the fairness of Abu-Jamal's trial.  Some consider him a political prisoner.  On the other side, which includes Officer Faulkner's family and the Fraternal Order of Police, there continues to be outrage about the campaign to free Abu-Jamal as well as the fact that he was not executed.

No matter one's views about Abu-Jamal, about the case or the politics, or even about the death penalty, one issue should be uncontroversial -- that Abu-Jamal or any criminal defendant has the right to have an effective, zealous advocate, particularly when the case is a matter of life and death.  An important corollary, in my view, is that a lawyer's most  honorable role is to represent people who are hated and feared, and to ensure that the government is following the law.  (Here's an earlier piece, Crossing the Line, on prior attempts to smear lawyers who advocate for the despised.)

It is deeply distressing that the United States Senate just voted to reject Depo Adegbile, an otherwise sterling choice to run the Civil Rights Division of the Justice Department, because he headed the NAACP Legal Defense and Education Fund when it represented Abu-Jamal in his fight for life.  Adegbile, who didn't personally work on Abu-Jamal's case, twice argued cases defending the Voting Rights Act before the U.S. Supreme Court, a far more relevant qualification for the job.

Sen. Patrick Leahy made the case that "the principle that all sides deserve an effective counsel is at the bedrock of our constitutional system” and “we cannot equate the lawyer with the conduct of those we represent if we want our justice system to endure."

Nevertheless, the Senate voted 52-47 to scuttle the nomination.

You can expect Republicans to vote against any Obama pick who would be supportive of civil rights enforcement.  As Sen. Dick Durbin put it, "I think the accusation is that the president is picking someone for the Division of Civil Rights who has been a leader in civil rights," and Republicans have “historically been troubled by … appointments [to the post] no matter who they are.” 

And you can expect Republicans to say stupid shit like what Sen. Lindsay Graham said:  “When someone has a history of helping cop-killers, this is what happens.”

But it was the Democrats who doomed Adegbile's chances, by pandering to the same simplistic pro-law enforcement, pro-prosecution sentiment as Senator Graham, effectively denigrating the importance of mounting a vigorous legal defense of a notorious defendant.

Pennsylvania Democrat, Bob Casey paid lip service to “respect[ing] that our system of law ensures the right of all citizens to legal representation no matter how heinous the crime" but added the disturbing non sequitur that "it is important that we ensure that Pennsylvanians and citizens across the country have full confidence in their public representatives — both elected and appointed.”  Casey added that “The vicious murder of Officer Faulkner in the line of duty and the events that followed in the 30 years since his death have left open wounds for Maureen Faulkner and her family as well as the City of Philadelphia.”

Christopher Coons, a Democratic Senator from Delaware also claimed to understand, "as a lawyer . . . the importance of having legal advocates willing to fight for even the most despicable clients" and purported to "embrace the proposition that an attorney is not responsible for the actions of their client."  But he decided to cast his vote aganst Adegbile because of the "decade-long public campaign . . . to elevate a heinous, cold-blooded killer to the status of political prisoner and folk hero," a campaign that Adegbile, by the way, had nothing to do with.

According to this reasoning, it is critical for our legal system to ensure that all criminal defendants have effective advocates but a lawyer's representation of a particularly despicable client accused of a particularly despicable crime (such as killing a police officer) is a disqualifying factor for public office.  Or as Lindsay Graham put it, "this is what happens" when you help cop-killers.

In addition to Casey and Coons, other shameful Democrats included Senators Mark Pryor of Arkansas. John Walsh of Montana, Joe Manchin III of West Virginia, Heidi Heitkamp of North Dakota, and Joe Donnelly of Indiana.