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]

Four Words For Why Clinton Must Defeat Trump: The Fucking Supreme Court

"SCOTUS too important to lose for generations."  -- a tweet from Republican National Chairman and obvious anagram Reince Priebus

It is pretty simple.  Do you want the Supreme Court to overturn Citizens United or Roe v. Wade?  Do you want the Supreme Court to add progressive-minded justices with a range of experience, ethnicity and gender or do you want vacancies filled by only conservative white males personally vetted by Donald J. Trump?  (If you have any doubt that diversity on the Court is critical, read Justice Sotomayor's extraordinary dissent in Utah v. Strieff, skewering the Court's majority opinion that found an arrest after an unlawful police stop to be valid and the evidence seized to be admissible.)

There has been a conservative majority on the Supreme Court since President Nixon's appointments put an end to the liberal Warren Court.  Since then, the Court has become increasingly more favorable to corporations, law enforcement, landowners and gun owners, and more skeptical of voting rights, civil rights, privacy and reproductive rights, and LGBT rights.  And while there have been some noteworthy Supreme Court victories for liberals over the last few decades, the conservatives have long been in firm control.

But now that Justice Scalia has left the building, we can begin to imagine what the Court would look like if his seat is taken by a liberal-leaning justice.  Suddenly, Justice Kennedy, the conservative Reagan appointee who occasionally votes with the liberal bloc, would no longer be the coveted swing vote.  That role would go to Justice Breyer, a left-of-center Clinton appointee (notwithstanding that Breyer incomprehensibly joined Clarence Thomas' opinion to provide a 5-3 majority in Utah v. Strieff).  And just like that, right wing fevered dreams of overturning Roe v. Wade, eliminating the concept of one person one vote, sabotaging Obamacare, destroying the financial capability of labor unions, and restoring the ban on same sex marriages would be gone.

Even better, progressives could begin to play offense instead of defense for the first time since about 1970 -- taking up cases to expand rights and remedies, rather than fighting the limitations of rights and restrictions on remedies.  This could result in greater access for women seeking abortions, the abolition of capital punishment, more robust interpretation of environmental and financial regulations, and greater ability of employees, consumers and whistleblowers to go after corporate wrongdoing.

And keep in mind that not only is there one current vacancy to fill, but there soon may be more. Ruth Bader Ginsburg is 83, Anthony Kennedy is 79 and Stephen Breyer is 77.  And 67-year-old Clarence Thomas is rumored to be mulling retirement so he can spend more time driving around in his RV with his right-wing activist wife.

Sure, I wish Hillary Clinton had not followed Colin Powell's lead and used her private email server as Secretary of State.  I wish she had not given paid speeches to Goldman Sachs.  And I wish she were not married to Bill.  But, say what you will about Bill Clinton's presidency -- and there are a lot of negative things to say --  he did put Justice Ginsburg on the high court.  Justice Breyer too.  There is no reason to think that Hillary Clinton's choices for the Court won't be equally, if not more, progressive.

The bottom line is that presidents come and go, but they can have an outsized impact on the Supreme Court -- an impact, as Reince Priebus notes, that can last for generations.  Republicans get this.  It is why they have used unprecedented obstruction to prevent President Obama from filling the current vacancy.  And it is why many Republicans will end up supporting their Party's nominee despite how repulsive they may find him.  This is a reality that Democrats, Independents, Sanders supporters and anti-Clinton progressives must come to terms with -- it is a reality that trumps everything. 

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.

A Public Defender For Justice

The typical path to becoming a federal judge is to have been a prosecutor and/or a big firm lawyer representing corporate interests.  This is true whether the president is Democrat or Republican.  Indeed, while President Obama can rightfully boast about the diversity of his federal court appointments in terms of race, gender and sexual orientation, it is troubling that roughly 85% of his federal court nominees have been corporate attorneys, prosecutors or both

In addition, according to an Alliance for Justice report published last year:

Fewer than four percent of President Obama’s judicial nominees have worked as lawyers at public interest organizations;

Fewer than four percent have significant experience representing workers in labor and employment disputes;

Prosecutors outnumber public defenders (state or federal) by more than three to one;

Only four out of 56 circuit nominees have worked as a public defender (state or federal), compared to 21 who have worked as prosecutors.

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Lawyers who have represented criminal defendants, who have challenged the power of the government, who have fought violations of human rights and civil rights, and who have taken on Big Business, bring a critical perspective about challenges facing the most vulnerable in our society, and about the inherent biases in the legal system against the poor and people of color and those accused of crime, who are often both. 

Countless legal determinations require applying a "reasonableness" standard -- what a reasonable person would do or understand -- or deciding whether a particular claim is "plausible."  Such judgments are necessarily filtered through one's personal and professional experiences.  Thus, as Sen. Elizabeth Warren has explained:  “It matters that someone has represented people other than corporate clients, that they’ve had real experience with people who can’t afford lawyers, that they’ve had real experience trying to fight for the public interest …. It matters where you come from.”

This is a perspective that is sorely missing on the Supreme Court.  Even so, Supreme Court watchers who bandy about qualified nominees to replace Justice Scalia rarely mention the host of brilliant candidates with experience as public defenders or public interest lawyers.

A article appearing in the National Association for Public Defense provides an impeccable list that begins with a perfect choice:  Bryan Stevenson:

Stevenson, 56, is our country’s greatest human rights lawyer. Stevenson is the founder and head of the Equal Justice Initiative, fighting poverty and challenging racial discrimination in the criminal justice system for 30 years. He has successfully argued in the Supreme Court, including this January’s decision striking down mandatory life-without-parole sentences for children. Stevenson speaks eloquently about America’s troubled history of racial strife and injustice, and about how to heal the wounds of that history. President Obama selected Stevenson to serve on last year’s Task Force on 21st Century Policing.

The NAPD piece provides several other stellar candidates, including practicing lawyers (Lisa Feeland, David Singleton, Christine Swarns) law professors (Ronald Sullivan, James Forman, Michelle Alexander) and federal appellate judges (Robert Wilkins, Jane Kelly). 

It goes without saying that no matter who President Obama chooses to replace Justice Scalia, he or she will be met with unprecedented obstruction from the Republican-led Senate given that anyone to the left of Justice Kennedy will dramatically shift the Court's ideological balance and provide a liberal majority for the first time since the early 1970s.  But that shouldn't stop Obama from choosing a candidate who has devoted a legal career to fighting for justice rather than for power. 

Supreme Concern: The Fight for Equality and Dignity and Why Elections Matter

The Supreme Court's historic ruling that the Constitution guarantees the right to marry for same-sex couples is cause for celebration and relief.  It shows what unrelenting activism and struggle can accomplish.  And it shows what the high court can and should do when pressed to protect groups of people from discrimination and extend to them equality, dignity and fundamental rights.

Justice Kennedy (joined by the so-called liberal wing of the Court -- Justices Ginsburg, Sotomayor, Kagan and Breyer) rejected the dissenters' view that states may be allowed to prevent gays and lesbians from getting married if a majority of its voters deem it so.  And it resoundingly rejected an originalist view of the Constitution which holds that fundamental rights are only those explicit in that document's text:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning…
…in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.

This decision really should not have been much of a leap.  Loving v. Virginia, which held that state laws banning interracial marriage were unconstitutional, provides a fairly unassailable precedent.  And opponents of same-sex marriage have never been able to mount a legitimate argument that there is a compelling government interest in preventing gays and lesbians from marrying -- the showing required under the Court's own jurisprudence.

The fact that the decision was a narrow 5-4 victory-- with disingenuous and particularly vitriolic opinions from each of the four dissenters -- should give us all serious pause.  According to Chief Justice Roberts, Justice Kennedy's carefully reasoned opinion was result-oriented and "had nothing to do with the Constitution."  Justice Scalia's insult-laden diatribe described it as pretentious and incoherent, and alarmingly claimed that it represented a “threat to American democracy.” Justice Alito was mostly concerned with those Americans who want to be able to continue to discriminate against same-sex couples with impunity, fearing that this opinion "will be used to vilify Americans who are unwilling to assent to the new orthodoxy,”  And Justice Thomas, in rejecting that the right to marry is a fundamental right, went so far as to argue that the government is essentially incapable of taking away human dignity -- not by depriving people of government benefits, or holding them in internment camps or even enslaving them. 

If John McCain had won the presidency in 2008, he certainly would have replaced the two retiring justices during his first term with two in the mold of those currently comprising the right wing of the Court, instead of President Obama's two appointees -- Justice Sotomayor and Justice Kagan.  Among many other frightening results, this would likely have turned this landmark 5-4 victory into a 6-3 loss.

Every Republican running for president expressed their opposition to same-sex marriage and denounced the Supreme Court's decision.  And under the guise of "religious liberty," every Republican candidate believes that business owners and others should be allowed to discriminate against same-sex couples.

Justice Ginsburg is 82; Justice Scalia is 79; Justice Kennedy is 78; Justice Breyer is 76.

There are many more battles ahead -- battles that will likely require litigation in federal court -- including those surrounding the push for federal anti-discrimination laws and anti-discrimination laws in the majority of states that don't bar discrimination against gays, lesbians and transgender people.

Elections matter.

Scalia Watch

DonkeyHotey

There has long been a consensus in mainstream circles, if not necessarily in the legal community, that whether you agreed with him or not, Justice Scalia possesses a great legal mind.  Indeed, the conventional wisdom for decades, as Jeremy Leaming writes, "has held that Justice Antonin Scalia is the high court’s most brilliant, disciplined, albeit ideological, member."

It may be that exposure through the internet "has altered the narrative by giving forums to an array of writers who have been quick to poke holes in an increasingly tiresome and shoddy line of reporting" or simply that Scalia's over-the-top rants and overt partisanship have finally reached a critical mass.

But as the country becomes more politically polarized, Scalia, as Dana Milbank wrote a while back, has had more difficulty containing his rabid partisanship.  He noted that “Scalia’s tart tongue has been a fixture on the bench for years, but as the justices venture this year into highly political areas such as health-care reform and immigration, the divisive and pugilistic style of the senior associate justice is very much defining the public image of the Roberts Court.”

Leaming is absolutely correct that "with each passing high court term, Scalia seems to be coming wackier, more out-of-touch, increasingly shrill. And he’s being called out for his nuttiness with growing frequency." 

"The Madness of Justice Scalia," Leaming's piece, cites various legal scholars and reporters, including law professor Paul Campos, who observed that Scalia “has in his old age become an increasingly intolerant and intolerable blowhard: a pompous celebrant of his own virtue and rectitude, a purveyor of intemperate jeremiads against the degeneracy of the age, and now an author of hysterical diatribes against foreign invaders, who threaten all that is holy.”

Perhaps Scalia has finally gone too far.  In a column last Wednesday (before the ACA decision), E.J. Dionne called for Scalia to resign:

So often, Scalia has chosen to ignore the obligation of a Supreme Court justice to be, and appear to be, impartial. He’s turned “judicial restraint” into an oxymoronic phrase. But what he did this week, when the court announced its decision on the Arizona immigration law, should be the end of the line.

Not content with issuing a fiery written dissent, Scalia offered a bench statement questioning President Obama’s decision to allow some immigrants who were brought to the United States illegally as children to stay. Obama’s move had nothing to do with the case in question. Scalia just wanted you to know where he stood.

After this case was argued and while it was under consideration, the secretary of homeland security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants,” Scalia said. “The president has said that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration’s proposed revision of the immigration laws. Perhaps it is, though Arizona may not think so. But to say, as the court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the president declines to enforce boggles the mind.

What boggles the mind is that Scalia thought it proper to jump into this political argument. And when he went on to a broader denunciation of federal policies, he sounded just like an Arizona Senate candidate.

Dionne takes Scalia to task for being a "blatantly political actor" and justice at the same time:  "Unaccountable power can lead to arrogance. That’s why justices typically feel bound by rules and conventions that Scalia seems to take joy in ignoring."

Recall, as Dionne reminds us, 2004, when "three weeks after the Supreme Court announced it would hear a case over whether the White House needed to turn over documents from an energy task force that Dick Cheney had headed, Scalia went off on Air Force Two for a duck-hunting trip with the vice president."

Then there was the speech Scalia gave at Switzerland’s University of Fribourg a few weeks before the court was to hear a case involving the rights of Guantanamo detainees:  "I am astounded at the world reaction to Guantanamo,” he declared in response to a question. “We are in a war. We are capturing these people on the battlefield. We never gave a trial in civil courts to people captured in a war. War is war and it has never been the case that when you capture a combatant, you have to give them a jury trial in your civil courts. It’s a crazy idea to me.”

Dionne does not even mention how Scalia (as well as his fellow conservative justices Thomas and Alito) regularly attend right-wing events and political fundraisers.  (Indeed, Clarence Thomas, in particular, is far quieter, but similarly nakedly partisan and ethically challenged.  See, e.g., here and here.)

Scalia is 76 years old but despite the urging of E.J. Dionne does not appear to be leaving the bench any time soon.  What is of far greater concern is that Justice Ginsburg turns 80 next year and Justice Breyer turns 75.  When you throw in Justice Kennedy (75), you have what the New York Times points out is "among the oldest courts since the New Deal era."  As a result, "the winner of the race for president will inherit a group of justices who frequently split 5 to 4 along ideological lines," suggesting "the next president could have a powerful impact if he gets to replace a justice of the opposing side."

And while it is true that Chief Justice Roberts showed some modicum of sanity in voting to uphold the Affordable Care Act, he has not been magically transformed into the new swing justice.  It should be noted that while the outcome was welcome, his legal reasoning was, as Justice Ginsburg put it, "stunningly retrogressive."  (See 10 Ways John Roberts Is Still A Conservative's Best Friend.)

What shouldn't be lost in all the hoopla over the validation of Obamacare is that the Scalia and the other three dissenters (Thomas, Alito and Kennedy), as Paul Krugman points out, "did so in extreme terms, proclaiming not just the much-disputed individual mandate but the whole act unconstitutional. Given prevailing legal opinion, it’s hard to see that position as anything but naked partisanship."

As I have previously written, Romney's choice of Robert Bork as co-chair of his Justice Advisory Committee is a disturbing sign of the kind of radical jurists Romney would nominate.  (See Romney Gets Borked.)  In the wake of Roberts' "defection," there will be even more pressure on Romney to choose right wing extremists in the Scalia-Thomas mold, a fact he is essentially admitting on the campaign trail.  Dionne is right that Scalia should resign but that isn't going to happen.  But there remains an even more disturbing prospect than Scalia staying put.  It is that a President Romney will  add more right-wing ideologues to the Supreme Court (and throughout the federal judiciary), forming a solid block of partisan operatives.

At Least Those Supreme Court Conservatives Aren't Influenced By The New York Times

Clarence and Virginia Thomas

After the theory that Chief Justice Roberts' vote to uphold ACA was caused by his epilepsy medication didn't fly, the latest conservative narrative making the rounds (thanks to a "scoop" by CBS's Jan Crawford) is that Roberts switched his vote, buckling to external political pressure, and then withstood a ferocious month-long campaign by Justice Kennedy to bring him back around. 

Who knows what truth there is to this story (or who inside the Court leaked it), but I was particularly struck by a remarkable nugget in Crawford's article which describes the conservative wing of the Court, in contrast to Chief Justice Roberts, as impervious to outside influences -- or at least liberal ones.  Thus, while Roberts "pays attention to media coverage," the conservatives, "such as Justice Clarence Thomas, deliberately avoid news articles on the court when issues are pending (and avoid some publications altogether, such as The New York Times). They've explained that they don't want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal."

What the article left out are the right-wing influences on Justices Thomas, Scalia and Alito.  As I've previously written, these three justices have attended, headlined and spoken at political fund-raising events for right wing organizations.   In another piece, Activist Judges, I pointed out that Justice Alito attended a major fundraising event for the notorious right wing magazine American Spectator (notorious for smearing President Clinton with false stories as part of the "Arkansas Project," an effort to get Clinton impeached), and that Justice Scalia and Justice Thomas have also attended secret political fundraisers.

And as stated here, Scalia and Thomas were featured guests at a retreat of wealthy Republicans and conservative leaders organized by Charles and David Koch, the brothers who finance right wing causes from the money they made from their energy conglomerate.  One of the Koch brothers pet causes had long been ending financial regulations on elections.  Indeed, according to Common Cause, they funded many of the groups who filed amicus briefs in the Citizens United case.  What is so unseemly about the appearances of Thomas and Scalia at the Koch Industries-sponsored event is that it occurred while Citizens United was pending before the Court.

And then, of course, there is the influence of Justice Thomas's wife, Ginni Thomas, a right-wing activist and powerful lobbyist, who worked to repeal the health care law.  Thomas was employed by the Heritage Foundation, a right wing think tank, between 2003 and 2007, and then set up a political consulting business, Liberty Central, which is described as an advocate for “liberty-loving citizens" fighting against the left wing "tyranny" of President Obama and the Democrats.

Well, at least the conservative members of the Court are not influenced by the New York Times and other dreaded liberal media.

California's Cruel And Unusual Death Penalty 40 Years And $4 Billion After Furman v. Georgia

San Quentin State Prison

40 years ago today, the United States Supreme Court decided Furman v. Georgia, which struck down existing death penalty laws as unconstitutional in violation of the Eighth Amendment's cruel and unusual clause.  California's death penalty was quickly reinstated.

Attempting to comply with Furman, the new statute made the death penalty mandatory for certain first degree murders and other crimes.  But in 1976, the U.S. Supreme Court struck down death penalty laws that provided for mandatory death sentences. The California Supreme Court, relying on the high court's ruling, once again found the state's statute to be unconstitutional.

Undeterred, the California legislature passed a new death penalty law in 1977.  This was followed in 1978 by a ballot proposition, known as the Briggs Amendment, which was similar but more expansive version that sought to encompass more -- virtually all -- categories of murder (including unintentional murders committed during certain felonies).  Briggs passed and it is the law we are living with, so to speak, today.   

Forty years after Furman: $4 billion dollars, over a thousand death sentences, over 720 currently on death row, and 13 executions, none since January 2006.

Tani Cantil-Sakauye, after one year as the Chief Justice of the State of California, has concluded that the state's capital punishment system is "not effective" and requires "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."

An extensive study by Arthur Alarcon, long-time judge of the Ninth Circuit Court of Appeal, who, together with law professor Paula Mitchell, determined that California's death penalty system is currently costing the state about $184 million per year.  They concluded 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."

Justice Byron White observed in Furman that:

When imposition of the penalty reaches a certain degree of infrequency, it would be very doubtful that any existing general need for retribution would be measurably satisfied.  Nor could it be said with confidence that society’s need for specific deterrence justifies death for so few when for so many in like circumstances life imprisonment or shorter prison terms are judged sufficient, or that community values are measurably reinforced by authorizing a penalty so rarely invoked.” 

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.  In addition, given the current backlog and the serious problems identified by the California Commission for the Fair Administration of Justice (CCFAJ) -- problems that would require an enormous influx of state funds to fix -- it simply is not possible that defendants who are only now being sentenced to death will have their death sentences carried out.  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 in Furman.

Justice Potter Stewart famously characterized the Texas and Georgia statutes at issue in Furman as being “cruel and unusual in the same way that being struck by lightning is cruel and unusual.”  What he meant was that of all those who committed death eligible crimes, the petitioners were “among a capriciously selected random handful upon whom the sentence of death has in fact been imposed . . . [and] the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.”

Application of Furman’s benchmark for determining arbitrariness demonstrates that only a “capriciously selected random handful” of death-sentenced inmates in California will actually be executed.  A new death row prisoner would have to get in line behind 720 condemned inmates.  He or she would then have to wait years for appointment of appellate counsel (currently a 5 year wait) and even longer for the appointment of state habeas counsel (8-10 years).  Even after these lawyers are appointed and appellate briefs and habeas petitions are filed, the case will not be heard and decided before the several hundreds of cases that have preceded it.  And then, after all this time and expense, the California Supreme Court, in virtually every case regardless of the merits, will uphold the death sentence.   Then the case moves on to federal court, which has its own backlog, and often requires new counsel, with proceedings currently averaging over six years in district court followed by over four years of appellate review. 

Justice White noted in Furman that where the “penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice” it is unconstitutional.  As he stated, when the death penalty “ceases realistically to further [the social ends it was deemed to serve] . . .  its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.  A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

We have far surpassed this point in California.

The SAFE California Act is on the November ballot.  If it passes it would replace California's multi‑billion dollar death penalty with life imprisonment without parole and require those convicted of murder to work and pay restitution to victim families through the victim compensation fund.  It would also set aside $100 million in budget saving for local law enforcement for the investigation of unsolved rape and murder cases.

Please join the effort to replace the death penalty by clicking here:  SAFE California.

Supreme Court Politics

DonkeyHotey

It was a big -- and telling -- day at the high court even without the highly anticipated Affordable Care Act decision, which is now expected to be issued on Thursday.  As I wrote earlier, Justice Scalia's raving dissent about state sovereignty in the Arizona immigration case starkly illustrates that he is more of a political operative than an impartial judge.

And, not surprisingly, Scalia's obeisance to states' rights was nowhere in evidence in another case decided today, a case in which a 5-4  majority struck down Montana’s 100-year-old anti-corruption law banning corporate spending on elections without ever hearing arguments in the case.  As Nicole Flatow at American Constitution Society summarized:  "Although Montana’s law was intended to combat corruption in election spending, the five-justice majority held in a paragraph-long decision that this case was controlled by Citizens United, which found that independent expenditures by corporations 'do not give rise to corruption.'” 

Flatow points out that, "A supermajority of Montanans thought otherwise when they passed the Corrupt Practices Act in 1912," and as Justice Stephen Breyer wrote in his dissent, “Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.”
 
Breyer's dissent, joined by Justices Ginsburg, Kagan and Sotomayor, pointedly concluded as follows:

Were the matter up to me, I would vote to grant the petition for certiorari in order to reconsider Citizens United or, at least, its application in this case. But given the Court’s per curiam disposition, I do not see a significant possibility of reconsideration. Consequently, I vote instead to deny the petition. 

And there you have it.  As Amy Davidson notes, "Breyer is saying that he does not trust the majority enough to even listen, and would rather that it not hear the case at all; since he was joined by Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, that means the four of them didn’t believe that a single of the other five Justices had been at all chastened by the consequences of Citizens United."

And so, E.J. Dionne pleads:

Will everyone please finally admit conservatives actually don’t care a whit about states’ rights unless invoking states’ rights happens to be helpful to the conservative agenda? Conservatives on the court have become complete and utter hypocrites on the matter of what states can and can’t do.

This has stuck in my craw for a long time. Recall that the Supreme Court had absolutely no qualms about telling the state of Florida in 2000 that there was no way it could recount its votes in a fashion that would be satisfactory, and never mind that the Florida Supreme Court had ruled in favor of recounts. Those recounts might have gotten in the way of George W. Bush’s elevation to the presidency. Face it: If states’ rights are inconvenient to the outcome conservatives want, conservative justices will find a way to supersede them.

James Fallows recently wrote with regard to the Affordable Care Act case that "confidence in the very idea that the Roberts majority will approach this as a "normal" legal matter, rather than as one more Bush v. Gore front in the political wars, grows ever harder to maintain."

Which leads Ed Kilgore to draws what to me is the most critical lesson, whatever happens with the health care decision:

But it’s becoming more obvious each day that the judicial counter-revolutionaries of the Supreme Court don’t need the crisis atmosphere that they used to justify Bush v. Gore to continue its legacy. Indeed, it seems to have become the only precedent the majority reliably respects. Maybe they will surprise us all on Thursday and step back from the brink. But without question, if another seat on the Court falls their way, the constitutional substructure of every 20th century social accomplishment from the New Deal to the Civil Rights Act to the Clean Air Act to the right to an abortion is in immediate danger. And anyone who remembers that strange night in 2000 when the Court’s Republican appointees decided to seize the opportunity to choose a president should not be surprised.

Supreme Court Bans Mandatory Life-Without-Parole For Children Convicted Of Homicide

Bryan Stevenson

In Miller v. Alabama and Jackson v. Hobbs, the Supreme Court holds that mandatory life-without-parole sentences for all children 17 or younger convicted of homicide are unconstitutional.  (I wrote about these cases earlier here.)  Both cases were argued by the brilliant and heroic Bryan Stevenson.

Here is a summary of this great outcome from Equal Justice Institute of which Bryan is the founder and executive director:

The Court today struck down statutes in 29 states that provide for mandatory life-without-parole sentences for children, reasoning that mandatory imposition of life-without-parole sentences on children “contravenes Graham’s (and also Roper’s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.”

"This is an important win for children. The Court took a significant step forward by recognizing the fundamental unfairness of mandatory death-in-prison sentences that don't allow sentencers to consider the unique status of children and their potential for change," said Bryan Stevenson, Executive Director of the Equal Justice Initiative, who represents Jackson and Miller. "The Court has recognized that children need additional attention and protection in the criminal justice system.”

Today’s decision requires the lower courts to conduct new sentencing hearings where judges will have to consider children’s individual characters and life circumstances, including age, as well as the circumstances of the crime.

While the Court did not categorically ban juvenile life without parole in all circumstances, Justice Kagan wrote for the majority that, “given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”

Stevenson cautioned, however, that sentencing courts’ discretion must be exercised in an informed and thoughtful way that acknowledges that children are biologically different than adults and less responsible for their wrongdoing, and that the courts should provide the individuals affected by the ruling a meaningful opportunity to show they have rehabilitated themselves and are appropriate candidates for release.
Stevenson added that historically, race and poverty have been powerful forces in influencing which children receive life-without-parole sentences.

Today's decision follows the Court's earlier rulings in Roper v. Simmons (2005) and Graham v. Florida (2010), which acknowledge the diminished culpability of children.

Groups as diverse as the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Psychiatric Association, the Council of Juvenile Correctional Administrators, the American Bar Association, mental health professionals, former juvenile court judges, criminologists, victims, and national advocacy organizations filed amicus briefs in the cases to urge the Court to give children an opportunity to have their sentences reviewed later in life.

The Supreme Court Strikes Down Much Of Arizona's Anti-Immigration Law While Scalia Rants

The Supreme Court issued its much-anticipated ruling on Arizona's harsh anti-immigration law, upholding the most controversial part of the law -- but striking the rest.

As the New York Times reports:

The court unanimously sustained the law’s centerpiece, the one critics have called its “show me your papers” provision. It requires state law enforcement officials to determine the immigration status of anyone they stop or arrest if there is reason to suspect that the individual might be an illegal immigrant.

The justices parted ways on three other provisions. Justice Anthony M. Kennedy, writing for five members of the court, said the federal government’s broad powers in setting immigration policy meant that other parts of the state law could not be enforced. 

The provisions that were struck included Section 3 criminalizing the failure of persons to carry immigration documents; Section 6, barring undocumented immigrants from seeking work; and Section 6, allowing warrantless arrests when an officer has probable cause to believe a person who has committed a crime is undocumented.

One of the more fascinating -- and disturbing -- aspects of the decision was Justice Scalia's raving dissent from the portion of the majority opinion that blocked implementation of the Arizona law.

As Ben Jacobs writes, "the conservative icon rails against the court’s decision over 22 pages and makes strained claims for Arizona’s continued ability as sovereign state to regulate immigration while citing dubious authorities like the notorious Kentucky and Virginia Resolutions (documents written anonymously by Madison and Jefferson that have repeatedly been rejected by the court over the past 200 years when cited by segregationists and secessionists)."

Here's an excerpt:

But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Govern­ment that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?

A good way of answering that question is to ask:  Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding [that the national government has supreme jurisdiction over immigration policy]?

Huh?  As Jed Lewison at Daily Kos puts it:  "So according to Scalia's logic, SB1070 is constitutional because Arizona wouldn't have entered into the Union if it weren't. Brilliant!"

Remarkably, Scalia criticized the Administration's immigration policy and specifically went after Obama's recently-announced executive order to stop the deportation of  children whose parents illegally entered the country -- which post-dated and had nothing to do with this case: 

It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30.
[For certain illegal immigrants] immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.” The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conduct­ing as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.

As UCLA law professor Adam Winkler, Scalia has "finally jumped the shark":

He claims to respect the founding fathers, but his dissent channels the opponents of the Constitution. Back then, opponents argued that the Constitution denied states their sovereignty by giving too much power to the federal government, as with immigration. Now Scalia echoes their complaints that states are being denied their sovereignty. States are not sovereign when it comes to powers vested in Congress, such as the authority over immigration and naturalization.

 Ben Jacobs rightly concludes that "The health care decision is only days away and it is explicit that at least one justice is making his decisions on political grounds."

Corporate Takeover At The Supreme Court

I've written previously about the unprecedented pro-corporate bias of the current conservative majority of the Supreme Court, and the insidious role played by the U.S. Chamber of Commerce in getting the Court to hear business cases and to rule in favor of business interests.  (See, e.g., here, here and here.

The Constitutional Accountability Center points out that "without much fanfare, the U.S. Chamber of Commerce is edging towards what could be its first 'perfect' Term before the Supreme Court since at least 1994."  It has "declared victory in all seven of its cases that have reached a clear outcome," which "brings the Chamber’s overall win/loss rate before the Roberts Court up to 68% (60 of 88 cases)."

As CAC's "prior studies establish, this is significantly higher than the Chamber’s success before the Rehnquist Court of 56% (45 of 80 cases), and dramatically higher than its success rate before the Burger Court, when the Chamber only won 43% (15 of 35) of its cases."

Darryl Issa's Contemptible Actions

DonkeyHotey

Darryl Issa, a California Congressman, made his fortune manufacturing car alarms and used his wealth to fund the recall of California Governor Gray Davis, who was succeeded by Arnold Schwarzenegger.  (Issa reportedly intended to place himself on the ballot before Schwarzenegger jumped in.)

As chair of the House Oversight and Government Reform Committee, Darryl Issa has called President Obama "one of the most corrupt presidents in modern times."  He declared he would hold "hundreds of hearings" to uncover wrongdoing in the Obama Administration.  But, as Alex Seitz--Wald details, Issa "often ended up shooting blanks."

His investigations into WikiLeaks, Fannie and Freddie, the FDA, and countless others have failed to expose any massive wrongdoing by the administration and after a year and half, he has little to show for them. . . .

Other investigations bordered on fringe absurdism, like when he asked the Department of Justice to investigate ACORN more than a year after it went extinct. There was also the hearing he held probing the Affordable Care Act’s contraception mandate, which famously included a panel featuring zero women.

But yesterday, as Seitz-Wald reports, Issa "finally got his big trophy and moment in the cable news sun today when his committee voted to hold Attorney General Eric Holder in contempt of Congress, following nearly seven hours of testimony on the ATF’s botched “Fast and Furious” gun scandal."

Meteor Blades at Daily Kos has the background:

The issue that spurred the committee's vote is Holder's unwillingness to release documents and internal communications at the Department of Justice regarding the operation known as "Fast and Furious." That operation, run by the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed guns bought in the United States to cross into Mexico. The idea was to nail straw purchasers of weapons in United States and also high-level members of Mexican drug gangs that obtained the weapons.

According to the 2011 report Fueling Cartel Violence prepared for Oversight Committee Chairman Darrell Issa (R-Calif.) and Senate Judiciary Committee Ranking Member Charles Grassley (R-Iowa), hundreds of firearms made their way into the arsenals of three of the largest drug cartels: Sinaloa, El Teo and La Familia.

Mexican authorities have claimed that as many as 150 people have been killed by these firearms in an ongoing war that has taken the lives of more than 50,000 people since 2006. Some 2,000-plus firearms are said to have made their way into Mexico as a result of "Fast and Furious." A U.S. Border Patrol agent, Brian Terry, was also killed with one of the weapons, an AK47-style firearm. Among the weapons allowed to leave the states were .50 caliber sniper rifles that may have made the difference in battles between cartel members and Mexican police.

As Jeremy Leaming at American Constitution Society explains:

U.S. Rep. Elijah E. Cummings (D-Md.) told The Times the administration was forced into invoking privilege because of the Issa-led committee’s “unreasonable insistence on pressing forward with contempt despite the attorney general’s good faith offer.”

The Department of Justice has provided Issa’s committee nearly 8,000 documents for the congressional investigation into the tactics used in the federal government’s efforts to stop violence related to drug smuggling along the southern border.

But Issa and other Republican members on the committee have feigned disbelief, arguing that much more is needed to complete their work.

I'm not particularly comfortable defending this -- or any -- Administration's invocation of executive privilege but Issa's relentless pursuit of the president, culminating in this investigation of a trumped-up scandal is nothing more than cynical political theater.

As Kevin Drum notes, this is a "fairly ridiculous invented controversy that Republicans care about only because (a) it involves guns, and (b) it involves the Obama administration."  Indeed, Issa "more or less admitted the fever swamp origins of tea party outrage over Fast & Furious when he told Sean Hannity that Obama was using the program to 'somehow take away or limit people's Second Amendment rights.''  This mad notion was seconded by Newt Gingrich on on CNBC last night.  According to Steve Benen, Gingrich "argued, with a straight face, that the so-called "Fast and Furious" controversy was part of an elaborate ploy to enact gun control."

Crazy, right?  "And yet," as Benen sums it up, "this nuttiness has been fully embraced by many House Republicans, many Senate Republicans, Fox News, Newt Gingrich, the NRA, and some deeply strange folks on far-right blogs and talk radio. To put it mildly, it's disconcerting."

 With the contempt citation going to the full House next week, you can take action by calling (202-224-3121) or emailing your representatives and urging them to oppose this politically motivated witch hunt.

Justice Scalia: The Opportunistic Originalist

By Jeremy Leaming, cross-posted from American Constitution Society

DonkeyHotey

We likely shouldn’t be surprised by Justice Antonin Scalia’s “flip-flop,” as TPM puts it, on precedent supporting modern understanding of the Constitution’s commerce clause.

TPM’s Sahil Kapur reports that in his forthcoming book, Scalia says the Supreme Court’s 1942 opinion in Wickard v. Filburn wrongly construed the scope of the commerce clause. As Kapur and many others have noted, including the Obama administration, Scalia cited Wickard in a 2005 opinion concluding that a law barring personal cultivation of marijuana for medical use was not beyond the scope of the commerce clause.

In that case, Gonzales v. Raich, Scalia lodged a concurring opinion, citing precedent in holding, “where Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make that regulation effective.’”

In an e-mail to TPM, constitutional law expert Adam Winkler wrote, “This is typical Scalia.”

Winkler, a law professor at UCLA, continued:

He respects precedents when they fit his conservative ideology and disregards them when they don’t. He claims that history should guide judges. But nothing about the history of the commerce clause has changed. What’s changed is the political implications of the commerce clause. When it’s being invoked for law and order conservatives, he favors Wickard. When invoked by liberals to support healthcare reform, he thinks Wickard is bad law.
Once again, we see that Scalia’s orginalism is a charade.

There is also the spectacle of oral argument, where Scalia not only revealed a wobbly understanding of the health care insurance system but affinity for the simplistic, but radically libertarian arguments lobbed against the Affordable Care Act’s minimum coverage provision. The minimum coverage provision is integral to the health care reform law, requiring those who can afford to do so to obtain a minimum amount of the health care coverage starting in 2014.

The provision was quickly attacked by the Right as a dire threat to liberty. If the government were able to require many indiviuals to purchase health care insurance, then surely it could also force individuals to buy broccoli and gym memberships, the law’s opponents argued.

Acquittal On Steroids

Roger Clemens was acquitted today of perjury charges based on his testimony before Congress in 2008, in which he stated that he never used steroids or human growth hormone.  After an earlier mistrial, federal prosecutors decided to retry Clemens and, as the New York Times reports, the second trial was far more extensive than the first, with 46 witnesses over more than eight weeks.

 I have long despised Clemens for his petulance, his arrogance and not least, his beaning of Mike Piazza in 2000, followed in the the World Series of that year with his inexcusable heaving of a piece of  broken bat at Piazza after it was shattered by a pitch.   Nevertheless, for the reasons I explored in a piece re-posted below on the Barry Bonds trial (which also ended in embarrassment for the prosecution when it was able to obtain a conviction on only one count, an obstruction of justice charge) the case served no purpose and was a colossal waste of resources.
 

Trial On Steroids

So many people in and out of baseball hate Barry Bonds passionately.  He was a selfish player who focused unduly on his own statistics.  He is arrogant and unapologetic.  He has always treated the press with great disdain.  He had his own Barcalounger in the Giants' clubhouse.  Unlike, perhaps, more sympathetic marginal or fading players, he was a brilliant player in his prime when he felt compelled to cheat by using steroids.  He is a petty man who cheated because he was jealous of Sammy Sosa and Mark McGwire, and wanted to become not just the best all around player, but the home run king.  And it worked; he not only broke McGwire's single-season home run record, even more egregiously, he eclipsed the hallowed career home run mark of the beloved Hank Aaron.  Have I missed anything?  Oh, and he denied knowingly taking steriods when forced to testify under oath before a grand jury.

For the last of these, Bonds is on trial, charged with lying to the grand jury and obstruction of justice.  It seems, however, that those who hate Barry Bonds hope he is humiliated, found guilty, and sentenced to a long prison term for his many other other non-criminal offenses.

I am not one of the Barry Haters.  Watching Barry Bonds play for the Giants, both pre- and post-alleged steroid use was one of my greatest thrills as a baseball fan.  Every time I went to the ballpark I felt it was a privilege to be able to see one of the most amazing players to have ever played.  In 2001, the year he hit 73 home runs, he hardly ever got a decent pitch (he walked 177 times that year), but when he did he crushed it.  Maybe steroids added some distance to these blasts, but the discipline, focus, timing and beauty of these at bats can't be credited to drugs.  The dude could flat out hit.

OK, with that disclaimer out of the way, I think the issue is less about Bonds and more about whether the United States Government should be expending so many resources on the use of performance enhancing drugs in baseball. 

Why Are We Spending So Much To Lock Up Elderly Prisoners Who Pose Little Threat?

By Inimai M. Chettiar and Vanita Gupta, cross-posted from American Constitution Society

Elderly prisoners are the least dangerous group of people behind bars but the most expensive to incarcerate. Yet despite this truth, the number of elderly prisoners is skyrocketing. Harsher sentencesfor less serious crimes – one defining characteristic of our failed “tough on crime” and “war on drugs” policies – are responsible for this staggering increase in the number of older prisoners, and taxpayers are taking the hit.

You may be shocked to learn how much money states are dumping into housing aging prisoners who pose little safety risk. Today the American Civil Liberties Union released a report, “At America’s Expense: The Mass Incarceration of the Elderly,” which details the growth of our aging prisoner population, the low public safety threat elderly prisoners pose and the fiscal impact of incarcerating them. Strikingly, the report estimates that the average aging prisoner costs taxpayers about twice as much as the average prisoner.

The report is co-authored by the ACLU’s fiscal policy analyst and in-house economist, Will Bunting. He conducted a fiscal impact analysis, weighing the cost of incarcerating the average aging prisoner against the burden releasing that same prisoner would impose on public benefit programs. Even taking into consideration the cost of state payments for Medicaid, supplemental security food stamps, energy assistance, and other public assistance benefits, the report estimates that states could save $66,000 per year for each aging person released from prison. To put this number in context, the average American household makes $40,000. The money thus saved could be redistributed to more worthwhile and cost-effective state goals like education and infrastructure.

A look at the grander scheme of things is even more startling: in 1988, the United States spent about $11 billion on the entire corrections system. Today, we spend about $16 billion annually on the aging prisoner population alone.

As the number of prisoners in the United States climbs ever higher, the number of aging prisoners is climbing even faster. Between 1980 and 2010, the total number of people incarcerated in this country grew by 400 percent. In that same timespan, the population of prisoners age 55 and older grew by nearly 1,400 percent. At the current rate of growth, the number of prisoners age 55 and older will have increased 4,400 percent from 1981 to 2030 and will make up fully a third of the nation’s prison population.

The increase in the number of aging prisoners is not due to a spike in the number of crimes committed by older people. There is no “elderly crime wave.” And contrary to popular belief, older prisoners aren’t more likely to have committed a serious crime. Rather, many elderly prisoners are incarcerated for crimes committed in their youth for which they received disproportionately long sentences, and many elderly prisoners are in prison for nonviolent crimes. The current mentality of “lock ‘em up and throw away the key” has led lawmakers to impose exceedingly harsh penalties on individuals who commit low-level offenses, ensuring that they stay behind bars well into age and often until they die. The adage “let the punishment fit the crime” has given way to a reign of disproportionality in sentencing that is nothing if not cruel and unnecessary.

For instance, in California, Leandro Andrade, a father of three, received a mandatory sentence of 25 years to life in prison for two counts of shoplifting children’s videotapes valued at $153. He had two prior offenses for misdemeanors. In Mississippi, Atiba Parker was sentenced as a habitual offender to a total of 42 years in prison for selling a total of .3 grams and possessing less than .1 grams of crack cocaine. And also in Mississippi, the now-famous Scott sisters, Jamie and Gladys, were sentenced to two consecutive life terms for a robbery in which they stole $11 when they were teenagers.

Like many aging prisoners, Andrade, Parker and the Scott sisters are caught in the net of our extreme sentencing laws enacted since the mid 70’s. Politicians over the last quarter-century have held strong to the conventional wisdom that being "tough on crime" will win elections and appease the public's appetite for safety. To alleviate the public's overblown fear, or even to slake a thirst for retribution, our lawmakers have increasingly deemed more private acts criminal and doled out harsher punishments for a generation. Law enforcement has selectively enforced these laws against the "feared" Black and brown communities. In the end, we’re left with a massive, unsustainable prison population – and equally unsustainable aging prison population – unlike anything the world has ever seen.

If aging prisoners posed a serious threat to public safety, the costs of incarcerating them might be justified. But aging prisoners are in fact highly unlikely to commit new crimes upon release. Research has conclusively shown that by age 50 most people have significantly outlived the years in which they are most likely to commit crimes. For example, arrest rates drop to just over 2 percent at age 50 and are almost nil at age 65. In other words, there is no value to the continued incarceration of a large majority of our aging prisoners.

Today’s report provides a number of recommendations to legislators and correctional leaders interested in meaningful reform. Given the fact that public opinion is shifting toward a desire for fewer people in prison, the time to implement these reforms is now. The longer term solution requires political will to redesign our extreme sentencing regime to reintroduce proportionality, and repeal or reform habitual offender, mandatory minimum and truth-in-sentencing laws. A more immediate recommendation is for states to empower parole boards to determine which aging prisoners are worth the cost of continued incarceration because they pose grave public safety threats and which are not and can be safely released. In 2011, a bipartisan coalition in Louisiana passed just such a reform measure; if Louisiana – which leads the nation in incarceration – can take these steps, other states can surely follow suit.

In today’s hobbled economy, legislators cannot continue wasting taxpayer dollars by turning our prison system into a vast complex of nursing homes. It is a moral and fiscal imperative to stem the explosion in the aging prisoner population. Aging prisoners pose little threat to the public’s safety and incarcerating them is breaking our collective bank. Furthermore, it is inhumane to keep people locked up when there is no compelling societal justification to do so. The tools for grappling with this crisis are well within reach of legislators around the nation and the time for reform has arrived.

Inimai M. Chettiar, Policy Counsel, and Vanita Gupta, Deputy Legal Director, at the American Civil Liberties Union. Ms. Gupta directs the ACLU’s Center for Justice and its Safe and Fair Initiative to End Overincarceration. Ms. Chettiar serves as national legislative counsel coordinating the Initiative, and is incoming Director of the Justice Program at the Brennan Center for Justice at NYU School of Law.