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18 April 2008

US Supreme Court Justice Stevens: Just Stop It.

Click if you have a strong stomach.

I am putting my left hand on my holy book (Euclid's "The Elements"), raising my right hand, and testifying truthfully:
I am not a lawyer.
I'm not even particularly fascinated or mesmerized by The Law. I don't want to make it my hobby. The most enthusiastic thing I can say about it is: You wouldn't want to live anywhere that doesn't have Laws and some reasonably fair way to administer them. Zimbabwe, for example, is one of those places that Just Makes Things Up As They Go Along, and black, white, or plaid, you wouldn't want to live under that way of doing things.
But sometimes The Law just demands your attention.
For example, in the United States, where, I am very sad to report, our federal and most of our state governments put human beings to death -- legally and lawfully. And permanently.
Still, why should that concern you? You've never done anything to merit being executed, right?
Doesn't matter. As if state execution weren't bad enough, in the USA it's always been haunted by the specter of executing innocent people. In lots of cases, we've learned later, beyond any doubt, that we executed the wrong person.
If a person gets sentenced to Life Imprisonment, there's a tiny chance that while he's waiting to die of Old Age, his wrongful conviction will be discovered, and he can be freed, and even pitifully compensated with a little money for wrongful imprisonment. Actually happens quite often.
But once you're dead, whether you were innocent or guilty ceases to matter.
Some states have a habit of executing retarded people, some are fond of executing totally insane people, and the statistics of white juries and judges executing blacks, particularly if the victim was white (compared to white murderers of black victims) are particularly disgusting.
States appoint defense lawyers for poor defendants, but many states have a slimy history of appointing the most incompetent and inexperienced defense attorneys for defendants in death penalty cases.
In one famous Texas case -- guilty and eventually executed -- the defense lawyer literally slept through long periods of the trial.
This week the United States Supreme Court handed down its decision in Baze v. Rees, in which two Kentucky death row inmates argued that their impending execution by lethal injection violated the Constitution's prohibition against cruel and unusual punishment.
The Court voted, 7 to 2 (Associate Justices Ruth Bader Ginsburg and David Souter dissenting) , that lethal injection -- or Kentucky's particularly version of it -- did not violate the "cruel and unusual" clause, and Kentucky may proceed with its executions.
One associate justice, however, delivered an unusual opinion. The oldest and longest-serving Supreme Court Justice, John Paul Stevens, sided with the majority to uphold the constitutionality of lethal injection.
But he also called for an end to capital punishment in the United States of America.
I call for an end to capital punishment a lot, and, to nobody's surprise, few listen and few care.
The American bishops of the Roman Catholic Church also loudly and stridently call for an end to capital punishment. They're a lot more prestigious and newsworthy than Vleeptron Dude -- but the USA still keeps executing men and women all over the place.
But as far as I know, this is the first time in history a serving justice on the U.S. Supreme Court has said: Just Stop It.
One reason I am proud of not being a lawyer is that Justice Stevens' opinion was hard to find, confusing to read (not his own words, but the way these crazy legal documents are put together and published), and nearly impossible to edit so that an ordinary, literate non-lawyer can make sense of it. Legal documents (they're full of Latin) are essentially in a Secret Code to insure that ordinary citizens need to hire lawyers to comprehend them.
But here it is, this is the best I could do, and I think it's a pretty accurate and clean way of presenting Justice Stevens' call for an end to the death penalty in the United States of America.
The legal mumbo-jumbo endlessly imbedded footnotes and citations that interrupt the easy reading flow of his opinion -- well, I've just tossed them down at the bottom. If you're excited by legal footnotes and citations, you can find them down below. Maybe you should think of applying to law school.
Incidentally, my state, Massachusetts, and most New England states, have no death penalty. New Jersey's legislature just ended capital punishment.
We just might be surfing a surprising historical wave that will lead to a USA whose courts, laws, juries and judges stop, forever, killing their fellow human beings in the legal name of American citizens.
ADDENDUM
Human Names, Human Faces
The U.S. Supreme Court practically ignores the actual criminal defendants and their criminal actions when it agrees to consider a case. They hear cases based solely on claims involving the U.S. Constitution.
But I've always felt that news consumers have a right to know the actual background of these cases, not simply the dry and rarified legal and constitutional issues. These are, after all, Human Beings sitting on Death Row, they used to have names, faces, identities, circumstances. If they are indeed guilty of the crimes they were convicted for, their victims were also Human Beings, not a paragraph of legal Latin mumbo-jumbo.
Wikipedia:
Ralph Baze is a convicted murderer who was sentenced to death but who in 2004, sued the Kentucky State Department of Corrections along with fellow inmate Thomas Clyde Bowling Jr. on the grounds that execution by lethal injection under the "cocktail" prescribed by Kentucky law constitutes cruel and unusual punishment in violation of the 8th Amendment to the United States constitution. Baze's court case is Baze v. Rees.
Baze had been scheduled for execution on 25 September 2007 but, on 12 September, was issued a stay of execution by the Kentucky Supreme Court. The United States Supreme Court has agreed to hear his appeal.
On April 16, 2008 the Court affirmed the Kentucky Supreme Court's decision that the injection protocol does not violate the Eighth Amendment.
Baze does not dispute that he shot and killed Powell County, Kentucky Sheriff Steve Bennett and Deputy Arthur Briscoe in 1992 as they attempted to serve an arrest warrant on him, but claims that the shootings were self-defense.
Baze is imprisoned in Kentucky State Penitentiary in Eddyville, Kentucky.
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Thomas Bowling, born 1948, was convicted and sentenced to death for the April 9, 1990, murders of Tina and Eddie Earley. Bowling shot the Earleys dead after ramming their car outside their small dry-cleaning business in the city of Lexington, Kentucky. Bowling also shot the couple's two-year old son, but the child survived.
Thomas Bowling was arrested on April 11, in neighboring Tennessee. His car and a .357 calibre handgun were found hidden at his family's home in rural Kentucky. Bowling's attorneys are currently pursuing appeals and clemency on the grounds of potential innocence and mental retardation.
Appeal
Bowling's lawyers have also raised evidence that he is innocent. His lawyers claim the evidence against him is purely circumstantial and there are other suspects for the murder which he has been convicted for.
Bowling was assessed at the age of 12 - 13 to have an IQ of 74, which given the margin of error, places him within the range for mental retardation. In addition, he has a documented history of adaptive deficits, being described as a "follower" and easily manipulated. Throughout school, his parents had to lay his clothes out for him and ensure that he bathed and maintained personal hygiene.
Bowling also was a slow learner throughout school. He spent 3 years in the ninth grade. Despite working hard, Bowling even failed health class three years in a row.
Bowling's lawyers also argue that there was no physical evidence placing him at the scene of the crime; an eye-witness failed to identify him; ballistics experts admitted the weapon linked to him was one of millions that could have been used in the crime; and while the car used in the crime was his, there was no proof that he was driving it at the time. Further, the state did not establish a motive for Thomas Bowling to kill the Earley couple, whom he did not know and had never met.
The lawyers assert that a local family murdered the Ealey's. According to the petition and accompanying police reports, Eddie Earley told police about a local Lexington family's alleged drug activity, which resulted in an arrest. The family then had a motive for a shooting.
Bowling's lawyers argue that the family apparently used Bowling's vehicle in the murder. On the day of the murders, Bowling was intoxicated and states that he can not remember anything of that day.
Apparently, however, he was told by members of the above family later that afternoon to take his car out of town.
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APPENDIX 1
Here's the "cruel and unusual punishment" part of the United States Constitution. The first 10 amendments to the original Constitution are called "The Bill of Rights." The Bill of Rights has been the Law of the Land since 1791.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
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Wikipedia's bio of Supreme Court Associate Justice John Paul Stevens. Note in particular his wartime work as a code-breaking Navy intelligence officer. The codes he helped break were in Japanese.
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John Paul Stevens (born April 20, 1920) is currently the most senior Associate Justice of the Supreme Court of the United States. He joined the Court in 1975 and is the oldest and longest serving incumbent member of the Court. He was appointed to the court by President Gerald R. Ford and is widely considered to be on the liberal side of the court. He is also the only current Associate Justice to have served under three Chief Justices.
Stevens was born on April 20, 1920, in Chicago, Illinois, to a wealthy family. [1] His paternal grandfather had formed an insurance company and held real estate in Chicago, while his great-uncle owned the Chas. A. Stevens department store. His father, Ernest James Stevens, was a lawyer who later became a hotelier, owning two hotels, the La Salle and the Stevens Hotel. He lost ownership of the hotels during the Great Depression and was convicted of embezzelment (the conviction was later overturned). [1] (The Stevens Hotel was subsequently bought by Hilton Hotels and is today the Chicago Hilton and Towers.) His mother, Elizabeth Maude Street Stevens, a native of Michigan City, Indiana, was a high school English teacher. Two of his three older brothers also became lawyers.
The family lived in Hyde Park, and John Paul Stevens attended the University of Chicago Laboratory School. He subsequently obtained an A.B. in English from the University of Chicago in 1941; while in college, Stevens also became a member of the Omega chapter of Psi Upsilon.
He began work on his master's degree in English at the university in 1941, but soon decided to join the United States Navy, serving as an intelligence officer in the Pacific Theater from 1942 to 1945. Stevens was awarded a Bronze Star for his service in the codebreaking team whose work led to the downing of Japanese Admiral Isoroku Yamamoto's plane in 1943. [1]
Stevens married Elizabeth Jane Sheeren in June 1942. Divorcing her in 1979, he married Maryan Mulholland Simon that December. He has four children: John Joseph (who died of cancer in 1996), Kathryn, Elizabeth and Susan.
With the end of World War II, Stevens returned to Illinois intending to return to his studies in English, but was persuaded by his brother Richard, who was a lawyer, to attend law school. Stevens enrolled in the Northwestern University School of Law in 1945 (the G.I. Bill mostly paying his way). He was a brilliant student, with the highest GPA [Grade Point Average] in the history of the law school. [1] He received his J.D. [Juris Doctor] in 1947.
* * *
SUPREME COURT OF THE UNITED STATES
BAZE ET AL. v. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF CORRECTIONS, ET AL.
STEVENS, J., concurring in judgment
[Associate Justice John Paul Stevens]
“[A] penalty may be cruel and unusual because it is excessive and serves no valid legislative purpose.” Furman v. Georgia, 408 U.S. 238, 331 (1972) (Marshall, J., concurring); see also id., at 332 (“The entire thrust of the Eighth Amendment is, in short, against ‘that which is excessive’”).
Our cases holding that certain sanctions are “excessive,” and therefore prohibited by the Eighth Amendment, have relied heavily on “objective criteria,” such as legislative enactments. See, e.g., Solem v. Helm, 463 U. S. 277, 292 (1983); Harmelin v. Michigan, 501 U. S. 957 (1991); United States v. Bajakajian, 524 U. S. 321 (1998).
In our recent decision in Atkins v. Virginia, 536 U. S. 304 (2002), holding that death is an excessive sanction for a mentally retarded defendant, we also relied heavily on opinions written by Justice White holding that the death penalty is an excessive punishment for the crime of raping a 16-year-old woman, Coker v. Georgia, 433 U. S. 584 (1977), and for a murderer who did not intend to kill, Enmund v. Florida, 458 U. S. 782 (1982).
In those opinions we acknowledged that “objective evidence, though of great importance, did not ‘wholly determine’ the controversy, ‘for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’ ” Atkins, 536 U. S., at 312 (quoting Coker, 433 U.S., at 597 (plurality opinion)).
Justice White was exercising his own judgment in 1972 when he provided the decisive vote in Furman, the case that led to a nationwide reexamination of the death penalty.
His conclusion that death amounted to “cruel and unusual punishment in the constitutional sense” as well as the “dictionary sense,” rested on both an uncontroversial legal premise and on a factual premise that he admittedly could not “prove” on the basis of objective criteria. 408 U. S., at 312, 313 (concurring opinion).
As a matter of law, he correctly stated that the “needless extinction of life with only marginal contributions to any discernible social or public purposes ... would be patently excessive” and violative of the Eighth Amendment. Id., at 312.
As a matter of fact, he stated, “like my Brethren, I must arrive at judgment; and I can do no more than state a conclusion based on 10 years of almost daily exposure to the facts and circumstances of hundreds and hundreds of federal and state criminal cases involving crimes for which death is the authorized penalty.” Id., at 313.
I agree with Justice White that there are occasions when a Member of this Court has a duty to make judgments on the basis of data that falls short of absolute proof.
Our decisions in 1976 upholding the constitutionality of the death penalty relied heavily on our belief that adequate procedures were in place that would avoid the danger of discriminatory application identified by Justice Douglas’ opinion in Furman, id., at 240–257 (concurring opinion), of arbitrary application identified by Justice Stewart, id., at 306 (same), and of excessiveness identified by Justices Brennan and Marshall. In subsequent years a number of our decisions relied on the premise that “death is different” from every other form of punishment to justify rules minimizing the risk of error in capital cases. See, e.g., Gardner v. Florida, 430 U. S. 349, 357–358 (1977) (plurality opinion).
Ironically, however, more recent cases have endorsed procedures that provide less protections to capital defendants than to ordinary offenders.
Of special concern to me are rules that deprive the defendant of a trial by jurors representing a fair cross section of the community.
Litigation involving both challenges for cause and peremptory challenges has persuaded me that the process of obtaining a “death qualified jury” is really a procedure that has the purpose and effect of obtaining a jury that is biased in favor of conviction. The prosecutorial concern that death verdicts would rarely be returned by 12 randomly selected jurors should be viewed as objective evidence supporting the conclusion that the penalty is excessive. [18]
Another serious concern is that the risk of error in capital cases may be greater than in other cases because the facts are often so disturbing that the interest in making sure the crime does not go unpunished may overcome residual doubt concerning the identity of the offender. Our former emphasis on the importance of ensuring that decisions in death cases be adequately supported by reason rather than emotion, Gardner, 430 U. S. 349, has been undercut by more recent decisions placing a thumb on the prosecutor’s side of the scales.
Thus, in Kansas v. Marsh, 548 U.S. 163 (2006), the Court upheld a state statute that requires imposition of the death penalty when the jury finds that the aggravating and mitigating factors are in equipoise. And in Payne v. Tennessee, 501 U.S. 808 (1991), the Court overruled earlier cases and held that “victim impact” evidence relating to the personal characteristics of the victim and the emotional impact of the crime on the victim’s family is admissible despite the fact that it sheds no light on the question of guilt or innocence or on the moral culpability of the defendant, and thus serves no purpose other than to encourage jurors to make life or death decisions on the basis of emotion rather than reason.
A third significant concern is the risk of discriminatory application of the death penalty. While that risk has been dramatically reduced, the Court has allowed it to continue to play an unacceptable role in capital cases. Thus, in McCleskey v. Kemp, 481 U. S. 279 (1987), the Court upheld a death sentence despite the “strong probability that [the defendant’s] sentencing jury ... was influenced by the fact that [he was] black and his victim was white.” Id., at 366 (STEVENS, J., dissenting); see also Evans v. State, 396 Md. 256, 323, 914 A. 2d 25, 64 (2006), cert. denied, 552 U.S. (2007) (affirming a death sentence despite the existence of a study showing that “the death penalty is statistically more likely to be pursued against a black person who murders a white victim than against a defendant in any other racial combination”).
Finally, given the real risk of error in this class of cases, the irrevocable nature of the consequences is of decisive importance to me. Whether or not any innocent defendants have actually been executed, abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses. See Garrett, Judging Innocence, 108 Colum. L. Rev. 55 (2008); Risinger, Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate, 97 J. Crim. L. & C. 761 (2007).
The risk of executing innocent defendants can be entirely eliminated by treating any penalty more severe than life imprisonment without the possibility of parole as constitutionally excessive.
In sum, just as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “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 [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” Furman, 408 U. S., at 312 (White, J., concurring). [19]
The conclusion that I have reached with regard to the constitutionality of the death penalty itself makes my decision in this case particularly difficult. It does not, however, justify a refusal to respect precedents that remain a part of our law. This Court has held that the death penalty is constitutional, and has established a framework for evaluating the constitutionality of particular methods of execution. Under those precedents, whether as interpreted by THE CHIEF JUSTICE or JUSTICE GINSBURG, I am persuaded that the evidence adduced by petitioners fails to prove that Kentucky’s lethal injection protocol violates the Eighth Amendment.
Accordingly, I join the Court’s judgment.
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IMBEDDED NOTES
CITATIONS
MUMBO-JUMBO IN LINGUA LATINA
SECRET CODE COMPREHENSIBLE ONLY TO LAWYERS:
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[18] See Uttecht v. Brown, 551 U. S. 1, ___ (2007) (slip op., at 1) (STEVENS, J., dissenting) explaining that “[m]illions of Americans oppose the death penalty,” and that “[a] cross section of virtually every community in the country includes citizens who firmly believe the death penalty is unjust but who nevertheless are qualified to serve as jurors in capital cases”).
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[19] Not a single Justice in Furman concluded that the mention of deprivation of “life” in the Fifth and Fourteenth Amendments insulated the death penalty from constitutional challenge. The five Justices who concurred in the judgment necessarily rejected this argument, and even
the four dissenters, who explicitly acknowledged that the death
penalty was not considered impermissibly cruel at the time of the framing, proceeded to evaluate whether anything had changed in the intervening 181 years that nevertheless rendered capital punishment
unconstitutional.
Furman, 408 U. S., at 380–384 (Burger, C.J., joined by Blackmun, Powell, and Rehnquist, JJ., dissenting); see also id., at 420 (“Nor are ‘cruel and unusual punishments’ and ‘due process of law’ static concepts whose meaning and scope were sealed at the time of their writing”) (Powell, J., joined by Burger, C.J., and Blackmun and Rehnquist, JJ., dissenting). And indeed, the guarantees of procedural fairness contained in the Fifth and Fourteenth Amendments do not resolve the substantive questions relating to the separate limitations imposed by the Eighth Amendment.
——————
courts, [and] that visits repeated trauma on victims’ families ....”
Id., at 27–28; see also Block, A Slow Death, N. Y. Times, Mar. 15, 2007, p. A27 (discussing the “enormous costs and burdens to the judicial system” resulting from the death penalty).
Some argue that these costs are the consequence of judicial insistence on unnecessarily elaborate and lengthy appellate procedures. To the contrary, they result “in large part from the States’ failure to apply constitutionally sufficient procedures at the time of initial [conviction or] sentencing.” Knight v. Florida, 528 U. S. 990, 998 (1999) (BREYER, J., dissenting from denial of certiorari). They may also result from a general reluctance by States to put large numbers of defendants to death, even after a sentence of death is imposed. Cf. Tempest, Death Row Often Means a Long Life; California condemns many murderers, but few are ever executed, L. A. Times, Mar. 6, 2006, p. B1 (noting that California death row inmates account for about 20% of the Nation’s total death row population, but that the State accounts for only 1% of the Nation’s executions). In any event, they are most certainly not the fault of judges who do nothing more than ensure compliance with constitutional guarantees prior to imposing the irrevocable punishment of death.

1 comment:

patfromch said...

http://abcnews.go.com/TheLaw/story?id=4015348&page=1

(good this is not about the electric chair, I got a Duracell ad before the clip)

An updated version of this interview was on the 10 pm late news yesterday on swiss tv channel SF1. You can watch it in german here just below Hilly and Obie
http://www.sf.tv/sf1/10vor10/index.php?docid=20080417

Would be a very good thing to stop this torture indeed.