Capital punishment

[vison]

But maybe we should. Some people have to do this work, and I am a coward about even watching a movie about it.

I bought the movie Schindler's List many years ago. It's never been unwrapped.

I read the book even longer ago. That was hard enough.

Once, there was a radio documentary about children and war. All the episodes were wonderful, all were well done. But the one that I will never forget was listening to a woman who told about being on a train going to one of the camps. Her mother had lifted her into the boxcar, and then the girl didn't see her mother again. As the train went along, she imagined that her mother was in the car behind. She imagined that she could hear her mother sing to her. This fantasy kept her from being terrified on the train. Then the train stopped and she saw that there was no car behind. I was driving my car while listening to it. I wanted to turn it off, I couldn't bear it. I only made myself listen by telling myself that she had lived it, and so I must surely have the strength to hear it.

I've always thought that only by feeling and understanding such things can they be stopped from happening again. Not that it's the only way. And the same with this documentary. I guess maybe we should all see it. All of us. Everywhere.

[JewelSong]

.
I bought the movie Schindler's List many years ago. It's never been unwrapped.

I felt exactly the same way, vison. A friend of mind (Democritus, in fact!) made me watch it with him. It was profoundly disturbing and I was an emotional wreck at the end. But I am extremely glad I saw it. Spielberg's finest work (and John Williams' best score - IMHO.)

My youngest son read Eli Wiesel's "Night" in High School and become very interested in the Holocaust. When we were in DC, we visited the newly opened Holocaust Museum. They had an exhibit about the 1936 Olympics which was fascinating and they also had am exhibit for children, following the life of a fictional little Jewish boy. It was very well done...but I could only get halfway through it before I had to leave, telling my son to meet me outside.


So I know exactly what you mean when you can't bear to hear or read something.

[nerdanel]

Significant death penalty news out of Oregon today, which now switches to moratorium status. Per Governor Kitzhaber's directive, executions will be halted immediately and will not resume during his time in office. The state has 37 condemned inmates and has conducted just two executions since it implemented the death penalty in 1984. Both executed inmates were volunteers.

[nerdanel]

Here is Governor Kitzhaber's three-page statement in full.

[Primula Baggins]

I'd just finished reading it and came here to post about it.

The death penalty as practiced in Oregon is neither fair nor just; and it is not swift or certain. It is not applied equally to all. It is a perversion of justice that the single best indicator of who will and will not be executed has nothing to do with the circumstances of a crime or the findings of a jury. The only factor that determines whether someone sentenced to death in Oregon is actually executed is that they volunteer.

...

It is time for Oregon to consider a different approach. I refuse to be a part of this compromised and inequitable system any longer; and I will not allow further executions while I am Governor.

...

To those who will inevitably say that my decision today compromises the will of the voters; let me point out that, in practice, it is the current system itself which compromises the will of the voters. I do not believe for a moment that the voters intended to create a system in which those condemned to death could determine whether that sentence would be carried out.

I could have commuted Mr. Haugen’s sentence – and indeed the sentences of all those on death row -- to life in prison without the possibility of parole. I did not do so because the policy of this state on capital punishment is not mine alone to decide. It is a matter for all Oregonians to decide. And it is my hope – indeed my intention – that my action today will bring about a long overdue reevaluation of our current policy and our system of capital punishment.

...

Fourteen years ago, I struggled with the decision to allow an execution to proceed. Over the years I have thought if faced with the same set of circumstances I would make a different decision. That time has come.

I've voted for this man for governor three times. That he would do this is one reason why.

He's not going to get a free pass on this; Oregon is sharply divided politically. This isn't political expediency at work.

[yovargas]

Both executed inmates were volunteers.

I don't understand what that means. Volunteered for what?

[Primula Baggins]

They chose not to continue to appeal. If they had continued, they'd probably still be alive.

[nerdanel]

"Volunteer" is the colloquial term used in capital (postconviction) practice to describe an inmate who has chosen to "volunteer" for execution before all of his appeals have been decided against him. Possibly one of the most famous examples is Timothy McVeigh. For an in-depth look at one inmate's experience in fighting for the ability to volunteer for execution, see the Los Angeles Times' coverage of California condemned inmate David Mason's execution. Usually, volunteers have found the experience of living in maximum-security conditions under sentence of death for years or decades to be so unbearable that they believe death is preferable - so volunteering is sometimes described as "state-aided suicide." Sometimes, volunteers see their decision as linked to their accepting responsibility for their actions and will even describe themselves as pro-capital punishment (as Mason did).

Volunteers face an uphill battle, as Haugen's current experience in Oregon makes clear. They usually must first persuade their own legal team that they really wish to abandon their appeals, which can be a protracted, even yearslong process. Then - with or without the help of their counsel - they have to go through a court-ordered competency process, including meeting with psychiatrists, to confirm that they are mentally competent to volunteer. They may face other attorneys or nonprofit groups suing to stop the execution, as seems to have occurred in this case. Finally, they may - apparently - have to contend with unwanted gubernatorial stays, as in this case.

[ToshoftheWuffingas]

I'd given up hope of hearing news of public servants with that level of intellectual integrity Prim. Thank you for restoring my faith.

[Aravar]

"Volunteer" is the colloquial term used in capital (postconviction) practice to describe an inmate who has chosen to "volunteer" for execution before all of his appeals have been decided against him. Possibly one of the most famous examples is Timothy McVeigh. For an in-depth look at one inmate's experience in fighting for the ability to volunteer for execution, see the Los Angeles Times' coverage of California condemned inmate David Mason's execution. Usually, volunteers have found the experience of living in maximum-security conditions under sentence of death for years or decades to be so unbearable that they believe death is preferable - so volunteering is sometimes described as "state-aided suicide." Sometimes, volunteers see their decision as linked to their accepting responsibility for their actions and will even describe themselves as pro-capital punishment (as Mason did).

This is so alien to what happened in Britain while capital punishment was still in force. Firstly, apart form a short period, it was a mandatory sentence for all murders, and so was not at the whim of the jury, altohugh the jury could recommend clemency. Clemency was a matter for the home secretary in the UK. (I was surprised by a claim in a recent edition of the Spectator that the Queen herself decides the matter in respect of some of the overseas realms which still have the death penalty).

Execution followed swiftly: at the latest within about six weeks of sentence. No long death row experience. That cna, of course have its own problems.

I am still in favour of capital punishment, but I could never support life without parole. If someone is never to be readmitted to society, then I tihnk society should make an end of it.. If society is not willing to do so there sohuld, I tihnk , always be a way back. As the question fo "volunteering" shows being kept without hope in maximum security conditions is, IMO more inhumane than capital punishment.

I will reiterate my recommendation of Pierrepoint (I think its The Last Hangmn in the US) a film about Britains most famous executioner. It is superbly acted and is an interesting exploraiton of some of the issues.

[nerdanel]

This is so alien to what happened in Britain while capital punishment was still in force. Firstly, apart form a short period, it was a mandatory sentence for all murders, and so was not at the whim of the jury, altohugh the jury could recommend clemency.

I think the two disparate approaches illustrate the impossibility of selecting fairly who shall live and who shall die, which is the central consideration in my change of heart on the issue. The former British approach seems facially attractive: let us treat like crimes alike. But our Supreme Court has said that it is unconstitutional to have a mandatory death penalty, in part because it allows neither for consideration of all the circumstances of the crime (including all aggravating factors, such as victim impact evidence or particularly brutal methods of killing) nor consideration of the defendant's circumstances (including all mitigating factors). The American approach also makes sense facially: the idea is to have the death penalty for only the "worst" murders and to have a clearly articulated set of guidelines for which murders are "worst." Unfortunately, as we all know, this is impossible to do in an even-handed manner: different jurors will weigh aggravators and mitigators in each case, and since most of them serve on only a single capital jury, they really have no basis for comparison as to which murders or murderers are "worst." Of course, jurors - being mainstream citizens - will have been exposed to a number of capital crimes via the media, but the media rarely comprehensively reports the precise balance of aggravators and mitigators in these cases, so it may actually introduce further unfairness if jurors try to compare the crime/defendant they are judging to others they have heard about on the news. (And when you try to have judicial override of jurors' death sentences, this happens).

The US system leads to the strange result that one can meet two murderers who have committed substantially the same crime, one of whom is serving 25-to-life and one of whom faces a death sentence. This is a strange sensation.

But I suspect there is no way around this result so long as the death penalty endures. Even the "mandatory death" British system provided for clemency, which would mean that like crimes were not always treated alike. And there is always manslaughter. I suspect that even if Americans adopted a "mandatory death" approach for "murder" (which would require a federal constitutional amendment to override contrary SCOTUS decisions), killings that prosecutors or jurors felt did not really deserve death would miraculously be charged or convicted as manslaughter rather than murder, thus again arguably creating unevenness. I think that there is no way to treat all like crimes alike, and while this should still be of concern for prisoners serving non-life sentence, it is of especial concern in LWOP and death contexts.

Execution followed swiftly: at the latest within about six weeks of sentence. No long death row experience. That cna, of course have its own problems.

According to the Innocence Project, the average length of time served by American exonerees is thirteen years, which number reflects both capital and non-capital crimes. So unfortunately, I think the "death row phenomenon" is here so long as the death penalty is. The appeals process is tedious and can seem futile: it is the painstaking process of picking through the minutiae of long-ago convictions that - but for the death sentences - would have been concluded years or decades ago with the life-without-parole entombment of their perpetrators. The sense of futility is heightened because usually no constitutional error will be found - even if one existed at the time of trial, the witnesses necessary to prove that may have died before the case reaches postconviction, and standards of review are slanted strongly against the disturbance of final judgments. However, as fallible as the yearslong appellate "checking" process is, to abolish it is to acquiesce in the killing of some (additional?) innocent people.

I am still in favour of capital punishment, but I could never support life without parole. If someone is never to be readmitted to society, then I tihnk society should make an end of it.. If society is not willing to do so there sohuld, I tihnk , always be a way back.

I think this reasoning is pleasing in theory but is not politically viable in the US, and in some cases may place society at risk. First, to decrease support for the death penalty below 50 percent requires offering voters a LWOP option, and even then the death penalty still "wins," 49 to 46 percent. Second, I think the death penalty is not viable for the central reasons of (1) inability to identify fairly the people who are to die, even assuming the guilt of each defendant considered for the death penalty; I am not sure that humans are qualified to make this life and death decision; and (2) our fallibility on innocence issues. I also think that the death penalty is not desirable due to the massive nine figure costs per year in some states like California, even as the state lays off police and teachers; the ability to keep cases lingering in the judicial system for decades past the point where they should have concluded, with no "closure" for anyone involved (and with unnecessary secondary traumatization for the dozens or hundreds of additional people exposed to the crimes through the lengthy appellate process); the exceptional "punishing" of people other than the defendants (like their children, left to await the killing of their parents by the state); and the brutalization of state employees required to conduct the executions.

As for whether the residents of death row could ever safely be released to society, I recently discussed this with a senior correctional officer (who strongly supports the death penalty) at San Quentin State Prison in California, site of California's male death row. His belief, after two decades of working on death row, was that a large supermajority of death row prisoners could be held in non-death row maximum-security conditions (i.e. could safely serve LWOP without endangering anyone); a significant number of death row prisoners could actually be dropped to a lower security classification without endangering anyone or risk of escape (e.g. low or medium security prison); and that at least some death row inmates could eventually be released to society without any risk of reoffending. Given that his view is arguably conservative, I think it certainly makes sense to consider less frequent use of LWOP: if someone can serve a long sentence (e.g. 30-50 years) that befits their crime and can eventually be released and live safely within society, usually, as a senior citizen, it seems like that option should at least be considered. But I'm not sure that this is true of every condemned murderer; I certainly at least think it is understandable that society does not wish to take this risk in particularly extreme cases; and I don't think that the death penalty is a feasible alternative for the reasons listed above. So I think that LWOP should be an available sanction at least at this point in our history. It will not surprise me if eventually, society removes LWOP from the list of permissible sanctions -- and, as I have stated here before, I believe that human rights activists will focus their attentions there once they have achieved universal abolition of the death penalty. However, I think that stage in society will and should arrive only as the frequency of violent homicide further decreases; the current downward trend is promising.

[nerdanel]

Just wanted to share this article on British citizen Linda Carty, near to execution on Texas' death row. Given the number of people here with ties to the UK, this might be more than usually interesting.

To be honest, I'm less worried about whether the British consulate was notified and much more worried about whether Carty's US constitutional rights have been violated - although the U.S. clearly needs to be better about following its international law obligations re: notifying foreign consulates. However, Carty does seem to have a decent actual innocence claim and a pretty strong ineffective assistance of trial counsel claim. The Texas capital process seems particularly inadequate in scrutinizing for constitutional errors.

http://www.texasobserver.org/cover-stor ... fair-trial

Did Death Row Inmate Linda Carty Get a Fair Trial?

Sympathizers argue her British citizenship means the British consulate should have been informed of her arrest. It wasn't.

by Alex Hannaford

Trafalgar Square, just a stone’s throw from the very center of the British capital, is an expanse of paved sidewalk, pretty fountains and, most notably, five statues. The central statue is of Admiral Lord Nelson, after whose infamous 1805 sea battle the square is named; King George IV stands in one corner; two historical army generals in the others. The 'fourth plinth', as it's known, remained empty for 150 years, but for the last decade or so it has been used to showcase a series of artworks. For one day in September 2009, though, it carried a cardboard cut-out of an African-American woman, while beneath it, a portable PA system broadcast her voice — calm, and with a slight Caribbean lilt — to passers-by.

“Hello Trafalgar Square,” she said. “My name is Linda Carty and I'm speaking to you from death row in Texas in the United States.”

Her name will mean little to most Texans: the arrests, charges and then sentences in the case were reported locally -- but briefly -- in the Houston Chronicle and a longer piece appeared in the same paper in 2010 following the Supreme Court's refusal to review Carty's case. But the British press had been on it for a long time. In fact, over the last eight years, thanks to news reports (in everything from broadsheets like the Independent and Guardian to tabloids like the Daily Mail and Express), magazine features, a prime time television documentary and a sustained campaign by a London-based human rights group, Carty has become something of a cause célèbre in the UK — and not just for those opposed to capital punishment. Many feel that, irrelevant of her guilt or innocence, Carty simply didn’t get a fair trial.

From the Trafalgar Square plinth, Carty’s disembodied voice continued: “I'm sorry I sound like a desperate woman but I am desperate. The British people may be my last hope. If they ask for my life to be spared, maybe Texas will listen.”

But why has a little-known inmate on Texas’s death row — one of 10 women and 311 men — got the British all a fluster?

Carty was born on the Caribbean island of St. Kitts when it was still a British colony. As such, Carty holds British citizenship, and under the terms of the Vienna Convention on Consular Relations, when she was first arrested, the British consulate in Houston should have been informed. But it wasn’t.

Carty’s journey to death row began in the early hours of May 16, 2001, and if you just heard the prosecution’s side of the story, it would seem like a cut-and-dried case:

At about 1am, four men kicked down the door of a Houston apartment and demanded marijuana and money from its three occupants: Joana Rodriguez, her husband Raymundo Cabrera, and Cabrera's cousin, Rigoberto Cardenas. Rodriguez had only been home from hospital for a day, the proud mother of a baby boy. The four men ransacked the apartment, tied up Cabrera and Cardenas, then stole $800 in cash, taking Rodriguez and baby Ray with them.

Florence Myers, a tenant in the apartment complex told police she had seen Carty sitting in her car in the apartment parking lot the night before and the pair had chatted for a while. Myers said Carty told her she was pregnant and that the baby was going to be born the next day; she noticed an infant car seat in the back of the car, but that Carty didn’t appear to her to be pregnant.

Police immediately brought Carty in for questioning. During her interrogation she told officers she had loaned both a rental car and her daughter's car to a group of men she believed might be involved in the kidnapping. She directed officers to a house where police discovered the two cars. In one was baby Ray, alive and well. In the trunk of the other, bound and gagged, was Joana Rodriguez. A plastic bag had been placed over her head and she had suffocated. Inside the car was baby clothes, baby blankets and a diaper bag.

Carty’s common-law husband, Jose Corona, testified that Carty had suffered several miscarriages and that she had lied recently about being pregnant. Other witnesses testified that Carty told them she was expecting a baby in May. Police said cell phone records tied Carty to the four men who had broken into Rodriguez’s apartment.

The prosecution painted Carty as a woman who would stop at nothing — even kidnap and murder — to have a baby.

I first interviewed Carty in 2004 for a story for the UK’s Guardian newspaper. It was while researching that piece that I found the case against her wasn’t as watertight as it first appeared.

From behind a glass screen at the Mountain View Unit in Gatesville, Carty told me that when she was arrested she thought it would all be over in 30 minutes — that the police had just made a mistake; at first she didn’t even know she was a suspect. She was interviewed for several hours, most of which was without an attorney. I listened to the police interview tapes in their entirety, and throughout, Carty denies involvement, saying she lent her car to some men she knew. She tells police the names of two of them, says they are armed and dangerous and that she can take them to an address where she believes they live.

The idea that she lent her car to dangerous men she hardly knew, and that those men could have framed her, is not as far-fetched as it sounds. In the 1980s, Houston had a drug problem. Jamaican gangs operating throughout the U.S. were considered the most violent in the criminal underworld. Carty, then a pharmacology student at the University of Houston, was dating a drug dealer (something of which she claims she had no former knowledge) and after a friend in the police department made an introduction, she was recruited as a confidential informant by the Drug Enforcement Administration (DEA).

Her handler was a man named Charlie Mathis, who recruited and ran informants for the DEA. Carty's task was to befriend suspected traffickers in order to get information and, occasionally, make test purchases of drugs. It was risky work. Her targets were dangerous people. But Linda would prove to be a good hire for Mathis. He trusted her and for the next 15 years Carty would risk her life for him on several occasions.

Carty claimed, therefore, that her three co-accused all had a motive to frame her – that they were members of the Houston underworld harboring a grudge. But three of the men who broke into the apartment – Chris Robinson, Gerald Anderson, Carliss Williams (the fourth has never been identified) – told police that Carty had planned the entire thing; that if they broke into the apartment and kidnapped Rodriguez and her son, they would find marijuana and cash inside. In return for testifying against Carty, Robinson, Anderson and Williams were each promised lesser sentences. None was sent to death row.

In a dramatic courtroom flourish, the State's lawyers produced a pair of Carty's scissors, claiming that she had planned to cut the baby out of Rodriguez's womb. Inevitably it elicited a strong response from the jury. But these were bandage scissors with rounded ends – incapable of cutting through muscle and skin. And anyway, Rodriguez had given birth three days before the murder, something Carty surely must have known, living so close.

If Carty was faking a pregnancy and planned to pass the baby off as her own, she hadn’t mentioned being pregnant to her own daughter, Jovelle, nor her mother, Enid. As for the baby clothes in her car, Carty said she was days away from moving out of her apartment and these were the last items she'd removed – bought just before she miscarried.

Then there was the seriously questionable – some say negligent – performance by her court-appointed trial attorney, Houston lawyer Jerry Guerinot. Of the 39 people Guerinot has represented in capital murder cases, 20 have been sentenced to death. A story in the journal of the American Bar Association said he possibly held the record for the most clients sentenced to death in the U.S.

There was never any physical evidence tying Carty to the murder. And although Guerinot presented testimony from a clinical psychologist saying Carty would have been incapable of committing the crime, he failed to interview her husband, Jose Corona, he didn’t ask her DEA handler of 15 years, Charlie Mathis, to take the stand in her defence, and he didn’t object to the prosecution’s dramatic presentation of the bandage scissors either.

Crucially, he didn’t inform Corona of his right under Texas law not to testify against his own wife — something known as spousal privilege. Corona gave statements claiming the couple had broken up two weeks before the murder and that Carty had lied to him about being pregnant, essentially giving prosecutors the motive they needed (ergo she had kidnapped Rodriguez’s baby and killed Rodriguez to prove to Corona that she had given birth to his son). But it was a motive Carty claims never existed.

In mitigation, all the jury heard was a few minutes of cursory testimony from Carty’s mother, daughter and sister, in which they said she was sweet, kind, had never harmed anyone and had worked hard her whole life to put Jovelle through school. Guerinot failed to call friends, extended family, coworkers or colleagues.

Perhaps critically, he also failed to advise Carty of her right, as a citizen of St. Kitts and the United Kingdom, to consular help.

It wasn’t until the end of 2004 that the British Government finally stepped in, hiring Houston attorneys Baker Botts to represent Carty in her remaining appeals.

The law firm argued that Guerinot ‘rendered ineffective assistance’ by failing to notify Corona of his spousal privilege, and by failing to prevent additional mitigating evidence during the punishment phase.

Corona swore an affidavit saying that he thought he had no other option but to testify and that if it had been explained to him, he would have refused.

Charlie Mathis swore that the ‘Linda I know is not a violent person, let alone a cold- blooded murderer’, and if he’d been asked to take the stand for the defense, he would have also provided favorable testimony about her performance as an informant for the government for over a decade.

Baker Botts argued that, absent Guerinot’s errors, at least one juror would have had reasonable doubt about Carty’s guilt and that mitigating evidence from Corona, Mathis, Carty’s extended family and friends, and acquaintances on her native St. Kitts, where she’d worked as a much-loved school teacher, could have altered the outcome of her sentence.

But both the district court, and later the 5th circuit appeals court, decided that despite Guerinot’s ‘deficiency’ it did not sufficiently prejudice Carty’s defense; that although it was a ‘close case’, Carty had not proved that Corona’s testimony rendered her conviction unfair or that the omission of Mathis’s testimony was prejudicial.

In the middle of all this, the UK government filed what’s known as an Amicus brief to the 5th circuit appeals court, registering its interest in the outcome of case. “Among the failures of Ms. Carty’s trial counsel was his failure to notify or seek assistance from the British Consulate-General in Houston, Texas,” it said.

All Carty's appeals were unsuccessful. The Supreme Court refused to look at the case, and bar an intervention by Governor Rick Perry or the Board of Paroles and Pardons, Carty has now exhausted all her options.

The question remains: if the British consulate had been called when Carty was first arrested back in 2001, and it had instructed attorneys of its choosing, would Carty be in the position she is now?

Andy Pryce, Deputy Consul General in Houston, says that when British nationals are charged with capital crimes, the consulate monitors judicial proceedings, works with prosecutors to ensure the British position on the death penalty (it opposes it unequivocally) is understood and ensures that the accused receives appropriate legal representation. In Carty’s case it could have secured pro-bono lawyers and helped get crucial mitigating evidence through the British High Commission responsible for St. Kitts — something that “could have proved a vital role in the outcome of Ms Carty’s case, especially with regard to sentencing.”

At the end of November, the UK’s Channel 4, one of the country’s main broadcast television channels, aired an hour-long documentary on Carty. Filmmaker Steve Humphries says it was of huge interest because the last British woman to be executed was in 1955, when 28-year-old Ruth Ellis was hanged for murdering her lover.

Humphries’s film, broadcast on a Monday night at 8pm, was watched by almost two million people — double what that time slot would normally attract. Its commissioning editor, David Glover, tells the Observer that he wanted to show it because it was a disturbing, tragic human interest story, but, he says, there were difficulties. “The case was very complicated. TV viewers naturally adopt a ‘whodunnit’ mentality; they’re looking at the screen asking if that person is innocent or guilty. Most people want to be told a simple story and there just isn’t one. The truth is, Carty’s trial was so botched, it was very hard to know the degree of her involvement, if any.” But, he says, there were deeper moral questions. “The film is very much about compassion.”

At the end, the credits gave details of a petition where viewers could sign up to add their names to a list asking for clemency. In the days that followed the broadcast, 50,000 people added their signatures and so many people visited the accompanying website that it crashed. As Glover says, “it struck a chord with the British people.”

Glover is keen to point out, however, that he wouldn’t be so interfering or arrogant to tell the American people how to run their justice system. “Every country has autonomy, but as [Carty] is a British citizen and this wasn’t pointed out at her trial, it’s important to bring this up.”

I ask Steve Humphries what the most compelling part of the Carty saga is for him. “Her defence attorney Jerry Guerinot was offered money by the court to go to St. Kitts but he didn’t go,” he says. “If he had done — like we did — he would have uncovered the story of a public spirited young schoolteacher who was shamed and dismissed from her job when she had a baby outside of marriage. If he’d investigated her story more fully he would have discovered that she’d been raped, beaten and pressurised into becoming a DEA agent, a job which led her into the criminal underworld. But perhaps more importantly, to be executed under Texan law she needed to be regarded as a serious danger to the community. And Linda, in my opinion, is not that. She never received the proper defence which was her constitutional right.”

Carty told me that when the death sentence was handed down in the courtroom back in 2001 it felt like a sharp pain running through her body. She felt betrayed by a government she had worked for — and put her life on the line for — for 15 years. And she said the closer she got to the Mountain View Unit, the place she’d call home until her execution, the more she felt like she would be forgotten.

Carty’s daughter, Jovelle, is now mother to two little boys, Jhori, five, and Caden, four. They’re no longer allowed to visit their grandmother. A couple of years ago Jovelle was told a new rule had been imposed that children couldn't visit if the crime the offender committed involved children. For Jovelle, it makes a hard situation even worse. “We visit once every two to three weeks for just two hours each time. It’d be nice to have contact but we’re not allowed. A hug goes a long way.”

In 2011, for the second year in a row, juries condemned just eight people to death in Texas — the lowest number since the death penalty was reinstated in 1976 after a hiatus. In 2008 and 2009 there were no new death sentences at all in Harris County, where Carty was convicted. Last year there were just three. If Carty’s trial took place today, Carty's supporters wonder aloud whether she would have been found guilty, let alone sentenced to death.

[Túrin Turambar]

The Japanese government has announced that it carried out three executions on Thursday, the first since August 2010. At present it has not identified the prisoners, although it has revealed that all were convicted of multiple murders.

It is a controversial point to make, but I think that Asian countries seem culturally better-equipped for capital punishment than western ones. The secrecy which surrounds the death penalty in Japan would not be tolerated in, say, the United States, where a media circus seems to accompany the lead-up to the execution of every high-profile prisoner. And, in turn, being on death row seems to instantly catapult felons to the status of celebrities. In contrast, in Japan, the date of the execution is kept secret, only revealed to the prisoner himself that morning and to the public at large after the execution has been carried out. Amnesty International is critical of the harshness of the regime to which inmates on death row are subjected to.

Within Japan, however, capital punishment is not particularly controversial. It has, at the moment, about 80% support, as Prime Minister Yoshihiko Noda noted yesterday. And in several cases the prosecution has been able to present petitions with hundreds of thousands of signatures calling for the death penalty, in some cases successfully getting the Supreme Court to overturn life sentences in favour of death. If anything, some shcolars have noted that the attitude of the Japanese public has hardened in the past two decades, with people increasingly favouring the death penalty for single murders if the circumstances are heinous enough.

This can create an interesting conflict when the Justice Minister, who is required to sign all death warrants, is a Buddhist who is opposed to taking life. This has led to some periods of de facto moratorium, and allegations that such ministers neglect their public duty. There was some speculation that incoming NDP Justice Minister Keiko Chiba, who was an active campaigner against capital punishment, would not sign them. Nonetheless she ordered the execution of two prisoners to go ahead in August 2010, and actually witnessed both hangings herself. She has since been replaced by Minoru Yanagida, who I understand would have been responsible for signing the warrants for this week’s executions.

[Lalaith]

That's interesting, Lord M. I did not know any of that.

I can't say I like any of that, really.

[Voronwë the Faithful]

This doesn't quite belong here, but I think it is close enough that it is worth discussing here, rather than starting a separate thread, or digging up an old SCOTUS thread.

In addition its mixed decision on the Arizona immigration reform law, and doubling down on Citizens United by prohibiting Montana's campaign spending restrictions, the other major decision that the SCOTUS made yesterday while delaying the landmark health care reform decision as long as possilbe (how's that for running on?) was to rule that it was cruel and unusual punishment to impose a mandatory life sentence with possibility of parole on juveniles. This expands on the court's 2005 decision outlawing capital punishment for juveniles.

Justices Bar Mandatory Life Terms for Juveniles

I agree with this decision. It must be pointed out that the decision does not prohibit life sentences with possibility of parole for all juveniles. It just requires that the courts consider the juvenile's age and the circumstances of the case in making that decision. The opinion was written by Justice Kagan and joined by (of course) Justice Kennedy, along with the rest of the more liberal justices.

The problem with mandatory sentences, Justice Kagan wrote, is that “every juvenile will receive the same sentence as every other — the 17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one.”

“Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences,” Justice Kagan added. “It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional.”

[Frelga]

I can see how age and degree of participation would affect the punishment, but why does the kind of household matter?

[Primula Baggins]

Maybe a kid in a bad environment has a chance of becoming a better person if his environment is changed. Whereas a kid with "all the advantages" who commits a serious crime might be presumed to be less likely to reform.

[Frelga]

Or, conversely, a kid from a good environment is more likely to get counseling, support and supervision, while a kid going back to an abusive and violent environment is more likely to re-offend?

[nerdanel]

Evidence of an extremely poor childhood is relevant in mitigation. This is a concept that has been wholly accepted in capital cases, to the point where an attorney's failure to investigate his or her client's childhood and discover all reasonably available mitigating evidence is considered a very serious Sixth Amendment violation known as "ineffective assistance of counsel"; it is grounds for vacating the death sentence altogether. In ruling that the jury must be permitted to consider an adult offender's childhood (e.g. evidence of physical or sexual abuse; poverty; neglect; racism; brain injury; etc.), the Court has simply recognized that these factors may help to explain how an offender got to the point where they could be convicted of taking human life, and may mitigate (not exculpate) the commission of that crime. In a capital context, mitigation usually means a "life without parole" sentence rather than a death sentence, but may mean a life with possibility of parole sentence in some states.

I haven't finished reading the opinion yet - crazy week at work - but from the portion I've read, it looks like the Supreme Court is partially extending this capital reasoning to the juvenile homicide context. It's saying that juveniles who have participated in homicides must be sentenced in a way that considers:

- to what extent they participated in the crime - i.e., before sentencing an accomplice who did not actually commit the murder to LWOP, you have to consider their lesser role in the crime;
- their childhood history. If you imagine a child who has been brutalized by parents, older siblings, or other adults in their lives, they may be considered less culpable for having turned towards violence than your "kid from a good environment," who has far less explanation for his turn towards violence. Also, note that these teenagers are not going to go back into an abusive and violent childhood environment. An American teenager with a homicide conviction who is tried as an adult, but who doesn't get LWOP, is very likely to get a sentence that sounds like an indeterminate 25-to-life term. Whether for better or for worse, this isn't Western Europe: even our "lenient" sentences are extremely lengthy. These juveniles will remain in prison well into their adulthood.

[nerdanel]

Time to use this thread to start following Proposition 34, in which Californians will vote this November on whether to abolish the death penalty and commute the sentences of those on death row to life without parole. As some of you might know, California is unique in several ways:

(1) It has the largest death row in the United States, with 720-25 people on death row (the numbers keep shifting slightly as older inmates die, others commit suicide, and new individuals are sentenced to death.)
(2) It has an anemic execution rate, with only 13 executions since 1978, when the death penalty was reinstated.
(3) There have been no executions in the state since a 2006 moratorium imposed by a federal district court judge due to defects in the state's lethal injection protocol. Further executions are currently enjoined by both the state and federal courts. There are approximately fourteen inmates who have exhausted their appeals and could be executed if the courts lifted their protocol-based injunctions.
(4) The discourse re: whether to abolish the death penalty in this state is not linked to philosophical questions about whether the state can respond to murder by taking a life, nor is it linked to the pragmatic questions of innocence and racism that have led to abolition in other states. In California, given the distinctive (legal and housing) costs of maintaining a massive death row; the poor "return" in terms of executions actually carried out; and the unrelated budget woes under which the state is groaning, the argument in favor of abolishing the death penalty is linked to its inefficiency and onerous costs.

To that end, I wanted to share pro-death penalty, former California Supreme Court Justice Carlos Moreno's recent statement in favor of abolition. I agree with his reasoning, and I would add this: I think it's possible to have an efficient (i.e., quick-executing) death penalty system, but I don't think it's possible to have one that weeds out all factual (innocence-based) and constitutional errors. And when one endeavors to have a more thorough, error-catching death penalty system, one that appreciates the unique risks and gravity of cases that begin with at least one death and are intended by the state to end with another - as I think California has genuinely sought to establish - it leads to a massively inefficient and highly costly system. (It also means, in practical terms, that rather than executing the angry 30 year old who was convicted of committing a murder, the state may execute - if anyone - a greatly aged, changed, and softened 60 year old who has demonstrated that he can be housed safely and non-violently for decades on end.) In the end, I must admit that I've been persuaded towards abolition much more by this very practical reasoning than I have by the philosophical reasoning that appeals to many here. Without any more ado, here's ex-Justice Moreno:

Ex-justice who supports death penalty backs measure to abolish it

As a California Supreme Court justice for nearly a decade, Carlos Moreno estimates he voted to uphold more than 200 death sentences, and says he doesn’t regret any of those decisions. “In all the cases I saw, the convicted defendants richly deserved to be executed,” he said in an interview this week.

But Moreno, now an attorney in Los Angeles, is backing a November ballot measure that would repeal the death penalty in California and change the maximum sentence to life in prison without parole. The ballot arguments for Proposition 34, posted on the secretary of state’s website, include his statement that “there’s no chance California’s death penalty can ever be fixed. The millions wasted on this broken system would be much better spent keeping teachers, police and firefighters on their jobs.”

The death penalty has been politically popular in California — voters resoundingly endorsed it in 1972 and 1978, and in 1986 removed three state Supreme Court justices who had regularly voted to overturn death sentences. Although support in some other states has been declining, a Field Poll in September found 68 percent backing for capital punishment in California.

But opponents note that polls have also found more Californians favor life without parole than death as a punishment for murder, the alternative that Prop. 34 presents. They hope to shift the debate in November to the question of whether the death penalty in California is worth what it costs in time and money. That’s why Moreno, who says he still favors the death penalty in theory, now wants to abolish it.

“I would think that we could fix the system, make it more efficient and actually faster, but I just don’t see that coming anywhere in the future,” said the former justice, a Gray Davis appointee who retired from the court in February 2011. “In California the people may be willing to support the death penalty in principle but they’re not willing to fund it.”

The costs amount to $184 million a year, according to a study last year co-written by another death penalty supporter, Arthur Alarcon, a judge on the Ninth U.S. Circuit Court of Appeals. That covers the extra expenses of trials, appeals and maintaining a Death Row that now houses 725 inmates. On average, their cases take more than 20 years to decide — prompting Moreno to observe that when death sentences get overturned, “I don’t see how you can realistically retry those cases.” Death penalty appeals also take up more than 25 percent of the caseload of the state Supreme Court, which automatically reviews every verdict in a capital case.

Opponents of Prop. 34, led by police and prosecutors’ organizations, dispute the cost studies and say the appeals process could be shortened considerably without sacrificing fairness. “Do you think giving vicious killers lifetime housing and health care benefits saves money?” they ask in their ballot arguments, which claim a repeal of the death penalty amounts to “saving murderers from justice.”

Moreno agrees that condemned murderers deserve their fate and doubts that there are innocent inmates on Death Row — the main reason, he said, that he wouldn’t sign the ballot arguments for Prop. 34, though he was willing to let its supporters use his statement in the ballot pamphlet. But as long as defendants in capital cases are entitled to a fair trial and decent legal representation, he said, there’s no way the system can accomplish its stated goals — punishment and deterrence for the criminals, justice for their victims – in a timely manner without money that the state is either unable or unwilling to spend.

He pointed to the court’s decision this week upholding the death sentence of a Livermore man whose crime, the murder of a nurse in her home, was committed in 1986. With the first ruling more than 25 years after the fact, and more years of appeals ahead, Moreno said, the case is an example of why “it is just unconscionable that we would continue to have a death penalty.”