Sept. 26
USA:
An Indefensible Punishment
When the Supreme Court reinstituted the death penalty 35 years ago, it did so
provisionally. Since then, it has sought to articulate legal standards for
states to follow that would ensure the fair administration of capital
punishment and avoid the arbitrariness and discrimination that had led it to
strike down all state death penalty statutes in 1972.
As the unconscionable execution of Troy Davis in Georgia last week underscores,
the court has failed because it is impossible to succeed at this task. The
death penalty is grotesque and immoral and should be repealed.
The court’s 1976 framework for administering the death penalty, balancing
aggravating factors like the cruelty of the crime against mitigating ones like
the defendant’s lack of a prior criminal record, came from the American Law
Institute, the nonpartisan group of judges, lawyers and law professors. In
2009, after a review of decades of executions, the group concluded that the
system could not be fixed and abandoned trying.
Sentencing people to death without taking account of aggravating and mitigating
circumstances leads to arbitrary results. Yet, the review found, so does
considering such circumstances because it requires jurors to weigh competing
factors and makes sentencing vulnerable to their biases.
Those biases are driven by race, class and politics, which influence all
aspects of American life. As a result, they have made discrimination and
arbitrariness the hallmarks of the death penalty in this country.
For example, 2/3 of all those sentenced to death since 1976 have been in 5
Southern states where “vigilante values” persist, according to the legal
scholar Franklin Zimring. Racism continues to infect the system, as study after
study has found in the past 3 decades.
The problems go on: Many defendants in capital cases are too poor to afford
legal counsel. Many of the lawyers assigned to represent them are poorly
equipped for the job. A major study done for the Senate Judiciary Committee
found that “egregiously incompetent defense lawyering” accounted for about 2/5
of the errors in capital cases. Apart from the issue of counsel, these cases
are more expensive at every stage of the criminal process than noncapital
cases.
Politics also permeates the death penalty, adding to chances of arbitrary
administration. Most prosecutors in jurisdictions with the penalty are elected
and control the decision to seek the punishment. Within the same state,
differing politics from county to county have led to huge disparities in use of
the penalty, when the crime rates and demographics were similar. This has been
true in Pennsylvania, Georgia, Texas and many other states.
So far, under this horrifying system, 17 innocent people sentenced to death
have been exonerated and released based on DNA evidence, and 112 other people
based on other evidence. All but a few developed nations have abolished the
death penalty. It is time Americans acknowledged that the death penalty cannot
be made to comply with the Constitution and is in every way indefensible.
(source: Editorial, New York Times)
*************
The Death of the Death Penalty----The courts and public are moving toward
repeal but not fast enough for inmates like Troy Davis
The executions last week of Troy Davis in Georgia and Lawrence Russell Brewer
in Texas, as well as the United States Supreme Court’s recent decisions to stay
the execution of two other Texas inmates, Duane Buck and Cleve Foster, have
pushed the death penalty back into the national spotlight. Davis’s case, which
inspired protests around the world, and Brewer’s, whose crime earned him
universal loathing, remind us of the intense and conflicting emotions that
continue to surround the vexed issue of capital punishment.
The truth is that the death penalty in the U.S. is withering, albeit at a pace
too slow for many. That may seem like a paradoxical observation coming after a
week in which 2 men were put to death and 2 others still stand hours away from
execution, but there is no doubting that momentum is moving against capital
punishment.
In the past 7 years, 4 states (New Jersey, New Mexico, Illinois, and New York)
have abandoned it. Even in the 34 states where executions remain lawful, death
sentences have grown rarer. There were 46 executions in the U.S. last year,
compared with 85 a decade before. From 2000 to 2010, juries across the country
imposed only 1/2 the number of death sentences they had in the 1990s.
Yet some might say that someone like Brewer surely deserves the death penalty.
Brewer made no bones about the fact that he was one of three white supremacists
who kidnapped James Byrd because he was black and dragged him for 2 miles
behind their pickup truck. It was a murder of unique savagery. Some Americans
believe in the death penalty “because the victims deserve it,” yet Byrd’s son’s
opposition to Brewer’s execution exposes this dubious rationale.
Troy Davis’s case, which brought protests from the likes of former President
Jimmy Carter and a worldwide letter-writing campaign, demonstrates even more
growing popular sentiment against executions. Nothing has sapped Americans’
enthusiasm for the death penalty more than the rising tide of exonerations. In
my experience as a prosecutor, defense lawyer, and a member of the Illinois
Commission on Capital Punishment, American moralism, far more than questionable
arguments about deterrence or the needs of surviving loved ones, has propelled
the death penalty. Thus the growing evidence of how often the capital system
errs naturally weakens the case for it. Even the strictest sense of Old
Testament justice does not leave room for executing the innocent.
The Davis case attracted so much international attention precisely because the
possibility of innocence loomed large. Most of the eyewitnesses recanted, and
ballistics evidence was called inconclusive, but after 22 years of litigation,
the legal system basically said enough was enough. Yet because Davis’s
execution will leave only a lingering sense of injustice, it’s hard to argue it
made the clear moral statement the death penalty supposedly represents.
As for Buck’s and Foster’s cases, the U.S. Supreme Court’s stays reflect the
court’s evident discomfort with Texas’s capital system. Since the court decided
the death penalty was constitutional in 1976, Texas has performed 474
executions—nearly 40 percent of all carried out in the U.S. But in the past
decade, the U.S. Supreme Court has temporarily halted dozens of Texas
executions and granted relief to a number of its prisoners. The fact that the
court spends so much time overseeing the death-penalty system of a single state
raises inevitable questions about how much of our scarce judicial resources we
want to expend on a penal scheme with weakening public support. Furthermore,
the number of legal and factual errors in Texas that continue to occur despite
the court’s role is strong evidence that the intense emotions of each case make
it nigh on impossible for the legal system to get it right.
The Supreme Court’s weather eye on Texas is part of the court’s decade-long
retooling of the death penalty. In 2002, it barred death sentences for the
mentally retarded, and in 2005 for anyone under 18 at the time of the crime. As
the years pass, and more and more states grow frustrated with the outsize costs
and mistakes of the capital system, the court, I suspect, will find our
evolving standards of decency prohibit capital punishment altogether. As Troy
Davis or Cleve Foster or Duane Buck or even Lawrence Brewer would probably tell
you, that day cannot come soon enough.
***************************
I Committed Murder----For the anonymous executioners of death row, the ‘high’
of pulling the lever is often followed by a lifetime of doubt.
Only a fellow executioner like 59-year-old Jerry Givens would know how
crushingly hard it will continue to be for those who put Troy Davis to death
last week even as he continued to insist on his innocence.
“The executioner is the one that suffers,” Givens says on the day after Davis’s
execution in Georgia. “The person that carries out the execution itself is
stuck with it the rest of his life. He has to wear that burden. Who would want
that on them?”
During the 17 years that Givens worked as an executioner in Virginia, he put 62
men to death. And each time, he felt what he calls “the executioner high,” an
adrenalized state that always imparted a merciful unreality as he sat behind a
curtain and pulled the lever, releasing a fatal cocktail of 3 drugs that seemed
to him less humane than the electricity he previously unleashed by pulling a
switch. The chemicals of lethal injection always took eternal minutes longer
than the deadly jolt from the electric chair.
“I had to transform myself into a person who would take a life,” Givens says.
“That transformation might linger for a while. You might be on that for 3
weeks.”
He figures this same high visited the executioners in Georgia who dispatched
Davis last week, in accordance with the state’s Administrative and Execution
Procedures, Lethal Injection, Under Death Sentence. “I guess those people last
night were on that emotional executioner high.” He says the high is all the
more intense with cases that receive public attention, such as when he
dispatched the Briley brothers in Virginia in the mid-1980s after their
seven-month spree of rape and at least 11 murders.
But once the protective high wears off, the executioner is left with the
reality that he has taken a life. And in the case of condemned prisoners like
Davis, who maintain their innocence to the very end, there is always that
lingering doubt. The only certainty is that the penalty is irrevocable.
“You take an innocent life—that means I committed murder,” Givens says.
If Troy Davis wasn’t in fact innocent, there is a near certainty that some
prisoners presently on death row are. A recent tabulation by the Death Penalty
Information Center showed that 138 prisoners were exonerated after being
sentenced to death between 1973 and 2010. That included five in Georgia, the
state that remained determined to put Davis to death despite the numerous
reasonable doubts regarding his guilt and the momentous public outrage joined
by such varied public figures as Bishop Desmond Tutu and Sean “P. Diddy” Combs.
While the prosecutors, jurors, and judge all had their say in putting a
prisoner on death row, the task of actually carrying out the sentence falls to
an executioner with no idea of what was said and done at trial. “You don’t
know,” Givens says. “You don’t take part in the trial. You weren’t there to
witness it.” And even cases of undisputed guilt can continue to haunt
executioners to the end of their days. In all 62 of Givens’s cases in Virginia,
the official paperwork bore a word that has stayed with him. “When you look at
the death certificate it says, ‘HOMICIDE,’” he notes. “How can it leave you?”
His career as an executioner ended 11 years ago, when he was convicted on
charges of perjury and money laundering unrelated to his work—going to prison
himself for four years, swearing he was innocent. Givens is now a truckdriver,
but the residual horror of his time as an executioner flashed back to him as he
followed from afar the news reports of the Davis case. “Whenever they have an
execution, I get back to when I used to do them. It’s human nature.”
Also in human nature is a cumulative revulsion to taking life even when it is
legally sanctioned. Those who finally have been driven to campaign against the
death penalty include not just executioners like Givens, but a number of
wardens who found it unbearable even to give the order that the executioners
carry out. A longtime warden of San Quentin prison in California began to choke
up when asked about four executions over which she presided, particularly the
execution of Manuel Babbitt, a decorated Vietnam vet who killed a 78-year-old
woman in a burglary. Babbitt’s brother had turned him in after false assurances
that the state would not seek the death penalty. “The brother had to come that
night and watch him be executed,” Jeanne Woodford, the former warden, recalls.
The 58-year-old lifelong corrections official says that presiding over
executions actually becomes more difficult over time. “You have to appear
normal,” she says. “You have to appear in control ... You try to tell yourself
and your staff that this is the law.”
Her career of nearly 4 decades culminated with her 2004 appointment as the
director of all of California’s prisons, but soon afterward, she resigned.
“I knew I couldn’t carry out another execution,” she says. “I knew I just
couldn’t do it.”
She says that, from the start, “it never made sense to me that we would believe
killing a human being would make up for killing a human being.”
Woodford has concluded that capital punishment also makes no fiscal sense. She
figures that her state spent $4 billion to execute 13 inmates between 1992 and
2006—money that would have been much better spent on fielding more cops. She
notes that nearly half of California’s murders go unsolved. “If this is really
about public safety, then the better option is to keep police on the streets,”
she says.
Woodford further suggests that the ultimate sanction is unacceptably arbitrary
in its application. She has joined other former wardens, along with at least 1
executioner, in a national effort to save others from the experiences that
perpetually haunt them.
“The death penalty shouldn’t exist at all,” she says.
In the meantime, executioners in 36 states will continue with the ritual that
begins with swabbing the condemned’s arm with alcohol, a ghoulish precaution
against infection from the needle that will momentarily deliver death.
One recent addition to the protocol in Georgia is the “consciousness check,”
instituted this year after 2 of the condemned were apparently administered
insufficient doses of an anesthetic that precedes the 2 chemicals that do the
actual killing. Because of the insufficient doses, the two are believed to have
suffered the horror of being suffocated by the paralyzing pancuronium bromide,
and then the agony of being burned from within by the potassium chloride. A
shortage of the anesthetic sodium thiopental had forced Georgia officials to
purchase a batch from an English firm called Dream Pharma that operates out of
a storefront driving school in London.
Besides adopting a new anesthetic, phenobarbital, Georgia adopted the new
check, which involves tapping the condemned’s eye and nudging his arm after the
administration of the 1st drug, to ensure he is unconscious before the
remaining 2 are delivered.
That was the procedure followed in the Davis execution, by a team contracted by
the state through a company called Rainbow Medical Associates. Rainbow is
headlined by Dr. Carlo Musso, who presents himself as a professional descendant
of Dr. Guillotin, arguing that he is only trying to spare the condemned
prisoner unnecessary suffering.
If Musso is untroubled by his work, he is undoubtedly an exception. The others
may still be finding protection in that “executioner high” that Givens
describes, and they will likely experience it again on Oct. 5, when Georgia is
scheduled to execute Marcus Ray Johnson for killing a woman in 1994.
When that high wears off and reality sets in, the consciousness check will be
followed by a conscience check. And, if Givens is right, the executioners will
then be the ones who suffer.
Givens finds refuge from his ghosts in religion, coping more successfully than
some executioners of earlier days. Two of New York’s executioners committed
suicide: Dow Hover by carbon monoxide in 1990 and John Hulbert with a gun in
1929 after saying, “I got tired of killing people.”
(source for both: The Daily Beast)
************************
The death penalty: Are we getting it right?
The idea of Georgia inmate Troy Davis lying on a gurney in an agonizing wait
for nine justices hundreds of miles away to resolve in a single-sentence
statement that he should in fact die - even if innocent - should be enough to
give pause to the most ardent supporters of the death penalty.
Davis was executed for the killing of a police officer 22 years ago, despite
scant forensic evidence and recantations over the years of most of the
eyewitnesses. Even some of the jurors said they've changed their minds about
his guilt.
"Casey Anthony is found not guilty by reasonable doubt but Troy Davis is
executed despite tremendous and widespread doubt," was one of the most salient
tweets during an evening in which Troy Davis was the biggest topic on Twitter.
This execution wasn't justice. My sympathies to the family of officer Mark
MacPhail, but this wasn't even the retribution they were seeking.
It is these kinds of miscarriages of justice that strengthen calls for
abolishing the death penalty.
The New York Times editorial page said Davis was an example that "across the
country, the legal process for the death penalty has shown itself to be
discriminatory, unjust and incapable of being fixed."
That depends on where you live. In Washington state, the death penalty is
carried out rarely and, so far, absent the racial disparities plaguing other
states.
Included in the handful of executions since the state resumed the death penalty
in the 1990s were Cal Coburn Brown, who raped, tortured and killed a
22-year-old woman, and Westley Alan Dodd, who kept a torture rack in his house
and killed little boys.
Those were easy calls. The tougher calls rightly become life sentences.
Some states are drenched in blood, given how many people were wrongly sent to
their deaths. Southern states, marked by racial and socioeconomic disparities
in the justice system, ought to refrain from using the death penalty.
Where caution is warranted, states ought to do like Illinois: An alarming
number of exonerations led then-Gov. George Ryan to empty death row.
But lumping all death-penalty states, or cases, together doesn't work for me or
the 2 out of 3 Americans identified in a Gallup poll last year in support of
the death penalty.
The same night Davis was put to death, an avowed white supremacist who killed a
man by dragging him from the end of a truck - eventually decapitating him - was
executed in Texas.
I'm not confused about that man's culpability or the appropriateness of the
punishment.
King County, Wash., currently has 2 active capital cases, including Christopher
Monfort, accused of ambushing 2 Seattle police officers and killing one 2 years
ago. In another case, 2 defendants are on trial for allegedly slaying 6 members
of 1 defendant's family on Christmas Eve four years ago. In a 3rd case, Conner
Schierman was sentenced to death last year for killing a Kirkland family of 4
in 2006.
And now pro-death-penalty King County Prosecutor Dan Satterberg must decide
whether to seek the ultimate punishment against Louis Chen, a physician charged
with stabbing his live-in partner more than 100 times and slashing to death
their toddler son.
Washington's careful application of the death penalty has created a feasible
pattern of horrific crime plus unquestionable guilt of perpetrator equals use
of the ultimate punishment.
I'm even fine with the high costs of prosecuting such cases. When someone's
life is on the line, no expense should be spared. But here's the lesson all of
us death penalty supporters must take from Troy Davis' death: be certain every
time. Or don't make the death penalty available at all.
If you believe that even with the 21st century's forensic and technological
advances this is too high a threshold to meet, you're a vote for abolishing the
death penalty.
Let's return to capital punishment as a rare option for the most heinous
crimes; a punishment carried out not as a deterrent, but as a true punishment
for those we're certain deserve it. Other-wise, as Davis said in his final
words: "May God have mercy on our souls."
(source: Lynne K. Varner is a columnist for The Seattle Times; The Modesto Bee)
************
Executions send wrong message
I was deeply saddened to read that Troy Davis was executed last week.
Davis died despite overwhelming public outcry because of grave doubts about his
guilt, particularly after several police eyewitnesses recanted or substantively
altered their testimonies.
The same evening saw the execution of Lawrence Russell Brewer, who was
convicted and sentenced to die for his role in the horrific 1998 murder of
James Byrd Jr. in Jasper, Texas. Byrd was chained and dragged to death behind a
pickup truck, and his body was later dumped outside a black church.
As for Davis, an innocent man may have been executed, making a re-examination
of the capital-justice system seem pertinent. Brewer, by contrast, committed
one of the worst hate crimes in recent memory, underscoring the tempting
emotional appeal of death sentences.
Yet both executions reveal the basic futility of capital punishment.
Murder erodes our ability to feel empathy at a fundamental level, whether it’s
carried out by a white supremacist or by the state of Georgia. Our capacity to
sympathize makes us human and allows us to build strong communities.
Heinous crimes may shake our faith in each other, but choosing our response to
them reveals who we are. In choosing the death penalty, our humanity is
debauched.
Desmond Tutu said it better than I when he noted: “My humanity is bound up in
yours, for we can only be human together.”
(source: Liam Moran, La Crosse Tribune)
*********************
Capital Punishment Punishes Everyone
I vehemently believe that there is never a reason for capital punishment. Any
time we reduce the value of life by killing someone, no matter how much we
think that person might "deserve" to be executed, we reduce the value of life
for everyone. Of course it's true that we give murderers who wind up on death
row more leeway than they gave their victims, but what's the alternative? A
return to lynch mobs? And, what if we're wrong?
What if Troy Davis was actually innocent, as he proclaimed all along? Last
week, when his final plea was rejected, the state of Georgia went ahead with
the lethal injection that took his life. Despite the lack of physical evidence,
police coercion, and recanting by seven out of nine witnesses of their original
testimony, Georgia had no "reasonable doubt" upon which to grant a stay of
execution. It takes a unique type of certainty to know that someone deserves to
be killed, even in the face of alternate possibilities as to that person's
guilt.
Where in this travesty was justice? Blindfolded, certainly. Color blind? Not at
all. A black man's life is still seen as basically worthless in Georgia. And
how about Texas? Governor and presidential hopeful Rick Perry has presided over
more executions than any governor in modern history, and his constituents shout
for joy. What is there to cheer about?
Why can't we ever seem to learn the truth of that old saying: An eye for eye
makes everyone blind. What we do to another, we do to ourselves. Those who
murder another person, whether out of jealous rage, drunken stupidity, or
deliberate planning, will all reap their just rewards somewhere along their
karmic path. In the meantime, we can keep them from hurting anyone else with a
lifetime of lock-up, certainly punishment enough to satisfy anyone's need for
revenge. We have successfully, for the most part, outlawed lynching, yet we
still leave life-and-death decisions to a judge and a jury that may be
committed to being "tough on crime" and prejudiced enough to order the death of
a black man when they would stop to think twice about it if he were white.
We all lose when our system of justice is unjust, when politics and prejudice
rule over basic humanity and our inherent oneness. That's the conclusion that a
number of Supreme Court justices finally came to, as Justice Harry Blackmun
said in 1994, that he would "no longer tinker with the machinery of death"
because "the death penalty experiment has failed."
The death penalty has not only failed to meet any "reasonable" concept of
justice, but it has also failed to make us better human beings; we will stand
tall only when we abolish it.
(source: Deborah King, Huffington Post)
******************
Sentencing Shift Gives New Leverage to Prosecutors
After decades of new laws to toughen sentencing for criminals, prosecutors have
gained greater leverage to extract guilty pleas from defendants and reduce the
number of cases that go to trial, often by using the threat of more serious
charges with mandatory sentences or other harsher penalties.
Some experts say the process has become coercive in many state and federal
jurisdictions, forcing defendants to weigh their options based on the relative
risks of facing a judge and jury rather than simple matters of guilt or
innocence. In effect, prosecutors are giving defendants more reasons to avoid
having their day in court.
“We now have an incredible concentration of power in the hands of prosecutors,”
said Richard E. Myers II, a former assistant United States attorney who is now
an associate professor of law at the University of North Carolina. He said that
so much influence now resides with prosecutors that “in the wrong hands, the
criminal justice system can be held hostage.”
One crucial, if unheralded, effect of this shift is now coming into sharper
view, according to academics who study the issue. Growing prosecutorial power
is a significant reason that the percentage of felony cases that go to trial
has dropped sharply in many places.
Plea bargains have been common for more than a century, but lately they have
begun to put the trial system out of business in some courtrooms. By one count,
fewer than one in 40 felony cases now make it to trial, according to data from
9 states that have published such records since the 1970s, when the ratio was
about one in 12. The decline has been even steeper in federal district courts.
Cases like Florida v. Shane Guthrie help explain why. After Mr. Guthrie, 24,
was arrested here last year, accused of beating his girlfriend and threatening
her with a knife, the prosecutor offered him a deal for 2 years in prison plus
probation.
Mr. Guthrie rejected that, and a later offer of five years, because he believed
that he was not guilty, his lawyer said. But the prosecutor’s response was
severe: he filed a more serious charge that would mean life imprisonment if Mr.
Guthrie is convicted later this year.
Because of a state law that increased punishments for people who had recently
been in prison, like Mr. Guthrie, the sentence would be mandatory. So what he
could have resolved for a two-year term could keep him locked up for 50 years
or more.
The decrease in trials has also been a consequence of underfinanced public
defense lawyers who can try only a handful of their cases, as well as,
prosecutors say, the rise of drug courts and other alternative resolutions.
The overloaded court system has also seen comparatively little expansion in
many places, making a huge increase in plea bargains a cheap and easy way to
handle a near-tripling in felony cases over the past generation.
But many researchers say the most important force in driving down the trial
rate has been state and federal legislative overhauls that imposed mandatory
sentences and other harsher and more certain penalties for many felonies,
especially those involving guns, drugs, violent crimes and repeat offenders.
Stiffer punishments were also put in place for specific crimes, like peddling
drugs near a school or wearing a mask in certain circumstances. And legislators
added reams of new felony statutes, vastly expanding the range of actions
considered illegal.
These tougher penalties, by many accounts, have contributed to the nation’s
steep drop in crime the past 2 decades. They have also swelled the prison
population to levels that lawmakers in some states say they can no longer
afford, and a few have rolled back some laws.
The ‘Trial Penalty’
In the courtroom and during plea negotiations, the impact of these stricter
laws is exerted through what academics call the “trial penalty.” The phrase
refers to the fact that the sentences for people who go to trial have grown
harsher relative to sentences for those who agree to a plea.
In some jurisdictions, this gap has widened so much it has become coercive and
is used to punish defendants for exercising their right to trial, some legal
experts say.
“Legislators want to make it easy for prosecutors to get the conviction without
having to go to trial,” said Rachel Barkow, a professor of law at New York
University who studies how prosecutors use their power. “And prosecutors who
are starved for resources want to use that leverage. And so now everyone acts
with the assumption that the case should end with a plea.”
“When you have that attitude,” she said, “you penalize people who have the
nerve to go to trial.”
Prosecutors say they are giving defendants options and are merely charging them
based on what is allowed under the law for those who turn down pleas.
While legal experts say the effect is clear in persuading more defendants to
forgo trials, the trial penalty is hard to quantify without examining
individual cases and negotiations between prosecutors and defense lawyers.
That is because threats of harsher charges against defendants who reject plea
deals often are the most influential factor in the outcome of a case, but this
interplay is never reflected in official data.
“How many times is a mandatory sentence used as a chip in order to coerce a
plea? They don’t keep records,” said Senior Judge John L. Kane Jr. of United
States District Court in Denver, who believes that prosecutors have grown more
powerful than judges. But it is very common, he added. “That’s what the public
doesn’t see, and where the statistics become meaningless.”
But one result is obvious, he said: “We hardly have trials anymore.”
In 1977, the year Judge Kane was appointed to the bench, the ratio of guilty
pleas to criminal trial verdicts in federal district courts was a little more
than 4 to 1; by last year, it was almost 32 to 1.
Here in Florida, which has greatly toughened sentencing since the 1990s, felony
defendants who opt for trial now routinely face the prospect of higher charges
that mean prison terms 2, 5, or even 20 times as long as if they had pleaded
guilty. In many cases, the process is reversed, and stiffer charges are
dismissed in return for a plea.
Before new sentencing laws, the gap was narrower, and trials less risky,
veteran lawyers here say. The first thing Denis deVlaming, a prominent Florida
criminal defense lawyer, does with a new client is pull out a calculator to
tally all the additional punishments the prosecutor can add to figure the
likely sentence if the client is convicted at trial.
“They think I’m ready to charge them a fee, but I’m not,” he said. “I tell them
in Florida, it’s justice by mathematics.”
No matter how strongly defendants believe they are innocent, he said, they
could be taking dangerous risks by, for example, turning down a one-year plea
bargain when the prosecutor threatens additional charges that carry a mandatory
sentence 10 times as long.
A Power Shift
The transfer of power to prosecutors from judges has been so profound that an
important trial ritual has become in some measure a lie, Mr. deVlaming said —
the instructions judges read stating that the jury determines guilt or
innocence, and the judge a proper sentence. The latter part is no longer true
when mandatory minimums and, in many cases, sentencing guidelines apply, but
jurors often do not know that.
Legal scholars like Paul Cassell, a conservative former federal judge and
prosecutor who is now a law professor at the University of Utah, describe the
power shift as a zero-sum game.
“Judges have lost discretion, and that discretion has accumulated in the hands
of prosecutors, who now have the ultimate ability to shape the outcome,” Mr.
Cassell said. “With mandatory minimums and other sentencing enhancements out
there, prosecutors can often dictate the sentence that will be imposed.”
Without question, plea bargains benefit many defendants who have committed
crimes and receive lighter sentences than they might after trial. It also
limits cases that require considerable time and expense in court.
But many defendants who opt for trial effectively face more prison time for
rejecting a plea than for committing the alleged crime.
In Mr. Guthrie’s case, he was initially charged with aggravated battery on a
pregnant woman and false imprisonment. But after he rejected the plea bargains,
the prosecutor, more than a year later, filed the more serious charge of
first-degree felony kidnapping, based on the girlfriend’s accusation that he
pulled her by the arm inside her home and, once outside, grabbed her hair and
pulled her on her feet the distance of several parking spaces.
Nobody is suggesting that Mr. Guthrie, previously incarcerated for 18 months on
gun, assault and drug charges, is a sympathetic figure. According to a police
report, he punched and kicked his girlfriend, left her with a bruised and
bloody nose and a face that “appeared to be swollen,” and threatened to cut her
stomach with a knife.
The assistant state attorney handling the case, Frank Slavichak, did not return
calls. The chief investigator for the office, Spencer Mann, said Mr. Guthrie’s
choices dictated the course of the case.
But his lawyer, Craig DeThomasis, hired after the plea rejections, said he was
“plainly being punished for exercising his right to trial.” According to Mr.
Guthrie’s mother, Claudia Guthrie, the prosecutor told her son at a hearing
this spring that if he did not plead guilty and take a five-year sentence,
higher charges would be filed that mean “you’re going to get life.” Mr. Mann
did not dispute that some sort of warning of new charges was presented.
Mr. DeThomasis said that there was no evidence the girlfriend was pregnant, and
that she started the altercation by hitting him in the forehead with a pipe,
landing him in the jail infirmary for a week. He pointed out that she was
arrested in 2009 for attacking Mr. Guthrie after telling the police he had
struck her, leading police to say in a report that she had “changed her story
several times and could not explain her actions.” He also said she had a
history of involuntary hospitalizations, which she declined to address in a
110-page sworn deposition in February.
Mr. Mann declined to comment on the girlfriend’s background but said none of it
affected the credibility of the case.
Judges in many cases can set aside verdicts that they believe are unsupported
by the evidence, but they generally have no power in mandatory-minimum cases to
reduce punishments below levels established through legislation.
While the Guthrie case may be a particularly stark example of how much power
one prosecutor can have over a defendant’s fate, many places have given
district attorneys similar influence.
“There have been so many laws passed in the various states that just about
always there is some enhancement available to the prosecutor that can be used
as leverage in negotiations,” said Scott Burns, executive director of the
National District Attorneys Association.
Mr. Burns, a former Utah prosecutor, did not dispute that sentencing-law
changes had made trial riskier for defendants and helped drive down the
percentage of cases taken to a verdict. He also acknowledged that the
plea-bargain process “clearly is coercive” when defendants face harsher or more
numerous charges for rejecting deals.
But he said plea bargains were also “extremely lenient in many instances
because prosecutors are taking several criminal acts off the table.” He
emphasized that lawmakers time and again have given prosecutors more leverage
and said it was “grossly unrealistic” to criticize district attorneys for
enforcing laws that they are duty-bound to uphold — even those that are
ill-advised.
“There are a lot of criminal laws that are passed that we all kind of roll our
eyes at,” he said. “Sometimes they are just repetitive; sometimes they are
knee-jerk responses to some high-profile case, and therefore politically
motivated.”
Though national statistics are not readily available, the trend toward lower
trial rates is evident in a number of places.
The National Center for State Courts in Williamsburg, Va., found that the
percentage of felonies taken to trial in nine states with available data fell
to 2.3 % in 2009, from 8 percent in 1976.
The number of jury trials rose slightly, while nonjury trials, where a judge
decides guilt or innocence, fell sharply — all while caseloads nearly tripled.
The states account for more than 1/3 of the American population, and most have
mandatory minimums or sentencing guidelines or have passed toughened sentencing
laws.
The Bureau of Justice Statistics, after studying partial data on state-court
felony prosecutions nationwide, found that from 1986 to 2006 the ratio of pleas
to trials nearly doubled.
The shift has been clearer in federal district courts. After tougher sentencing
laws were enacted in the 1980s, the percentage of criminal cases taken to trial
fell to less than 3 % last year, from almost 15 %, according to data from the
State University at Albany’s Sourcebook of Criminal Justice Statistics. The
explosion of immigration prosecutions, where trials are rare, skews the
numbers, but the trend is evident even when those cases are not included.
Nearly 9 of every 10 cases ended in pleas last year, the federal data show,
while 1 in 12 were dismissed (the percentage of dismissed cases was
substantially higher a generation ago).
The number of acquittals dropped even further. Last year, there was only 1
acquittal for every 212 guilty pleas or trial convictions in federal district
courts. 30 years ago, the ratio was 1 for every 22.
More Plea Bargaining
Experts like Ronald Wright, a former federal prosecutor and now a professor of
law at Wake Forest University, say they fear that the steep decline in
acquittals stems partly from more defendants, who might have winnable cases,
deciding not to risk trials and reluctantly accepting plea bargains instead.
Some federal prosecutors worried that their power would be weakened by a 2005
Supreme Court ruling that made sentencing guidelines advisory only. But
academics say the ruling had much less effect than what some predicted as many
judges still largely follow the guidelines, and the ruling did not affect other
laws that have given prosecutors more power.
While sentencing changes allowed legislators in this state to take credit for
being tough on crime, they have also worked against their goal of trimming
prison costs, leaving prosecutors caught in the middle.
“There is a big disconnect,” said Bill Cervone, the state attorney in
Gainesville and the chief prosecutor in 6 counties that make up Florida’s
Eighth Judicial Circuit. “There is subtle and not so subtle pressure” to reduce
the numbers sent to prison.
Mr. Cervone, who was head of the Florida Prosecuting Attorneys Association,
added, “Our position is, ‘Please don’t pass any new crime laws while you are
also cutting our budgets.’ ” His budget has been cut 20 % in 4 years.
The fiscal strains extend to judges, who face pressure to keep dockets moving.
Some do not appreciate defendants who refuse pleas and then lose a
time-consuming trial, he and other lawyers say.
“There are some judges who will punish you for going to trial,” Mr. Cervone
said. “Legally, you cannot impose a longer sentence on someone because they
exercised their right to trial,” he said, speaking of judges. “Factually, there
are ways to do it.”
In some cases, he added, he wished judges had more discretion, instead of
having to automatically impose an inflexible punishment.
So, too, do many judges faced with cases where legislatively mandated penalties
do not square with their idea of justice.
Like the one in Polk County, Fla. that began when Orville Wollard said he fired
his registered handgun into his living room wall to scare his daughter’s
boyfriend out of the house after he repeatedly threatened his family.
In Mr. Wollard’s view, he was protecting his family and did not try to hurt the
boyfriend, who was not hit, though the judge said the bullet missed him by
inches. But after Mr. Wollard turned down a plea offer of 5 years of felony
probation, prosecutors won a conviction 2 years ago for aggravated assault with
a firearm. Because the gun was fired, a mandatory-minimum law required a
20-year term.
At his sentencing, Mr. Wollard said he felt as if he were in “some banana
republic” and described the boyfriend as a violent drug dealer. But prosecutors
said the judge had “no discretion” because of the state law.
Reluctantly, the judge agreed. “If it weren’t for the mandatory minimum aspect
of this, I would use my discretion and impose some separate sentence,” he told
Mr. Wollard, adding that he was “duty bound” to impose 20 years.
(source: New York Times)
***********
Senate Eliminates Second Chance Act Funding-Bryne $400 million+
Senate Eliminates Second Chance Act Funding
Second Chance Act -zero
Justice Reinvestment-zero
Bryne--$400 million +
Last week the Senate Appropriations Committee eliminated funding for the Second
Chance Act in the fiscal year (FY) 2012 Commerce, Justice, Science
Appropriations bill. In contrast, the House Appropriations Committee provided
$70 million in their FY12 funding bill. (The Second Chance program was
originally funded at $100 million in FY 2010, but that was reduced to $83
million in 2011). Although no funding for Second Chance was included in the
bill, Senate Judiciary Committee Chairman Patrick Leahy pledged to work to
restore funding when the House and Senate Appropriations Committees attempt to
resolve differences between the 2 spending bills.
The bill also provides $9 million for the Mentally Ill Offender Act (the
legislation that authorizes the Justice and Mental Health Collaboration
Program) for FY12. Overall it provides $2.3 billion for state and local law
enforcement programs, including:
$9 million for the Mentally Ill Offender Treatment and Crime Reduction Act
$0 million for the Second Chance Act
$395 million for Byrne Memorial Justice Assistance Grants
$21 million for Byrne Competitive Grants
$35 million for Drug Courts
$10 million for Residential Substance Abuse Treatment
Committee approval is only the first step in the appropriations process. The
appropriations bills must be passed by the House and Senate Appropriations
Committees, as well as the full House and Senate.
For the summary of the legislation approved by the Senate Appropriations
Committee, please visit:
http://www.appropriations.senate.gov/news.cfm?method=news.view&id=d396ebde-ec78-470d-b46b-b4d49c8e565e
For the bill report language, please visit:
http://www.gpo.gov/fdsys/pkg/CRPT-112srpt78/pdf/CRPT-112srpt78.pdf
Get Involved Today — Help Restore Second Chance Act Funding
Members of Congress need to hear from you immediately about the importance of
Second Chance Act funding.
How You Can Help
Please contact your members of Congress
http://www.capwiz.com/csgjusticectr/issues/alert/?alertid=53718591&type=CO
(link to letter) and ask them to support funding for the Second Chance Act in
FY 2012.
Sign the national sign-on letter in support of Second Chance Act funding.
Share this information and ask your colleagues and friends to help protect
funding for the Second Chance Act.
(source: realcostofprisons.org)
****************
Last meal: What's the point of this death row ritual?
The state of Texas has ended the practice of offering death row inmates their
choice of last meal before their deaths. What does a killer's choice of food
say about his state of mind? Lawrence Brewer's last request was so extravagant
it seemed a mockery.
Just before the acknowledged white supremacist was put to death by lethal
injection on Wednesday, he ordered two steaks, a triple-meat cheeseburger, a
cheese omelette, a large bowl of fried okra, three fajitas, a pint of ice cream
and a pound (0.45kg) of barbecue meat.
It's not clear how much of that he was actually served, or whether his nerves
affected his appetite, but he ate none of it.
The following day, the Texas Department of Criminal Justice heeded the request
from an outraged Texas state senator to end the tradition of the generous last
meal.
Carroll Pickett----Texas "death house" chaplain, 1982 -1995
I was there for 95 who ate their last meal and died. I was with them when they
got there in the morning, I stayed with them all day.
We provided for them whatever they asked for, if it was on the unit. We didn't
go out and buy Whataburgers, we didn't go out and buy Mexican food, but if it
was on the unit and it could be fixed by the stewards, we gave it to them. If
they wanted Dr Pepper I could go next door and get them one.
A lot of them would decline.
They would just say, 'I just don't feel like it', or they would say, 'I'm
getting nervous, I'm getting scared'. Very few - I'd say less then 10% - ate
all that we brought to them.
Those who had spiritual reasons, they would say 'Jesus didn't get a last meal
on the day he was executed'.
When the sun went down after 17:00, they know this is their last sunset, then
their whole attitude changes.
From then on, from after the shower and after the meal time, it's a whole
different person.
From now on, condemned men in Texas will be offered the same cafeteria chow as
other prisoners.
What men and women request for their last meal reflects how they lived their
lives and how they choose to face their deaths, and offers Americans a poignant
human connection to the people they have decided should die for their crimes,
scholars and legal analysts say.
And as a ritual, the last meal is intended not to comfort the condemned but to
soften for society the harsh fact that a human is about to be killed with the
law's full sanction, says Jon Sheldon, a Virginia death penalty lawyer.
He has sat with three condemned men in the hours before their executions,
including infamous Washington sniper John Allen Muhammad.
"I don't know anybody who has eaten the last meal," Mr Sheldon says.
"In my experience, it is unlikely that someone is going to be hungry and is
going to want a meal. It's either not ordered, or it's ordered and it's not
eaten."
Florida, which has executed 69 convicts since 1976, budgets $40 (£26) per
inmate, and the last meal must be purchased locally.
Take-away meals
Oklahoma - 176 men and 3 women executed since 1915 - is more miserly, giving
prisoners only $15 to spend on a last meal, subject to the warden's approval.
Brewer was executed for the murder of an African-American man dragged to death
behind a truck The meal has to be purchased from a restaurant within the town
of McAlester, home to the death chamber, says Jerry Massie, a spokesman for the
Oklahoma Department of Corrections.
"The staff doesn't prepare it," he said.
The last man executed there ordered a deep dish meat lover's pizza from Pizza
Hut, and deep fried shrimp with cocktail sauce and hushpuppies - fried cornmeal
balls - from fast food outlet Long John Silver's, Mr Massie says.
The man before him had a large pepperoni and Italian sausage pizza and a large
Dr Pepper soda.
**
Some last meal requests in Texas - not all fulfilled
John Wheat, 13 June 2001: Liver and onions, mashed potatoes and gravy, whole
milk
Jack Clark, 9 January, 2001: Jar of Polish pickles, wedge of cheese, tossed
salad with Italian dressing, cheeseburger, French fries with ketchup, grape
juice
Oliver Cruz, 9 August 2000: Spicy beef fajitas, beans, rice, flour tortillas,
onions, tomatoes, avocado, banana split, orange juice
Glen McGinnis, 25 January 2000: Cheeseburger with lettuce, tomato, bacon, onion
rings, and ketchup
Clydell Coleman, 5 May 1999: Salmon croquettes, scrambled eggs, French fries
and biscuits
Jonathan Nobles, 7 October 1998: "Eucharist - sacrament"
Danny Harris, 30 July 1993: "God's saving grace, love, truth, peace and
freedom"
[source: Texas Department of Criminal Justice]
**
A review of last meal requests in Texas between 1982 and 2003 shows the most
popular requests were grilled or fried foods like burgers, fried chicken or
steaks.
This suggests the condemned had sought a last sensual reminder of home before
they died, says Phoebe Ellsworth, a professor of law and psychology at the
University of Michigan.
"Most of the offenders come from fairly poor backgrounds," says Prof Ellsworth,
who has researched capital punishment extensively.
"It's a memory of something about life on the outside. 'When we went out to
have a good time, what did we have?'"
A significant number of inmates forgo the last meal, whether in defiance of the
ritual or for lack of appetite. Or for spiritual reasons: David Clark, executed
in Texas in 1992 at age 32 for a double murder, told prison officials he wanted
to fast.
"They have other things on their minds," Mr Sheldon says. "Inmates have gotten
tired of co-operating with these rituals of death."
Alcohol is prohibited, and requests for cigarettes and bubble gum have been
turned down.
'Christian connotation'
The ritual of the last meal captures the public imagination because the
activity of sitting down for dinner is one Americans with no experience of
prison life can relate to, says Deborah Denno, a professor at Fordham
University School of Law in New York and an expert on capital punishment law.
Troy Davis, executed on Wednesday in Georgia, declined a last meal "It brings
us back to the fact that this is a human being who will not be having any more
dinners like we do," she says.
"There's a drama associated with it. This is the Last Supper. Maybe it has that
Christian connotation."
In Texas, the state that has executed the most people in the country since
modern capital punishment resumed in 1976, with 475, State Senator John
Whitmire says his push to end the last meal tradition was made of moral
concerns, not financial ones.
And he vehemently disagrees with critics who say it is petty and mean-spirited
to withhold from the condemned one last creature comfort.
"If you're fixing to execute someone under the laws of the state because of the
hideous crime that someone has committed, I'm not looking to comfort him," he
says.
"He didn't give his victim any comfort or a choice of last meal," he says of
Brewer.
Rather than reform the last meal, Texas officials should worry about the
justice, efficacy and constitutionality of capital punishment there, says
Richard Dieter, executive director of research organisation Death Penalty
Information Center.
"They take it away, hopefully they're looking to what they should be providing.
A last lawyer rather than a last meal is much more important."
(source: BBC News)
_______________________________________________
DeathPenalty mailing list
DeathPenalty@lists.washlaw.edu
http://lists.washlaw.edu/mailman/listinfo/deathpenalty
Search the Archives: http://www.mail-archive.com/deathpenalty@lists.washlaw.edu/
~~~~~~~~~~~~~~~~~~~~~~~~~~~
A free service of WashLaw
http://washlaw.edu
(785)670.1088
~~~~~~~~~~~~~~~~~~~~~~~~~~~
