April 12
USA: How Important is Roper v. Simmons?----by David R. Dow 3 of my clients will not be executed, and none of the credit is mine. They have been saved by the Supreme Court's decision in Roper v. Simmons, which held that the states cannot execute murderers who were younger than the age of 18 at the time they committed a crime. Give or take a score, there are 3,500 people on death row in the United States. The Court's decision in Roper saved perhaps 70. So Roper affected two percent of the nation's death row population. (In Texas, the decision has had a broader impact, nullifying death sentences of around seven percent of the state's death row population.) As a death penalty opponent, I do not want to sound ungrateful or churlish, but, outside of the people whose cases it immediately affects, the decision in Roper is trivial. It is not especially important doctrinally, and in some respects it is actually rather damaging. 2 1/2 years ago, in Atkins v. Virginia, the Supreme Court ruled that the states cannot execute the mentally retarded. Unlike chronological age, which has well-defined boundaries, mental retardation is comparatively imprecise. A murderer was or was not younger than age 18 at the time of the crime. Whether a murderer is mentally retarded is far less clear and is often controversial. Experts use accepted methods and tests to ascertain mental retardation, but they disagree among themselves, because the issue is complex, not as simple as consulting a calendar. Yet despite the difficulty of saying whether a particular death row inmate is retarded, a conservative estimate is that 5 % of the nation's death row population satisfies the clinical criteria, and perhaps the number is as large as ten percent. Atkins was an important decision, however, not simply because it affected twice or 5 times as many inmates as Roper, but as well because of the impact it has had on death penalty advocacy. Like the decision in Roper, the decision in Atkins will immediately help only a modest number of inmates. Unlike Roper, however, Atkins has dynamic consequences that reverberate throughout death row. The reason is that even though only 5 or 10 % of death row inmates will prove to be retarded, a much larger number have plausible claims under Atkins. In other words, even though a small % of the death row population will ultimately prove to be retarded, and hence entitled to relief under Atkins, as many as 1/2 the inmates on death row have some indicia of mental retardation. Of the dozen death row inmates I currently represent, easily half of them have plausible mental retardation claims. They will therefore now receive the benefit of an investigation that they would not otherwise have received. These investigations are vital because lawyers often find unexpected information, and so the likelihood that something useful will be found is increased. To take just one dramatic example: A death row inmate in Texas was recently set for execution. We believed there was a chance he was mentally retarded, within the meaning of Atkins, and therefore sought out evidence to establish it. We found no proof of his retardation; however, we did locate evidence tending to suggest that the inmate was not in fact guilty at all. Without Atkins, the investigation that led us to conclude that he is innocent would never have been undertaken. Unlike Atkins, Roper has no such dynamic consequence. There is no mystery as to which 2 % of the death row population benefits from Roper. There is no incentive for lawyers to do something that they were not already doing. And in fact, exactly the contrary is true. Under federal law, as well as under the laws of every death penalty state except one, death row inmates are entitled to lawyers to represent them in state and federal habeas corpus proceedings. That is not true for prison inmates not on death row-- - which means that as soon as the 70 or so juveniles who were on death row when Roper was decided get moved off of death row--they also lose their right to counsel. Yet of the 3 juveniles I represent, 2 of them have exceedingly strong claims of actual innocence, and the 3rd has a nontrivial claim of innocence. Even if I were willing to work on these cases without the prospect of having expenses paid for by a state or federal court, I also have to confront the fact that these cases are no longer urgent. Put somewhat actuarially, my clients still on death row face imminent demise, meaning that my clients not on death row - even assuming I continue to represent them - are constantly pushed to the bottom of my "to do" list. In the long run, cases that draw lines are trivial because the enterprise of drawing lines has little if any legal or moral content. It doesn't much matter whether the legal age for voting is 18 or 19. In contrast, saying that states cannot prevent women or blacks from voting is a point with profound moral content. I am relieved that 3 young men whom I believe should not be executed will not be executed because of Roper. At the same time, I recognize that even if it is true that the death penalty will die from a thousand cuts, the Supreme Court's decision in Roper is barely a pinprick. David Dow is the founder and director of the Texas Innocence Network and author of the recently published book Executed on a Technicality: Lethal Injustice on America's Death Row (Beacon Press 2005). Please visit www.beacon.org/catalogs/sp05/dow (source: Beacon Press) *********************** Experts debate rehabilitation for teen killers Before he raped and strangled a 9-year-old Philadelphia girl, Kevin Hughes was a tyrannized child who needed help. His drug-addicted and mentally ill mother used him as a sexual plaything when she was around and left him to wander the streets begging for food when she wasn't. The many men in his mother's life also sexually abused Kevin and taught him that women were to be subjugated. Some of them beat him savagely while his mother stood by watching. Sometimes she laughed. After Kevin, who was 16 at the time, killed Rochelle Graham and burned her body in an abandoned house, the community's thirst for vengeance overwhelmed any inclination to sift through the wreckage of his childhood or figure out how he'd become such a monster. There was no discussion of how the criminal justice system might punish him and address his stark pathologies. So, in a matter of months, he was tried, convicted and sent to death row. That was in 1981. Last month, in a landmark ruling, the Supreme Court ruled that Kevin and 71 other juvenile killers can't be executed, opening the door to a broader debate about the nature of juvenile justice. If execution is improper, experts say, why is life without parole - the penalty these 72 killers now face - any more appropriate? If, as the court said, juvenile offenders are fundamentally different from adults, why shouldn't these youthful murderers be offered a promise of rehabilitative treatment? "The whole idea of juvenile justice revolves around the idea that we're dealing with fixable people, kids who are still developing, but the death penalty made that idea irrelevant," said Stephen Harper, a public defender who teaches on juvenile justice at the University of Miami. "Now that execution is out of the picture, I think there are other issues we can confront. Can adolescent killers be rehabilitated? And should that be the goal?" Charles Hobson, an attorney with the Criminal Justice Legal Foundation, a victims advocate in California, said there's more to it than that. "Punishment limits crime with an appropriate expenditure of resources, and people understand that," he said. "Other things may help offenders, but they won't necessarily keep the public safer, and that's a problem." If policymakers blanch at the notion of re-thinking juvenile justice, it may be because of this dramatic tension that's developed between those who see young killers as treatable and those who consider them doomed souls in need of perpetual punishment. The juvenile justice system in this country evolved around the notion of rehabilitation and treatment, but a surge in adolescent crime during the early 1980s inspired a crackdown. States began narrowing the age range for offenders who'd be considered juveniles, virtually eliminating older teens from the category. Judges were stripped of much of the discretion they had to treat juveniles differently, with many states adopting mandatory minimum sentences. Youthful killers have almost universally been kicked up into the adult system, making it a foregone conclusion that the paths of their lives would be set solely by their crimes and without any consideration for the frequently awful circumstances that surrounded their childhoods. The death penalty was never common in this country for juveniles, and by the time the high court eliminated it last month, most states had already turned their backs on it. But juvenile justice experts say it remained a terrible distraction from a discussion of broader options for young killers. The argument, they say, was too often about whether life without parole or death was appropriate. Treatment wasn't considered. "It was definitely in the way," said Marsha Levick, the legal director of the Philadelphia-based Juvenile Law Center, referring to the death penalty. "Now that you can't execute juveniles anymore, it may give us a real opening." That prospect isn't just because of the court's decision in Roper v. Simmons. It's also because of the reasoning Justice Anthony Kennedy used in writing the majority opinion in the 5-4 case, which hints at the potential - and perhaps the overwhelming need - for broader reform. Quoting from groundbreaking studies of the adolescent brain, Kennedy declared that juveniles lacked the maturity and sense of responsibility that would allow them to be considered "the most deserving of execution," which is the court's standard for capital punishment. He said they're more vulnerable to "negative influences and outside pressure" and that an adolescent's character is "not as well formed as that of an adult." The differences between juveniles and adults "render suspect any conclusion that a juvenile falls among the worst offenders," Kennedy said. "From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed." Harper, the Miami public defender, said many of the same things could be said of life without parole. "The United Nations convention on human rights prohibits life sentences for juveniles, just like the death penalty," he said. "I've had clients who did terrible things but were fine if they were treated and medicated." However, Hobson, of the Criminal Justice Legal Foundation, points out that if Kennedy's logic in the Roper case were applied to other sentences, the public backlash would be overwhelming. "The problem is that he made a categorical distinction about youth, and people know that's not right, that there are some offenders who, despite their age, are fully culpable for their crimes," Hobson said. He said any move to create broad legal exceptions for juvenile murderers would meet the same resistance that doomed efforts in the 1980s to hold mentally ill offenders to lower standards. "It will be like the Twinkie defense for juveniles," he said, referring to the infamous claim by a California murderer that his junk food diet impaired his mental capacity. "No one will go for it." If the pessimists are right, however, there's no hope for offenders like Kevin Hughes. His childhood is remarkable not only for its horror, but also for how strongly it was connected to the crime he committed and how desperately it cries out for treatment. 1 of 6 children fathered by 5 different men, Kevin was always "mentally slow" and "mentally ill," according to family members who testified during his appeals. His mother was addicted to drugs and was mentally ill, as well. She would leave the children for months at a time without supervision, forcing them to wander the streets of their Philadelphia neighborhood begging for food. When Kevin's mother was around, she subjected the children - and Kevin in particular - to bizarre and severe mental abuse. She showed the children nude pictures of herself, forced them to watch her have sex with boyfriends and sometimes chided them for "not being man enough" to please her. She would talk about having orgies and often had sex with more than one man in front of the children. Kevin got beatings from the men when he tried to pull them away from his mother. Kevin's mother once overdosed on sleeping pills while trying to commit suicide, and Kevin, then 11, followed suit. The downed pills rendered him unconscious and got him a trip to the hospital, but he wasn't taken from the home. The most prominent male figure in Kevin's life was the father of his two youngest siblings, who dressed as a woman and forced Kevin to sleep in the same bed with him and his mother. He "taught" Kevin beginning at age 5 about sex, the family said, by molesting him and showing him how to have sex with a woman. While he violated Kevin's mother, he told Kevin that women were supposed to be subjugated by men. "It was disgusting and sad to hear Kevin talk about the things he had learned from Isaac and his mother," said Yvonne Williams, an aunt. "He was just a little boy. It was even sadder because Kevin was mentally disturbed and could not think properly." When Kevin was 17, a young girl from his neighborhood told police that he'd sexually abused her. The details of her assault led police to connect Kevin with the rape and strangulation of Rochelle Graham, a 9-year-old whose burned body had been found 10 months earlier in an abandoned house. Kevin was charged with murder, convicted and sentenced to death. At trial, he was sedated with thorazine to prevent him from acting out in the courtroom. His attorney failed to present the jury with any evidence of his childhood, which could have inspired the jury to sentence him to life in prison instead. Robert Dunham, a lawyer in the Philadelphia federal defender's office that now represents Kevin, said straight punishment didn't make much sense for someone like Kevin, but that's all that was on the table. "That's the way it works," Dunham said. "The adult system isn't about treatment." Kevin is now 43, and he sat on death row for 24 years before the high court said he couldn't be executed. His mental problems have worsened, and court records show he's tried to commit suicide several times and has been committed to an institution for the criminally insane five times. He's been treated with a dizzying array of psychotropic drugs to control his behavior in prison, but the goal has never been to address the root of his problems: a childhood defined by abuse. Levick, of the Juvenile Law Center, said Hughes' case was a tragically missed opportunity. "There are things that probably should have been done for him, before we even got to the point of talking about a death sentence," she said. "But to do that, we have to step back from the crime, no matter how awful it is, and look at the person involved. "That's hard to do, but I think the death penalty ruling suggests it's something we ought to try." (source: Knight Ridder Tribune) NORTH CAROLINA: 39th Local NC Government Calls for Execution Halt----Orange County Democrats, Too Just up the road from the home of Alan Gell, exonerated from death row 14 months ago, another North Carolina town called on the NC General Assembly and governor to place an immediate halt on executions and begin a study of solutions to North Carolina's trouble-plagued death penalty system. The town council of Roxobel tonight unanimously passed a resolution for a two-year suspension of executions, making it the 39th local government to call for an immediate moratorium on executions. "I want to make it clear that I support the death penalty," said Council Member Manuel Joyner, who motioned in favor of the resolution. "But I do want to make sure that our death penalty is fair." Council Member Carroll Hinton said, "I don't understand why we would wait on this" before seconding the motion. Several members of the town council asked Jeremy Collins, who represented the NC Moratorium Now Campaign before the council, how the NC General Assembly's members could know about serious problems with the death penalty as it is administered and not do something about them. Mayor Gary Johnson and Council Member H.C. Boschen also supported the resolution. Council Member Alton Parker was absent from the meeting. Roxobel, population 263, is located in Bertie County, about 70 miles southwest of Portsmouth, Va. and 80 miles east of Raleigh. Other NC local governments that have passed similar resolutions include: Asheville, Aulander, Bertie County, Carrboro, Cary, Chapel Hill, Charlotte, Chatham County, Cofield, Columbia, Creedmoor, Creswell, Davidson, Dobbins Heights, Dover, Durham, Durham County, Fayetteville, Garysburg, Greenevers, Greensboro, Guilford County, Hillsborough, Jamesville, Lewiston Woodville, Norlina, Northwest, Oak City, Orange County, Parmele, Plymouth, Princeville, Roper, Taylortown, Thomasville, Winfall, and Winston-Salem. Also tonight, the Democratic Party of Orange County, NC, passed a similar resolution for a moratorium. More than 1,000 such resolutions have been passed in the state by churches, businesses, community groups, and political parties. A bill for a suspension of executions and study is in the NC House Judiciary I Committee and is expected to be voted on in upcoming weeks. The bill was signed by a bipartisan group of 39 representatives. (source: People of Faith Against the Death Penalty) CALIFORNIA: Nation wants data on Quentin A Marin legislator wants state corrections officials to immediately disclose operating costs of San Quentin and 4 other state prisons. Assemblyman Joe Nation, D-San Rafael, said he can't wait any longer for the cost figures, needed for a presentation later this month before Gov. Arnold Schwarzenegger's cabinet. Nation and Supervisor Steve Kinsey hope to use economic arguments to persuade the governor to reconsider plans for a new $220 million death row at San Quentin. "A big part of the argument we're making is about the finances," Nation said. "We have a summary of the finances by the state auditor, but we don't have the original source materials, and we need those." County consultant Mike Pickett, who is helping Kinsey and Nation with their presentation, has been asking state corrections staff "for weeks" for the most recent monthly operating budgets for 5 state prisons, including San Quentin, with no success, Nation said. Nation said he is mailing a letter today to corrections department Director Jeanne Woodford to request the information. "I'm not suggesting they're not being helpful," Nation said. "Bureaucracies are sometimes slow." State corrections staff were forbidden to give Pickett, a former corrections department executive, access to the information via a memo e-mailed by George Sifuentes, the department's deputy director of facilities. In the memo, Sifuentes told his staff not to release cost information to Pickett, and instead said that all inquiries should be referred to him, according to Nation and corrections department spokesman Todd Slosek. Slosek said the memo was not a way to block Marin's progress, but an attempt to be more efficient. "It was an effort to be more responsive, so we can expedite the requests," Slosek said. "There was no attempt to withhold information. If anything, we've been as transparent as possible." Nation and Kinsey said earlier this month that the cost figures were the last remaining detail needed. In addition to the economic arguments, the two leaders hope to focus on an alternative inmate housing plan, crafted by Pickett. Pickett's plan involves housing the condemned prisoners at various state prisons outside of Marin until their appeals of their death sentences are exhausted. They would be transferred to San Quentin when their executions are scheduled. Nation and Kinsey are opposed to building the $220 million death row, which they call a "warehouse" for condemned inmates. They said the 40-acre site for death row is prime bayfront land that would have more regional benefit as a transit hub and deepwater port. Meanwhile, state corrections officials are staying on track to start construction of a new death row this fall. A final environmental impact report will be mailed Friday to agencies for review, corrections spokeswoman Terry Thornton said. Copies will be made available to the public after the environmental report is certified by Woodford at the end of this month, Thornton said. There will be a 30-day period in which the final environmental report can be challenged in court by groups or individuals, Thornton added. If there are no legal challenges, the environmental report will go to a state public works board in June for approval, she said. Nation said he is sending copies of his letter to Woodford to Peter Siggins, Schwarzenegger's legislative aide, and Rod Hickman, secretary of the state Youth and Adult Correctional Agency, which includes the corrections department. (source: Marin Independent Journal) OHIO: ACLU asks court to block move of death row to supermax prison Civil rights advocates asked a federal court Tuesday to block the move of the state's death row to a supermaximum security prison near Youngstown. Moving death row inmates to the Ohio State Penitentiary would deny them their constitutional due process rights, the American Civil Liberties Union of Ohio argued in a motion filed in U.S. District Court in Cleveland. State prison officials last month said they plan move death row from Mansfield to the 500-bed prison near Youngstown sometime this summer to save money. The prison is designed for the most dangerous inmates. Except for an hour a day, inmates are kept in 90-square-foot cells built to prevent them from communicating with each other. Inmates also face tighter security, with strip searches, and less access to telephones and personal items. A message seeking comment was left for Attorney General Jim Petro's office. The ACLU is also involved in a class-action lawsuit against the state in 2001. That lawsuit contends that supermax prisons are too restrictive and that inmates should be given an opportunity to contest a state's decision to transfer them to such a facility. The case is pending before the U.S. Supreme Court. The prison opened in 1998 after a deadly inmate riot 5 years earlier at the Southern Ohio Correctional Facility in Lucasville. ON THE NET----ACLU: http://www.acluohio.org/ Ohio Death Row: http://www.drc.state.oh.us/Public/deathrow.htm (source: Associated Press) VIRGINIA: Lawyer Admits Client's Guilt in MS-13 Killing of Pregnant Teen 4 members of the notorious MS-13 street gang who are facing the death penalty for killing a pregnant teenager they believed was a snitch offered starkly different defenses Monday as their trial began. The lawyer for one of the four defendants essentially admitted his client's guilt and told the jury that trying to understand the backward code of honor among members of Mara Salvatrucha, or MS-13, is fruitless. "What you're going to hear is a story of absolute tragedy: lost children, lost souls, how lives can be so tragically mishandled," said James Clark, attorney for Ismael Juarez Cisneros, who admitted his role to police and implicated his co-defendants. "Please don't expect to make any sense of it." Meanwhile, the lawyer for the man who allegedly masterminded from his jail cell the murder of Brenda Paz told the jury that at least a dozen other gang members wanted Paz dead because it was known that she was cooperating with police even as she stayed connected to her old friends from MS-13. "A lot of people had a problem with Ms. Paz," said Jerome Aquino, lawyer for Denis Rivera. "Ms. Paz played a dangerous game. She played the police for sure. ... She never really left the gang." According to prosecutors, Paz joined MS-13 at age 14 and the gang became her surrogate family; her pleasant demeanor earned her the nickname "Smiley." She also was Rivera's former girlfriend, but at some point she became disenchanted with her life in the gang and agreed to testify against Rivera at an upcoming murder trial and reveal what she knew about MS-13, said prosecutor Ronald Walutes. Police came from as far as California and Texas to hear what Paz could offer in the way of testimony against MS-13 members, and Paz entered the federal Witness Protection Program. Aquino said Paz was a member of the powerful Normandy clique within MS-13 and that a threat assessment by the FBI listed 12 others beside Rivera who might wish to do her harm. Paz did poorly in the Witness Protection Program. The FBI moved her from a safe house in Silver Spring, Md., to Philadelphia, Kansas City and finally to Minneapolis, but Paz maintained her contacts with MS-13 members and eventually left witness protection to rejoin MS-13 in northern Virginia, Walutes said. "Brenda Paz was pregnant, lonely and she missed her family - MS-13," Walutes said. Meanwhile, Walutes said Rivera was becoming increasingly suspicious of his former girlfriend, and he eventually enlisted trusted gang members to kill her. He first sought to have a young gang member encourage Paz to have an abortion "so his conscience would be clear if he decides to have her killed," Walutes said. The indictment states that gang members voted in a Fairfax hotel room on July 12, 2003 to proceed with Paz's murder. She was killed the next day by Cisneros and two other defendants, Oscar Antonio Grande and Oscar Garcia-Orellana, Walutes said. Paz's body was found several days later in rural Shenandoah County. Walutes said Paz was lured to her death under the guise of a fishing trip on the banks of the Shenandoah River. "Oscar Garcia-Orellana put a rope around her throat and held her, while the other two stabbed and stabbed and stabbed," Walutes said. Walutes said there is no physical evidence or eyewitnesses connecting the defendants to the murder scene. But other gang members will testify, and prosecutors will play tapes of coded phone conversations between Rivera and others in which they say he planned the murder. Aquino said Rivera and the other defendants make an easy scapegoat for Paz's murder and said authorities brought the charges as a way to escape blame for their own failure to protect Paz once she entered witness protection. Garcia's lawyer, Frank Salvato, said his client is innocent and had no reason to want Paz killed. Grande's lawyer, Luis Restrepo, urged the jury to look closely at the evidence and not to simply convict because of the defendants' gang membership. The trial, which is being held in U.S. District Court in Alexandria because Paz was a federal witness, takes place as authorities are seeking to get a handle on the region's gang problem. In recent months, several high-profile gang attacks across suburban northern Virginia - including several machete attacks in which victims have had fingers severed from their hands - have alarmed the community. None of the defendants disputed his membership in MS-13 and several acknowledged it openly. A large "MS" tattoo was visible on Grande's neck. The trial could last up to two months if the defendants are convicted, which would trigger a penalty phase to determine if the death penalty is warranted. Death penalty experts said it is very rare, though not unprecedented, for a single jury to hear 4 capital cases simultaneously. (source: The Associated Press)
