Capital punishment

[Voronwë the Faithful]

Thanks, nel. It is rather remarkable that if the moratorium/injunctions were lifted, the executions that could take place immediately would exceed the number that took place during the 28 year period that executions were theoretically possible in the state. I would add that while the argument in favor of abolition is being made purely on the basis of inefficiency and cost, obviously many people in the state would and do support abolition on philosophical grounds. That having been said, is it still true that polls show that the likelihood of Prop. 34 passing is very low?

[nerdanel]

Yes, my understanding is that we're nowhere close to 50 percent support for Prop. 34 in California.

On the more philosophical issues associated with the administration of the death penalty, here is a compelling read, written by the brother of a man who was murdered. The brother describes how he became an overnight supporter of the death penalty after the murder. The brother seems to have had a lifetime of criminal sentences to deal with himself, and he was in due course sentenced to serve a prison term in Arizona, the same prison system that housed his brother's murderer (who had received a parole-eligible sentence, not the death penalty). In thinking through what it would be like had he been housed with the murderer and able to administer a private version of the death penalty, he confronted his personal reasons for supporting the death penalty ... and reverted to opposing it when he realized that those reasons were not pretty.

This man speaks from deeper personal experience with murder and incarceration than I have - and hopefully it stays that way. So I'm not posting because I agree or disagree with him, but because I feel that these sorts of wrenchingly personal accounts should be front and center in our societal conversation about abolition and retention.

[eborr]

I take absolutely the opposite position, people who are in such a state of mind are the last people to influence what should be a clear and balanced process.

This whole "victims" movement is something which is encouraged and engendered by the media, who are hoping both for cheap and easy copy, and also to further there hold over the demagog(sp) politicans who they support and feed.

I know from bitter personal experience that on certain issues my judgement is flawed and should not be considered meaningful. To support any movement which encourages policy forged by tabloid hysteria and hyperbole is another sign that the barbarians are not only at the gates, but they have come into the city and are tearing down our civilisation.

[nerdanel]

I take absolutely the opposite position, people who are in such a state of mind are the last people to influence what should be a clear and balanced process.

Which "state of mind"? The state of mind in which this man relates the process by which he came to oppose the death penalty while incarcerated himself, including for the man who murdered his brother? The experience he can share as both a formerly incarcerated criminal and a victim's family member? There is nothing off-kilter about his state of mind as related in that article. Nor does it advocate vengeance, as you seem to think. I encourage you to read it, if you have not, before commenting on it further.

This whole "victims" movement is something which is encouraged and engendered by the media, who are hoping both for cheap and easy copy, and also to further there hold over the demagog(sp) politicans who they support and feed.

I know from bitter personal experience that on certain issues my judgement is flawed and should not be considered meaningful. To support any movement which encourages policy forged by tabloid hysteria and hyperbole is another sign that the barbarians are not only at the gates, but they have come into the city and are tearing down our civilisation.

Anyone who thinks there is a unilateral "victims' movement" which speaks for all victims of violent crime is badly misguided. Certainly this man's position would not be endorsed by most victims' rights groups. To state by implication that victims' views are "flawed" and "should not be considered meaningful" no matter what those views are and how thoughtfully and dispassionately they were reached is incredibly offensive. And I defy you, again, to read the article I cited and explain to me how it "encourages policy forged by tabloid hysteria and hyperbole."

ETA The tone of your post, however, richly illustrates to me why many victims and family members of violent crime feel that they need to form groups to advocate for themselves, if others hold the perspective that their views should not even be considered.

[Nin]

I have taken the firm decision to become a member of HumanWrites and to write to a prisonner on the death row. My membership form is filled in and paid, I wait for the contat details.

[nerdanel]

I have taken the firm decision to become a member of HumanWrites and to write to a prisonner on the death row. My membership form is filled in and paid, I wait for the contat details.

Interested to hear about your experience with this, Nin. I hope you'll update further once you've made contact with your assigned inmate.

[eborr]

Having read the article I think it's a classic case for not taking into account victims opinions in the dispensation of justice, after all the writer owns up to his initial judgement but subsequent experience demonstrates that his initial reaction was flawed.

To intepret that I had suggested there is a unified "victims movement" as some kind of structured homogenous entitiy is assinine, however in that same way that there are self interest groups who seek to promote values and opinions some of which are benign and others harmfull, equally there are a range of victims groups who get easy access to both print media and broadcast air time, because it's easy journalism.

One question always trouble me, I dont' think it's a massive distance from victims groups to lynch mobs. Both are predicated on the notion that justice has failed them, and both seek restitution and revenge.

[nerdanel]

Well, here is a victim's family member of the persuasion to which eborr objects: a mother of a child victim who was raped and murdered who is fundraising to make the trip for NY to SD to see her daughter's murderer (now a volunteer) be executed. She has waited 22 years for this execution and would have waited still longer had the condemned man not chosen to waive his remaining appeals and volunteer for execution early.

While offering no judgment on her feelings, I think it's important to note that she doesn't speak for all victims' family members. To the extent that people would judge her feelings (for instance, by comparing her to a member of a lynch mob), my point is simply that it is important not to discount the perspectives of all victims' family members (or even groups that purport to represent murder victims' families) on the grounds that they will inevitably seek restitution, revenge, or anything similar. See, for instance, the US group Murder Victims' Families for Reconciliation, which works against the death penalty. Here are some of those people's stories.

I am adamantly unwilling to condemn or judge murder victims' family members for their reactions (whatever those reactions might be) to being confronted with a violent loss that I have never experienced. But I find there is value in reading and learning from all their perspectives - both those seeking retaliation and restitution and those seeking reconciliation and the ability to forgive.

[Primula Baggins]

nel, I think your reaction is a rational and useful one.

I appreciate your compassion for the possibility that people can't be heroically compassionate for someone who cost them so much. I also appreciate the heroic compassion of those who can find a way.

I have no idea what I would do, or want. It probably would not be heroic—I'm tough, but I'm not that tough. But I'd feel I had a right to the reaction, whatever it was.

[Nin]

"My" inmate is in the Polunsky unit in Texas. I wrote him two letters so far (the second still has to be sent, though) and hope to hear from him soon.

[nerdanel]

That's about as intense a placement (with just about the lowest life expectancy possible and with conditions approaching solitary confinement levels of austerity) as one can have on an American death row. I look forward to hearing more about your experience in corresponding with him.

[Túrin Turambar]

In India, capital punishment is used rarely - the Supreme Court's criteria is the 'rarest of the the rare'. The most recent execution was in 2004 (for the rape and murder of a 14-year-old), the one before in 1995. IIRC, there are a few people on death row in some of the states.

I saw on the news today that a high-profile honour killing case has resulted in five death sentences. A family murdered their daughter and her lower-caste fiance by beating and electrocuting them.

Last year, the Supreme Court outlined why honour killings should fall within the 'rarest of the rare' cases:

"It is time to stamp out these barbaric, feudal practices which are a slur on our nation," the court said.

[...]

"All persons who are planning to perpetrate 'honour' killings should know that the gallows await them," said Justices Markandeya Katju and Gyan Sudha Mishra.

"He cannot take the law into his own hands by committing violence or giving threats of violence.

"In our opinion honour killings, for whatever reason, come within the category of rarest of rare cases deserving the death punishment."

Previously honour killings had incurred life sentences. The court seems to feel that, because they remain semi-accepted in parts of the country and because they discredit India in international eyes, a stronger message is needed.

There is no guarantee that the five family members will hang - death sentences in India seem to be frequently commuted.

I have to admit that, beyond this, I don't know all that much about the country's criminal justice system. I assume that criminal law is within the state jurisdiction, but articles in the general media rarely make these distinctions clear.

[Nin]

Today we had a meeting of the organism with which I started my correspondance with "my" inmate. I heard some heart-breaking stories, some incredible experiences...

My onw correspondance is only at its second letter from my inmate (for the moment, I don't feel ready to tell his name or anything alike). I am very much waiting for the next one!

One of the persons present has been corresponding for years now with Roger McGowern and written two books with him. It was really, really impressive to hear him about this yearlong friendship with someone who has spent more than half of his life on the death row.
edited for spelling

[nerdanel]

Interesting, Nin. It looks like Roger McGowen recently received penalty phase relief from the staunchly conservative Fifth Circuit Court of Appeals, which means that he will have a new trial regarding whether he should receive the death penalty or a life sentence. The reason for the new trial is that he was not able properly to present evidence about his difficult life before the crime in mitigation during his original trial. The court rejected his claims of actual innocence as not credible; he confessed to the crime (a robbery + murder at a lesbian bar) and did not dispute his guilt or try to recant the confession at trial. He also had an undisputed history of armed robbery prior to the capital crime. At some point after a brother of his died, he claimed that the dead brother was actually the perpetrator of the capital crime and he had confessed in an attempt to protect his brother. Unfortunately for his actual innocence claim, he had little more than hearsay affidavits to support it (e.g., family members who had heard from other family members that the dead brother was actually the perpetrator.) Also, because he first claimed actual innocence after the case had advanced far beyond trial, he had a very high threshold showing to meet to demonstrate his innocence and he was unable to do so.

Still, happily for your correspondent and him, he may well receive a life sentence after his penalty retrial, based on what sounds like a very poor social history (meaning, the facts of his life to the point of the crime.)

I look forward to hearing more about your experience with your correspondent once you feel ready to share.

[nerdanel]

Prop. 34, the measure to abolish the death penalty in California, leads for the first time ever in the polls, by 45 to 38.

http://www.sfgate.com/politics/article/ ... php#src=fb

My view on 34 is that all Californians who understand the details of this proposal should support it for reasons specific to our state, whether or not they agree with the death penalty in theory. This became instantly clear to me as I started to learn about the death penalty - not as an abstract and potentially fitting penalty for murderers appearing in dated mugshots convicted of inflicting egregious violence on victims (whom we see smiling in haunting photos from a happier time) - but as it functions (or more accurately, does not function) in our state.

In theory, the state of California loves the death penalty; we have the largest death row in the country, with over 720 people sentenced to death, over 700 of them men. This sound like a grand state of affairs for proponents of retributive justice. This is until you drill down into the reality. I have learned that California has acted - I think appropriately - to put sufficient safeguards into play to ensure that no constitutional error infects an execution. It is arguably one of the most cautious states in the country in this regard. But here is the modern reality of the American death penalty: if you put sufficient safeguards into place to ensure that constitutional violations will not (likely) occur, you will have almost no executions. Those safeguards will make the death penalty trial and appellate process so time-consuming, so extensive, so painfully drawn out, that the concept of execution itself becomes a farce. If you do not put these safeguards into place, you risk a constitutional error of life-and-death proportions. It is this catch-22 that now underpins my opposition to the death penalty, coupled with two other factors:
- an increased understanding that is impossible to fairly and accurately select only a subset of murderers for execution (as our Supreme Court has mandated that each state must do); and
- it is much more difficult to support the death penalty when you see in three dimensions the people who will be affected. I'm not (just) talking about the condemned inmates themselves, but everyone from their families (including, wrenchingly, young sons and daughters who are often the most invisible victims of the death penalty) to the prison guards who will have to live with the demons that come with performing executions.

Back to the California system. To give a brief overview of the safeguards the state has put into place:

Due to SCOTUS caselaw, every death penalty case (nationwide) has two separate jury trials, a "guilt phase" and a "penalty phase," which significantly augments the trial costs. In California, both sides are granted funding for two attorneys upon request. It can take 2-4 years just to bring a death penalty case to trial, because of the extensive investigation needed, and the trial itself is longer than usual because of the two phases.

If the jury returns a death verdict, the now-condemned inmate is entitled to a direct appeal to the California Supreme Court (unlike all other criminal defendants, whose appeals go to the California Court of Appeal). A seminal problem is that there is a shortage of attorneys willing and qualified (under California's rigorous standards) to work on capital appeals, so inmates may languish for years just waiting for someone to take their case. (Absent those standards, the attorney may flub the direct appeal, creating the need for further rounds of postconviction proceedings.) There are currently nearly 80 inmates on death row who do not have direct appeal counsel. Once counsel is secured, the briefing process can take 2-4 years. Unlike other appellate briefing, which is limited to (say) 30-40 page briefs, capital appellate briefing stretches into the hundreds of pages on both sides. It also requires the attorneys and court to review an extensive pretrial and trial record spanning thousands of pages. Once the California Supreme Court has received this mammoth briefing, it must review it and prepare a thorough decision (usually several dozen pages). The court is groaning under the weight of the capital cases that it receives, which make up more than a quarter of its docket and hinder its ability to decide other types of cases quickly. It can take the court another 2-5 years to issue its opinion on the direct appeal.

If a defendant wins relief either as to the guilt phase or the penalty phase, the case is returned to the county, which has the option to retry the defendant, release him if the relief was as to the guilt phase, or allow him to serve life without parole if the relief was as to the penalty. These are aggravated homicide cases. No one is going to be flat-out released unless they have shown actual innocence (which does not typically happen via the direct appeal process.) In most cases, the county opts to retry the defendant in a second, costly capital trial, thus restarting the process.

If the California Supreme Court denies appellate relief, the defendant's conviction becomes final. The case moves into the state habeas or postconviction process. Again, there are few attorneys who practice exclusively in this area or are qualified to take these cases, pro bono or otherwise. Well more than one hundred condemned inmates are waiting for habeas counsel. In an egregious case I came across from earlier this year, one inmate finally got habeas counsel after waiting for nearly twenty years.

The direct appeal is intended to identify errors that are apparent from the trial record. The habeas process is intended to identify "extrarecord" errors - those which require additional investigation. With one exception (Alabama - whose process is screwy in ways that are beyond the scope of this post), every executing state in the country pays for condemned inmates' habeas counsel. But California gives habeas counsel the most generous time period to investigate and file a habeas petition in the country: three years. The time period and comparatively generous funding lead to petitions that are hundreds of pages long and raise dozens of claims alleging constitutional error. After the petition is filed, the state must respond (1 year) and the inmate's counsel must respond (another year). Each side's response also numbers hundreds of pages. In capital cases, these filings are again directly before the California Supreme Court. The Court again takes 2-5 years to decide the habeas petition. It denies over 92 percent of the capital habeas petitions it receives - without explanation. In the remainder of the cases, it issues an "order to show cause," which indicates that it thinks that particular claims of constitutional error have merit. Usually, it then transfers the case to a state trial court to conduct a mini-trial (known as an evidentiary hearing) on whether a prejudicial constitutional error occurred; this process usually takes at least a year or two. If it is ultimately established that an error has occurred, the case is again returned to the county to retry, resentence, or release, depending on the type of error found. Often, the county opts for retrial. And so this process begins again.

Meanwhile, the "92 percenters" head into federal court. In some cases, they get to keep their state habeas counsel (for now. Recent SCOTUS precedent suggests that this may create a conflict of interest; this precedent may spark another round of appeals. Stay tuned.) In other cases, they again languish for a period of time while awaiting federal habeas counsel. Federal court is where the bulk of the legal briefing in capital postconviction cases is done. In case you inferred from the California Supreme Court's summary denial of so many habeas petitions that those petitions contained no meritorious issues - not so fast! The federal courts have historically granted relief, based on a finding of constitutional error, on 60-70% of the California capital habeas petitions that they receive, although the Supreme Court has been attempting to limit the number of cases in which this happens. You know the drill by now. If this happens, it's back to the county for its retry/release/resentence drill.

If not, habeas counsel may determine whether a second habeas petition will be fruitful, in either state or federal court. There are substantial procedural restrictions to bringing such a petition - but now that the client is at the end of the appellate road, there is little to lose by trying.

At some point, and perhaps to your great surprise after reading all of this, the habeas process concludes. Usually multiple decades have passed. Many of the original trial players are dead - judges, attorneys, witnesses. In a fair number of cases, the condemned inmate dies before we get to this stage - of natural causes, suicide, or at the hands of other inmates or guards - thus rudely defeating the state's extensive, multi-decade efforts to execute him in orderly fashion. In many other cases, the inmate has exhibited great longevity and has survived an astounding array of other trial players, including many of the people who hoped to witness his execution (prosecutors, victim's family members, etc.)

"But at last!", the proponent of retributive justice might exclaim. "Now we finally get to the execution!"

Not so fast. First, there is still an executive clemency procedure, in which the client is entitled to counsel. Second, the inmate's longevity may be further extended through structural challenges to the death penalty. For example, fourteen California inmates have currently exhausted the appeals specific to their cases, but are alive courtesy of a challenge to the state's lethal injection protocol which has enjoined all executions in the state for the past six years. The end result is a life expectancy of 20-40+ years on death row - a functional life without parole sentence.

This process - which I have described in highly abbreviated detail (remember, anything capital usually takes hundreds of pages to "brief") - has cost California nine figures a year for the past thirty years, with a whopping thirteen executions to show for it, the last of which was six years ago. Meanwhile, it taunts victims' family members with the prospect of "closure" via executions that do not happen and forces inmates and their families to live (and often to become estranged) under great strain due to the prospect of death (as remote as the prospect of death may objectively seem to you or me, it is still extremely stressful to live as someone marked for execution.) It leads to the comical result of the state laying off teachers, police officers, firefighters, and leaving thousands of rapes and murders unsolved -- while bizarrely employing a cadre of lawyers and legal personnel to litigate and relitigate ad nauseum a quasi-arbitrarily selected group of homicide cases that occurred years (often decades) earlier. I believe the legal terms of art that describes this situation is "farce." Abolition of the death penalty would allow redirection of this annual nine figure sum to law enforcement to solve "cold case" rapes and murders, and ultimately to the General Fund, to use for any other more productive purpose, whether or not related to criminal law.

For these reasons - in addition to concerns you may personally have about the prospect of executing an innocent person, racial disparities in the death penalty, and the question of whether execution is a fitting penalty for aggravated first-degree murder - I urge the registered Californian voters on this board to vote for Proposition 34.

[Voronwë the Faithful]

Based on the objective evidence available to me, Prop. 34 is ahead by one vote (1-0).

Edited to add: thank you very much, nel, for sharing that very detailed statement about why people should vote for this proposition, irregardless of whether they support the death penalty in the abstract.

[yovargas]

Wow. That was and astonishing and enlightening read. Thank you for taking the time to write it.

[Teremia]

Thank you, nel. Members of my Quaker Meeting have been working very hard to support this proposition, for a different set of reasons than the ones you outline above! It's astounding that Prop 34 even has a chance--but I'm scared to get my hopes up.

[nerdanel]

Given my history on this subject, it was always going to take a "different set of reasons" to shift my perspective on the death penalty. It is not the case that I simply abandoned my deeply held feelings of many years; I instead came to the understanding that the death penalty and the Constitution are not possible to reconcile without an untenable process, in terms of the judicial and executive resources expended and the extraordinary passage of time during capital appellate and postconviction proceedings. (That last sentence, btw, is the tl;dr version of my previous post.)

My view of the state's function has also shifted, though, perhaps consistently with the Quaker position - I'm not sure. I have a very positive view of the public sector, and I believe that the state fulfills many important functions within our society related to preservation and quality of life, including the storied "social safety net," (at least) emergency medical care for those in need, law enforcement and emergency response services, and the maintenance of prisons to quarantine those who threaten public safety. It is no longer possible for me to reconcile these life-sustaining roles of the state with the deliberate taking of an incapacitated person's life, where that person no longer poses any threat to public safety (This, by the way, is another feature of California's death row. It hosts many prisoners deemed to pose so little security threat that they are allowed to mingle freely with each other outside their cells for hours a day (in a facility at San Quentin called "North Seg"). Many other condemned prisoners, for whom there is not room on North Seg, are still classified as security "Grade A," allowed to have unrestrained "contact visits" with their attorneys, families, and friends, and allowed items in their cells such as hot pots (which, for obvious reasons, could not be provided to inmates deemed likely to injure guards or other prisoners.))

This idea that whatever a particular person may deserve (in a philosophical sense), the state should not be in the position of executing them...is probably where my position comes closest to the Quaker position. But I am as concerned with the extraordinary dysfunction of the California system, particularly the misuse of resources that should be used to enhance public safety by solving unsolved murders and rapes - and ideally to make other systemic reforms. On the inmates' side of the fence, I would like to see more resources dedicated to mental health resources; programming even for life without parole prisoners that would transform them into better, more educated individuals; and more and "smarter" resources provided to those who will ultimately be released, to facilitate their transition to the real world. A sad reality of people who end up on death row is that they have had many previous contacts with the system, which did not intervene successfully in time. I'd like to see the system focus more on homicide prevention, via rehabilitating violent not-yet murderers who are at risk for committing more violent crimes after their release.

[Holbytla]

I've never been a proponent of the death penalty and likely never will be.
There are far too many steps along the way where some form of injustice, prejudice, maliciousness or incompetence can occur where I would ever feel safe executing someone, nor do I think that an "eye for an eye" is a valid means of punishment or that the death penalty is actually a deterrent to murder or other heinous crimes.
I don't think it should be left up to us to mete out such a finality in terms of punishment in any case.

Having said that;

In comparison to California, the state of Texas has executed 224 people during the same time frame and currently has 313 people on death row. Allowing for the population difference between the two states, Texas should have 490 inmates on death row, but in either case that is a far cry from the 720 inmates that California has on death row.

I won't even bother trying to cipher the numbers of executed/per death row by state, because the number is absurdly in favor of Texas by miles and miles.

Anyway, either there are more executable crimes being committed in California, the California judicial system is overzealous in committing people to death row, the Texas judicial is more efficient, the Texas judicial system is overzealous in executing inmates on death row, execution is a deterrent to murder, Texas is doing things the right way, California is doing things the right way or the California justice system is overly cautious and/or inept at exacting their own prescribed punishments.

It is fairly clear to me, as an outsider to both states, that the overarching theme here is that societal ideologies, not the courts, police or other law enforcement agencies is what determines what justice is and how it is carried out.

There are inadequacies in every judicial system, but the disparity between the California and Texas judicial systems is readily apparent.

Texas' appellate judges are elected officials, and purportedly reflect the will of the people, who expect results. Texas has reduced the time delays for appellate and procedural processes and there is a large political/philosophical difference between the 5th and 9th Circuit.
The Texas system, it seems to me (and to some degree), errs in favor of expediency, rather than defendant and Constitutional Rights.

The California system itself seems bogged down at this point (the numbers on death row don't help that cause), and the process seems in need of streamlining. Being overly cautious to the point of inactivity (even though I agree with it in this instance) is counterproductive.

If the California death penalty is repealed, as I hope it is, it still seems to me that the judicial system will still be burdened with an overly bogged down and overly protective system that still precludes it from serving its own justice. While I agree with erring on the side of the defendants in most cases, especially in the case of executions, there is something also to be said for overt leniency.

In this state, it was reported today, that 80% of the OUI (drunk driving cases) that come before judges for bench trials, were acquitted. Knowing this state and the number of fatalities caused by OUI drivers, that isn't justice. Especially when a 2nd, 3rd or 8th offender finally ends up killing someone. Even if it is another prisoner.

The repeal of the death penalty may save the state millions of dollars and unforgivable injustice may be averted, but that doesn't necessarily cure all of the issues.