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PostPosted: Sat Nov 03, 2012 1:05 am 
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Holbytla wrote:
If the California death penalty is repealed, as I hope it is, it still seems to me that the judicial system will still be burdened with an overly bogged down and overly protective system that still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.


I'm not sure that this is true. To clarify a few points:

All prisoners who are not sentenced to death - including convicted murderers sentenced to 25-to-life or life without parole (LWOP) - receive one appeal. Based on U.S. Supreme Court caselaw, this is at taxpayer expense if they are indigent, in all states. In California, this means an appeal to the intermediate appellate court, the California Court of Appeal. There are six geographic districts of the Court of Appeal, spread throughout the state. Between them, they contain 105 justices who decide cases in panels of three. Clearly, the Court of Appeal is better numerically suited to handling homicide appeals than the seven justice California Supreme Court. The latter court's review in non-capital criminal cases is discretionary, which allows them greater control over their workload.

I described the state and federal habeas process. Condemned prisoners are entitled to counsel at taxpayer expense; counsel are entitled to an investigation budget to discover and present claims of constitutional error. Non-condemned prisoners do not enjoy these benefits, even if they are serving LWOP, and very few of them can afford private counsel. This means that they must file a habeas petition pro se (unrepresented) setting forth the extra-record constitutional violations that they believe occurred. Only if the state or federal court finds an adequately alleged constitutional violation will they appoint counsel. Three factors make this extremely unlikely. First, it is difficult for what the courts call an "unschooled petitioner" to allege a constitutional violation adequately; a vast number of these prisoners do not even have a 12th grade education. Second, being incarcerated, they do not have the wherewithal to investigate additional evidence that might have changed the outcome of their trial. In most cases, a petitioner will only be able to make this threshold showing with some assistance from a volunteer lawyer. Finally, prisoners are not always aware of statute of limitations issues which require them to file their claims timely, so many of them may miss deadlines that foreclose their claims.

Several prisoners on California's death row cite these concerns in publicly opposing Prop. 34: they do not want to lose their legal counsel. (They definitely do not speak for the entirety of death row, as some of their fellow condemned inmates - who are interested in no longer living under a death sentence - have noted. Edit See also here.)

If Proposition 34 passes, I predict that California will transfer from a system that is ineffective but somewhat protective of constitutional rights to a system that is more clearly underprotective of constitutional rights. I hesitate to say that the current state system IS protective of constitutional rights, because - as I explained earlier - the state system routinely denies constitutional claims, without explanation, that the federal system later sustains despite a more rigorous standard of review, with detailed explanation. But I think the current state system is trying, albeit ineffectively, to safeguard the rights of condemned prisoners. A post-Prop. 34 system is likely to err on the side of finality and efficiency (one record-based appeal and you're done) and against the vindication of constitutional rights that require postconviction/habeas process to vindicate (e.g., the prosecution's suppression of exculpatory evidence, known as a Brady claim). I think it is possible to strike an intermediate ground. How to do so may be the subject of post-initiative debate, if 34 passes, after the dust from this major reform settles.

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I won't just survive
Oh, you will see me thrive
Can't write my story
I'm beyond the archetype
I won't just conform
No matter how you shake my core
'Cause my roots, they run deep, oh

When, when the fire's at my feet again
And the vultures all start circling
They're whispering, "You're out of time,"
But still I rise
This is no mistake, no accident
When you think the final nail is in, think again
Don't be surprised, I will still rise


Last edited by nerdanel on Sat Nov 03, 2012 7:13 pm, edited 1 time in total.

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PostPosted: Sat Nov 03, 2012 1:30 am 
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If all that is true, and I don't doubt the veracity of it, then how would someone explain the disproportionate numbers of the people on death row in California as compared to other states where execution is a legal remedy for those who murder, the disproportionate numbers of people not executed compared to other states where execution is a legal remedy for those who murder, and the disproportionately lower inmates on death row in a state like Texas who also has a law where execution is a legal remedy for those who murder?

Are the differing situations then an indictment of social policy (if you were pro death penalty or not) rather than an indictment of the judicial system (if you were pro death penalty or not)?

Clearly, both California and Texas law allow for execution as a result of murder under certain circumstances, but there is a rather large discrepancy between the states when it comes to actually accomplishing the punishment stage.

If not for the judicial differences between states and regions, then why such a disparity?

:edited for grammar

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Last edited by Holbytla on Sat Nov 03, 2012 1:38 am, edited 1 time in total.

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PostPosted: Sat Nov 03, 2012 1:38 am 
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This is Rome

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Holby, I'm not entirely clear on what you are asking. I'm saying that the California system provides extensive process for death-sentenced prisoners, although at the end of that process, it might not actually rule in their favor even when they have good constitutional claims. I'm saying that California provides far more limited process for non-death-sentenced prisoners, which will allow the state to conclude their appeals quickly, but will not even make the attempt to identify all types of constitutional errors that may have occurred at their trial (one can certainly argue that this is a necessary concession to finality and efficiency.)

The differences between the states include:

California provides a lengthier process to death-sentenced prisoners than does Texas: attorneys are granted more years and greater funds to investigate the petition, as well as (IIRC) more pages in which to write the petition. The California Supreme Court, in particular, is also overwhelmed with direct appeal + habeas petitions, in unprecedented numbers from a nationwide perspective. I think it is also fair to say that the California federal courts, including the Ninth Circuit, are more disposed to grant relief than the Texas federal courts, including the Fifth Circuit.

Beyond those general statements, I'm not clear on what it is you are asking. I'm certainly not denying that there are "general differences" between the California and Texas judicial system. I am just saying that non-death sentenced prisoners in California receive much less process than death sentenced prisoners do, and the delays I am describing in the system only concern the death row prisoners. I.e., if we don't have death sentences in California, we won't have the delays that come with death sentences.

Edit This chart suggests that any disparities between CA and TX cannot be explained by their nearly identical murder rates, although it does not identify how many of the homicides were charged as first-degree murder.

_________________
I won't just survive
Oh, you will see me thrive
Can't write my story
I'm beyond the archetype
I won't just conform
No matter how you shake my core
'Cause my roots, they run deep, oh

When, when the fire's at my feet again
And the vultures all start circling
They're whispering, "You're out of time,"
But still I rise
This is no mistake, no accident
When you think the final nail is in, think again
Don't be surprised, I will still rise


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PostPosted: Sat Nov 03, 2012 2:05 am 
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I'm not sure how else to phrase it.

Take a snapshot of the current situation in California vis a vis the death penalty. Do the same for Texas.



How does one account for those discrepancies in the amount of people actually on death row in California and those in Texas?

I realize from what you have said that the process in actually performing executions is more involved in California than it is in Texas, and that (as I originally inferred), there is a discrepancy between the 5th and 9th Circuit, but that doesn't account for the overwhelmingly large number of inmates on death row in California (presumably a more liberal leaning portion of the country) nor why a larger percentage of those people in Texas (presumably a more conservative leaning portion of the country) have had their sentences carried out.

Brass tax, in your opinion, are the respective judicial systems responsible for the discrepancies, the social makeup of the regions, or a combination?

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PostPosted: Sat Nov 03, 2012 2:07 am 
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Ah, okay, now I understand the question. Thanks for clarifying. I'll respond tonight or over the weekend. Honestly, I'm not sure I can add too much about why more Texans have been executed, which is consistent with the socially conservative nature of the state - I think you understand the issues there. But I can give some thoughts on why death row in California is so large.

_________________
I won't just survive
Oh, you will see me thrive
Can't write my story
I'm beyond the archetype
I won't just conform
No matter how you shake my core
'Cause my roots, they run deep, oh

When, when the fire's at my feet again
And the vultures all start circling
They're whispering, "You're out of time,"
But still I rise
This is no mistake, no accident
When you think the final nail is in, think again
Don't be surprised, I will still rise


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PostPosted: Wed Nov 07, 2012 2:31 pm 
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This was my biggest disappointment of the night. Despite my attempts not to get my hopes up.

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PostPosted: Wed Nov 07, 2012 2:55 pm 
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I completely agree with you, Voronwë.
:cry:

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PostPosted: Wed Nov 07, 2012 3:03 pm 
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It occurs to me that prosecutors could be leaned on to simply stop asking for the death penalty when it's counterproductive, which is just about always.


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PostPosted: Thu Nov 08, 2012 7:17 pm 
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axordil wrote:
It occurs to me that prosecutors could be leaned on to simply stop asking for the death penalty when it's counterproductive, which is just about always.


Who are you nominating to "lean" on the prosecutors? And how are you defining counterproductive?

_________________
I won't just survive
Oh, you will see me thrive
Can't write my story
I'm beyond the archetype
I won't just conform
No matter how you shake my core
'Cause my roots, they run deep, oh

When, when the fire's at my feet again
And the vultures all start circling
They're whispering, "You're out of time,"
But still I rise
This is no mistake, no accident
When you think the final nail is in, think again
Don't be surprised, I will still rise


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PostPosted: Thu Nov 08, 2012 8:16 pm 
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axordil wrote:
It occurs to me that prosecutors could be leaned on to simply stop asking for the death penalty when it's counterproductive, which is just about always.


:scratch:

I was reading an article today that indicated that in the near future there might be competing initiatives in which on the one hand opponents of capital punishment renew the attempt to end it in the state, while on the other hand, proponents of capital punishment attempt to streamline the process. Let's see if I can find the article:

http://www.mercurynews.com/crime-courts ... attle-will

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PostPosted: Thu Nov 08, 2012 8:25 pm 
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What I'm saying is that if the death penalty is perceived as being a pointless and expensive waste that leads to nothing above and beyond life in prison, as opposed to some sort of political kudo, prosecutors lose a reason to ask for it in the first place.


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PostPosted: Mon Nov 19, 2012 4:39 am 
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I just read this poem written by a current California condemned prisoner at San Quentin. It relates his recipe for pruno (prison-made alcohol made from often spoiled/rotting fruit). I share it not for its culinary promise (kids, seriously - no, seriously - do not try this at home), but because there is something about it that seems to me to capture the into the abyss reality of the death penalty.

Take ten peeled oranges,
Jarvis Masters, it is the judgment and sentence of this court,
one 8 oz. bowl of fruit cocktail,
that the charged information was true,
squeeze the fruit into a small plastic bag,
and the jury having previously, on said date,
and put the juice along with the mash inside,
found that the penalty shall be death,
add 16 oz. of water and seal the bag tightly.
and this Court having, on August 20, 1991,
Place the bag into your sink,
denied your motion for a new trial,
and heat it with hot running water for 15 minutes.
it is the order of this Court that you suffer death,
wrap towels around the bag to keep it warm for fermentation.
said penalty to be inflicted within the walls of San Quentin,
Stash the bag in your cell undisturbed for 48 hours.
at which place you shall be put to death,
When the time has elapsed,
in the manner prescribed by law,
add 40 to 60 cubes of white sugar,
the date later to be fixed by the Court in warrant of execution.
six teaspoons of ketchup,
You are remanded to the custody of the warden of San Quentin,
then heat again for 30 minutes,
to be held by him pending final
secure the bag as done before,
determination of your appeal.
then stash the bag undisturbed again for 72 hours.
It is so ordered.
Reheat daily for 15 minutes.
In witness whereof,
After 72 hours,
I have hereon set my hand as Judge of this Superior Court,
with a spoon, skim off the mash,
and I have caused the seal of this Court to be affixed thereto.
pour the remaining portion into two 18 oz. cups.
May God have mercy on your soul.

California State Prison-San Quentin
San Quentin, California
1992

_________________
I won't just survive
Oh, you will see me thrive
Can't write my story
I'm beyond the archetype
I won't just conform
No matter how you shake my core
'Cause my roots, they run deep, oh

When, when the fire's at my feet again
And the vultures all start circling
They're whispering, "You're out of time,"
But still I rise
This is no mistake, no accident
When you think the final nail is in, think again
Don't be surprised, I will still rise


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PostPosted: Mon Nov 19, 2012 5:48 am 
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That is surprisingly affecting.

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PostPosted: Mon Nov 19, 2012 1:32 pm 
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Pleasantly Twisted
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My thoughts too, V-man. I have a deep fondness for good mash-up poetry in general, but knowing the provenience...


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PostPosted: Tue Jan 15, 2013 6:57 pm 
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John Rateliff shared this article on the MythSoc mailing list, and I thought it would be worth posting it here:

Gandalf, Gollum, and the Death Penalty

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PostPosted: Fri May 10, 2013 11:17 pm 
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I heard on the radio today that Ariel Castro - the man accused of kidnapping and raping 3 woman for a decade - could possibly face the death penalty. This surprised me as I thought the death penalty was reserved for murders. Regardless, when I heard this I thought to myself that while I am and remain opposed to the death penalty, if this man is ultimately sentenced to death, it is not something I would argue against.


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PostPosted: Fri May 10, 2013 11:59 pm 
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Apparently he forced one of the woman to miscarry, in circumstances that the prosecution believe could give rise to a charge of aggravated murder.

Personally, I think that it shows the screwed-up priorities of capital punishment in the United States. The Supreme Court has upheld the power of state legislatures to impose the death penalty, but forbidden them from doing so even in the most heinous and repeated cases of rape, kidnapping, torture and child molestation. The very types of offences for which chances of rehabilitation are the lowest.


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PostPosted: Mon Jul 22, 2013 12:05 pm 
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Capital punishment news from around the world:

The death penalty has just been re-introduced* in Papua New Guinea in response to community concerns over a recent rise in violent crime, particularly directed against women (there have been some high-profile killings of women accused of witchcraft). Under the country's new criminal code, murder, robbery and rape can carry the death penalty through hanging, shooting, suffocation, gassing, electrocution or other methods. It appears to grant broad discretion to the courts. At the same time, the new code repeals the controversial 1971 Sorcery Act, which accorded some legal protection to those convicted of killing some suspected of sorcery.

The death penalty hasn’t actually been used in the country for sixty years, when it was an Australian protectorate and the capital punishment was also used in Australia. The debate has been unusual by western standards. For example, a senior police officer suggested that capital punishment was un-Christian, and that instead criminals should have their arms cut off.

PNG is a small, poor Pacific nation struggling with violent crime. A friend of a friend of mine was in the highlands a year or so ago, for example, and saw a man calmly shoot another one in the head at point-blank range as a result of an argument. Port Moresby is a pretty unsafe city by any standards. And the government’s control over the highlands is shaky – the region is dominated by tribal conflict exacerbated by trafficking in guns, drugs or people. The rule of law is weak. Violence against women is a profound problem. What the solution is to this I don’t know.

*Extended, rather. PNG was abolitionist in practice, retaining hanging for treason, piracy and aggravated murder and but not using it.


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PostPosted: Mon Jul 22, 2013 2:56 pm 
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Wow, I don't either, LordM. I have two good friends from high school who got married and are missionaries in PNG. They've been there for over a decade. I wonder what their take on it would be.

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PostPosted: Sun Jul 28, 2013 7:00 am 
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There has been some controversy here over the decision by the SBS TV network to produce and air a documentary on the case of Nguyen Van Tuong, called Better Man. Nguyen, a 25-year-old Australian, agreed to attempt to smuggle heroin into Australia to pay for his twin brother’s legal expenses. He was arrested in Singapore airport, convicted of drug trafficking, and hanged at Changi prison in 2005.

The show has been condemned by Nguyen’s legal team (who are depicted in the show, one played by David Wenham) and by his family, who feel that it is over-dramatised and insensitive.

The film is obviously premised on Nguyen’s willingness to be rehabilitated, and the argument made by his defence counsel that his high prospect of rehabilitation made the use of capital punishment inappropriate in his case. That argument carried no weight in Singapore, where the law mandates the death penalty for possession of illegal drugs over certain minimum quantities without exception. It is, I think, an interesting cultural point – the law there focuses entirely on the offence rather than the offender, unlike, say, the United States. I am starting to wonder whether that is a necessary condition for a system of capital punishment that actually works as intended.

Whether actually making the doco-drama at this stage was a good idea is another question. I can see both sides to the issue.

Trailer (language warning)


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