The Court's holding in Brown v. Payton leads of the week. The Payton Court ultimately concludes that although there was error in the case (a prosecutor's misstatement of the law concerning Payton's religious conversion in prison as mitigation) but that the state court's adjudication was simply not unreasonable enough to warrant relief. The decision is especially note worthy for several reasons. First, the Court appears to suggest that had this case reached them on direct appeal rather than from federal habeas corpus review relief may well have been granted. Second, it marks the first time (and if not the first, one of the first times) Justice Breyer has been the deciding vote for death. Finally, as the dissent points out at some length, the state conceded that the prosecution's closing was erroneous.

In another decision, the Court in Muehler v. Menas, holds handcuffing occupants of a house that are not the subject or target of a search warrant did not violate the Fourth Amendment.

Elsewhere, in Illinois legislation continues to move throughout the legislature changing the burden of proof in death penalty cases to beyond all doubt from beyond a reasonable doubt. The March 23 scheduled execution of Steven Staley in Texas has been stayed on grounds that he may be incompetent. International LawProf Sarah H. Cleveland of Texas Law was published in the Washington Post this past Sunday for an essay entitled Is There Room for the World in Our Courts?. A new Zogby poll finds that support among Catholics for the death has dropped to 48% as the Chuch's Bishops have assumed a more assertive role in its denunciation of state killing during Holy Week. Finally, the convictions of dozens of death row inmates in California are coming under legal scrutiny because of accusations that Jews and black women were excluded from juries in capital trials in Alameda County as "standard practice."

As always, thanks for reading. - k

Archived on the web at: http://capitaldefenseweekly.com/archives/050321.htm

Serious Execution Dates

April

5 Glen Ocha Florida----vol

15 Richard Longworth South Carolina

18-22 Vernon Evans Jr. Maryland

20 Douglas Roberts Texas

21 Bill Benefiel Indiana

Leading Cases

Brown v. Payton, --- S.Ct. ----, 2005 WL 645182 (3/22/2005) (dissent) In a complicated, often counter-intuitive opinion, the Court holds the state court adjudication of claims that arguments delivered to the jury by the prosecutor on the ability to consider evidence of remorse, was not sufficiently unreasonable to bar relief.

Muehler v. Menas, --- S.Ct. ----, 2005 WL 645221 (3/22/2005) Cops did not violate the Fourth Amendment by detaining an occupant of a residence by handcuff during execution of a search warrant and inquiring into the immigration status of the occupant. Case remanded, however, for consideration of the question whether the detention continued beyond the time necessary to complete the search.

Decisions Reversing, Remanding or Otherwise Holding Death in Check

Duncan v. State, 2005 WL 628215 (Ala.Crim.App. 3/18/2005) Relief granted due to status as a juvenile offender.

State v. Manck, 2005 WL 588513 (Md. 3/15/2005) After trial court struck notice of intention to seek death State did not have a statutory right to appeal and Court of Appeals could not issue prerogatory writ to permit appellate review.

Decisions Favoring Death

Jones v. Polk, 2005 WL 580361 (4th Cir 3/14/2005) Relief denied on claims that: (1) the trial court "unconstitutionally excluded evidence of remorse at his sentencing hearing," (although the exclusion was erroneous, the exclusion did not have a substantial or injurious effect) and (2) "trial counsel labored under an actual conflict of interest that affected his representation of Jones."

Freemason v. Roper, 2005 WL 578772 (8th Cir 3/14/2005) "Ferguson could not state an Arizona v. Youngblood claim for a videotape which was destroyed long after his trial as that case stated the applicable constitutional principle when potentially useful evidence is lost or destroyed before trial; co-conspirator's statements are nontestimonial and their admission did not violate the rule announced in Crawford v. Washington concerning admission of testimonial hearsay. "

Diaz v. Secretary for the Dept. of Corrections, 2005 WL 579713 (11th Cir 3/14/2005) Relief denied on claims including: (1) ineffective assistance of appellate counsel regarding Diaz's purported absence from critical stages of his trial; (2) extraordinary court room security measures (shackling him during trial, employing extra security guards in the courtroom -- both uniformed and plainclothes -- and ordering that all potential jurors be searched as they entered the courtroom prevented him from receiving a fair trial); (3) failure to investigate and present mitigation evidence.

Ex Parte State, 2005 WL 628485 (Ala. Crim. App 3/18/2005) "The circuit court [sitting in post-conviction] clearly erred in issuing the broad and unlimited discovery orders in this case." Petition for extraordinary relief granted.

Perkinson v. State, 2005 WL 578397 (Ga 3/14/2005) (dissent) Relief denied on (1) sufficiency; (2) whether Perkinson is mentally retarded; (3) jury instruction on mental retardation; (4) change of venue; (5) absence of defendant from in chambers conference; (6) videotaped depiction during sentencing of crime scene (held harmless); (7) prosecutor's remark that life without possibility of parole was not valid option unless jury found no aggravating factor (held harmless); and (8) statutory review of death sentence.

Bowling v. Commonwealth, 2005 WL 628968 (Ky 3/17/2005) (dissent) Relief denied finding Atkins claim to be procedurally defaulted and IQ scores were to high to permit relief.

State v. Acremant, 2005 Ore. LEXIS 120 (Ore 3/17/2005) Relief denied on issues including: (1) use of victim impact under state law; (2) motion to suppress statements; and (3) admission of evidence of body of unrelated victim. Technical remand ordered to correct entry of multiple aggravated murder convictions for each victim based upon alternative aggravating factors.

Williams v. State, 2005 WL 588249 (S.C. 3/14/2005) Postconviction relief reversed as although counsel erred in failing to request that the term "life imprisonment" is to be understood in its plain and ordinary meaning any error was harmless.

State v. Hugueley, 2005 WL 645179 (Tenn.Crim.App. 5/17/2005) Relief denied on: "(1) whether the trial court erred in denying the defendant an individual and sequestered voir dire; (2) whether the trial court erred in denying the defendant's objection to the State's use of peremptory challenges based upon race and gender; (3) whether the trial court erred in denying the defendant's motion to excuse a potential juror for cause; (4) whether the indictment failed to charge a capital offense; and (5) whether the trial court failed to apply meaningful standards to ensure constitutionally adequate proportionality review."

State v. Gales, 2005 WL 626839 (Neb 3/18/2005) Relief denied despite post-Ring judge sentencing under Nebraska's odd capital sentencing statute.

The jury unanimously found each of the statutory aggravating circumstances set forth above to exist. The jury was discharged; a three-judge sentencing panel of the district court was convened to preside over a mitigation hearing and received evidence of mitigation and sentence excessiveness or disproportionality. The sentencing panel found no statutory mitigating circumstances to be present in this case and considered two nonstatutory mitigating circumstances proffered by Gales: Gales' strong relationship with members of his family and his ability to adapt to life in prison. However, the panel concluded that the nonstatutory mitigating circumstances were not of sufficient weight to approach or exceed the weight which the panel gave to the aggravating circumstances applicable to each murder, and concluded that the sentence of death should be imposed on Gales for each of the murders of which he had been convicted. The panel concluded that the imposition of a sentence of death was not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

People v. Panah, 2005 WL 578959 (Cal 3/14/2005) Relief denied on a fairly strong discovery violation claim. As noted by ElectricLawyer :

Because the prosecution "'has no general duty to seek out, obtain, and disclose all evidence that might be beneficial to the defense,'" (quoting from In re Littlefield (1993) 5 Cal.4th 122, 135), prosecutor did not commit misconduct by failing to ask medical examiner to prepare written report sooner.

Use Note: this case is at first blush difficult to reconcile with Kyles v. Whitley (1995) 514 U.S. 419, 437-438 and In re Brown (1998) 17 Cal.4th 873, 879, fn. 3, both of which state that it is incumbent upon the prosecutor to learn of any favorable evidence "known to the others acting on the government's behalf in [a] case, including the police." (Kyles.) I see these distinctions: 1) it's a death penalty case, so it had to be affirmed; 2) the report was not exculpatory within the meaning of Brady; and 3) the defense had a previous report from the expert and could have called her with questions. The second distinction is the most important: the difference between "evidence that might be beneficial" and evidence that is "favorable."

Panah's quotation from Littlefield is incomplete. Littlefield said "the more likely purpose of including such language in the [discovery] statute was simply to clarify and confirm that the prosecution has no general duty to seek out, obtain, and disclose all evidence that might be beneficial to the defense. (See In re Koehne (1960) 54 Cal.2d 757, 759 ["the law does not impose upon law enforcement agencies the requirement that they take the initiative, or even any affirmative action, in procuring the evidence deemed necessary to the defense of an accused"]; People v. Hogan (1982) 31 Cal.3d 815, 851 [There is no general duty on the part of the police or the prosecution to obtain evidence, conduct any tests, or " 'gather up everything which might eventually prove useful to the defense.' "].)

The key to arguing that the prosecutor had a duty to seek out evidence not in his possession is that evidence is "favorable" within the meaning of Kyles v. Whitley and In re Brown, and not just that it "might be beneficial." It's a devil of a distinction to make, and the California high court is muddling discovery law with decisions like this.

Excerpts from Leading Cases

Brown v. Payton, --- S.Ct. ----, 2005 WL 645182 (3/22/2005) (dissent) From part II.B of the Court's holding:

[4] That leaves respondent to defend the decision of the Court of Appeals on grounds that, even if it was at least reasonable for the California Supreme Court to conclude that the text of factor (k) allowed the jury to consider the postcrime evidence, it was unreasonable to conclude that the prosecutor's argument and remarks did not mislead the jury into believing it could not consider Payton's mitigation evidence. As we shall explain, however, the California Supreme Court's conclusion that the jury was not reasonably likely to have accepted the prosecutor's narrow view of factor (k) was an application of Boyde to similar but not identical facts. Even on the assumption that its conclusion was incorrect, it was not unreasonable, and is therefore just the type of decision that AEDPA shields on habeas review.

The following language from Boyde should be noted at the outset:

"We think the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence. ... [J]urors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting." 494 U.S., at 380-381 (footnote omitted).

Unlike in Boyde the prosecutor here argued to jurors during his closing that they should not consider Payton's mitigation evidence, evidence which concerned postcrime as opposed to precrime conduct. Because Boyde sets forth a general framework for determining whether a challenged instruction precluded jurors from considering a defendant's mitigation evidence, however, the California Supreme Court was correct to structure its own analysis on the premises that controlled Boyde. The Boyde analysis applies here, and, even if it did not dictate a particular outcome in Payton's case, it refutes the conclusion of the Court of Appeals that the California Supreme Court was unreasonable.

*9 The prosecutor's mistaken approach appears most prominently at three different points in the penalty phase. First, in chambers and outside the presence of the jury he argued to the judge that background and character (whether of precrime or postcrime) was simply beyond the ambit of the instruction. Second, he told the jurors in his closing statement that factor (k) did not allow them to consider what happened "after the [crime] or later." App. 68. Third, after defense counsel objected to his narrow view, he argued to the jury that it had not heard any evidence of mitigation. Id., at 70. Boyde, however, mandates that the whole context of the trial be considered. And considering the whole context of the trial, it was not unreasonable for the state court to have concluded that this line of prosecutorial argument did not put Payton's mitigating evidence beyond the jury's reach.

The prosecutor's argument came after the defense presented eight witnesses, spanning two days of testimony without a single objection from the prosecution as to its relevance. As the California Supreme Court recognized, like in Boyde, for the jury to have believed it could not consider Payton's mitigating evidence, it would have had to believe that the penalty phase served virtually no purpose at all. Payton's counsel recognized as much, arguing to the jury that "[t]he whole purpose for the second phase [of the] trial is to decide the proper punishment to be imposed. Everything that was presented by the defense relates directly to that." App. 88. He told the jury that if the evidence Payton presented was not entitled to consideration, and therefore "all the evidence we presented [would not be] applicable, why didn't we hear any objections to its relevance?" Ibid. The prosecutor was not given an opportunity to rebut defense counsel's argument that factor (k) required the jury to consider Payton's mitigating evidence.

For his part, the prosecutor devoted specific attention to disputing the sincerity of Payton's evidence, stating that "everybody seems to get religion in jail when facing the death penalty" and that "[s]tate prison is full of people who get religion when they are in jail." Id., at 74. Later, he intimated the timing of Payton's religious conversion was suspect, stating "he becomes a newborn Christian, after he's in custody" after "he gets caught." Ibid. As the California Supreme Court reasonably surmised, this exercise would have been pointless if the jury believed it could not consider the evidence.

Along similar lines, although the prosecutor characterized Payton's evidence as not being evidence of mitigation, he devoted substantial attention to discounting its importance as compared to the aggravating factors. He said:

*10 "The law in its simplicity is that the aggravating--if the aggravating factors outweigh the mitigating, the sentence the jury should vote for should be the death penalty. How do the factors line up? The circumstances and facts of the case, the defendant's other acts showing violence ..., the defendant's two prior convictions line up against really nothing except [the] defendant's newborn Christianity and the fact that he's 28 years old. This is not close. You haven't heard anything to mitigate what he's done. If you wanted to distribute a thousand points over the factors, 900 would have to go to what he did to [the victim], and I really doubt if [defense counsel] would dispute that breakdown of the facts." Id., at 76.

Indeed, the prosecutor characterized testimony concerning Payton's religious conversion as "evidence" on at least four separate occasions. Id., at 68, 70, 73. In context, it was not unreasonable for the state court to conclude that the jury believed Payton's evidence was neither credible nor sufficient to outweigh the aggravating factors, not that it was not evidence at all.

To be sure, the prosecutor advocated a narrow interpretation of factor (k), an interpretation that neither party accepts as correct. There is, however, no indication that the prosecutor's argument was made in bad faith, nor does Payton suggest otherwise. In addition, the first time the jury was exposed to the prosecutor's narrow and incorrect view of factor (k), it had already heard the entirety of Payton's mitigating evidence. Defense counsel immediately objected to the prosecutor's narrow characterization, and the trial court, noting at a side bar that one could "argue it either way," admonished the jury that "the comments by both the prosecution and the defense are not evidence. You've heard the evidence and, as I said, this is argument. And it's to be placed in its proper perspective." Id., at 69-70.

The trial judge, of course, should have advised the jury that it could consider Payton's evidence under factor (k), and allowed counsel simply to argue the evidence's persuasive force instead of the meaning of the instruction itself. The judge is, after all, the one responsible for instructing the jury on the law, a responsibility that may not be abdicated to counsel. Even in the face of the trial court's failure to give an instant curative instruction, however, it was not unreasonable to find that the jurors did not likely believe Payton's mitigation evidence beyond their reach. The jury was not left without any judicial direction. Before it began deliberations as to what penalty was appropriate, the court instructed it to consider all evidence received "during any part of the trial in this case, except as you may be hereafter instructed," id., at 94, and it was not thereafter instructed to disregard anything. It was also instructed as to factor (k) which, as we held in Boyde, by its terms directs jurors to consider any other circumstance that might lessen a defendant's culpability.

Testimony about a religious conversion spanning one year and nine months may well have been considered altogether insignificant in light of the brutality of the crimes, the prior offenses, and a proclivity for committing violent acts against women. It was not unreasonable for the state court to determine that the jury most likely believed that the evidence in mitigation, while within the reach of the factor (k) instruction, was simply too insubstantial to overcome the arguments for imposing the death penalty; nor was it unreasonable for the state court to rely upon Boyde to support its analysis. Even were we to assume the " 'relevant state-court decision applied clearly established federal law erroneously or incorrectly,' " Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (quoting Williams v. Taylor, 529 U.S., at 411), there is no basis for further concluding that the application of our precedents was "objectively unreasonable." Lockyer, supra, at 76. The Court of Appeals made this last mentioned assumption, and it was in error to do so. The judgment of the Ninth Circuit is reversed.

AROUND THE WEB

Death Penalty Information Center notes:

NEW VOICES: U.S. Senator Santorum Rethinking Death Penalty Views

U.S. Senator Rick Santorum, an outspoken conservative Catholic from Pennsylvania, is re-examining his views on capital punishment. In response to the announcement by the U.S. Catholic Conference of Bishops concerning their new Campaign to End the Use of the Death Penalty, Santorum said, "I felt very troubled about cases where someone may have been convicted wrongly. DNA evidence definitely should be used when possible. I agree with the pope that in the civilized world ... the application of the death penalty should be limited. I would definitely agree with that. I would certainly suggest there probably should be some further limits on what we use it for." This is a significant shift in opinion on the death penalty for Santorum, who voted against replacing capital punishment with life without parole in 1994 and helped to block a 1996 effort to make it easier for those on death row to appeal their convictions. He said, "I never thought about it that much when I was really a supporter of the death penalty. I still see it as potentially valuable, but I would be one to urge more caution than I would have in the past." Santorum's remarks came as the United States Conference of Catholic Bishops released a Zogby International poll showing a dramatic decline in Catholic support for capital punishment. (Pittsburgh Post Gazette, March 22, 2005) (emphasis added). See New Voices and Innocence.

PUBLIC OPINION: Zogby Poll Finds Dramatic Decline in Catholic Support For Death Penalty

A national poll of Roman Catholic adults conducted by Zogby International found that Catholic support for capital punishment has declined dramatically in recent years. The Zogby Poll was released on March 21, 2005 at a press conference of the United States Conference of Catholic Bishops as it announced a new Campaign to End the Use of the Death Penalty. The poll revealed that only 48% of Catholics now support the death penalty. Comparable polls by other organizations had resgistered a 68% support among Catholics in 2001. In addition, the percentage of Catholics who are strongly supportive of capital punishment has been halved, from a high of 40% to 20% in the most recent survey. The poll also found that:

Regular churchgoers are less likely to support the death penalty than those who attend infrequently.

Younger Catholics are among those least likely to support the death penalty.

A third of Catholics who once supported the use of the death penalty now oppose it.

Among the major reasons Catholics gave for their opposition to capital punishment was "respect for life," and 63% voiced concerns about what the use of the death penalty "does to us as a people and a country." Cardinal Theodore McCarrick, Archbishop of Washington, was joined by John Zogby, President of Zogby International, Bud Welch, whose daughter was killed in the Oklahoma City bombing, and Kirk Bloodsworth, who was freed from death row after DNA evidence led to his exoneration, at the press conference. (United States Conference of Catholic Bishops Press Release, March 21, 2005). See the Website for the Catholic Campaign to End the Use of the Death Penalty. See also Public Opinion.

NEW RESOURCE: Book Reviews Conditions that Led to Abolition in 12 States

America Without the Death Penalty: States Leading the Way provides a comprehensive review of the conditions that resulted in twelve U.S. states not having capital punishment. The book looks at factors such as economic conditions, public sentiment, mass media, population diversity, murder rates, and the regional history of executions, that led to abolition in those states. The book's authors, Professors John F. Galliher, Larry W. Koch, David Patrick Keys, and Teresa J. Guess, provide an in-depth look at the nine jurisdictions that have banned the death penalty through legislative action and the three states that have banned it through court decisions. They also examine Washington, D.C., where residents have battled against Congressional efforts to reinstate capital punishment. ("American Without the Death Penalty: States Leading the Way," Northeastern University Press, 2002; paperback edition 2005). See Books.

Judge and Prosecutor Agreed on Keeping Jewish People Off Juries

The capital convictions of dozens of people from Alameda County, California are coming under legal scrutiny because of an accusation that Jews and black women were excluded from juries in capital trials in the county as "standard practice." The practice was revealed in a sworn declaration by former Alameda prosecutor John R. Quatman in the habeas corpus proceedings of Fred Freeman, a man on California's death row who is seeking to have his conviction overturned. Quatman noted that the judge at Freeman's trial, Stanley Golde (pictured), advised him during jury selection that "no Jew would vote to send a defendant to the gas chamber." Quatman stated that the practice of excluding such jurors also extended to black women. Judge Golde, who died in 1998, presided over more death penalty cases in Alameda County than any other judge. There are 44 people from Alameda County on California's death row.

Attorneys representing Freeman on appeal reviewed the jury selection in 25 of Golde's capital trials from 1984-1994. Their research found that 12 people who identified themselves as Jews were called to the jury box and that the prosecution rejected all 12. In addition, the review revealed that 17 people who had surnames perceived as Jewish were also called, with the prosecution excluding 15. Overall, the jury selection examination found non-Jews excluded at a rate of 49.97%, and Jews and people with Jewish surnames excluded at a rate of 93.10%. "It is highly likely that this is going to be a recurring problem for Alameda County cases, and it could show up elsewhere. Legal arguments are not a fad for capital defendants. They are used until the law is settled," said Nathan Barankin, a spokesman for the state attorney general's office. (New York Times, March 15, 2005). See Race.

PUBLIC OPINION: Maryland Poll Finds Strong Support for Life Without Parole

A recent Mason-Dixon Polling & Research survey of Maryland voters found that 63% believe that life without the possibility of parole is an acceptable substitute for the death penalty. Only 21% stated that they believe it is not an acceptable alternative to the death penalty, and 16% were not sure. The poll, sponsored by the Maryland Catholic Conference, revealed that among women, 66% believe the alternative sentence of life without parole is an acceptable substitute for capital punishment. Among black respondents, the number agreeing with the statement registered at 69%. In response to the more general question of whether voters support or oppose the death penalty itself, 56% said they support it, 35% oppose capital punishment, and 9% are unsure. The support is well below the comparable numbers nationally. The poll took place February 22-24, 2005, and included responses from 625 registered Maryland voters. (Maryland Poll Results, Maryland Catholic Conference, March 2005). See Public Opinion and Life Without Parole.

Texas Governor Appoints Special Committee with Broad Powers to Review Criminal Justice Issues

In an historic move to ensure that Texas fairly applies the death penalty and that defendants are afforded proper legal protections to prove their innocence, Texas Governor Rick Perry appointed a nine-member special council with sweeping powers to review an array of legal issues ranging from police investigations to court appeals. The appointment of the panel is the first acton of its kind by a Texas governor in decades.

"I have great confidence in our justice system, but no system is perfect, and we must not be afraid of asking the questions that will lead to creating a more perfect system of justice for all the people of Texas," Gov. Perry said after issuing the Executive Order to create the panel. He noted that among the factors leading to the panel's creation were evidence testing mistakes at the Houston crime lab that affected thousands of criminal cases, court rulings barring the execution of juvenile offenders and those with mental retardation, and questions about whether Texas is properly affording full legal rights to foreign citizens imprisoned in the state.

The panel will include judges, lawmakers, victims' advocates, defense attorneys, and legal scholars. It will not seek public comment, but its meetings will be open to the public. Gov. Perry stated that the members will be given the leeway to recommend whatever changes in the justice system may be necessary. The panel's recommendations will be sent to the governor by January 2006, before the start of the next legislative session.

"I believe it is an excellent start toward getting to the bottom of miscarriages of justice. I look forward to talking and working with Governor Perry . . . to ensure that Texans have a criminal justice system that provides them with the protection that they deserve and is instilled with the fairness and integrity that justice demands," said Sen. Rodney Ellis.

(Austin American-Statesman, March 15, 2005). See Innocence.

PUBLIC OPINION: New Yorkers Do Not Want Death Penalty Reinstated

By a margin of 46-42 percent, New Yorkers do not want to see the death penalty reinstated, according to a recent Siena Research Institute poll of state voters. The poll also found that a clear majority support the sentencing option of life without parole over capital punishment. “Nearly half of New York voters are opposed to reinstituting the death penalty and a clear majority (56 percent) support life without parole as the preferred punishment for first-degree murderers,” said Joe Caruso, Director of Polling for the Siena Research Institute. Only 29 percent supported the death penalty when an alternative sentence was offered. The poll questioned 600 registered New York voters between February 28 and March 4, 2005. (Siena Research Institute Press Release, March 8, 2005). See more about the survey. See Public Opinion.

AROUND THE BLOGS

Talk Left writes

Santorum Questions Death Penalty

by TChris

As support for the death penalty continues to erode, some conservative politicians are starting to reconsider the pro-death stance that has been politically popular for so long. Among them, Sen. Rick Santorum, a Catholic who appears to be open to the church's renewed interest in abolishing death as a punishment.

He has not become an abolitionist, and he believes church teaching against the death penalty carries less weight than its longer-standing opposition to abortion. But he questions what he once unquestioningly supported.

Santorum agrees that "the application of the death penalty should be limited" -- not much of a concession, but a start. At least he's thinking about the issue.

"I never thought about it that much when I was really a supporter of the death penalty. I still see it as potentially valuable, but I would be one to urge more caution than I would have in the past," he said.

Santorum's comments come in response to a recent poll showing that opposition to the death penalty among Catholics has nearly doubled since 2001.

Death Penalty Standard Should Be Beyond All Doubt

The Chicago Tribune today in an editorial supports a pending bill changing the burden of proof in death penalty cases to beyond all doubt from beyond a reasonable doubt.

The Illinois House is considering legislation that would establish a higher burden of proof in capital case sentencing. Judges and jurors in criminal trials would still apply the time-tested standard of guilt "beyond a reasonable doubt." But the standard to impose a death sentence would be even higher. Under the legislation, the court would tell jurors that they may impose a death sentence "if the jury unanimously determines that the evidence leaves no doubt respecting the defendant's guilt." If jurors had any residual, or lingering, doubts, they would impose a sentence of life in prison.

Given the deeply troubling experience in Illinois, it should be easy for supporters and opponents of capital punishment to agree on this: When the state is going to impose the ultimate, irreversible punishment, there should be no doubt that the person paying for the crime is the one who committed it.

And in Texas, S.B. 60 has passed it's first house vote. It would add a third option for juries in death cases - life without the possibility of parole.

Exclusion of Jews and Blacks from Calif. Death Juries

The New York Times reports:

The convictions of dozens of death-row inmates in California are coming under legal scrutiny because of accusations that Jews and black women were excluded from juries in capital trials in Alameda County as "standard practice."

The allegation is contained in an affidavit filed in a habeas appeal of a death row inmate. It was written by the prosecutor:

Mr. Quatman, who worked for 26 years as a deputy district attorney and prosecuted the case, said the trial judge, Stanley Golde, advised him during jury selection that "no Jew would vote to send a defendant to the gas chamber."

"Judge Golde was only telling me what I already should have known to do," Mr. Quatman's statement said. "It was standard practice to exclude Jewish jurors in death cases."

CrimProf Blog writes:

March 23, 2005

Jews Kept off CA Juries?

A former Alameda county prosecutor testified yesterday that he conspired with a now deceased judge to exclude jews from a capital jury. The California Supreme Court order granting an evidentiary hearing is In re Freeman, 2004 Cal. LEXIS 6930 (Cal., July 28, 2004) [Jack Chin]

March 22, 2005

Catholic Bishops Begin Campaign Against Death Penalty

Press release here. [Jack Chin]

March 18, 2005

Illinois Considers Raising Standard in Capital Cases to "Beyond All Doubt"

TalkLeft has the story here. A Chicago Tribune editorial in favor of the bill states: "The Illinois House is considering legislation that would establish a higher burden of proof in capital case sentencing. Judges and jurors in criminal trials would still apply the time-tested standard of guilt 'beyond a reasonable doubt.' But the standard to impose a death sentence would be even higher. Under the legislation, the court would tell jurors that they may impose a death sentence 'if the jury unanimously determines that the evidence leaves no doubt respecting the defendant's guilt.' If jurors had any residual, or lingering, doubts, they would impose a sentence of life in prison. Given the deeply troubling experience in Illinois, it should be easy for supporters and opponents of capital punishment to agree on this: When the state is going to impose the ultimate, irreversible punishment, there should be no doubt that the person paying for the crime is the one who committed it." [Mark Godsey]

March 16, 2005

Ken Starr's Pro Bono Capital Litigation

Former special prosecutor and D.C. Circuit judge Kenneth Starr, now dean of Pepperdine, is representing a Virginia man who he says was unfairly sent to death row. Said Starr: "the death penalty has to be administered with the utmost caution and reserved for the gravest offenses. This is not that kind of case. Robin Lovitt maintains his innocence, and evidence that might prove his innocence has been destroyed. I'm very distressed by that.... Society had better be absolutely certain before they put someone to death who is maintaining his innocence. I feel very passionately about that." News here and here. Here's information about Starr's client on a pen pal site. [Jack Chin].

Ohio Inmate Becomes 119th Person Released from Death Row

Serious Brady violations. Story here. [Mark Godsey]

Sentencing Law and Policy notes:

March 23, 2005

Capitalizing on capital funding?

As detailed in this post from last month, I was surprised and intrigued that President Bush's 2005 State of the Union address included a commitment to fund special training for defense counsel in death penalty cases. As detailed in this fascinating Legal Times article, I was not the only one surprised and intrigued by this passage in the speech. Moreover, the Legal Times article is a must-read for persons concerned about the administration of capital punishment: it thoughtfully explores the state of capital defense and also reveals a considerable backstory to the White House's sudden commitment to capital defense funding.

March 22, 2005

AEDPA death penalty ruling from SCOTUS today

Criminal defendants and prisoners have been on something of a winning streak in the Supreme Court this Term, although the government has prevailed more often in capital cases and Fourth Amendment cases. Today, as detailed in this post from SCOTUSblog, the Supreme Court found for the government in a capital case and in a Fourth Amendment case.

Today's capital case was Brown v. Payton, No. 03-1039 (S. Ct. Mar. 22, 2005) ( available here), and it concerned jury instructions regarding mitigating factors. The Ninth Circuit had granted habeas relief to the capital defendant, but the Supreme Court, in an 5-3 decision with the Court's opinion written by Justice Kennedy, focused on the AEDPA habeas standards and held that habeas relief should not have been granted because the California Supreme Court's affirmance of the defendant's sentence was not unreasonable.

March 14, 2005

Scalia speaks out on Roper

I noted here earlier today the widespread criticisms that the Supreme Court's work in Roper has generated, and Justice Scalia has apparently joined the Roper-bashing bandwagon. Thanks to Howard at How Appealing, who provides the links here, you can hear Justice Scalia assail Roper during a speech today at a Washington think tank. The speech is summarized in this AP report and this MSNBC article.

UPDATE: TalkLeft has this extended post discussing Justice Scalia's speech and examining more broadly his approach to the Eighth Amendment.

Intrigued by the Roper bashing

Jeffrey Rosen has this essay in the The New Republic on the Supreme Court's Roper decision with this provocative openning:

The morning after the Supreme Court struck down the juvenile death penalty as a form of cruel and unusual punishment in Roper v. Simmons, the reaction in the Supreme Court press room was unusually scathing. A liberal journalist lamented that, ever since Justice Anthony Kennedy, who wrote the 5-4 opinion for the Court, styled himself as a judicial statesman, he has become insufferable, out of control, and "deserves to be slapped." A conservative journalist chimed in that the decision was embarrassing, because the justices had imposed their own moral preferences on the country without attempting to convince those who disagreed.

The consensus among our ideologically diverse little band was revealing. Roper v. Simmons is indeed embarrassing....

Though the bulk of Rosen's piece is about the Supreme Court's consideration of international opinion in its decisions, it confirms (and contributes to) my general impression that Roper has been among the most critically assailed Supreme Court opinions in recent memory.

Rather than join the critical discussion of Roper, I am interested in a critical discussion of why the discussion of Roper has been so critical. I am drawn to this question principally because Roper, at least on its merits, is arguably not all that much different than the Supreme Court's 2002 decision in Atkins which found a constitutional prohibition on the execution of persons who are mentally retarded. I do not recall Atkins being treated harshly by commentators.

There are tangible doctrinal differences between Roper and Atkins which arguably could explain their different receptions. But I am inclined to think other factors besides purely legal considerations explain the distinct reactions to Roper and Atkins. In particular, as the Rosen piece suggests, I sense that bashing Justice Kennedy (the author of Roper) and bashing the considerations of foreign authorities is far more in vogue these days than was bashing Justice Stevens (the author of Atkins) and bashing the considerations of foreign authorities in 2002.

Volokh Conspiracy scribbles:

Cass Sunstein & Adrian Vermeule for the Death Penalty:

Their essay is available for download here; here's the abstract (paragraph breaks added):

Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many as eighteen or more murders for each execution. This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death.

Capital punishment thus presents a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. Moral objections to the death penalty frequently depend on a distinction between acts and omissions, but that distinction is misleading in this context, because government is a special kind of moral agent.

The familiar problems with capital punishment -– potential error, irreversibility, arbitrariness, and racial skew -– do not argue in favor of abolition, because the world of homicide suffers from those same problems in even more acute form. The widespread failure to appreciate the life-life tradeoffs involved in capital punishment may depend on cognitive processes that fail to treat “statistical lives” with the seriousness that they deserve.

I've read the paper, and though I don't entirely agree with all the analysis in it, I think it makes some very important points, and will attract a lot of attention. What most intrigued me, incidentally, was its summary of the recent deterrence studies, which I hadn't known about. (I support the death penalty on retributive grounds, but obviously if it's a powerful deterrent, that would reinforce the retributivists' support and may also bring around many nonretributivists.) Here's their summary of the evidence; for footnotes, please see the paper itself:

For many years, the deterrent effect of capital punishment was sharply disputed. But a great deal of recent evidence strengthens the claim that capital punishment has large deterrent effects. The reason for the shift is that a wave of sophisticated econometric studies have exploited a newly-available form of data, so-called “panel data” that uses all information from a set of units (states or counties) and follows that data over an extended period of time. A leading study used county-level panel data from 3,054 U.S. counties between 1977 and 1996. The authors find that the murder rate is significantly reduced by both death sentences and executions. The most striking finding is that on average, each execution results in 18 fewer murders.

Other econometric studies also find a substantial deterrent effect. In two papers, Paul Zimmerman uses state-level panel data from 1978 onwards to measure the deterrent effect of execution rates and execution methods. He estimates that each execution deters an average of fourteen murders. Using state-level data from 1977 to 1997, Mocan and Gittings find that each execution deters five murders on average. They also find that increases in the murder rate come from removing people from death row and also from commutations in death sentences. Yet another study, based on state-level data from 1997-1999, finds that a death sentence deters 4.5 murders and an execution deters three murders. The same study investigates the question whether executions deter crimes of passion and murders by intimates. The answer is clear: these categories of murder are deterred by capital punishment. The deterrent effect of the death penalty is also found to be a function of the length of waits on death row, with a murder deterred for every 2.75 years of reduction in the period before execution.

In the period between 1972 and 1976, the Supreme Court produced an effective moratorium on capital punishment, and an extensive study exploits that fact to estimate the deterrent effect. Using state-level data from 1960-2000, the authors make before-and-after comparisons, focusing on the murder rate in each state before and after the death penalty was suspended and reinstated. The authors find a substantial deterrent effect. After suspending the death penalty, 91% of states faced an increase in homicides – and in 67% of states, the rate was decreased after reinstatement of capital punishment.

A recent study offers more refined findings. Disaggregating the data on a state by state basis, Joanna Shepherd finds that the nation-wide deterrent effect of capital punishment is entirely driven by only six states — and that no deterrent effect can be found in the twenty-one other states that have restored capital punishment. What distinguishes the six from the twenty-one? The answer lies in the fact that states showing a deterrent effect are executing more people than states that do not. In fact the data show a “threshold effect”: deterrence is found in states that had at least nine executions between 1977 and 1996. In states below that threshold, no deterrence can be found. This finding is intuitively plausible. Unless executions reach a certain level, murderers may act as if the death is so improbable as not to be worthy of concern. Her main lesson is that once the level of executions reaches a certain level, the deterrent effect of capital punishment is substantial.

All in all, the recent evidence of a deterrent effect from capital punishment seems impressive. But in studies of this kind, it is hard to control for confounding variables, and a degree of doubt inevitably remains. It remains possible that these findings will be exposed as statistical artifacts or will be found to rest on flawed econometric methods. More broadly, skeptics are likely to question the mechanisms by which capital punishment has a deterrent effect. On the skeptical view, many murderers lack a clear sense of the likelihood and perhaps even the existence of executions in their state; further problems for the deterrence claim are introduced by the fact that capital punishment is imposed infrequently and after long delays. In any case many murders are committed in a passionate state that does not lend itself to an all-things-considered analysis on the part of perpetrators.

As mentioned above, and as we discuss in Part IV, these suppositions are in some tension with existing evidence. But let us suppose that these doubts are reasonable. If so, should current findings be deemed irrelevant for purposes of policy and law? That would be an odd conclusion. In regulation as a whole, it is common to embrace some version of the Precautionary Principle -– the idea that steps should be taken to prevent significant harm even if cause-and-effect relationships remain unclear and even if the risk is not likely to come to fruition. Even if we reject strong versions of the Precautionary Principle, it hardly seems sensible that governments should ignore evidence demonstrating a significant possibility that a certain step will save large numbers of innocent lives.

For capital punishment, critics often seem to assume that evidence on deterrent effects should be ignored if reasonable questions can be raised about it. But as a general rule, this is implausible. In most contexts, the existence of reasonable questions is hardly an adequate reason to ignore evidence of severe harm. If it were, many environmental controls would be in serious jeopardy. We do not mean to suggest that government should commit what many people consider to be, prima facie, a serious moral wrong simply on the basis of speculation that this step will do some good. But a degree of reasonable doubt does not seem sufficient to doom capital punishment, if the evidence suggests that significant deterrence occurs.

In any event, as they say, read the whole thing — and, better yet, also read the studies it cites (something I plan to do shortly).

UPDATE: Reader Dan Markel points to other articles on the deterrence question, which appear to take a contrary view: Richard Berk, New Claims about Executions and General Deterrence: Deja Vu All Over Again?, J. Emp. L. Stud. (forthcoming) (March 11, 2005 draft); Ted Goertzel, Capital punishment and homicide: sociological realities and econometric illusions, Skeptical Inquirer (July-August, 2004).

Deriving Benefits and Satisfaction from Criminals' Suffering:

I've found the recent debates about punishment and retribution very interesting — I may actually see whether there's anything left to write on the subject (despite the centuries of philosophy and legal thinking on the matter). This really is terribly important stuff. It's important if we retributivists are right (regardless of whether the retribution should come in the form of prison terms, death, pain, or whatever else), and it's important if we're wrong: Either sort of error may cause lots of needless suffering, whether to the criminals or to their victims.

For now, let me note one brief observation, which again is present even if one sets aside the death penalty, painless or painful. Many people have argued that it's wrong to derive pleasure from others' suffering, and I suppose I agree under some definitions of pleasure — we shouldn't take out the popcorn and settle in for a fun evening of contemplating the suffering inflicted on others. But I think that under many necessary and proper theories of punishment, it's quite proper to derive satisfaction from criminals' suffering. That sounds cruel, but it seems to me quite right, and here's why.

We can identify six main theories of punishment, though I'm sure there are others, and other ways of categorizing these ones:

1. Incapacitation: Lock someone up so he can't commit the crime again (or chemically castrate him or whatever else). I think this is quite right, though there may be limits on how long it's fair to lock people up. And this doesn't require that the person suffer: If we could cheaply incapacitate someone in ways that are perfectly pleasant for him, we'd still be fulfilling the goal of incapacitation. But incapacitation can't be the whole story; I take it, for instance, that if a rapist gets into a car accident after the rape and becomes paraplegic and practically highly unlikely to rape, we wouldn't just let him out.

2. Restitution: Make the person pay for the damage he did. This too is good, and it doesn't require that the person suffer. (The payment may make him suffer, but it need not; if Winona Ryder shoplifts something and then has to pay for it, the payment probably isn't enough to make her suffer, and yet the restitution function is entirely satisfied.) But while this can work well for purely financial crimes, it's much less satisfying for other crimes, and often the criminal doesn't have the money to pay.

3. Rehabilitation: Make the criminal change his ways. "Nice work if you can get it," I say — from what I hear, no-one quite knows how to do this reliably, and even the programs that seem to work the best tend not to be that effective. Still, in principle, if this were possible, it could be doable without the person's suffering (unless the rehabilitative technique relies on the person's suffering).

4. Norm-setting: Send a message to the public that something is wrong, and affect their moral judgments (and not just their cost-benefit analysis). Locking up drunk drivers, for instance, might lead people to recognize how bad this behavior is; some people hope that hate crimes laws may have a similar effect. Likewise, sternly punishing date rape might open some other people's eyes to how awful this crime is. It may do little to the serious sociopaths, but it may affect some people who have decent impulses as well as evil ones. And punishment of 60-year-old Nazis might serve as a reminder to the public about how evil Nazism is.

This, I think, generally requires that the punishment involve some suffering, precisely because the infliction of suffering is what helps set the norm. Just saying "drunk driving is bad" or "date rape is bad" might do something, but not much; the government says similar things all the time ("literring is bad"), and people tend to tune them out. I think that what makes the prosecution of these criminals noteworthy, and norm-reinforcing, is that the legal system finds the crime so serious that it's willing to inflict suffering as a result.

Again, consider the thought experiment from item 1: Imagine that one could come up with a "punishment" that inflicted no suffering; for instance, say that drunk drivers could be given a pill that keeps them from getting drunk (and assume that for most people that wouldn't cause suffering). The resulting penalty may make for quite effective incapacitation, but I doubt that such a suffering-free punishment would much affect moral norms.

5. Deterrence: Increase the cost of crime to the criminals, and thus scare them away from the crime. Now this necessarily involves inflicting suffering; if the punishment didn't include suffering of some sort, then criminals wouldn't be deterred by it.

What's more, if we take a deterrence perspective — or, say, a deterrence-incapacitation perspective, or some other mix that includes deterrence — then we should derive satisfaction from knowing that criminals will suffer. The satisfaction may be tinged with sorrow, regret, or even disgust at the suffering. Locking someone up for the rest of his life, or even for several years, is surely a harsh and even brutal punishment, and would be even if we eliminated the risk of prisoner-prisoner violence.

Nonetheless, if we believe in deterrence, we are deriving a benefit from this suffering: It is this suffering of the criminals that is making us and our children safer. And as a result we must presumably derive some (though not unmixed) satisfaction, as we would from anything that we think makes us safer, and is morally justified.

6. Retaliation: Punish criminals because they deserve to be punished for the evil things they did. This, as I've argued before, is the best explanation for the understandable and laudable campaign to punish 70-year-old Nazis.

Likewise, say that there were some entirely suffering-free way to incapacitate and deter rapists: For instance, assume for the sake of argument that there's a cheap (and constitutionally and morally permissible) form of chemical castration that can for some period of time take away their sex drive — which means that they won't even miss sex, forced or unforced — and say that reliable comparative studies show that this deters rape as well as other punishment does. (For instance, say that uncastrated men really don't want to be chemically castrated, but once they are they don't really suffer much, setting aside for a moment any possible social shame that might come from being uninterested in sex.) Would we think this is really enough? If the rape victim came to us and said, "So the trial was yesterday, and today I saw the man who brutally raped me walking down the street whistling," would we think that justice had been done?

If we wouldn't think so — if we think that justice requires some retaliatory punishment here, or as to the Nazis — then we are demanding that the criminal be made to suffer, even if just through the loss of liberty. And thus presumably when we hear about old Nazis or young rapists being convicted and thrown in prison, we derive satisfaction from knowing that the person is suffering.

* * *

So it seems to me that if we endorse theories 4, 5, or 6, or some mix of them and other theories (and I think most of us do endorse such a mix), we support deliberately inflicting suffering on criminals, and derive benefit and satisfaction from this infliction. Again, doubtless some moral rules limit the type and amount of suffering we can inflict on people for certain crimes. (Even if we really want to deter pickpockets, and the death penalty deterred them, I don't think the penalty would be a suitable punishment, though I won't go into the reasoning for that here.) And perhaps some moral rules categorically limit the type and amount of suffering we can inflict on people for any crime. Perhaps, for instance, it's proper to derive satisfaction from deprivation of liberty but categorically improper to derive satisfaction from deprivation of life or infliction of physical pain.

But unless we limit ourselves to theories 1, 2, and 3 — unless we renounce not only retribution but also deterrence and probably norm-setting — we must acknowledge that our criminal justice system is largely based on the infliction of suffering, and rightly so; and that we are therefore right to derive satisfaction (though not unmixed with regret and other emotions) from knowing that criminals are being made to suffer precisely for the sake of the moral and practical benefits that this suffering causes us. Maybe that's a reason to utterly reject deterrence and retaliation. But if we accept them, then what I say here seems to follow, not just as a matter of my moral judgment but as a matter of logic.

UPDATE: A reader writes, "[I]t seems to me that you can change the phrase 'suffering' to a less emotive phrase such as 'deprivation of liberty and/or property' and not change your analysis one whit. The problem with using 'suffering', as I see it, is that 'suffering' is usually equated to 'physical suffering', which evokes images of whips or torturing, etc., and the very idea of possibly being thought inhumane is anathema to the psyche of modern-day Liberals. Thus the use of the word 'suffering' clouds the minds of many people and inhibits rational analysis."

But I'm deliberately trying to draw the analogy. We're not talking about some abstract legal machinations, which is likely the first image that "deprivation of liberty and/or property" (especially with the "and/or") creates. Nor are we talking simply about deprivation of liberty and/or property -- as I mentioned in my discussion of the first three reasons for punishment, we can imagine deprivations of liberty that are set up to minimize suffering. To take a noncriminal example, if I'm quarantined because of a contagious illness -- a form of incapacitation, since my isolation will prevent me from inadvertently doing harm -- I hope the government will try to ease my suffering as much as possible.

Rather, I'm talking about inflicting suffering on people, suffering that may cause a great deal of psychic pain, and that is inflicted *precisely in order to inflict such pain*. Now maybe infliction of psychic suffering by locking people up is legitimate, and infliction of physical suffering by flogging them is illegitimate. But to clear our minds and engage in rational analysis, we have to acknowledge, I think, that both are forms of deliberately inflicted suffering.