Category: Capital Punishment


Turning Back to Electrocution—Reversing the Eighth Amendment Ratchet?

A few days ago, the governor of Tennessee signed a law providing that scheduled executions could be carried out by electrocution rather than by lethal injection if lethal injection drugs were unavailable. This decision comes on the heels of states like Tennessee struggling with a shortage of lethal injection drugs. Also likely triggering this move are the allegationsthat states’ experimentations with new drugs and drug combinations in carrying out lethal injections are inhumane and constitute cruel and unusual punishments in violation of the Eighth Amendment. It’s understandable that states like Tennessee might try another strategy in carrying out death sentences. Moving to the earlier-practiced method of electrocution, though, is somewhat unexpected. Sure, several states have older methods of execution, like electrocution, as back-ups in case an individual requests it or lethal injection, in general, turns out to be unconstitutional. Alabama law, for example, provides that “[a] death sentence shall be executed by lethal injection, unless the person sentenced to death affirmatively elects to be executed by electrocution.” And Oklahoma law states that “[t]he punishment of death shall be carried out by the administration of a lethal quantity of a drug or drugs until death is pronounced . . . . [but] [i]f [lethal injection] is held unconstitutional . . . then the sentence of death shall be carried out by electrocution.” Providing for electrocution based only on the shortage of lethal injection drugs, though, is unprecedented.

Courts judge the constitutionality of a punishment by the “evolving standards of decency that mark the progress of a maturing society.” While individuals have been punished by death for time immemorial, the method of carrying out this punishment has evolved from hanging, to electrocution, to firing squad, to lethal gas, to lethal injection. New York, seeking a more humane method of execution than hanging, built the first electric chair in 1888. I’ll spare you the details, but electrocution has been described as a pretty gruesome process. This is especially so, at least from the observer’s point of view, when compared with the ordinary process of lethal injection, in which the offender is first sedated and then his involuntary movements are masked by a paralytic. The century-long movement away from electrocution seems to be consistent with the sense that our standards of decency improve from generation to generation. Jurisdictions abandon old methods of punishment as new methods emerge, and the old methods then become unusual in practice and also statutorily unusual.

These evolving standards of decency of the Eighth Amendment have been described as a “one-way ratchet”; once the Court declares a particular punishment unconstitutional, jurisdictions are prohibited from authorizing the punishment, therefore it has no chance to move from unusualness to usualness. Indeed, in oral arguments in Atkins v. Virginia, Justice Scalia suggested that the Court should be extremely careful in determining that a punishment is unconstitutionally cruel and unusual because “once [the Court has] decided that you cannot legislate the execution . . . , there can’t be any legislation that enables us to go back.” Considering that unusualness is essential to the Punishments Clause prohibition, this one-way ratchet idea is also relevant even if the Supreme Court has not officially declared a particular punishment to be unconstitutional. Once a punishment becomes unusual enough, it is at risk of being unconstitutional.

Electrocution has in fact become rather unusual. Only eight of the thirty-four death penalty jurisdictions (and only eight of the fifty-three death- and non-death-penalty jurisdictions) authorize electrocution in any circumstance. And there have been just 158 electrocutions in the United States since 1976. This is in contrast to the 1,204 lethal injections that have taken place during this same period. Electrocutions account for just 11% (158/1379) of the executions carried out since 1976. However, as I’ve suggested before, the Supreme Court’s standard of unusualness is somewhat changeable. Still, it seems that the unusualness of electrocution makes it constitutionally suspect even though the Court has not declared it unconstitutional.

But note that we’ve neglected to measure the cruelty of the punishment. Indeed, the Eighth Amendment prohibits punishments that are cruel and unusual. I’ve argued elsewhere that each of these components is necessary before a punishment is unconstitutional under this Clause of the Eighth Amendment. Indeed, the Court’s assessment of how many jurisdictions employ or prohibit punishment might be considered a measure of unusualness, and the Court’s turn to its own judgment about the punishment at issue might be deemed an inquiry into the punishment’s cruelty. (The first inquiry of unusualness, however, may often be linked to a society’s determination of the punishment’s cruelty as well.) But others view the relevant language of the Punishments Clause as a term of art rather than as a dual requirement. The scope of the phrase is interpreted by looking at a consensus of jurisdictions (and sometimes juries), plus the individual judgments of the nine Supreme Court Justices. Even under this view, though, the unusualness of electrocution is significant in its constitutional fate.

In Baze v. Rees, the Court stated that “capital punishment is constitutional. It necessarily follows that there must be a means of carrying it out.” But does the shortage of lethal injection drugs make what might otherwise be considered an unconstitutional punishment constitutional? If execution could only be carried out by torturous means, would torture become tolerable under the Eighth Amendment? There must be limits to this statement by the Court. Under current constitutional analysis, executions need not be free of pain, but they cannot be carried out by barbarous, outdated methods because more humane methods are logistically difficult. Allowing such a turn back in time would be a reversal of the Eighth-Amendment ratchet that has been said to move in only one direction.


Is the Death of Capital Punishment Nigh?

Thanks, Danielle and the entire Co-Op gang, for having me this month. I cannot promise to be the most uplifting blogger, as one of my primary areas of interest is cruel and unusual punishments, but perhaps I can provide some relief with my other interests—torts and law & science. Today, however, I’m starting with capital punishment.

In the wake of the botched Oklahoma execution, several people have asked me whether this will mark the beginning of capital punishment’s demise. The thought behind this sentiment seems to be that the horror of Clayton D. Lockett—the subject of the botched execution—writhing and clenching his teeth after he was injected with midazolam might convince the general public that capital punishment is just gruesome and no longer compatible with our sense of fairness and justice. While some observers might certainly find this to be the case, here in Texas—the death penalty capital—I’ve heard people express frustration that anyone has shown sympathy toward Lockett. “Why isn’t anyone talking about his victim?” they ask. “Why should we care that he suffered a few minutes of pain after what he did?” While I’ve tried to explain that the Supreme Court has drawn the line of constitutionality at offenders suffering from wanton infliction of pain, and that we should care about what happened in Oklahoma because it could possibly be considered unconstitutional, this legal argument seems to find little resonance with these questioners. And this sentiment of frustration doesn’t emanate from just Texans; I’ve heard the same thing from people all over the country. Still, the botched execution in Oklahoma—and other botched executions—have been successful in placing a spotlight on some of the problems with capital punishment today. Most of the recent concerns with executions stem from European countries’ refusal to provide death penalty states with certain drugs that have traditionally been used to carry out lethal injection. This has led to death penalty states turning elsewhere for drugs, such as compounding pharmacies, over which there is very little oversight, or using more readily available drugs, such as the medazoline that was used in Oklahoma. States’ new uses of drugs seem to be shrouded in secrecy or largely untested, leaving questions as to how reliable they are in carrying out executions and how much pain they may be causing in doing so. But do we really know how much pain lethal injection with the traditional three-drug cocktail (sodium thiopental, pancuronium bromide, and potassium chloride) caused offenders? Just because most states used similar lethal injection cocktails does not necessarily mean that they were the most humane way to carry out the punishment. There does not seem to be a realistic way to objectively measure the pain involved in execution. In fact, one of the drugs used in the traditional three-drug cocktail for lethal injection—pancuronium bromide—was employed to mask the body’s struggle as it descends into death; pancuronium bromide is a paralytic that keeps the offender’s body from flailing and twitching involuntarily as the body is put to death. Paralyzing the offender in this way may make the execution more palatable for observers to watch. It may also mask any errors in sedating the offender before he is killed, as was argued in Baze v. Rees.

Taking a step back, the Supreme Court has never found a particular method of execution unconstitutional. Although the Court has been continuously chipping away at the death penalty, it has done this from the directions of scrutinizing the classes of offenders that may be executed, limiting which crimes may be punished with death, and examining the procedures necessary to sentence an offender to death. In prohibiting capital punishment in some of these circumstances, the Court has looked primarily at (1) objective indicia of a consensus against a particular punishment, and (2) the Court’s own “independent judgment.”

With respect to the first consideration—the “objective indicia”—thirty-two states (plus the federal government and U.S. military) have retained the death penalty. While this does not seem to suggest that a consensus has been formed against the punishment in the United States, the Supreme Court has found such a consensus on less evidence. In Graham v. Florida, for example, the Supreme Court found that a consensus existed against imposing a sentencing of life without the possibility of parole on juvenile non-homicide offenders despite the fact that thirty-nine jurisdictions permitted the punishment for that crime. In that case, the Court focused on the fact that the punishment was relatively rarely imposed in those jurisdictions. In other cases, the Court has said that the “consistency of the direction of change” makes a difference. In Atkins v. Virginia, for example, the Court found it telling that sixteen jurisdictions had moved to prohibit executing “mentally retarded” offenders in the decade or so before Atkins was decided. In comparison, six jurisdictions have abolished capital punishment within the last eight years.

With respect to the Court’s second indicator of the constitutionality of a punishment—its own independent judgment—the Court has primarily looked to the penological purposes of punishment. This is a somewhat unpredictable and malleable inquiry, however, and the Court has also looked to factors as varied as the reliability of the evidence presented in the trial court and the risk of wrongful execution.

One distinguishing characteristic of capital punishment more generally, though, is its enshrinement in the text of the Constitution. It’s mentioned no less that four times, by reference to capital crimes and depriving someone of his life. The Supreme Court has adopted an evolving interpretation of the Eighth Amendment’s prohibition on cruel and unusual punishments, but it seems that the Court could find this textual aspect of the Constitution a difficult hurdle to overcome.


Neurocriminology: The Monsters are in the Molecules

Is the brain indeed the prime suspect when it comes to horrific crimes? Does our molecular structure or DNA determine our destiny, for the benevolent best or the malovent worst?

Such questions and others are explored in Dr. Adrian Raine’s book titled The Anatomy of Violence: The Biological Roots of Crime (Pantheon, 2013). This mind-opening book by a University of Pennsylvania professor of psychiatry and chairman of the department of criminology is the focus of an online symposium just posted on the Washington Independent Review of Books Gb4yObYARcACwebsite.

To help flesh out some of the instructive and provocative points raised in Dr. Raine’s illuminating book, NYU professor of Clinical Psychiatry Laurence R. Tancredi (who holds MD and JD degrees) and a University of Minnesota law professor Francis Shen (who specializes in neuroscience and the law) wrote commentaries. In the spirit of a free exchange of ideas, Dr. Raine authored a reply. I wrote the foreword to the symposium.


What do a Writ of Mandamus, 12(b)(6), the Death Penalty, and a Batson Challenge Have in Common?

The answer is Herbert Smulls, who Missouri executed late last night. The last few days of Smulls’ life were filled with a procedural mess involving an en banc Eighth Circuit judgment and a stay of execution by the Supreme Court of the United States. On January 24, by a vote of 7-3, the Eighth Circuit  issued a writ of mandamus on behalf of the Missouri Director of the Department of Corrections directed at the district court judge who the Eighth Circuit found had abused its discretion. The district court had ordered discovery so that Smulls could find out the doctor, pharmacist, and laboratory that were prescribing and supplying the drugs to be used in his execution (and thus, determine if the death penalty drug would cause excessive pain and suffering in violation of the 8th Amendment). The en banc Eighth Circuit granted the extraordinary remedy of a writ of mandamus ordering the the district court to vacate its discovery order. The majority of the Eighth Circuit held that  the district court had abused its discretion by denying Missouri’s 12(b)(6) motion to dismiss on the underlying 8th Amendment claim. Notably, the Eighth Circuit reached its conclusion without mentioning 12(b)(6) at all and it isn’t until the dissent by Judge Bye that the underlying civil claim appellate posture is revealed.

Then, on Monday, the Supreme Court issued a stay barring the execution of Smulls. Doug Berman heard, from a knowledgeable source, that the stay was issued not regarding the 8th Amendment claim, but based upon a Batson challenge (which wasn’t even before the en banc 8th Circuit as far as I can tell). If true, the stay was truly remarkable because Batson challenges (based upon racial exclusion of jurors by the prosecutor) are almost never granted, of little interest to the modern Supreme Court, and usually litigated far earlier in the appellate process. However, yesterday, the Supreme Court lifted its stay and it is unlikely that we will ever find out the details underlying the last minute Batson challenge (if there was one).

My first reaction from a procedural perspective is that there has to be a better way. It is a very strange world were 12(b)(6), mandamus, and the criminal death penalty appear in a single case. Yet, a quick Lexis search revealed 47 other opinions issued with those three legal issues. Notably, all of the recent cases involved litigation over drug cocktails for the death penalty. Significantly, none involved Batson and the Supreme Court was seemingly absent from those cases. In some part, this can be traced back to the Antiterrorism and Effective Death Penalty Act of 1996 which barred second or successive habeas petitions. As a result, defense counsel must exploit other procedures for relief once the collateral habeas appellate process has been exhausted. This case illustrates the bizarre legal gymnastics that result. I joked with my colleague that you could teach most of a federal courts class with just this case.

Reading the Eighth Circuit majority, concurring, and dissent opinions shows that the judges are essentially in the dark on how these disputes should be handled. The majority infers its abuse of discretion finding from dicta in Baze v. Rees. The dissent rightfully, in my opinion, points out that Baze has as much to do with abuse of discretion for denying 12(b)(6) motions to dismiss as does a hot dog. And yet, I can’t completely fault the majority because they have been left with so little guidance from Congress and the Supreme Court that any opinion they issue would have to invent “new” law. The Federal Rules of Civil Procedure and traditional standards of review are simply not well-designed to address death penalty appeals (particularly those on the eve of execution). Whatever one thinks of the value of the Antiterrorism and Effective Death Penalty Act, someone has to clean up this mess or death penalty litigation will likely become even more procedurally absurd.


CELS VII: Data is Revealing Part 2


Shouldn't it be "data are revealing?"

Shouldn’t it be “data are revealing?”

[This is part 2 of my recap of the Penn edition of CELS, promised here. For Part 1, click here.  For previous installments in the CELS recap series, see CELS IIIIVV, and VIVII.]

Where were we?  I know: throwing stink-bombs at a civil procedure panel!

At the crack of dawn saturday I stumbled into the Contracts II panel. Up first was Ian Ayres, presenting Remedies for the No Read Problem in Consumer Contracting, co-authored with Alan Schwartz.  Florencia Marotta-Wurgler provided comments.  The gist of Ayres’ paper is that consumers are optimistic about only a few hidden terms in standard-form contracts. For most terms, they guess the content right. Ayres argued that should be concerned only when consumers believe that terms are better than they actually are.  The paper  proposes that firms make such terms more salient with a disclosure box, after requiring firms to learn about consumer’s knowledge on a regular basis. Basically: Schumer’s box, psychologically-calibrated, for everyone.  Florencia M-W commented that since standard-form contracts evolve rapidly, such a calibrated disclosure duty might be much more administratively complex than Ayres/Schwartz would’ve thought.  A commentator in the crowd pointed out that since the proposal relies on individuals’ perceptions of what terms are standard, in effect it creates a one-way ratchet. The more people learn about terms through the Ayres/Schwartz box, the weaker the need for disclosure. I liked this point, though it appears to assume that contract terms react fairly predictably to market forces. Is that true?  Here are some reasons to doubt it.

Zev Eigen then presented An Experimental Test of the Effectiveness of Terms & Conditions.  Ridiculously fun experiment — the subjects were recruited to do a presidential poll. The setup technically permitted them to take the poll multiple times, getting paid each time.  Some subjects were exhorted not to cheat in this way; others told that the experimenters trusted them not to cheat; others were given terms and conditions forbidding cheating. Subjects exhorted not to cheat and trusted not to cheat both took the opportunity to game the system significantly less often than those presented with terms and conditions. Assuming external validity, this raises a bit of a puzzle: why do firms attempt to control user behavior through T&Cs? Maybe T&Cs aren’t actually intended to control behavior at all! I wondered, but didn’t ask, if T&Cs that wrapped up with different formalities (a scan of your fingerprint; a blank box requiring you to actually try to sign with your mouse) would get to a different result.  Maybe T&Cs now signal “bad terms that I don’t care to read” instead of “contract-promise.”  That is, is it possible to turn online T&Cs back into real contracts?

Next, I went to Law and Psych to see “It All Happened So Slow!”: The Impact of Action Speed on Assessments of Intentionality by Zachary C. Burns and Eugene M. Caruso. Bottom line: prosecutors should use slow motion if they want to prove intent. Second bottom line: I need to find a way to do cultural cognition experiments that involving filming friends jousting on a bike. I then hopped on over to International Law, where Adam Chilton presented an experimental paper on the effect of international law rules on public opinion. He used a mTurk sample.  I was a concern troll, and said something like “Dan Kahan would be very sad were he here.” Adam had a good set of responses, which boiled down to “mTurk is a good value proposition!”  Which it is.

After lunch it was off to a blockbuster session on Legal Education. There was a small little paper on the value of law degrees. And then,  Ghazala Azmat and Rosa Ferrer presented  Gender Gaps in Performance: Evidence from Young Lawyers. They found that holding all else equal, young women lawyers tend to bill somewhat fewer hours than men, a difference attributable to being less likely to report being highly interested in becoming partners while spending more time on child care.  What was noteworthy was the way they were able to mine the After the JD dataset. What seemed somewhat more troubling was the use of hours billed as a measure of performance, since completely controlling for selection in assignments appeared to me to be impossible given the IVs available.  Next, Dan Ho and Mark Kelman presented Does Class Size Reduce the Gender Gap? A Natural Experiment in Law. Ho and Kelman found that switching to small classes significantly increases the GPA of female law students (eliminating the gap between men and women). This is a powerful finding – obviously,it would be worth it to see if it is replicable at other schools.

The papers I regret having missed include How to Lie with Rape Statistics by Corey Yung (cities are lying with rape statistics); Employment Conditions and Judge Performance: Evidence from State Supreme Courts by Elliott Ash and W. Bentley MacLeod (judges respond to job incentives);  and Judging the Goring Ox: Retribution Directed Towards Animals by Geoffrey Goodwin and Adam Benforado.  I also feel terrible having missed Bill James, who I hear was inspirational, in his own way.

Overall, it was a tightly organized conference – kudos to Dave Abrams, Ted Ruger, and Tess Wilkinson-Ryan.  There could’ve been more law & psych, but that seems to be an evergreen complaint. Basically, it was a great two days.  I just wish there were more Twiqbal papers.




Separation of Powers, Clemency, and Habeas in Arizona

That an inmate facing the death penalty is denied clemency is not unusual; what happened in Arizona this week was. Arizona has a clemency board that, as I understand it, was explicitly established to be a check on the executive in death penalty cases, but the Governor appears not to like that fact. As The Republic explained:

The clemency board, whose members are appointed by the governor, is supposed to make independent assessments of cases and make recommendations to [Governor] Brewer, who has final say in whether to grant a reprieve or a commuted sentence. But the former board members claim that Brewer, working through a top staff member, regularly “overtly attempted to influence” them not to grant clemency to state prisoners whose cases came before the board. (See also, Laird v. Sims, 147 P. 738 (1915).

The Board is a check and balance on the Governor under Arizona law, and it appears the Governor may be trying to get around that limit. I think that a recommendation by the Board for clemency does not mean the Governor has to grant it. Instead, it means that the Governor has more information from an independent group. But it may be that the Governor “is so concerned with appearing tough on crime that she ha[d] top aides bear down on the Arizona Board of Executive Clemency to ensure that it shows no mercy for prisoners in high-profile cases, according to former clemency-board members.” The Republic hints at possible job threats “Three of the board members were unseated for voting to recommend clemency, they said, and two resigned.” In other words, rather than make the tough call against a considered recommendation, an executive wants decisions that make certain policy stands easier.

Great power is something our country has tried to balance from its inception. We stray from checks and balances at our peril. Leaving aside whether the death penalty is OK (as that discussion is important but far too complex for this space), if one has the death penalty, a system that is cautious and considered about administering the ultimate sanction, death, shows understanding for the human condition. An extra check and evaluation, a system that requires anyone to take a stand before executing someone, matter. They invite reflection and debate. As part of the overall system of checks and balances, Arizona’s independent clemency board seems to have been born of wisdom, now undermined. That should not be the case.


Steinbeck’s Son on his Father’s Legacy and the Marvin Wilson Case

Last week, I blogged about Mr. Marvin Wilson’s capital sentence, scheduled for today, and the Texas Court of Appeals’ egregious replacement of science with literature to determine Mr. Wilson’s mental capacity.  John Steinbeck’s son, Thomas Steinbeck, has released the following statement about the Marvin Wilson case and the Briseño decision, which cites his father’s work:

 “On behalf of the family of John Steinbeck, I am deeply troubled by today’s scheduled execution of Marvin Wilson, a Texas man with an I.Q. of 61. Prior to reading about Mr. Wilson’s case, I had no idea that the great state of Texas would use a fictional character that my father created to make a point about human loyalty and dedication, i.e, Lennie Small from Of Mice and Men, as a benchmark to identify whether defendants with intellectual disability should live or die. My father was a highly gifted writer who won the Nobel prize for his ability to create art about the depth of the human experience and condition. His work was certainly not meant to be scientific, and the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability. I find the whole premise to be insulting, outrageous, ridiculous, and profoundly tragic. I am certain that if my father, John Steinbeck, were here, he would be deeply angry and ashamed to see his work used in this way.”

 Mr. Wilson’s scheduled execution has been condemned by numerous prominent groups and organizations, including the American Association on Intellectual and Developmental Disabilities, Amnesty International, Human Rights Watch, Texas Senator Rodney Ellis, Texas Representative Lon Burnam, and others. The New York Times, and the Dallas Morning News have editorialized that the execution must be stopped.

Now, the Supreme Court needs to step in and stop the execution.


Only in Texas: the Grave Error of Using Literature Rather than Scientific Methodology to Assess Mental Retardation in a Capital Sentence Case

On August 7, Texas plans to execute Marvin Wilson, a man who received a 61 on the standard Wechsler full-scale I.Q. test, a score placing him below the first percentile of human intelligence and far below the I.Q. threshold for mental retardation (MR). His adaptive functioning registers at an even lower percentile. In 1998, a Beaumont jury convicted and capitally sentenced Mr. Wilson for the 1992 murder of Jerry Williams, which allegedly occurred after a fight at a gas station.

Despite enrolling in special education classes throughout his childhood, Mr. Wilson failed the 7th grade. He received mostly Ds and Fs when he repeated it, as well as when he was socially promoted to 8th and 9th grades. He dropped out of school for good in the 10th grade. Friends and family swore affidavits stating that, as a child, he frequently clamped his belt so tightly that he cut off blood circulation, that he couldn’t use simple toys such as tops and marbles, and that he sucked his thumb into adulthood. According to the MR expert who assessed him, Mr. Wilson continues to be unable to perform even the simplest tasks without assistance.

In 2002, Atkins v. Virginia categorically barred states from executing offenders with MR. The Supreme Court observed that people with MR are less culpable for their crimes and that they are not equipped to mount effective criminal defenses. As a result, they are particularly vulnerable to wrongful convictions, inflated culpability assessments, and erroneous findings of leadership in multi-party crimes. In defining MR, Atkins relied on the scientific criteria set forth by the leading clinical authorities, including what was then known as the AAMR (the American Association on Mental Retardation). The AAMR thereafter changed its name to the AAIDD (the American Association on Intellectual and Developmental Disabilities).

Texas has executed more than four times as many people as any other state in the modern era. It is now poised to carry out the particularly egregious execution of Mr. Wilson—one that underscores the jurisdiction’s ongoing status as this country’s most extreme outlier on all issues pertaining to capital sentencing. Mr. Wilson was diagnosed with MR by Dr. Donald Trahan, a court-appointed, board certified neuropsychologist with 22 years of clinical experience as an MR specialist. (See this addendum to his report as well).  At Mr. Wilson’s MR hearing, the state presented no evidence whatsoever; it has never offered any expert opinion, in any form, challenging Dr. Trahan’s clinical diagnosis. The state court actually reasoned that Mr. Wilson did not have MR because he “functioned sufficiently in his younger years to hold jobs, get a drivers license, marry and have a child.”  In the absence of judicial or executive intervention, Texas will execute Mr. Wilson next Tuesday, pursuant to the bizarre criteria that its state courts use to identify offenders with MR.

Utilizing the AAMR/AAIDD’s clinical criteria for mental retardation, Dr. Trahan met with Mr. Wilson for eight hours, reviewed his school and medical records, and administered or evaluated a battery of leading neuropsychological testing. He examined Mr. Wilson’s memory, language development, adaptive skills, conceptual reasoning, practical skills and other scientifically-recognized indicia of mental functioning. Taking into account all of that data, Dr. Trahan concluded that Mr. Wilson clearly had mild MR.

Texas, however, has translated the Supreme Court’s categorical ban on executing offenders with MR in a way that does not, in practice, exempt most offenders with that intellectual disability. Instead, Texas has improvised a set of “Briseño factors” (named after the Texas decision that announced them) to determine which defendants with MR actually receive the Atkins exemption. The Briseño factors are not used by any scientists or clinicians in medical practice, and they are not recognized by the AAMR/AAIDD. The Texas Court of Criminal appeals—the state supreme court for the purposes of criminal adjudication—has actually indicated that it formulated the Briseño factors with Steinbeck’s Lennie in mind.  Although literature can tell us much about society and  law, by my lights, it should not replace or disregard well-accepted scientific measures of evaluation.  That no doubt seems obvious to our readers, but no so to the Texas Court of Criminal appeals.

As the AAIDD wrote in their recent brief in Chester v. Thaler, another case involving the Briseño factors that is pending before the Supreme Court: “[The Texas] impressionistic ‘test’ directs fact-finders to use ‘factors’ that are based on false stereotypes about mental retardation that effectively exclude all but the most severely incapacitated.”

I’m thankful to my colleague Lee Kovarsky, an extraordinary habeas scholar and tireless advocate, who has been representing Mr. Marvin and for his incredibly hard work on Mr. Marvin’s cert petition.


Stanford Law Review Online: Regulating Through Habeas

Stanford Law Review

The Stanford Law Review Online has just published a Note by Doug Lieb entitled Regulating Through Habeas: A Bad Incentive for Bad Lawyers?. The author discusses the potential pitfalls in a pending DOJ rule that provides for fast-track review of a state’s death row habeas petitions if the state implements certain sanctions for lawyers found to be legally ineffective:

The most important—and most heavily criticized—provisions of the Antiterrorism and Effective Death Penalty Act restricted federal courts’ ability to hear habeas petitions and grant relief to prisoners. But the 1996 law also included another procedural reform, now tucked away in a less-traveled corner of the federal habeas statute. It enables a state to receive fast-track review of its death row prisoners’ federal habeas petitions if the U.S. Attorney General certifies that the state provides capital prisoners with competent counsel in state postconviction proceedings.

Now, a pending Department of Justice (DOJ) rule sets forth extensive criteria for states’ certification for fast-track review. Piggybacking on a federal statute that does the same, the proposed DOJ rule encourages states to adopt a seemingly commonsense measure to weed out bad lawyers: if an attorney has been found legally ineffective, remove him or her from the list of qualified counsel eligible for appointment. Unfortunately, such removal provisions may do more harm than good by jeopardizing the interests of ineffective lawyers’ former clients. This Note explains why removal provisions can be counterproductive, argues that rewarding the implementation of these provisions with fast-track habeas review is especially unwise, and offers a few recommendations.

He concludes:

The lesson, at a minimum, is that policymakers should be wary of one-off regulatory interventions into indigent defense, considering the hydraulic pressure that a new requirement might exert elsewhere in the system. Leaders within the public defense bar might also wish to think carefully about their expressions of support for ineffective-attorney-removal provisions. And, while some scholars have considered the ethical obligations of predecessor counsel when faced with an ineffectiveness claim, rigorous empirical study of lawyers’ actual responses to allegations of ineffectiveness may be needed to develop sound policy. Do most attorneys actually understand themselves to owe continuing duties to former clients, or do most do what they can to protect their professional reputations against charges of deficient performance? (And are those with the latter attitude more likely to be ineffective in the first place?) The practical effect of regulatory interventions, including removal provisions, turns on the answer to these questions.

None of this is to suggest that it’s in any way acceptable for an ineffective lawyer, let alone an incorrigibly awful one, to represent a capital—or non-capital—defendant or prisoner. The point is the opposite. Even a well-intentioned patchwork of regulation through habeas is no substitute for an adequately funded system that trains, compensates, and screens counsel appropriately. If kicking ineffective lawyers off the list may do more harm than good, the goal should be keep them off the list to begin with.

Read the full article, Regulating Through Habeas: A Bad Incentive for Bad Lawyers? by Doug Lieb, at the Stanford Law Review Online.

Technocracy as Trojan Horse

Venture capitalist Eric X. Li published a remarkable opinion piece last week, entitled Why China’s Political Model Is Superior. Given that French parents have recently supplanted Chinese ones in the merry-go-round of elite media idees fixes, we can only hope that milder, Gallic paternalism will eventually displace Li’s “Wolf Father” state. In the meantime, let’s take a look at Li’s argument.

Li starts with a hard-to-dispute premise: America talks a good game about democracy, but its billionaire primaries are embarrassing and its substantive legislation is often corrupt. He then makes some sweeping claims:

In Athens, ever-increasing popular participation in politics led to rule by demagogy. And in today’s America, money is now the great enabler of demagogy. As the Nobel-winning economist A. Michael Spence has put it, America has gone from “one propertied man, one vote; to one man, one vote; to one person, one vote; trending to one dollar, one vote.” By any measure, the United States is a constitutional republic in name only. Elected representatives have no minds of their own and respond only to the whims of public opinion as they seek re-election; special interests manipulate the people into voting for ever-lower taxes and higher government spending, sometimes even supporting self-destructive wars.

For anyone familiar with the George Mason school of anti-democratic theory, there is little controversial here. But for the democrat, the answer to such problems is a popular movement, however hopeless it can seem among an apathetic populace.
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