Category: Capital Punishment


Original Habeas Writ

My brilliant colleague Lee Kovarsky is an expert on the theory and practice of habeas corpus.  He’s a wunderkind.  One can find him, in any given week, arguing habeas petitions before an appellate court, working on the first habeas casebook entitled Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation with his co-author Brandon Garrett, and, as I imagine is true this week, grading civil procedure exams.  Professor Kovarsky is also writing ground-breaking articles.  Here is the abstract for his most recent work entitled Original Habeas Redux, published by the Virginia Law Review:

In Original Habeas Redux, I map the modern dimensions of the Supreme Court’s most exotic jurisdiction, the original habeas writ. The Court has not issued such relief since 1925 and, until recently, had not ordered a case transferred pursuant to that authority in over fifty years. In August 2009, by transferring a capital prisoner’s original habeas petition to a federal district court rather than dismissing it outright, In re Davis abruptly thrust this obscure power back into mainstream legal debate over both the death penalty and the Supreme Court’s appellate jurisdiction.

Scrambling to understand how the authority has evolved since its nineteenth-century heyday, commentators have been severely limited by the absence of any data reporting the attributes of the original petitions themselves. I have filled that empirical void by collecting and organizing the only modern original habeas data, and this Article presents those results for the first time. The data shows that the vast majority of original petitioners are criminally confined, but that they are not collaterally challenging that confinement in their initial habeas proceedings. Original writ procedure is now primarily a vehicle for litigating “successive” habeas corpus petitions that are otherwise subject to severe jurisdictional limits in the federal courts.

I argue that, in light of the writ’s history and the data I have compiled, Davis is not a blip in an otherwise constant state of original habeas inactivity. I observe that the availability of original habeas relief has historically exhibited two over-arching characteristics: (1) that the Supreme Court’s Article III appellate power to grant it is basically coextensive with Article III judicial power common to all federal courts; and (2) that the Court does not actually exercise that authority when it may avail itself of jurisdictional alternatives. I also present data confirming that the availability of conventional appellate jurisdiction exerts the dominant influence on the modern original habeas docket’s composition. I ultimately advance what I call the “capital safety valve paradigm”–the idea that original habeas should and likely will emerge as a means to ensure that the death penalty is not erroneously imposed.


Goodwin Liu’s First Three Months on the California Supreme Court

Goodwin Liu now has been an associate justice of the California Supreme Court for just over three months. And while he has not yet written a majority, dissenting, or concurring opinion, the (very) early returns suggest that the comparisons between Justice Liu and former Chief Justice Rose Bird that circulated at the time of his nomination to the court may have been a tad overstated.

Bird’s tenure as chief justice ended in no small part because of her perceived absolutist stance on the death penalty. Just yesterday, the California Supreme Court reversed two capital convictions, finding that the trial court had improperly discharged a juror. Was this the work of Justice Liu, reviving the spirit of the Bird court? Well, no. The unanimous opinion was authored by Justice Carol Corrigan, a Schwarzenegger appointee.

Meanwhile, just last month the court unanimously affirmed judgments of death in two separate cases. Though neither matter raised particularly complex issues, Justice Liu’s votes in these cases belie suggestions that, if placed in a position to review capital cases, he would “overrule death penalty convictions given any excuse, no matter how far-fetched.”


Neuroscience at Trial: Society for Neuroethics Convenes Panel of Front-Line Practitioners

Is psychopathy a birth defect that should exclude a convicted serial killer and rapist from the death penalty?  Are the results of fMRI lie-detection tests reliable enough to be admitted in court? And if a giant brain tumor suddenly turns a law-abiding professional into a hypersexual who indiscriminately solicits females from ages 8 to 80, is he criminally responsible for his conduct?  These were the questions on the table when the International Neuroethics Society convened a fascinating panel last week at the Carnegie Institution for Science last week on the uses of neuroscience evidence in criminal and civil trials.

Moderated and organized by Hank Greely of Stanford Law School, the panel brought together:

  • Steven Greenberg, whose efforts to introduce neuroscience on psychopathic disorder (psychopathy) in capital sentencing in Illinois of Brian Dugan has garnered attention from Nature to The Chicago Tribune;
  • Houston Gordon (an old-school trial attorney successful enough not to need his own website, hence no hyperlink), who has made the most assertive arguments so far to admit fMRI lie-detection evidence in a civil case, United States v. Semrau, and
  • Russell Swerdlow, a research and clinical professor of neurology (and three other sciences!).  Swerdlow’s brilliant diagnostic work detected the tumor in the newly-hypersexual patient, whom others had dismissed as a creep and a criminal.


In three upcoming short posts, I will feature the comments of each of these panelists and present for you, dear reader, some of the thornier issues raised by their talks.  These cases have been reported on in publications ranging from the Archives of Neurology to USA Today, but Concurring Opinions brings to you, direct and uncensored, the statements of the lawyers and scientists who made these cases happen … Can I say “stay tuned” on a blog?


Federalism and the Death Penalty

I thought I would flag an interesting issue from U.S. v. Fell, 571 F.3d 264 (2d Cir. 2009) (denial of rehearing in banc).  Two people commit three murders and cross state lines in the process.  Federal prosecutors in Vermont (the state that is deemed to be the proper venue for trial) decline to seek the death penalty in part because Vermont does not have the death penalty.  The DOJ overrules this decision and orders that the death penalty be pursued.  A Vermont jury convicts and sentences the defendants to death.

What are the federalism implications of this case?  One thought is that if a state bars capital punishment, federal prosecutors should take that into account when deciding what sentence to seek. They would not, however, be bound to reject capital punishment just because the state does not have it.  Another is that the application of the death penalty in a state that does not have it is “unusual” and raises a valid Eighth Amendment claim for anyone who receives that federal sentence.  A third idea is that obtaining a “death qualified” jury in a state that opposes capital punishment requires the dismissal of so many jurors that it creates a Sixth Amendment claim.  Finally, one might say that all three of these questions depend on the nature of the offense.  If somebody assassinates the President or sets off a dirty bomb in a state that lacks capital punishment, few would be troubled if the feds superseded state law.  A crime that looks like a garden-variety murder, however, might be a different story.


A very disturbing report

According to a new press release from the UK/Iraqi advocacy group Iraqi-LGBT, Iraq will begin executions this week of dozens of criminals held for capital crimes. One of those “crimes” is homosexuality, and there are believed to be several death-row prisoners who are slated for execution in the next month, simply for the crime of being gay.  The Iraqi government is not discussing the details of these prisoners’ cases.

I can’t vouch for the veracity of this report — it’s on several blogs right now, but has not yet been verified by any mainstream news source that I could find. But the report is sufficiently alarming that I thought our readers might want to know about it. (And it is very much in line with the reports that have been coming out of Iraq for years, that “morality police” death squads have targeted and killed many gay Iraqis.)


More Coverage on Factual Error in Child Rape Decision

There has been some interesting fall-out from the NY Times article I blogged about yesterday. DOJ has admitted that it erred in failing to file a brief in support of the Kentucky statute that proscribed the death penalty for child rape, and it has indicated that it may support a petition from the state of Louisiana to rehear the case. More coverage and commentary can be found in the New York Times, as well as at the Volokh Conspiracy and at Doug Berman’s Sentencing Law & Policy.

The Blackstone Ratio at the Supreme Court

My colleague David Feige makes the following observation about the role of the Blackstone Ratio in our criminal justice system:

[In Kansas v. Marsh, Scalia] concluded that “The rate at which innocent people are convicted of felonies is less than three-hundredths of 1 percent – .027 percent, to be exact”. Scalia sleeps well knowing our system works so brilliantly. The problem, of course is that .027 percent is a hoax, and . . . I [am] struck once again that a justice generally considered to be so bright could get something this important so fundamentally wrong. But one need only look at the study Scalia cites (by Joshua Marquis, a stalwart of the prosecutorial lobby) to understand the error of his ways.

Marquis came up with the number that Scalia adopted much like a toddler solving a problem in a kindergarten math workbook: He took the total number of exonerations, (north of 200 now) picked a gratuitous multiplier (10 purely for rhetorical purposes), and then divided by 15 million—the total number of convictions during the period of years he considered. . . . As I’ve previously pointed out, here’s why that’s a ludicrous methodology.

So how should one “do the math?” Another colleague of mine, Michael Risinger, was recently cited in Justice Stevens’ concurrence in Baze v. Rees for his work on the issue.

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Tex-ternalities and the China/Europe Spectrum

I’ve recently come across these three facts about Texas:

1) About 60% of US executions occur in Texas.

2) About 20% of children in Texas do not have health insurance–almost twice the national average.

3) Texas produces more greenhouse gas emissions than California and New York combined.

When I first saw these figures, I thought that Texas may be burdening the US with some “reputational externalities” abroad, manifest in books like Vernon God Little. The judges who awarded it the Booker Prize called it a “coruscating black comedy reflecting our alarm but also our fascination with America.”

Some economic theories predict that these externalities will eventually be internalized. For example, there are many stories about a European condo-buying boom in New York; I haven’t seen as much on residential real estate purchases by overseas buyers in Texas. According to Anup Malani, “The value of a law [may] be judged [in part] by the extent to which it raises housing prices.” So perhaps more highly valued laws elsewhere in America will push up housing prices, comparatively enriching those property owners.

On the other hand, perhaps Texas’s policies are a bid to flatter China by imitation. Pollution in places like Shenzhen is a big problem (and that’s just the tip of the iceberg). Executions are common. And China’s decisions about health care in the 1980s and 90s might warm many laissez-faire hearts: “From 1978 to 1999, the central government’s share of national health care spending fell from 32 percent to 15 percent [and] the central government drastically reduced its ability and commitment to redistribute health care resources from wealthy areas to poor areas.”

Looking at world trends, a modern-day Tocqueville might think that the US’s future lay in political development of either a Chinese or EU variety. Texas appears to be a red state in more ways than one.


Probation for Murder: Justice Served or Excessive Prosecutorial Discretion?

murder2.jpgA few days ago, I blogged about a series of articles in the Dallas Morning News about the many instances where murderers received probation in Texas. Over at Grits For Breakfast, Scott Henson has a provocative argument that probation isn’t always inappropriate for murder:

As I wrote in a “first impression” about the series, it’s possible to:

identify several recurring situations where murderers frequently received probation: a) Prosecutors had weak or circumstantial cases and the defendant may not have done it, b) the defendant was guilty via the “law of parties” but didn’t actually kill anyone themselves, c) the defendant was elderly, sick or incapacitated to the point where they were no longer a threat, and d) the victim was a worse person than the murderer and basically “needed killin’,” so juries sympathized and gave the defendant another chance.

While Dallas News columnist Gromer Jeffers identifies what’s wrong with reason A for granting probation in murder cases, who thinks reasons B, C, or D are not sometimes justified? Following Bennett’s lead, let’s think more closely about category D, in particular, the ones whose victims “needed killin’.” Consider the case of Synnissa Gabriel who murdered Hosia Abdallah, her estranged boyfriend:

She told police in 2005 that Mr. Abdallah had stalked her and vandalized her home, in violation of a protective order. Then she tracked him down and shot him several times.

Heath Hyde, who prosecuted the case, said he offered a deal because the victim had a long history of violence against women. That made it unlikely jurors would sentence his killer to prison, he said. Defense attorney Nancy Ohan described her client as “the classic case of the battered woman … there was a definite mental break.”

So a battered woman who continued to be stalked and harassed in violation of a protective order finally took matters into her own hands and gunned down her assailant. Why’d she get probation? Because prosecutors believed jurors would conclude the victim “needed killin'” – in other words, that justice had been served by the defendants’ actions. It may not be true under the law, but in the gray-area balancing act jurors do in their own minds while making life or death decisions, it’s true in point of fact.

In some other cases, defendants had possibly viable self-defense claims or otherwise could credibly portray themselves to a jury as protecting themselves. Not all the cases find a sympathetic killer and a much-scarier victim, but when they do, is it wrong for a jury to sympathize with the defendant?

Isn’t that what juries are about, letting members of the public come to their own conclusions about what constitutes justice?

Is this just the jury system at work? Or is it evidence that prosecutors have too much discretion? Even accepting Scott’s argument that juries are about letting the public come to its own conclusions about justice, the Synnissa Gabriel case didn’t involve the public making the decision — instead, the prosecutor decided. I’m not opining on the merits of Gabriel’s case, but I will note that I am sympathetic to the battered woman’s syndrome defense. That said, however, the immense power of the prosecutor in this case — to offer a plea for probation for what would ordinarily be a first degree murder — takes the matter out of the hands of juries and the courts, as well as sidesteps the criminal statutes that the state has passed through its elected officials. Plea bargaining is a necessary evil in the criminal justice system — without it the system would probably collapse — but it has gotten out of hand, giving prosecutors such an immense power and making the criminal justice system not one about statutes, or about courts, or about juries — it’s about prosecutors and their astounding discretion.

In the end, regardless of whether justice may have been served in Gabriel’s case with probation, it is the process that makes me very uneasy.

Photo credit: Falaschini


Bootstrapping Against Capital Punishment

Bootstrap_1.jpgWe’ve been fairly called out for giving insufficient attention to the ongoing quiet revolution in capital punishment law. It is true: our criminal law coverage is underdeveloped. My excuse – as usual – is incompetence. DP law presents a host of complicated doctrinal problems: sounding off at random to the latest development is dangerous. On the other hand, no one said blogging was supposed to be safe.

Today, Doug Berman comments on the NYT story on capital punishment costs. The story offers anecdotal evidence that the judiciary has responded to underfunded capital defense units by shutting down prosecutions. If the trend continues, “states unwilling to pay the huge costs of defending people charged in capital cases may be unable to conduct executions.” Doug sums up:

Consequently, states that do not adequately fund capital defense get sub-standard efforts that lead to more costs on the back end during appellate review. Indeed, as the posts below highlights, any capital punishment system is necessarily a very costly endeavor.

My cynical response to these observations starts with the observation that stringent judicial review of capital claims hinges largely on Justice Kennedy’s continued status as swing Justice. The executing States would move quickly to reduce capital defense guidelines given even subtle signals from the Court that ultimate merits review would be unavailing.

Moreover, it seems odd to me to claim that the death penalty is expensive and therefore inefficient when, of course, it is expensive primarily as the result of a self-conscious litigation strategy by folks like Steven Bright and Brian Stevenson. The death penalty doesn’t have to be expensive: abolitionists have made it so on purpose. By setting ever-higher standards for effective capital defense through litigation and by example, abolitionists have made death penalty prosecutions more difficult for states to swallow. Of course, abolitionists can have mixed motives: a standard that increases cost will also likely reduce wrongful conviction in any individual case. But it is odd that the article spent so little time examining the possibility that costs aren’t a byproduct of the search for innocence but instead a direct result of what we might think of a litigation strategy to impose a constitutional tax on capital prosecutions. The article says – without further explanation – that “Lawmakers say [a particular judge] and the defense lawyers are deliberately driving up the costs to make sure that the death penalty is too expensive for the state.” Well, no kidding!

Increasing costs is good strategy if your only goal is to prevent executions. But it is a bad strategy – as least when compared to the innocence project – at increasing public support for abolition. And it is a worse strategy if your concerns are more broadly directed. Legislatures will resent being bootstrapped out of their preferred sentencing means. And it is unlikely that the death penalty funds taken from indigent defense organizations by spiteful legislatures will ever be restored.

(Image source: Wikicommons)