Still, candidates avoid death-penalty debate
Guest Columnist
Published Wednesday, March 26, 2008
As contenders for the presidency tailor their campaigns to address
predominately middle-class concerns — health care, the economy,
Iraq— they are giving short shrift to other issues that, though pressing,
fail to capture the attention of their primary demographic.
The rationale goes like this: If the core electorate — middle-class
America — does not care deeply about an issue, why expend the
political capital necessary to tackle it? And why risk provoking
controversy?
Thus, it is of little surprise that candidates have avoided
discussing the plight of inmates on death row. Although all the
remaining major party candidates hold a position on the death penalty
— they support it — rarely do they explain why. In fact, neither
John
McCain nor
Hillary Clinton even mention the topic of capital
punishment on their Web sites.
Such lack of concern is troubling given the persistent problems
plaguing the death penalty in this country. Firstly, time and again
studies show that race influences the likelihood that an individual
convicted of murder will receive a death sentence. There is also
evidence suggesting that the number of wrongfully convicted
individuals on death row is alarmingly high. Since 1973, 125
death
row inmates have been released on account of evidence overturning
their convictions.
These disturbing statistics show that the death penalty consistently
falls victim to arbitrariness and discrimination. It is for these
very reasons that, in 1972, the
Supreme Court declared existing death
penalty statutes to be unconstitutional. Although the high court
reinstituted the penalty in 1976 after states revised their statutes,
30 years later, there is little to suggest that the practice has
improved. Capital punishment — what is becoming America’s new
“peculiar” institution in the eyes of the rest of the world —
remains
a deeply flawed practice.
Legislation in recent decades has had the effect of only exacerbating
the injustices of the death penalty. Particularly troubling has been
the impact of the Anti-Terrorist and Effective Death Penalty Act
(AEDPA), a law deemed by some as a more egregious assault on
civil
liberties than the Patriot Act. This legislation, signed into law by
President Clinton, had, as one of its principal goals, shortening the
time between conviction and execution for those sentenced to death.
In order to accomplished this goal, the habeas corpus rights of
death
row inmates was severely limited.
To be sure, the law has expedited the executions of a number of
rapists and murderers. But it has also had the effect of cutting
short the appeals process for possibly innocent individuals —
individuals such as Troy Anthony Davis.
Davis currently sits on Georgia’s death row for the murder of an off-
duty police officer. Barring an extraordinary action by the President
or the
Georgia State Board of Pardons and Paroles, Davis will die,
since the AEDPA prevents him from filing further appeals. Never mind
the seven out of nine witnesses recanting their testimony against
Davis since the trial, allegations of police coercion of the
witnesses and the complete of lack physical evidence tying Davis to
the crime.
To say that the situation faced by Davis is common would be an
exaggeration. But with the AEDPA in place, it occurs more often than
one may think. The Davis case should have sparked — and perhaps still
can — a national debate about the unwanted consequences of federal
and state death penalty laws.
Unfortunately, the candidates have failed thus far to lead the
debate. McCain has never wavered in his support of the AEDPA, and
Clinton has made no indication that she disagrees with her husband’s
support for the law. Obama, though more ready to admit problems in
the administration of capital punishment, has offered little in the
way of substantive measures for remedying these problems on a
national scale.
A case currently before the
Supreme Court on the constitutionality of
lethal injection holds the possibility of bringing the death penalty
back into the public consciousness. It would be naive to believe,
however, that the candidates, on their own initiative, will draw
attention to a potentially explosive issue like the death penalty.
Presently, there is no electoral incentive to do so.
It is therefore important that during this campaign season we force
the candidates to refocus on the dismal reality of the death penalty.
To challenge the view that, as Obama puts it, a community needs to be
able to express “the full measure of its outrage by meting out the
ultimate punishment.” Is not the true audacity of hope rather
believing in — and fighting for — a community that does not have to
validate itself through revenge?
Ben Jones is a first-year political-science graduate student. He is a
member of the Amnesty International club at Yale.
http://www.yaledailynews.com/articles/view/24027
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Coincidentally, Scott Panetti — who was allowed to represent himself even though schizophrenic in the belief that Faretta so requires — was found competent to be executed today, on remand from last June’s decision.
Comment by Kent Scheidegger — March 26, 2008 @ 5:43 pm
Am I missing something? The right to paid-for counsel of one’s choosing is a necessary implication of language of the Framers, yet that right gives way to legitimate state interests (conflict free representation etc.–bar qualification). So why in the world would the right to self-representation, which has less textual basis, be less flexible?
Does made by judge Constitutional law really require a farcical trial now and then?
Comment by Sean O'Brien — March 26, 2008 @ 7:40 pm
As I skim the joint appendix, I see a high school dropout, not quite so slow that he qualifies a mentally retarded, but functioning academically at the 4th grade level with communications difficulties in particular, who has a history of brain injury and mental illness, including most clearly, delusions of grandeur.
No sane employer would allow him to be a supermarket cashier, to prepare a tax return, to take inventory by himself in a retail store, to work at a complaint desk, or to pitch cars to customers at a car dealership. Yet, a court allows him to take on all the job duties and responsibilities that we don’t allow anyone else who hasn’t completed 19 years of education and passed the bar exam to do.
Letting a guy like him represent himself is simply morbid and humiliating. It doesn’t serve any high constitutional purpose and it denies the public the chance to know that the system has sentenced the right guy for the right crime, with a great deal of public expense incurred in the court process and then in the money spent on an inappropriate sentence.
It used to be a crime to expose the natural failings of someone like this even if it was true under the criminal libel statutes. This approach flaunts those failings.
If a jailer gave him a revolver with five of six rounds filled in his jail cell and then tried to blame the inmate for the tragedy that results when he shoots himself, the jailer would be fired and sued. Why should a judge allow this guy to put himself in an equivalent position? This is the moral equivalent of suicide by cop with the outside chance that a jury could do anything thrown into the mix for the general amusement of court watchers. Also, it is particularly worrisome to have self-representation when one of a court appointed advocate’s stronger arguments is probably his lack of mental health. We don’t let lawyers serve as advocates in cases where their own testimony on a material point is central to the outcome of the case.
A better rule which would actually make rational sense would deny self-representation to anyone who isn’t capable of functioning at the bare minimum level that would be accepted for a maginally competent attorney. Short of that, it is hardly too much to expect that people who do the job of a lawyer ought to be high school graduates of, at least, average intelligence, who have demonstrated that they are rational actors?
Scalia’s “bring it on themselves” theory only works if you live in a world of rational actors. The vast majority of people at least approximate that view. But, mentally ill, clinically stupid, marginally literate people who try to represent themselves in felony jury trials are not rational actors and don’t deserve a double punishment, once for whatever crime they did commit, and again for their mental illness.
I’ll also note for Kent’s benefit, that I’m not arguing that this guy was necessarily entitled to an acquittal on the grounds of insanity, although that might have been one of the stronger available strategies at trial. Lots of people have mental illnesses and yet are not criminally insane. But the level of mental capacity necessary to know that it is wrong to rape and try to kill people is far lower than the level of mental capacity necessary to participate meaningfully as an advocate in a felony jury trial.
Comment by Andrew Oh-Willeke — March 26, 2008 @ 10:01 pm
Nice work, Andrew. But if the Court were to take your approach, it would have to face the fact that its habeas decisions are making these same defendants, made crazier by living in prison, with little or no access to lawbooks or computers, jump multiple successive changing procedural hurdles by themselves.
Comment by Roger Friedman — March 26, 2008 @ 11:00 pm
I fail to understand why “having a farcical trial” should be the determining factor rather than “having a minimally competent defence”.
“But the level of mental capacity necessary to know that it is wrong to rape and try to kill people is far lower than the level of mental capacity necessary to participate meaningfully as an advocate in a felony jury trial.”
Exactly. The rights of a defendant in between those two poles are surely better protected by mandating competent counsel than by allowing self-representation.
Comment by Ginger Yellow — March 27, 2008 @ 8:13 am
Nice work Andrew, you raise excellent points. Let me respond by telling you what worries me.
The reason self-representation is important is because it goes to heart of what a fair trail actually is. Right now, the government has the power to arrest you, it now has the power to prosecute you, and it has the power to judge you. The only right, such as it is, is the right to defend yourself. You take that right away and then the whole thing really is a farce because the government controls the process from beginning to end. While it is unusual, history does record instances where the government was working in secret with the “defense” attorney. To my mind, a trial where the government controls the whole process is by definition unfair. What is to stop the government from declaring a person who is sane insane, appointing him a corrupt defense attorney, and then sending him off to death row. The only thing that’s stopping that possibility is the right to represent oneself.
Andrew, you raise many excellent points. But history is replete with government abusing its power to defend the “weak,” especially when it gets to define both what “weak” is and how they are to be “defended”.
Comment by Daniel Thomas — March 27, 2008 @ 1:24 pm
Daniel,
If one includes the judiciary as well as the prosecutor within the scope of the government, then yes, of course, “the government controls the process from beginning to end.” A government employee called a judge does control the process from beginning to end.
Also, suppose that you are intentionally given an incompetent or collusive public defender. At least you have a basis for an appeal that can be raised in the first instance on a collateral attack, a form of attack that there are currently many independent pro bono lawyers will to engage in if you are convicted. In contrast, if you represent yourself, you may not collaterally attack your own incompetence if there is a strong right for dull, mentally ill people to represent themselves.
Further, allowing someone incompetent to do so to represent themselves as a means of avoiding a corrupt defense attorney does not remedy the harm caused by the collusion. Even a right to be represented by a random member of the jury pool stricken by the prosecution for cause or under a pre-emptory challenge would be a more effective remedy in such a case, because that person would have no government links or personal animus against the defendant and would on average be an adult of average intelligence chosen by the defendant, than self-representation which is guaranteed to be flawed in a case where the defendant is unintelligent and mentally ill.
A judge with a mind to be unfair can influence trial proceedings in myriad unfair ways from knowning incorrect rulings during trial that can’t be determined from the record alone to be an abuse of discretion to secret ex parte communications with the jury to tone of voice and emphasis in the delivery of the jury instructions.
For that matter, if the prosecution is going to be unlawfully and unethically corrupting people anyway, why not simply bribe the court reporter? The court reporter is probably cheaper to corrupt, has a shorter set of ethical rules to contend with, and has skills that are more transferrable if caught and prohibited from further practice in that profession. After all, if critical points to make it into the record in the first place, that eliminate the need to buy off the appellate judiciary as well.
A corrupt judge who is a government employee can already rule that someone is unfit to stand trial or requires mental health commitment for his or her personal safety, and incarcerate that person in a mental institution indefinitely, without a jury. There are indeed cases where it has been alleged that this has happened.
No one disagrees that there is a right to mount a defense to criminal charges. In almost all cases this is done by a public defender, appointed counsel, paid and retained counsel, or pro bono counsel.
The government already prohibits people from turning to the 99.7% of the people who aren’t admitted to the practice of law for counsel, and requires the other 0.3% to hold their offices only after receiving indoctrination for years in a certain way of thinking, passing an examination that shows that they have assimilated that way of thinking, swearing to uphold a particular set of legal and ethical obligations, and remaining subject to a loss of livelihood if a government employee determines that those ethical obligations have been breached. It is probably easier to run for public office in Iran than it is to be eligible to represent someone in a criminal trial.
What is to stop the government? The honesty of judges and public defenders, and to a lesser extent the ethics of prosecutors and law enforcement in the discovery process. Not surprisingly, a large share of reversed convictions involve malfeasance by the prosecution or law enforcement on one hand, or incompetence by public defenders which a judge didn’t intervene to prevent on the other.
You have to rely on someone to be honest sometime to have a meaningful system of justice.
Comment by Andrew Oh-Willeke — March 27, 2008 @ 6:27 pm
The standard of incompetency to stand trial has been applied in such an absurd manner–since the Hinckley trial–as to allow a huge number of incompetents to go to trial. The courts are reaping the consequences, one of which is that some of these incompetents forced to trial will choose to represent themselves. Now the State is asking the Supreme Court to dilute the right of self-representation in order to meet this largely self-made problem. There should be one standard for incompetence to stand trial and incompetence to represent one’s self. Defendants who are not competent to represent themselves are not competent to stand trial. Defendants who are sufficiently competent to stand trial are a fortiori competent to represent themselves.
Comment by Peter Young — March 30, 2008 @ 3:09 pm