With injustice of AEDPA, presidential candidates must discuss death penalty

With injustice of AEDPA, presidential candidates must discuss death penalty

http://www.yaledailynews.com/articles/view/24072

To the Editor:

The AEDPA law mentioned in Ben Jones’ column “Still, candidates avoid death-penalty debate” (3/26) is affecting my father, Alabama death row inmate, Thomas Arthur Z-427. Alabama is the only state in the United States that does not provide or guarantee attorneys for death row inmates during post-conviction appeals.

He did not have an attorney and his appeals were filed late (AEDPA law). He has never had his first Habeas Corpus Review or rule 32. In November 2007, DNA testing of the crime scene evidence was denied by the United States Supreme Court (USSC) because of the AEDPA Act.

My father was scheduled twice for execution: September and December 2006. The first was stayed because I put so much media attention on the governor, the second was stayed by the USSC while they awaiting their decision on cruel and unusual punishment.

What the USSC should be talking about is the AEDPA Act and how it is denying death row inmates their rights to new trials that could show evidence that can prove their innocence. There are two sets of victims when a crime is committed: the family and loved ones of the victim, and the family and loved ones of the condemned. Is either set going to have justice or closure if the state legally murders the wrong person? Now, that is cruel and unusual punishment.

Can you imagine how it feels to sit with your father just hours away from his legalized murder by the state when there is DNA testing that, if done, could prove his innocence? I can, because I had to do it twice. So did the family and loved ones of the victim. Troy Davis’ example exemplifies other failings of the AEDPA Act. But there are many more.

Both Davis and my father will be legally murdered by the state because they filed their paperwork late.

This is not justice. It is a flawed system that must be discussed by the presidential candidates.

Sherrie Stone

March 25

The writer is the daughter of Alabama death row inmate Thomas Arthur Z-427.

SUPREME COURT | DEATH PENALTY CASE

Ruling: Bush can't order hearing for condemned Mexican

The Supreme Court sided with Texas against President Bush in denying an appeal for a Mexican national who is on Death Row in Texas.

Posted on Wed, Mar. 26, 2008

BY DAVE MONTGOMERY

McClatchy News Service

WASHINGTON --

The Supreme Court ruled Wednesday against President Bush in a far-reaching legal dispute with his home state, concluding that the president can't order Texas courts to conduct a new hearing for a Mexican national who's on Death Row.

In a 6-3 decision, the court sided with the state of Texas in denying an appeal for José Ernesto Medellín, who's on Texas' Death Row for the gang rape and murder of two teenage girls in Houston 15 years ago.

The case had broad international reach and threatened to strain relations further between the United States and Mexico. The Mexican Embassy in Washington expressed disappointment with the ruling.

Bush was cast in an unlikely legal alliance with Medellín by insisting that Texas abide by an international treaty that requires those arrested abroad to have access to their country's consular officials. Medellín asserts that he was denied access to Mexican representatives.

In the majority opinion, written by Chief Justice John G. Roberts, the justices upheld a 2006 ruling by the Texas Court of Criminal Appeals, which held that Bush overstepped his constitutional authority through ''an intrusive exercise of power'' over the Texas court system.

Roberts said that the president's authority, ''as with the exercise of any governmental power,'' stemmed from an act of Congress or the Constitution. Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter dissented.

The ruling marked a victory for Texas Attorney General Greg Abbott, whose office argued that Medellín waited too long to invoke his treaty claim and was grasping at the issue to avoid execution in a brutal crime that rocked Houston in 1993.

''Now, 15 years after two innocent teenage girls were brutally gang-raped and murdered, their grieving families are a step closer to justice,'' Texas Solicitor General Ted Cruz said.

New York attorney Donald Frances Donovan, who represented Medellín at the request of the Mexican government, was traveling out of the country and unavailable to discuss his next legal step. But in a statement through his office, Donovan said the ruling constituted a ``departure from the original intent of the Constitution and over 200 years of enforcement of treaties by U.S. courts.''

Medellín, 33, remains at the Polunsky Unit in Livingston, Texas, one of 368 Death Row inmates, including nine women, who are awaiting execution in the state.

Texas, like other states, has a de facto moratorium on executions until the Supreme Court rules on a case from two Kentucky Death Row inmates challenging the constitutionality of lethal injections. Roe Wilson, a prosecutor in the Harris County district attorney's office, said the office wouldn't proceed with seeking an execution date for Medellín until after a ruling in the lethal-injection case.

Still, candidates avoid death-penalty debate

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

Nebraska retains the death penalty

By ANNA JO BRATTON

Associated Press Writer

• Nebraska Legislature

Nebraska lawmakers rejected an attempt to repeal the death penalty on Tuesday, a month after courts left the state with no way to execute its killers.

Twenty senators in the unicameral, officially nonpartisan Legislature voted for the bill to change the maximum penalty to life in prison without possibility of parole. It would have taken 25 votes to advance the debate.

The state Supreme Court ruled in February that the electric chair, the state's sole means of putting inmates to death, amounts to cruel and unusual punishment.

The most likely alternative - lethal injection - is under federal review in a Kentucky case that questions whether the drugs commonly used risk causing excruciating pain, in violation of the U.S. Constitution. The U.S. Supreme Court is expected to rule by June.

Nebraska Gov. Dave Heineman, a Republican who had been expected to veto the bill if it passed, applauded the vote and said the focus now should be on deciding a legal method of execution for the state.

Sen. Ernie Chambers of Omaha introduced the bill to repeal the death penalty, as he has every year for the past three decades. But term limits will push him out of the Capitol after this session.

"Years down the line I can live a lot more comfortably with what I've done these 38 years than what my colleagues can do," Chambers said.

The last execution in the state was in 1997, when Robert Williams was put to death by electrocution for killing three women.

Death row inmate Carey Dean Moore was scheduled to be executed in May last year, but the state Supreme Court halted it less than a week beforehand. The court said at the time it must reconsider whether the electric chair amounts to cruel and unusual punishment, given a "changing legal landscape."

The court said in its February opinion that evidence shows electrocution inflicts "intense pain and agonizing suffering" and that it "has proven itself to be a dinosaur more befitting the laboratory of Baron Frankenstein" than a state prison.

The state attorney general has asked state Supreme Court justices to reconsider their ruling on the electric chair, although he said he doesn't expect them to change their minds. He's still considering an appeal to the U.S. Supreme Court.

Ten men now sit on Nebraska's death row.

Death penalty debate coming back to the Capitol

Death penalty debate coming back to the Capitol

Associated Press - March 24, 2008 4:45 PM ET

OMAHA, Neb. (AP) - Opponents of the death penalty will rally at the Capitol tomorrow morning.

Mark Weddleton of Nebraskans Against the Death Penalty says he hopes Nebraska's senators will reflect the changing mood in the state.

Senator Brad Ashford, chairman of the Legislature's Judiciary Committee, will lead this year's debate.

Ashford says he's not counting votes yet. He says it's "a down-in-the-gut kind of thing."

The bill from Senator Ernie Chambers (LB1063) would change the maximum penalty to life in prison without possibility of parole. Chambers has introduced similar bills for nearly four decades, but the closest he came to having the law changed was in 1979, when his bill passed on a 26-22 vote but was vetoed by then-Governor Charley Thone.

Governor Dave Heineman said he'll veto the bill if it passes. Senators would need 30 votes for an override.

On the Net:

Nebraska Legislature: http://www.nebraskalegislature.gov

Vigil against capital punishment is today

staff reports • Argus Leader • March 21, 2008

The 11th annual Good Friday vigil against the death penalty is set for noon to 1 p.m. today at the state penitentiary.

The event, hosted by the South Dakota Peace and Justice Center, will be near the flagpole at the entrance to the Jamison Annex, just north of the main prison.

The service includes a homily by the Rev. Peter Holland, songs and a remembrance ceremony for victims of murder and those on death row.

South Dakota executed its first inmate in 60 years last July when Elijah Page was killed by lethal injection.

Three other men remain on death row in the state: Donald Moeller, Charles Rhines and Briley Piper.

No urgency this time on executions

No urgency this time on executions

By: Leslie Reed, Midlands News Service

03/24/2008

Updated 03/24/2008 11:31:41 AM EDT

LINCOLN -- The Nebraska Supreme Court last month decided to pull the plug on the electric chair. This week, the Legislature will consider whether to close the execution chamber for good.

Lawmakers on Tuesday will
begin debating Legislative Bill 1063, which would abolish the death penalty and replace it with a sentence of life in prison without parole.

It will be the third time in a little more than a year that the Legislature has debated capital punishment.

In 2007, lawmakers fell one vote short of advancing, from first-round debate, a bill to repeal the death penalty. Death penalty opponents then regrouped and proposed to sharply restrict death sentences. That fell two votes short of advancing.

The 2007 debate came before the State Supreme Court's decision to ban the electric chair, before the U.S. Supreme Court heard a case challenging the constitutionality of lethal injection, and before New Jersey became the first state in more than 40 years to abolish capital punishment.

State Sen. Ernie Chambers of Omaha, long the Legislature's leading opponent of the death penalty, already has declared a victory of sorts.

For more than 10 years, Chambers had blocked legislation to switch from the electric chair to lethal injection. In the aftermath of electrocution being ruled cruel and unusual punishment, Nebraska is left without a legal means to carry out executions.

Chambers has vowed to keep any new execution method from being approved before he leaves the Legislature at year's end because of term limits.

Amy Miller, an attorney with the American Civil Liberties Union-Nebraska and board president of Nebraskans Against the Death Penalty, said opponents are in a better position to defeat capital punishment.

"We're fighting a proactive battle because we want to eliminate the death penalty. But people who want to keep the death penalty have to come up with a new recipe for death,'' she said.

"We need to just say we're done and walk away from it,'' she said.

Attorney General Jon Bruning said a proposal to authorize lethal injection will be put before lawmakers in 2009 at the latest. It's also possible that Gov. Dave Heineman could call the Legislature into a special session to consider lethal injection, Bruning said.

"Lawmakers should vote no on the repeal and on any amendments that claim to be a compromise,'' Bruning said. "This is one of these issues where you're either for it or you're not. There really isn't a lot of middle ground on the death penalty.''

Bruning and other death penalty supporters dispute any argument that Nebraskans may be turning away from supporting the death penalty.

Sen. Scott Lautenbaugh of Omaha noted that the Supreme Court disapproved only of the method of execution, not the death penalty itself.

"I am a strong supporter of the death penalty, and nothing has occurred to change that,'' Lautenbaugh said. "I feel I am in tune with my district wants.''

Some lawmakers said Nebraska's lack of an execution method takes the urgency away from calls to repeal capital punishment.

"It's been 10 years since we've had an execution. We don't have a workable death penalty. Let's still leave it on the books,'' said Sen. Carroll Burling of Kenesaw.

Death penalty opponents may be unable to garner more than the 24 votes they collected last year. In a pre-session survey of lawmakers, 26 of the 49 told The World-Herald they would vote to keep capital punishment.

Heineman has promised to veto a repeal bill if it reaches his desk, meaning death penalty opponents would need at least a 30-vote majority to override a veto if they are to succeed.

"This issue is difficult and emotional, but ultimately our justice system operates most effectively if we do not tolerate atrocious criminal acts,'' Heineman said.

In interviews, some lawmakers who previously voted to repeal indicated they may be wavering.

"I don't know how I'm going to vote,'' said Sen. Kent Rogert of Tekamah. "It will pull me back and forth the entire day. It always does.''

Sen. Brad Ashford of Omaha will lead the debate, as chairman of the Judiciary Committee. He said the death penalty does not lend itself to vote-counting in advance.

"It's a life-and-death issue,'' he said. "It will be decided on the floor as part of the debate.''

Activist walks to abolish death penalty

Activist walks to abolish death penalty	katia-r
Updated: 2008-03-21 23:10:59-06
Andre Latallade, hip-hop artist and prison rights activist, also known as Capital-X, will walk from New Jersey to Texas to advocate for the abolishment of capital punishment in the US. He will walk 1700 miles through 10 of the states with the highest execution rate. His objective is to reach the governor's mansion in Austin, TX--what he dubs the "busiest killing state in the country--before the Supreme Court's ruling on whether death by lethal injection is a cruel and unusual punishment. In September 2007 Ralph Baze and Thomas Clyde Bowling Jr., two death row inmates in Kentucky after losing an appeal in the Kentucky Supreme Court were able to get the Supreme Court to consider the fundamental question of whether the mix of drugs used in Kentucky and elsewhere violates the Eighth Amendment's ban on cruel and unusual punishment. Currently there is a moratorium on state-sanctioned executions while the Supreme Court considers the constitutionality of that method of execution. Latallade will begin his "Walk for Life" at 5 a.m. on March 31, 2008 at the state house in Trenton, NJ, the first state to abolish the death penalty in the last 40 years. He estimates that it will take 54 days walking eight hours per day at 3.5 miles per hour with a respite from April 18-20 in order to participate in a panel discussion at the Hip Hop Association's HHEAL Festival in the Bronx, NY. Uniting the families of murder victims and the families of the condemned, Latallade in building bridges between the two groups is calling for the acceptance of life sentences without parole instead of death sentences for those found guilty of the crime. A daily video blog documenting Latallade's journey will be posted here. To contact Latallade send an e-mail here. Editor's notes: According to a list compiled by The Missourinet, currently, 46 men (25 white, 21 black) await execution dates in Missouri, a state where death by lethal injection was upheld by the Eighth Circuit Court. One of the inmates, Michael Taylor, was granted a stay of execution in February 2006 based upon his claim that the method of execution by lethal injection was cruel and unusual punishment. But does it fit the crime? Taylor and a friend named Roderick Nunley kidnapped a 15-year old girl named Ann Harrison while she was waiting at a school bus stop in Kansas City. Taylor raped her. The two perpetrators stabbed her over a dozen times causing her eventual death. Joe Amrine of Kansas City, however, spent 17 years on death row in Missouri after wrongly being convicted of stabbing to death a fellow inmate. He is one of over 125 men and women exonerated for capital crime nationwide, since the advent of DNA testing.

Are legislators up to the test?

Monday, March 24, 2008

THE ISSUE: Alabama is one of only a handful of states without a law to help wrongly convicted people get access to DNA testing. Our Legislature should change that.

People convicted of crimes before DNA science had been developed ought to have access to testing now if it could prove their innocence.

Unfortunately, Alabama does not make it easy for them to do so.

It is one of only seven states without a law setting up a process for prisoners to get belated DNA testing of the evidence used to convict them.

For several years running, state Sen. Hank Sanders, D-Selma, has introduced a bill that would establish a legal procedure for inmates to get DNA tests. This year is no exception. But as in past years, the measure doesn't appear to be a big priority for our lawmakers. That's a shame.

Providing inmates a forum to prove their innocence isn't a way to coddle criminals. It's a way to ensure the right people are locked up for the right crimes. If one person is wrongly convicted of a crime, it stands to reason that another person has wrongly escaped punishment for it.

Across the nation, more than 100 inmates have been cleared of crimes through DNA testing long after their trials. In a number of these cases, DNA testing not only cleared an innocent person, but implicated a repeat offender whose DNA already was on file.

It's such a win-win that people might think courts routinely order DNA testing in old cases even without a special law making it available. But that's not true. There are sometimes legal roadblocks to doing so, and prosecutors almost always resist letting inmates get DNA testing on old evidence.

Even in death penalty cases, there has been a reluctance to grant DNA tests. Gov. Bob Riley, who has special power to intervene in those cases, has shown no willingness whatsoever to consider condemned inmates' pleas for DNA testing.

In the case of Death Row inmate Thomas Arthur, for instance, Riley has seemed to run through a series of excuses not to order DNA testing - none of which hold up to close scrutiny.

Attorney General Troy King also routinely opposes such requests, usually arguing there's no doubt about a particular defendant's guilt. So why not do the test and confirm it?

The DNA law would at least somewhat remove the decision from politics and politicians who are always so fearful to appear soft on crime. If they are truly interested in seeing justice done, they should be leading the charge for the Legislature to pass a law clearing the way for DNA testing in old cases.

There would almost certainly be no crush of inmates demanding and getting DNA tests.

First of all, the law would have no effect on cases not involving biological evidence such as semen or blood. Second, inmates who want DNA testing would have to claim they are innocent and would be subject to perjury prosecution if they were found to be lying. Third, inmates would have to meet several other criteria to win court approval for DNA testing.

Judges don't have to grant DNA testing, for instance, if they determine there is no "reasonable possibility" the inmate would be exonerated.

The structure is sound on every measure, and the goal is an honorable one. Who knows? It might not result in a single exoneration. But at least Alabamians would have more confidence they're not paying to keep innocent people behind bars for want of a DNA test that could clear them.

The issue is in the hands of legislators. Let's hope they are up to the test.

HOW LETHAL INJECTION REFORM CONSTITUTES IMPERMISSIBLE RESEARCH ON PRISONERS

http://www.floridasupport.us/Baze/impermissibleresearch.htm

http://www.floridasupport.us/Baze/2008.shaw.pdf

HOW LETHAL INJECTION REFORM CONSTITUTES IMPERMISSIBLE RESEARCH ON PRISONERS

Seema Shah**

This essay exposes how recent attempts at lethal injection reform have involved unethical

and illegal research on prisoners. States are varying the doses and types of drugs used,

developing methods designed for non-medical professionals to administer medical procedures,

and gathering data or making provisions for the gathering of data to learn from executions gone

wrong. When individual prisoners are executed under these conditions, states are conducting

research on them. Conducting research or experimentation on prisoners in the process of reform

is problematic because it violates ethical frameworks and state laws.

The Supreme Court has recently taken up the challenge of elucidating the standard for

determining the constitutionality of lethal injection. If the Court suggests an approach to lethal

injection reform that is akin to some of the more thoughtful and cautious approaches other courts

have proposed, the Court’s decision may also contravene state laws or ethical precepts regarding

research with prisoners. Thus, this paper provides important limitations on the kinds of reform

that may be permissible and outlines the open questions that must be addressed before it can be

determined whether the risks and uncertainties involved in lethal injection can be remedied.

INTRODUCTION

The Supreme Court recently granted certiorari in order to elucidate a standard for

applying the Eighth Amendment’s prohibition on cruel and unusual punishment to determine the

constitutionality of execution by lethal injection.1 Before this decision, execution by lethal

injection had come to a halt in eleven states as a result of dramatic evidence of the potential

problems with its implementation.2 These problems led some courts to conclude that, as currently

practiced, the lethal injection system is broken and runs a substantial risk of involving cruel and

**Faculty, Department of Bioethics, National Institutes of Health and Contractor, Henry Jackson

Foundation for Military Medicine; J.D. Stanford Law School. I am thankful to the following individuals

for their contribution to this piece: Mark Heath, Nisha Shah, Paul Litton, Lisa McCalmont, Deborah

Denno, Harry Surden, Jonathan Rackoff, Eric Chwang, Zeke Emanuel, Colleen Denny, Rebecca Wolitz,

Govind Persad, Namrata Kotwani, Emily Abdoler, Ty Alper, and the members of the Department of

Bioethics at the National Institutes of Health. In addition, many prison officials and administrators

provided information about their policies or procedures or helped in navigating their information systems,

for which I am also grateful. Finally, the opinions expressed herein are my own. They do not represent

any position or policy of the National Institutes of Health, Public Health Service, or Department of Health

and Human Services.

1 Baze v. Rees, No. 07-5439, 2007 U.S. LEXIS 9066, at *1 (U.S. September 25, 2007).

Baze v. Rees

Baze v. Rees

http://www.law.berkeley.edu/clinics/dpclinic/LethalInjection/Public/briefs.html

Supreme Court Briefs

Party Briefs

• Brief for Petitioners
• Brief for Respondents
• Reply Brief for Petitioners

Amicus Briefs

Amicus Briefs Filed in Support of Petitioners

• Brief for Michael Morales, Michael Taylor, et al. (linked version)*(by the Berkeley Law Death Penalty Clinic)
  
• Brief for The Fordham University School of Law, Lewis Stein Center for Law and Ethics
• Brief of The American Civil Liberties Union and the Rutherford Institute
• Brief of Critical Care Providers and Clinical Ethicists
• Brief of Drs. Kevin Concannon, Dennis Geiser, Carolyn Kerr, Glenn Pettifer,
  and Sheila Robertson
• Brief of Human Rights Watch
• Brief of the American Association of Jewish Lawyers and Jurists
  

Amicus Briefs Filed in Support of Neither Party

• Brief of the Anesthesia Awareness Campaign, Inc.
• Brief of the American Society of Anesthesiologists

Amicus Briefs Filed in Support of Respondents

• Brief of the States of Texas, Alabama, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Kansas, Mississippi, Missouri, Montana, Nevada, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and Wyoming
• Brief of the United States
• Brief of the Criminal Justice Legal Foundation

Vijaya Rajiva,Book Review,'Breaking All the Rules'

Friends & Colleagues,

Vijaya Rajiva,Book Review,'Breaking All the Rules'

Palestine Chronicle,March 20,2008.

Francis Boyle international lawyer extraordinaire & political activist who teaches at the University of

Illinois,U.S.A., is known to us all and needs no special introduction.His latest book 'Breaking All the

Rules' (Clarity Press,March 2008) is based on the Bertrand Russell Foundation Lectures, McMaster

University, Canada, focuses on the two overarching issues of our times, first, George Bush's attacks on

civil rights in the US & his war on the international community (and the National Campaign for his

impeachment). Second, Israel's violations of International Law and its attacks on the Palestinian

people both at the physical and legal levels (and the liberation struggle of the Palestinian people).

The two issues are linked, and illustrate the central point of the book, namely, that any attack on a people is preceded by an attack on their legal personality (Hannah Arendt, Bertrand Russell).

Vijaya Rajiva

By Vijay Rajiva

Breaking All the Rules by Francis Boyle (Clarity Press, March 2008)

This book, based on the Bertrand Russell Foundation Lectures at McMaster University, Canada by Dr. Francis Boyle lives up to the reputation of this respected international lawyer and well regarded activist.

Dr. Boyle who teaches at the University of Illinois focuses on the two large issues of our times, starting with the issue of Israel's violations of International Law and its attacks on the Palestinian people at both the physical and legal levels. The second is George Bush's attacks on civil rights in the U.S. and his war on the international community. The first and the second are linked and represent the central point of the book.

But Dr. Boyle does not stop at analysis. He proceeds vigorously to outline the steps that the international community can and should take to deal with the two problems. In the case of Israel, activism at all levels but especially the Boycott, Divestment, Sanctions (BDS) Movement which he helped start in Nov. 2000.

This book is a valuable compendium of the legal aspects of the two problems, the Israeli and Bush administration violations of human rights and law. The book is divided into two main parts: the Israeli-Palestinian question and the impeachment of George Bush.

At the conclusion of each segment there is a question and answer period where Dr. Boyle clarifies and amplifies his material in response to specific questions. There are relevant and valuable appendixes and a lengthy, comprehensive list of organizations and groups involved with the Palestinian question. Both sections have the further interest in providing vignettes of the author's personal journey in finding and sticking with the causes that he served and continues to serve.

His early inspiration seems to have been the work and ideals of Bertrand Russell, notably the path breaking Tribunal which as Dr. Boyle observes was important in turning public opinion against the Vietnam war and the Russell/Einstein Manifesto on Nuclear Weapons, the seminal event as Dr. Boyle describes it in the anti nuclear movement.

It is understandable then that Breaking All the Rules begins with a Russell quotation that cuts to the heart of the Israeli engagement with the Palestinians:

"For over twenty years" said Russell writing in 1970 "Israel has expanded by force of arms. After every stage in this expansion Israel has appealed to 'reason' and has suggested 'negotiations'. This is the traditional way of the imperial power because it wishes to consolidate with the least difficulty what has already been taken by violence. Every new conquest becomes the new basis of proposed negotiations from strengths, which ignores the injustice of the previous aggression."

Peace and Palestine

Dr. Boyle tells us that this was his experience when working as legal advisor to the Palestinian Delegation from 1991-1993. He was convinced quite early on that the only way for peace in the Middle East was for the establishment of a Palestinian state, and admission to the UN. He stated this publicly in 1987 and worked with the PLO Delegation to draft the Declaration of Independence.

He draws our attention to what is not widely known, namely that the PLO advanced the idea of the Peace Initiative as part of their Declaration. Hence, it was not the US that started the peace process, as is commonly thought. In the Political Communiqué of the Palestinian National Council, the Declaration also made a firm commitment to the purposes and principles of the UN Charter, the Universal Declaration of Human Rights and the policies and principles of Non-Alignment.

The events leading up to President Arafat's decision to sign the Oslo Accord of 1993 are only briefly touched upon as both the background and the legal basis of the Declaration are fully dealt with in Dr. Boyle's earlier work of 2003, Palestine, Palestinians and International Law. In Nov. 30 he publicly called for the establishment of an international campaign of divestment and disinvestment vis-à-vis Israel, similar to the campaign against former apartheid South Africa in which he had been actively involved along with his defence of anti apartheid protest cases which he explains in his book Defending Civil Resistance Under International Law.

Of special interest is the brief discussion of the United Nations General Assembly's Resolution 377. This is the famous Uniting for Peace Resolution which overrules the veto of the Security Council. Dr. Boyle drafted the memorandum for the PLO, which was used 16 times, including in the summer of 2006.

Impeaching Bush

The second half of the book is devoted to the question of the national movement in the US to impeach George W. Bush and those around him who were associated with his foreign policy. There is a brief account of the author's involvement with the impeachment process (along with fellow lawyer Ramsey Clark) which he had first initiated. We see clearly the complicity of the Democrats in stalling, delaying and ultimately relegating the bill for impeachment to oblivion, which Cynthia McKinney, herself a Democrat, had courageously submitted to the House before she stepped down.

Bush's foreign policy generally, says Dr. Boyle, is a deviation from International Law. It has specific components of criminal activity both under well recognized principles of International Law and US Domestic policy, the Nuremberg Charter, the Nuremberg Judgment, the Nuremberg Principles and the US Army Field Manual 27-10 on The Law of Land Warfare which is applicable to Bush as Commander in Chief of the Armed Forces, under the United States Constitution.

The international crimes typically include but are not limited to the Nuremberg offences of "crimes against peace", in Afghanistan, Iraq, and today in Somalia. They also include "crimes against humanity" and war crimes as well as grave breaches of the Four Geneva Conventions of 1949 and the 1907 Hague Regulations on land warfare, torture at Guantanamo, Bhagram, Abu Ghraib, disappearances, assassinations, murder and kidnappings.

The actors embroiled in this Legal Nihilism are those at the top of the criminal chain of command, Bush and Cheney, and as well the Secretary of Defense, Secretary of State, Directory of National Defence, National Security Advisor, the Attorney General and the Pentagon Chiefs of Staff.

The neocon philosophy of dominance and racial superiority is demonstrated in their policies towards Muslims, Arabs, Asians and Africans. The civil war in Iraq, ethnic cleansing and the carving up of Iraq are standing examples.

Dr. Boyle, is also an activist and hence Breaking All the Rules ends with an exhortation to his fellow citizens to protest (and defeat) Legal Nihilism whether at the international level or at the domestic level of the violation of civil rights with mass protests, demonstrations, and civil resistance, as happened during the Vietnam era. Hence, the book ends on a note of optimism, at the power and possibilities that ordinary citizens have to turn the tide of injustice and restore law and justice to our world.

Dr. Vijaya Rajiva taught Political Philosophy. She contributed this article to PalestineChronicle.com

Another book by Francis Boyle that is worthy of interest is PROTESTING POWER

WAR, RESISTANCE, AND LAW

By Francis A. Boyle

In this indispensable book, distinguished activist lawyer Francis Boyle sounds an impassioned clarion call to citizen action against Bush administration policies, both domestic and international.

Written for concerned citizens, activists, NGOs, civil resisters, their supporters, and their lawyers, Protesting Power provides the best legal and constitutional arguments to support and defend civil resistance activities. Including a number of compelling excerpts from his own trial appearances as an expert witness and as counsel, the author offers inspirational and practical advice for protesters who find themselves in court. This invaluable book stands alone as the only guide available on how to use international law, constitutional law, and the laws of war to defend peaceful non-violent protesters against governmental policies that are illegal and criminal.

ROWMAN & LITTLEFIELD

4501 Forbes Blvd., Suite 200

Lanham, Maryland 20706

(800) 462-6420

www.RowmanLittlefield.com

War and Peace Library series

November 2007, 256 pages

ISBN 0-7425-3892-3 / 978-0-7425-3892-4 $24.95 paper ISBN 0-7425-3891-5 / 978-0-7425-3891-7 $75.00 cloth

House approves controversial death penalty bill

House approves controversial death penalty bill
10 jurors could decide capital punishment

By BEN SMITH, BILL RANKIN
The Atlanta Journal-Constitution
Published on: 03/19/08

Imposing the death penalty in Georgia would take only 10 of 12 jurors under an amended bill approved by the state House Wednesday.

The controversial amendment would change the way capital punishment has been imposed in Georgia for more than two centuries. It allows a judge to decide the ultimate sentence if a jury votes at least 10-2 in favor of death. Current law requires a unanimous jury verdict for a capital sentence.

RELATED: Senate Bill 145 Legislature 2008 Georgia and metro news

Senate Bill 145, sponsored by Sen. Preston Smith (R-Rome), began as non-controversial legislation. It allows district attorneys to seek life-without-parole sentences in aggravated murder cases. Under current law, prosecutors can only obtain life without parole for murder when they seek the death penalty or when a murder defendant has an earlier conviction for a serious violent felony.

But it was amended on the House floor to allow death sentences when juries cannot reach unanimity. A similar measure passed the House a year ago, but died in a Senate committee.

The amendment only addresses the sentencing stage of a trial and does not change the guilt or innocence phase of a verdict. Unanimity is still required for a judgment of guilt.

If the non-unanimous jury provision becomes law, it would dramatically change death-penalty trials in Georgia, Stephen Bright, a lawyer with the Southern Center for Human Rights, said.

"The value of requiring unanimity is that everybody's view is given equal weight," Bright said. "And, now, 10 jurors can simply disregard the views of two jurors. That changes the whole dynamic of how juries decide these cases."

Smith, chairman of the Senate Judiciary Committee that passed the bill that was amended, expressed disappointment the House changed his legislation and did not work the non-unanimous jury proposal through his committee.

"We feel like the two issues are very different policy decisions," Smith said. "Each one ought to have its own consideration on its own merits. By bootstrapping them together, both are now in jeopardy of failing to pass."

When the bill was debated last year, supporters said prosecutors seeking death were being thwarted by holdout jurors. Since then, Georgia's district attorneys have had greater success in obtaining death sentences. In 2007, state prosecutors sent six killers to death row — the most in at eight years.

Speaker Glenn Richardson (R-Hiram) said Wednesday that the amendment would prevent heinous killers from escaping a punishment they deserve. Richardson cited the 2005 murder of 9-year-old Jessica Lunsford, who was kidnapped, raped and killed after being buried alive near her home in Homosassa, Fla. A Florida jury, by a 10-2 vote last year, sentenced John Evander Couey to death. Couey's lawyers had argued their client was mentally retarded and mentally ill.

"If you need further convincing perhaps you ought to go talk to the family of Jessica Lunsford," Richardson said. If the murder had taken place in Georgia, Couey would not have gotten death, he said.

State Reps. Ed Lindsey (R-Atlanta) and Robert Mumford (R-Conyers), who is a former prosecutor, argued against the bill, saying that it would overturn centuries-old legal precepts that give juries the power to render life and death decisions in capital cases.

"Today we're imposing a new line at 10, next year it'll be nine, next year it will be eight, next year it'll be zero, because we've chosen no longer to trust juries," said Lindsey. "Well I'm here to tell you that that is an enormous step backwards for our civil society"

Lindsey, who said he supports the death penalty, also argued that if the bill becomes law, death row inmates could delay their executions even longer, because "of countless appeals on whether or not this proposed change is constitutional."

If the bill passes the Senate and is approved by the governor, Georgia would be one of only five states in the nation with the death penalty that does not require a unanimous jury verdict for a death sentence, according to the Death Penalty Information Center. The other four are Alabama, Delaware, Florida and Montana. A judge decides sentences in Delaware and Montana, while juries only make recommendations to judges in Alabama and Florida.

The Book Of Clarence Thomas

Andrew Cohen: Court's Only Black Justice Won't Oppose Legal Racism In Death Penalty Case

http://www.cbsnews.com/stories/2008/03/21/opinion/courtwatch/main3958407.shtml

(CBS) Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

---

If you really want to take the measure of Supreme Court Justice Clarence Thomas, don’t bother reading his self-serving, cry-for-help book. And don’t bother going into the archives to view or read the fawning interviews that accompanied it. Just read this week’s big death penalty decision in a case involving a black man named Allen Snyder.

By a margin of 7-2, with conservative Justice Samuel A. Alito, Jr., writing the majority opinion, the Court Wednesday overturned Snyder’s death penalty conviction and ordered a new trial after concluding that black jurors were illegally barred from his Louisiana trial. The Court’s ruling was the latest in a recent series designed to rein in rogue prosecutors and recalcitrant judges who merely give lip service to the constitutional mandate that black jurors ought to be able to sit in judgment upon black defendants.

Snyder is no picnic. He allegedly murdered his estranged wife’s boyfriend. But this case, this appeal, was not about his guilt or innocence or even any of the information offered at trial, before which the prosecutor told one and all that this was his “O.J. Simpson” case, a reference to a black defendant whom many believe got away with murder back in the fall of 1995. Snyder’s trial was in 1996 - less than a year later.

The Snyder case instead is about what happened during jury selection. All five black jurors who made it through the initial screening were promptly eliminated by the prosecutor using his “peremptory strikes.” These occur when either side in a case unilaterally rejects a potential juror before trial. Such strikes may not be based upon race. So Snyder’s lawyers immediately (before trial) challenged two of the “strikes” on the grounds that they were unconstitutional. This required the prosecutor to justify his decision to eliminate the two people.

When he justified his decision to strike one such juror, the prosecutor said that the man looked nervous and might want to bargain in deliberations for a lower charge because he wanted to get back to his job as a student teacher. The trial judge immediately agreed with these justifications without making any sort of a factual finding that the prosecutor’s concerns were based upon impressions the judge himself agreed with. This spur-of-the-moment bench ruling, the Supreme Court said, “fails even under the deferential standard of review” the trial judge gets in these types of cases.

What else? Here is what Justice Alito wrote: “The implausibility of [the prosecutor’s] explanation is reinforced by the prosecutor’s acceptance of white jurors who disclosed conflicting obligations that appear to have been at least as serious as Mr. Brooks’.” In other words, the prosecutor bent over backward to remove black jurors from Snyder’s trial and bent over backward to keep white jurors in the jury pool. The Supreme Court, then, issued a ruling that comports both with precedent and common sense-not always a guaranteed Quinella these days.

Two members of the Court did not see things that way. They would have supported both the two-faced prosecutor and the quick-draw trial judge. One of these Justices was Clarence Thomas, just the second black person to sit on Court. Despite the obvious scheme devised by the prosecutor - and endorsed by the trial judge - Justice Thomas declared that it was not the province of the Supreme Court to “second-guess” such judges when they make decisions about jury selection in capital cases.

Writing for his ideological brethren Justice Antonin Scalia, Justice Thomas praised the “pivotal role” of the trial court. The prosecutor in Snyder’s case, according to Thomas, offered “neutral” reasons for excusing the black jurors; reasons that the trial judge was right to accept and that the Supreme Court is wrong to reject. The majority was wrong, too, Justice Thomas declared, for comparing the white and black jurors who were excused by the prosecutor.

Go ahead and read both the majority and dissenting opinions and then ask yourself which one comports with your sense of justice and fairness. Under Justice Thomas’ standard, apparently, a black defendant could successfully challenge the exclusion of a black juror from his case only if the prosecutor were so blatantly racist that the motives for the exclusion were clear for all to see. Those kinds of prosecutors - thankfully - no longer exist in this country. The law has exiled them into obscurity.

But the other kind of prosecutor - like the one in Snyder’s case - just as obviously still does exist in America. This kind of prosecutor is too smart and subtle to be so cavalier in open court about the reasons for precluding black jurors from sitting in judgment upon black defendants. This kind of prosecutor with a wink and a nod excuses black jurors with the barest of rationales - “he looked very nervous to me,” said Snyder’s prosecutor - that then are condoned by sympathetic judges who are in on the gig.

The Supreme Court this week said it will no longer countenance this charade. Justice Thomas said this week that the charade ought to be respected. He may be, as his recent book suggests, his “grandfather’s son.” But I doubt even Justice Thomas’ grandfather would be pleased with the lengths to which his grandson has proven willing to go to keep alive in precedent among the last (and worst) vestiges of legal racism.

Land Behind Bars

The Hidden Casualities of America's "War on Crime"

By MARLENE MARTIN

The number of people behind bars in the "land of the free" is grown as large as the combined populations of Atlanta, Miami, Minneapolis, Cincinnati, Kansas City and Pittsburgh.

That's the shocking fact in a Pew Center on the States report showing that one in 100 adults in the U.S. are in prison or jail--more than 2.3 million people.

When it comes to locking up its people, the country that claims to be the "world's greatest democracy" is far ahead of every other nation--ahead of China, ahead of Russia, ahead of all the tyrannies that the U.S. government supports around the world--both in absolute numbers of prisoners and the rate of incarceration.

As has always been the case in a country founded on slavery, the inmates of America's prisons are disproportionately people of color. Among African American men over 18, one in 15 are in prison--between the ages of 20 and 34, fully one in nine Black men are behind bars. When those on parole, probation or otherwise involved in the criminal justice system are included, that statistic rises to one in three.

As staggering as these facts are, the stories of the individual human beings behind these statistics--men and women whose lives have been destroyed by the criminal justice system--are even more horrifying.

Mark Clements is one of them. Mark was 16 years old when Chicago police officers and detectives picked him up on suspicion of setting a fire that killed four people. The white cops worked for Jon Burge--Mark became one of the hundreds of African American suspects tortured until the "confessed" by Chicago police under Burge's command.

Mark was kept in lockup for a year until he was old enough to stand trial as an adult. During his sentencing, Mark pleaded before the judge for more than two hours that he didn't commit the crime--that the police had beaten him into confessing. The judge sat with folded arms, staring straight ahead--and after Mark was done, he imposed the "mandatory" sentence of life without the possibility of parole.

Mark is 45 today. He has spent two-thirds of his life in prison. And if the state of Illinois gets his way, he will die there.

* * *

For the past two decades, crime rates have been in long-term decline, according to the Federal Bureau of Investigation. But the prison population has exploded during this same time.

To put this into proportion, between 2005 and 2006, the U.S. prison population rose by more than 65,000, an increase of almost 3 percent, which is on the low side for annual figures over the past 25 years. By contrast, in 1972, the total U.S. prison population was 196,092.

Who accounts for the vast number of people warehoused in America's jails and prisons? According to Justice Department statistics, more than half the people in the federal prison system and one in five inmates in state prisons were drug offenders--almost half a million in total.

Many of these prisoners were convicted of nonviolent offenses. More than a quarter of drug offenders in state prison are serving time for nothing more than possession. According to the Sentencing Project, arrests for marijuana possession accounted for 79 percent of the growth in drug arrests in the 1990s--despite the fact that not a single death has been attributed specifically to marijuana use, unlike such legal drugs as alcohol and tobacco.

David Ciglar pled guilty to growing marijuana seedlings in his garage in Oakland, Calif.--and received the state's mandatory minimum sentence of 10 years.

"My family is devastated," says David in the book Shattered Lives: Portraits from America's Drug War. "My wife is living every day wondering if she can make it financially and mentally. My kids don't know why their dad was taken away for such a long time. I have not even bonded with my youngest daughter. She was 2 when I left her."

Richard Nixon officially declared the U.S. government's "war on drugs" in 1971, but the drug war didn't really get under way until Ronald Reagan's presidency in the 1980s. The casualties have been mounting ever since.

One of the drug war's chief weapons has been the 100-to-1 rule that governs sentencing in convictions for possession and distribution of crack cocaine versus powder cocaine. Under the 1986 Anti-Drug Abuse Act and another law passed in 1988, possession of 5 grams of crack cocaine (about the weight of two pennies) results in a mandatory sentence of five years, while it takes 500 grams of the powder form of cocaine to yield the same sentence.

Behind the disparity is an openly racist double standard: African Americans account for most of those convicted and sent to prison for offenses related to crack cocaine--including 82 percent of those prosecuted and jailed at the federal level--even though they are a minority of users.

Those ensnared in the drug war aren't typically high-level dealers, either, according to Marc Mauer of the Sentencing Project. "By and large, these defendants are not the kingpins of the drug trade," Mauer wrote. "Data from the U.S. Sentencing Commission document 73 percent of the crack defendants had only low-level involvement in drug activity, such as street-level deals, couriers or lookouts."

The drug warriors' justification for the 100-to-1 rule was that crack was so highly addictive, and that its users became super-violent. Many of these stereotypes have been proven untrue, yet the bias in sentencing remains.

According to Carol Brook, deputy director of the federal defender program for the Northern District of Illinois, "These disparities exist, even though we know that the physiological and psychoactive effects of crack and powder cocaine are virtually identical. They exist even though the effects of prenatal exposure to crack and powder cocaine are identical. They exist even though the epidemic of violence and rapid spread to youth that crack was suppose to create never happened."

Despite the countless reports and studies, and the pleas from drug-war victims, their families and activists, Congress to this day has failed to change the 100-to-1 rule--though the U.S. Sentencing Commission voted last year to modify penalties for crack cocaine offenses.

* * *

The terrible impact of the "tough-on-crime" crusade can be seen in another disturbing statistic disclosed by the Pew report: More than half of all released offenders end up back behind bars within three years. Some commit another crime, but others are guilty of minor violations of the terms of their release--according to federal statistics, more than a third of people who entered prison in 2005 were arrested for parole violations.

This reality isn't altogether surprising given the 20-year trend of dramatic cuts to education programs for prisoners, which have been shown to be the single-most important factor in reducing recidivism.

Such programs grew widely as a result of the Attica prison uprising in 1971--as of 1995, there were still 350 programs that allowed prisoners to earn college degrees. But thanks to "law-and-order" measures passed by a Republican Congress and signed into law by Democrat Bill Clinton, they began to disappear. Only 12 of these programs exist today.

There are finally some cracks appearing in the "lock 'em up and throw away the key" mentality of lawmakers. Sadly, however, many of the proposals under consideration now aren't driven by a change of heart, but by the financial crisis caused by states facing the burden of paying for incarcerating ever-growing numbers of people.

According to the Pew study, five states spend more of their budget on prisons than they do on higher education. Overall, between 1987 and 2007, "state spending on higher education has increased 21 percent, while corrections spending had more than doubled, increasing 127 percent," the Economic Policy Institute reported.

This economic burden is forcing some welcome policy changes. In Texas, for example, some drug offenders are being put into treatment programs instead of prison. Other states are also considering early release programs, and the guidelines on crack cocaine offenses accepted by the U.S. Sentencing Commission are being applied retroactively.

This is a move in the right direction, but it is taking place too slowly--and the lives of 2.3 million people are wasting away in the meantime.

Earlier in March, the writers of the HBO drama The Wire spoke for them in an essay in Time magazine. If asked to serve on a jury in a drug case, they would vote to acquit, the writers said. "No longer," they concluded, "can we collaborate with a government that uses non-violent drug offenses to fill prisons with it's poorest, most damaged and most desperate citizens."

MARLENE MARTIN is national director of the Campaign to End the Death Penalty (CEDP) and a frequent contributor to the Socialist Worker.