A Little Light

Well, a 19-year-old kid went to the Florida high school he used to attend and killed seventeen people by shooting them with an semi-automatic gun. CNN reports that this is the ninth-deadliest mass shooting is "modern" United States history (as this CNN article points out, we say "modern" because it's hard to get data on mass shootings before 1949). ABC News points out that six weeks in to 2018, there have been 18 shootings at a school in the United States. That averages out to three shootings a week! This needs to stop.

One (or two, depending on how you count) moment of sanity does not change the fact that judicial elections are a bad idea.

I strongly believe that electing judges is a very bad idea. See e.g., here and here. Over at Slate, Robert J. Smith has an article about how two justices on the Kansas Supreme Court survived an attempt by death penalty proponents (including the Sam Brownback the Governor of Kansas and a dark money group called Kansans for Justice) angered by the Kansas Supreme Court's overturning of the death sentences of two men who committed a series of grisly crimes in Wichita, Kansas. Mr. Smith's main point in his article is that the election results show that people in Kansas do not fully support the death penalty.  But if one look at the election results, one sees that the justices barely won and the vote was much closer than typical Kansas Supreme Court retention elections. 

Sunday reading: some thoughts on faith and the death penalty

A few days ago, I wrote a post about how the Nebraska Legislature banned the death penalty despite the fact that Nebraska's governor opposed doing so. It turns out that Nebraska's Governor Pete Ricketts really, really wants to execute prisoners. As a result,  Governor Ricketts claims he is going to have the 10 prisoners currently on Nebraska's death row executed before the new law takes effect.  As Garrett Epps points out at the Atlantic, it is unlikely that Governor Ricketts can make that happen.

Governor Ricketts is also supporting a group called Nebraskans for the Death Penalty. The group is seeking to hold a referendum that will overturn the law banning the death penalty.  The honorary co-chairs of the group are former Nebraska Attorney General (and current State Treasurer) Don Stenberg and Beau McCoy, a state senator.  One of the sponsors of the referendum is Omaha City Councilwoman Aimee Melton.

According to the Omaha World-Herald-presumably from information supplied by the men to the paper, Mr. Stenberg is an "Evangelical Christian" and Mr. McCoy is a "born again Southern Baptist." Ms. Melton's biography on the Omaha City Council webpage suggests that she is a Roman Catholic. It might be worth noting that, as Ms. Melton's local bishops recently pointed out, the Roman Catholic Church teaches that the death penalty is wrong.

I bring up the religious faith of these three individuals because they have publicly proclaimed their faith. I think it is safe to assume they proclaimed their faith because they wanted people to know that they were voting for a candidate who would act in accordance with their religion.

So what might Jesus think about supporting the death penalty? In the Gospel of Luke (4:18), Jesus states that his mission on earth is "proclaim good news to the poor . . . proclaim freedom for the prisoners and recovery of sight for the blind, to set the oppressed free" (emphasis mine). I doubt the freedom for the prisoners that Jesus had in mind was execution by the government. In the Gospel of Matthew (25:31-46), Jesus tells how, at the judgment day, people will be judged worthy of eternal life.  

‘Come, you who are blessed by my Father; take your inheritance, the kingdom prepared for you since the creation of the world. For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in,  I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me.’ 

Then the righteous will answer him, ‘Lord, when did we see you hungry and feed you, or thirsty and give you something to drink?  When did we see you a stranger and invite you in, or needing clothes and clothe you?  When did we see you sick or in prison and go to visit you?’ 

[Jesus] will reply, ‘Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me.’

(emphasis mine). The people who did not do not feed the hungry, care for the stranger, clothe the naked, and visit the prisoner "go away to eternal punishment," The implications of this passage in Matthew sometimes awaken me, as the saying goes, like a fire bell in the night when I think of the times I did not do those things.  But I digress

Anyway, I do not understand the part about visiting prisoners to be visiting prisoners in order to execute them.

Some people might say that an exhortation to visiting prisoners suggests that Christ does not have any issue with people having criminal sentences imposed upon them. But consider the story of Jesus and the woman who was caught in adultery (John 8:1-11).

In the story, "teachers of the law" bring a woman caught in adultery to Jesus. They point out to Jesus that the punishment for adultery is to be stoned to death. They ask Jesus what he has to say about the imposition of this punishment. Jesus ignores the question for a while and writes on the ground with his finger.  The teachers of law press Jesus for an answer and he says "Let any one of you who is without sin be the first to throw a stone at her." John writes how people began to leave one at a time until only Jesus was left with the woman. Jesus instructs the woman to go and leave her life of sin.

Another digression, you can watch a clip of this passage-starring someone who looks a lot like the guy who played Desmond Hume on Lost-here.

I understand this passage from John to say that the State should not execute people because the state is not blameless, i.e., without sin. Moreover, Christ's admonition that the woman leave her life of sin suggest that the death penalty is wrong because it does not allow the sinful to repent and be redeemed.

There is also is a practical reason that Nebraskans should not vote in favor of the reference proposed by Ms. Melton, Mr. McCoy and Mr. Stenberg. Sometimes the innocent are sentenced to death. Indeed the Charlotte News-Observer has the story of how North Carolina Governor Pat McCrory recently pardoned two brothers who were sentenced to death (and on death row awaiting imposition of their sentence for 30). The reason Governor McCrory pardoned the men is that they were innocent.

I am not trying to mock the faith of death penalty supporters. And I am not trying to suggest they are hypocrites. I fail to live up to my religious beliefs all the time. But it seems to me that when disregarding one's religious beliefs results in someone being executed, people ought to try harder to follow their faith.

What do you think Mr. Torvik, is it fair,  to point out that Ms Melton, Mr. McCoy, and Mr. Stenberg are not following in the best traditions of their faith? Should politicians base their political views on their religious views?

Wait, Nebraska banned the death penalty?

Before yesterday, the last six states to ban the death penalty were New Jersey, New York, New Mexico, Illinois, Connecticut and Maryland. One thing each of those states has in common is the presence of a robust Democratic Party that, at least occasionally, controls the legislative and executive branches of the state.That is not really true of the latest state to ban the death penalty-Nebraska. Depending on how one counts, Nebraska has had 41 governors since it became a state in 1867 and only 14 have been Democrats (2 of those Democrats were elected by "electoral fusion" and not on the Democratic ticket). The only Democrats to win the Presidential vote in Nebraska in the 20th or 21st Century are Woodrow Wilson, Franklin Roosevelt (although only for his first two terms), and Lyndon Johnson. Suffice it to say that Nebraska is a conservative state.

More on Maryland and the death penalty

As we noted at the time,Maryland abolished its death penalty back in May 2013. We did not note, however, that the bill abolishing the death penalty did not apply to people in Maryland who had been sentenced to death. i.e., on Maryland's death row, but not yet executed. For those people, any celebration over the death penalty being abolished was probably muted.  

The Washington Post reports that outgoing Maryland Governor Martin O'Malley has commuted the sentences of the prisoners on Maryland's death row to life in prison without the possibility of parole. According to the story, four prisoners are affected by Governor's move. The Post also says that at the time the death penalty was abolished in Maryland there were five prisoners on death row but that one died of natural causes.

What do you think Mr. Torvik? Is commuting the sentences an act of mercy? Is it thwarting the will of the Maryland Legislature? Or is Merle Haggard (via the Byrds here) right that serving life in prison is worse than being executed?

Death, part 2

Last week I argued that not many Americans actually love the death penalty so much that they are okay with killing innocent people. Yet there's good reason to believe that innocent people have been put to death, which raises the suspicion that innocent people will be put to death. So what do we do about it?

This is part of the context in which claims of "actual innocence" arise. Judge Kopf says that he would sentence a man he knows (or believes?) to be innocent to death in three situations: (1) where clear precedent forbids him to consider claims of actual innocence; (2) where there is a swift pardon process available; or (3) where the defendant sat on his rights and waived his opportunity to raise his claim of actual innocence.

But what does it mean for a judge to know that a defendant is factually, actually innocent? Well, it could be that there is a credible confession from another person. Or it could be that there is exculpatory DNA evidence that

In those cases, though, we generally rely on the prosecutor to agree that the conviction is unjust and to move the court to vacate the convictions. That's what happened in the Central Park jogger case, for example.  Judges aren't usually asked to make determinations of guilt or innocence. That's the role of the police, the prosecutor, the grand jury (in some cases), and finally and irrevocably, the jury.

Judge Kopf was originally motivated to post on the subject in response to another post by the Salon blogger Digby, who tore into Justice Scalia for his supposed belief that "he does not believe it matters under the Constitution if the state executes innocent people."

I share Judge Kopf's antipathy toward Digby's foolish and reductive characterization of Justice Scalia's position. Of course it "matters under the Constitution" whether the state executes innocent people. The question is: how do we determine innocence? If a person has been indicted, tried, convicted, and sentenced to death after a separate penalty hearing; then had that conviction and sentence affirmed after an opportunity to appeal the conviction, the sentence, and every evidentiary ruling underlying it; can the defendant raise, on a collateral attack of that conviction and sentence—in other words, on a petition for habeas corpus—the claim that he is actually, factually innocent of crime the jury convicted him for? In other words, can he get a new trial on the merits by federal judge after having been convicted of trial by state jury?

You could set up a justice system where the answer to that question is yes. Because "death is different," people should not be put to death until their claims of innocence are rejected by a jury at trial and by a judge in a trial on collateral appeal. Maybe that's what it would take to apply the libertarian principle underlying Blackstone's Ratio to the infinite finality of a death sentence.

But does the constitution require this? Scalia implies that he doesn't think so. He implies that he thinks the constitution requires a conviction by a jury of one's peers, and all other due process allowed for. This is far from a radical position. It's the idea that the best way we have come up with to figure out whether someone is "actually innocent" is a public trial with a jury of one's peers. Judges don't have some special access to the truth.

So here's where I come down on this. I'm opposed to the death penalty because I think the killing of innocents is inevitable and this outweighs any potential benefits of capital punishment. But I agree with Scalia that "actual innocence" isn't a colorable basis for collateral review (by a judge) of a punishment that has been imposed after trial and conviction by a jury. Actual innocence in that scenario is a basis for a pardon, or a basis to convince the prosecutor's office to vacate the judgment. Perhaps there's a role for judges to play in staying execution until colorable claims of actual innocence based on newly discovered evidence can be considered by the proper parties (prosecutor, governor, president). But I don't see judges playing a proper role as last-ditch re-triers of fact.

Americans Don't Want to Kill Innocent People

I've been meaning to respond to Mr. Gillette's thoughtful post inspired by Judge Kopf's statement that “many federal judges, and I would suppose many state judges as well, understand that the death penalty has and will continue to result in the innocent being put to death in some small percentage of the cases.”

Perhaps this is a simple statement of admirable humility: the death penalty is administered by error-prone humans, and thus innocent people will be ground up in the machinery of death that it creates.

¯\_(ツ)_/¯

Indeed, Judge Kopf relies on a democratic principle: Americans surely know the justice system is imperfect, yet they support the death penalty as part of the justice system. Therefore, the American people are comfortable with the occasional execution of an innocent person. His job as judge is just to implement the justice system established by the democratically enacted laws.

I think there's profound error here. Yes, the American people know the justice system is "imperfect," but not in the way Judge Kopf thinks. I would bet a lot of money that the most well-known aphorism about the American criminal justice system is Blackstone's ratio:

It is better that 10 guilty persons escape than that one innocent suffer. 

Based on this, the popular perception of the American criminal justice system is that it is too lenient. There are too many technicalities, too many loopholes, too many appeals. O.J.!

So I reject Judge Kopf's supposition that people who support the death penalty assume, or are even comfortable with the fact, that innocent people will inevitably be put to death. In all my years of arguing with people about the death penalty (and I've been on both sides) I've never heard the pro-death side acknowledge that innocent people will be killed, thems the breaks. No one has ever argued for what I'll uncharitably christen Kopf's Ratio:

It's okay to kill one innocent man so that 10 guilty men can be put to the death the people think they so richly deserve.

This is not a cherished principle of American law, thank God, and let's hope it never is.

Unfortunately, we are coming to learn that Kopf's Ratio might better reflect the reality of American law, and that raises the question of what to do about post-conviction claims of "actual innocence." More on that next week (if you're lucky).

Some heavy reading on the death penalty.

Judge Richard Kopf has an terrific post (first and third definitions) on his blog, Hercules and the Umpire today. It concerns the death penalty and the execution of people who are "factually," i.e., actually, innocent. I'll do a poor job of summarizing the post in a minute but you should really read the post and then click back to this. I'll wait.

More on executions

Last week, I posted about an execution in Arizona where the condemned prisoner took almost two hours to die. Part of the post, and the comments, questioned whether the drugs used in the execution where the proper ones. Whatever the problems with Arizona's execution methods, Missouri does not seem to have similar issues.

What is the proper method of execution?

Michael Kiefer of the Arizona Republic has a story about witnessing the execution of Joseph Wood on Thursday afternoon. I recommend you read it.

Mr. Wood was supposed to be executed by lethal injection. When most people hear that term, I think they imagine the condemned receiving an injection, quickly passing out and dying. According to Mr. Kiefer, that is not what happened to Mr. Wood.

Is Oklahoma ok?

Two recent news items caught my interest this morning. The first is Slate's story about a study by the National Academy of Sciences that 1 in 25 criminal defendants sentenced to death in the United States are actually innocent. The other is this story about a botched execution in Oklahoma. As a result of the botched execution, Clayton Lockett "convulsed several times," spoke three times after prison officials tried to declare that Mr. Lockett was unconscious and according to USA Today eventually died of a heart attack 40 minutes after the execution began.

If you can't say something nice ...

The comic strip Stone Soup ran a strip on Tuesday in which the mother in the strip told her daughters to ask three questions before they send a text, email, or post.  Those three questions are: (1) is it true; (2) is it kind; (3) is it necessary.  At the Gillette-Torvik Blog we strive for one out of three but recognize that these three questions are very good ones to ask before writing or saying anything.  I thought of that strip today when I heard about the new controversy surrounding Judge Edith Jones.

Should we reconsider our view of Maryland?

As we have noted before, there is some evidence to suggest that the state of Maryland is a hellhole (or perhaps a Hell Hole). However, as a counterargument to the Maryland-haters out there, one might point out that today Maryland became the 18th state to abolish the death penalty. According to this, Maryland is the sixth state that has abolished the death penalty in the in the 21st Century.

Strom Thurmond did what now?

Because he was in the Senate for 48 years, it is easy to think that Strom Thurmond was always a senator.  However, Senator Thurmond was 54 when he became a senator.  Prior to that he had been Governor of South Carolina, a World War II combat veteran, a judge, a county attorney, farmer, coach, teacher, and the superintendent of education for Edgefield County, South Carolina. It is the last job that prompts this post.

It is official, Connecticut has banned the dealth penalty.

The Wall Street Journal reports that Connecticut Governor Dannel Malloy has signed into law a bill banning the death penalty in Connecticut.  We posted about the proposed ban here.  Governor Malloy's statement said the signing should prompt "sober reflection, not celebration."

In my post on this topic, I noted that Connecticut has only executed one person since the Supreme Court reinstated the death penalty in 1976.  Governor Malloy's statement points out that in the twelve years prior to Furman v. Georgia (the United States Supreme Court cases that led to a moratorium on the death penalty between 1972 and 1976), Connecticut also executed one person.  That is, Connecticut actually carried out the death penalty on two people in the last 52 years.  Apparently in both cases the prisoner dropped his appeals and requested execution.  Governor Malloy points to the fact that death penalty cases involve a lot of appeals as one of the reasons for abolishing the death penalty (as opposed to abolishing the appeals).  The governor also notes that the eleven men currently on death row in Connecticut (the new law does not repeal the death penalty for them) "are far more likely to die of old age than they are to be put to death."

To be fair, Governor Malloy also mentions moral opposition to the death penalty as well as concerns over putting an innocent person to death.  Both of these concerns are legitimate reasons to oppose the death penalty.  Is a lengthy appeals process on par with these other concerns?  I am skeptical.  After all, one would think that the length of the appeals process might help alleviate the concern over mistakenly putting an innocent person to death.

Connecticut is going to repeal its death penalty.

CNN reports that the Connecticut Senate voted yesterday to repeal the death penalty.  The bill is expected to pass in the Connecticut House of Representatives.  Connecticut Governor Dannel Malloy has said he will sign the bill if/when it reaches his desk.

If it repeals the death penalty, Connecticut will join New Jersey, New Mexico, New York, and Illinois among states that have abolished the death penalty in the last five years.  Californians will vote on whether to abolish the death penalty in November. 

Opponents of the death penalty will undoubtedly be cheered by this news.  On the other hand, it isn't like Connecticut is Texas.  Since 1976, the article reports, Connecticut has handed down 15 death sentences and executed one person.  Texas, according to the Texas Department of Criminal Justice, has 299 people on death row today (assuming I counted correctly).  The Department's executions website, indicates Texas has executed 481 people since 1982, including 2 in March.  As an aside, the website I linked to allows you to see the last statements, if any, all 481 people.  They are interesting reading. 

In any event, Connecticut Senate President Donald Williams Jr., called the bill a "vote of conscience."  This question of conscience does not apply to people currently on Connecticut's death row because the bill is prospective.  That is, the death penalty wasn't abolished for anyone in Connecticut who is currently sentenced to death.  This is probably because of the Petit family murders, the horrific murders of three female family members by two men.  Both men are on Connecticut's death row.

There are, of course, arguments on both sides for whether the death penalty should be abolished.  This purpose of this post is not to debate that issue.  Instead, the point of the post is that acts of "conscience" that do not change any one's circumstances are the easiest acts of conscience that one can perform. 

The human cost of ending the death penalty

One of the arguments that I've heard people make against the death penalty is that it is too costly.  Without actually looking into the facts, this argument always struck me as unconvincing.  You're telling me that it is more expensive to execute someone than it is to provide him shelter, food, and medical care for decades?

Well, earlier this month, Illinois repealed the death penalty, and the news today is that this will lead directly to the loss of 37 state jobs in the Office of the State Appellate Defender.  Most of the affected are lawyers who handle death penalty appeals.  This will save Illinois taxpayers $4.7 million in year one, and more in the future after the agency gets a chance to downsize its office space.

Some thoughts.

1)  A while back, we discussed the crisis in funding for public defenders.  As a partial solution I proposed "fewer crimes," on the theory that if we had fewer crimes we would need fewer public defenders.  Apparently "fewer punishments" also works.

2)  This is another good reason for a libertarian-minded person to be against the death penalty.

3)  On the other hand, perhaps instituting the death penalty is good for the economy, since it puts people to work?