California's Cruel And Unusual Death Penalty 40 Years And $4 Billion After Furman v. Georgia

San Quentin State Prison

40 years ago today, the United States Supreme Court decided Furman v. Georgia, which struck down existing death penalty laws as unconstitutional in violation of the Eighth Amendment's cruel and unusual clause.  California's death penalty was quickly reinstated.

Attempting to comply with Furman, the new statute made the death penalty mandatory for certain first degree murders and other crimes.  But in 1976, the U.S. Supreme Court struck down death penalty laws that provided for mandatory death sentences. The California Supreme Court, relying on the high court's ruling, once again found the state's statute to be unconstitutional.

Undeterred, the California legislature passed a new death penalty law in 1977.  This was followed in 1978 by a ballot proposition, known as the Briggs Amendment, which was similar but more expansive version that sought to encompass more -- virtually all -- categories of murder (including unintentional murders committed during certain felonies).  Briggs passed and it is the law we are living with, so to speak, today.   

Forty years after Furman: $4 billion dollars, over a thousand death sentences, over 720 currently on death row, and 13 executions, none since January 2006.

Tani Cantil-Sakauye, after one year as the Chief Justice of the State of California, has concluded that the state's capital punishment system is "not effective" and requires "structural changes" that the State cannot afford.  Her predecessor, Ron George, who was Chief Justice for 15 years, came to the same conclusion, describing California's death penalty scheme as "dysfunctional."

An extensive study by Arthur Alarcon, long-time judge of the Ninth Circuit Court of Appeal, who, together with law professor Paula Mitchell, determined that California's death penalty system is currently costing the state about $184 million per year.  They concluded that "since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions."

Justice Byron White observed in Furman that:

When imposition of the penalty reaches a certain degree of infrequency, it would be very doubtful that any existing general need for retribution would be measurably satisfied.  Nor could it be said with confidence that society’s need for specific deterrence justifies death for so few when for so many in like circumstances life imprisonment or shorter prison terms are judged sufficient, or that community values are measurably reinforced by authorizing a penalty so rarely invoked.” 

The infrequency of executions and the randomness with regard to which condemned inmates actually will be executed have made a mockery of the supposedly rational justifications for the death penalty.  In addition, given the current backlog and the serious problems identified by the California Commission for the Fair Administration of Justice (CCFAJ) -- problems that would require an enormous influx of state funds to fix -- it simply is not possible that defendants who are only now being sentenced to death will have their death sentences carried out.  Because it is “so wantonly and so freakishly” used, California’s death penalty has become a wholly arbitrary punishment in the same sense as the death penalty laws that were struck down in Furman.

Justice Potter Stewart famously characterized the Texas and Georgia statutes at issue in Furman as being “cruel and unusual in the same way that being struck by lightning is cruel and unusual.”  What he meant was that of all those who committed death eligible crimes, the petitioners were “among a capriciously selected random handful upon whom the sentence of death has in fact been imposed . . . [and] the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.”

Application of Furman’s benchmark for determining arbitrariness demonstrates that only a “capriciously selected random handful” of death-sentenced inmates in California will actually be executed.  A new death row prisoner would have to get in line behind 720 condemned inmates.  He or she would then have to wait years for appointment of appellate counsel (currently a 5 year wait) and even longer for the appointment of state habeas counsel (8-10 years).  Even after these lawyers are appointed and appellate briefs and habeas petitions are filed, the case will not be heard and decided before the several hundreds of cases that have preceded it.  And then, after all this time and expense, the California Supreme Court, in virtually every case regardless of the merits, will uphold the death sentence.   Then the case moves on to federal court, which has its own backlog, and often requires new counsel, with proceedings currently averaging over six years in district court followed by over four years of appellate review. 

Justice White noted in Furman that where the “penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice” it is unconstitutional.  As he stated, when the death penalty “ceases realistically to further [the social ends it was deemed to serve] . . .  its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.  A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

We have far surpassed this point in California.

The SAFE California Act is on the November ballot.  If it passes it would replace California's multi‑billion dollar death penalty with life imprisonment without parole and require those convicted of murder to work and pay restitution to victim families through the victim compensation fund.  It would also set aside $100 million in budget saving for local law enforcement for the investigation of unsolved rape and murder cases.

Please join the effort to replace the death penalty by clicking here:  SAFE California.

R.I.P. Samuel Lopez

On June 27, 2012, Arizona executed Samuel Lopez for the rape and murder of 59-year-old Estefana "Essie" Holmes.

Lopez's attorneys argued that his trial lawyers provided constitutionally ineffective assistance by failing to present any evidence of Lopez's  horrific childhood, which would have been critical to the jury's determination of whether he should be sentenced to life or death.  The jury never learned, for example, that Lopez's childhood was filled with poverty, neglect, abuse and periods of homelessness during which he often had to sleep in cemeteries. Lopez dropped out of school in the ninth grade and became addicted to sniffing paint.

Lopez was originally scheduled to be executed on May 16, 2012, but received a temporary stay of execution because of serious issues with regard to the fairness of the clemency process.  On May 7, 2012, defense attorney, Assistant Federal Public Defender Kelley Henry, walked out of the clemency hearing claiming the Arizona Board of Executive Clemency did not have the authority to hear the case.  Henry contended that Arizona Governor Jan Brewer violated several state statues when she appointed three new members to the five member clemency board.  Violations included that the new members had not completed training required by state statute, that their interviews violated open meeting laws by taking place behind closed doors, and that one new member is a lobbyist for a police association that advocates the death penalty. 

The Arizona Supreme Court ordered a temporary stay so that the board members could complete a mandatory four-week training course but then another stay was sought on the grounds that Governor Brewer had appointed "political cronies" to the board, making a fair hearing impossible.  That stay was rejected.  Clemency was denied on June 22nd.

This is the 23rd execution in the United States in 2012, the fourth in Arizona.

R.I.P. Gary Simmons

Roman Colosseum lit to protest an execution

On June 20, 2012, Mississippi executed Gary Simmons for the murder of Jeffrey Wolfe in 1996. 

Simmons and an accomplice, Timothy Milano, were both convicted of killing Wolfe after an argument over the collection of a drug debt.  Authorities concluded that it was Milano who shot and killed Wolfe but it was Simmons, a butcher, who subsequently dismembered the body and raped Wolfe's girlfriend. Simmons was sentenced to death for the murder and two life terms on charges of kidnapping and raping the woman. Milano was sentenced to life for capital murder and 30 years for kidnapping.

Appeals to allow Simmons' current counsel to pursue claims based on ineffective assistance of prior counsel and mental illness were rejected.  A petition to the United States Supreme Court stated that "post-conviction counsel did not arrange for Mr. Simmons to undergo any mental health evaluations and it appears that counsel completely overlooked raising any claims regarding Mr. Simmons' addiction, posttraumatic stress disorder and brain dysfunction even though a cursory investigation would have raised a number of red flags."

This was the 22nd execution in the United States this year and the sixth in Mississippi (the third this month).

R.I.P. Jan Brawner

Roman Colosseum lit to protest an execution

On June 12, 2012, Mississippi executed Jan Brawner for the murders of his 3-year-old daughter Paige, his ex-wife, Barbara Craft, and her parents, Carl and Jane Craft, in 2001.

Brawner testified at his trial that "I don't feel I deserve to live."  He refused to allow any mitigating evidence at the sentencing phase which would have informed the jury about the his childhood, background and mental state.  It was subsequently argued that his trial lawyer acted unreasonably in failing to develop and present such evidence.

The Mississippi Supreme Court voted 4-4 to deny rehearing.  A tie meant that the prior decision to allow the execution to go forward stood.  A tie-breaking vote wasn't cast because the ninth justice, Ann Lamar, who was district attorney at the time of the murders, didn't vote.

This was the 21st execution in the United States in 2012, the fifth in Mississippi.

R.I.P. Richard Leavitt

Roman Colosseum lit to protest an execution

On June 12, 2012, Idaho executed Richard Leavitt for the murder of Danette Elg in 1985.

In a lawsuit brought by the media, a federal appeals court ruled that witnesses would be entitled to view the entire lethal injection process.  Leavitt's execution was subsequently described as a "silent, clinical procedure."

This was the 20th execution in the United States this year, the first in Idaho.

R.I.P. Henry Curtis Jackson

Roman Colosseum lit to protest an execution

On June 5, 2012, Mississippi executed Henry Curtis Jackson, who killed his two nieces and two nephews, Shunterica Jackson, Dominique Jackson, Antonio Jackson and Andrew Kuyoro, Jr.

Jackson killed the children (ages 2 to 5) in 1990 when he went to his mother’s home to try to steal a safe.  He also stabbed his sister, Regina Jackson, five times. Regina survived.  She was the mother of the two girls who were killed.  The boys who were killed were the sons of her sister Glenda.   

Governor Phil Bryant denied clemency despite pleas for mercy from Regina Jackson, her sister Glenda and Glenda's husband, Andrew Kuyoro.  Regina asked for her brother's life to be spared because she “just can’t take any more killing.”  She told the Governor, "as a mother who lost two babies, all I'm asking is that you not make me go through the killing of my brother."  The Kuyoros had written that "we are the victims in this case, and we are begging you not to let Curtis be killed. You can keep him in Parchman forever, but please don't put our family through this horrible execution."

This was the nineteenth execution in the United States this year, and the fourth in Mississippi.

Since When Don't We Put A Price Tag On Justice?

By Ty Alper, cross-posted from Huffington Post

Faced with unassailable evidence that the death penalty in California costs hundreds of millions of dollars per year, death penalty supporters tend to respond with what is intended to be a conversation stopper: "You can't put a price tag on justice."

But wait a minute. Don't we already? Only in a world with unlimited resources could we run government programs with no regard for their price tags. Unfortunately, that is not where we live today. Consider Governor Jerry Brown's latest budget proposal as reported by the New York Times:

Struggling to contain mounting state budget shortfalls, Gov. Jerry Brown on Monday proposed $8.3 billion in spending cuts, including slashing state employees pay and spending on social programs and prisons. He warned that California would have to impose another $6 billion in cuts on public schools and higher education if voters fail to approve his initiative this fall to raise sales and income taxes.

My kids go to public school in California and I teach at a public law school. I would love to be able to say, "You can't put a price tag on an education." But that would be ridiculous. It happens all the time.

The implication in the death penalty context, of course, is that only the most heartless among us would relish telling the mother of a murder victim that the person who killed her child is not going to be executed because, well, it just costs too much.

But here's what we need to remember: about half of all rapes and murders in California go unsolved. A 2009 survey asked law enforcement officials what interfered with effective law enforcement. The number one answer was lack of resources. (Last on the list was "insufficient use of the death penalty.") Thousands of rape kits across the state sit unexamined, because there is no money to conduct DNA testing.

The victims of unsolved murders and rapes are no less deserving of justice than the victims of solved crimes. The SAFE California initiative that will be on the ballot in November would eliminate the death penalty, save $1 billion that we desperately need over the next five years, and create a "$100 million fund to be distributed to law enforcement agencies to help solve more homicide and rape cases."

The next time you hear someone say that you can't put a price tag on justice, ask them if they would say the same thing to the family members of victims of the 1,000 murders that go unsolved in California each year.

I'd love to live in a California with no price tags. Until then, the price tag on the death penalty is busting our state's budget.

Ty Alper is an assistant clinical professor of law at the University of California, Berkeley, School of Law.

Executing The Innocent

Carlos deLuna

"No one can ever say again with a straight face that America doesn't execute innocent men. No one."  -- Andrew Rosenthal, The Atlantic

Carlos DeLuna was executed in 1989 for the 1983 stabbing death of a gas station clerk in Corpus Christi, Texas.  The Columbia University Human Rights Review has just published its Spring 2012 issue devoted entirely to demonstrating that De Luna was innocent and that it was another Carlos - Carlos Hernandez -- who committed the murder.  The book-length article, entitled "Los Tocayos Carlos: Anatomy of a Wrongful Execution," was authored by Columbia law professor James Liebman and his team of students.

Rosenthal's piece in The Atlantic and Michael McLaughlin's at Huffington Post provide excellent summaries of the details of this deeply troubling case.

 McLaughlin cites some of the key findings of the investigation:

• The eyewitness statements actually conflict with each other. What witnesses said about the appearance and location of the suspect suggest that they were describing more than one person.
• Photos of a bloody footprint and blood spatter on the walls suggest the killer would have had blood on his shoes and pant legs, yet De Luna's clothes were clean.
• Prosecutors and police ignored tips unearthed in the case files that Carlos Hernandez, an older friend of De Luna, who had a reputation for wielding a blade, had killed Lopez. The defense failed to track down Hernandez, who bore a striking resemblance to De Luna.

This was a case of "epic malfeasance and misfeasance," Rosenthal writes, in which the police, prosecutor, defense lawyer and judge all contributed.

The execution of an innocent man over two decades ago cannot be dismissed, however, as an isolated case from a time when procedural safeguards were not as rigorous as they are today.  Indeed, Rosenthal cites to several recent capital cases in which there remain serious and substantial questions of innocence.

But this well-investigated, extensively documented report, as Rosenthal writes, "ought to end all reasonable debate in this country about whether an innocent man or woman has yet been executed in America since the modern capital punishment regime was recognized by the Supreme Court in 1976."

R.I.P. Michael Selsor

Roman Colosseum lit to protest an execution

Oklahoma executed Michael Selsor on May 1, 2012, for the 1975 murder of Clayton Chandler during a robbery of a convenience store.  Selsor's accomplice is serving a life sentence.
  
What is particularly unusual about this case is that Selsor's original death sentence was reduced to life when the Oklahoma death penalty law was found unconstitutional by the United States Supreme Court in 1976.  However, Selsor continued to challenge his conviction, which was eventually overturned by a federal appeals court in 1996, and a new trial was ordered.  Selsor was convicted of first-degree murder at his retrial and sentenced to death.
 
This is the 18th execution in the United States this year, and the third in Oklahoma.

R.I.P. Beunka Adams

Roman Colosseum lit to protest an execution

On April 26, 2012, Texas executed Beunka Adams for the murder of Kenneth Vandever during a convenience store robbery.  Two women working at the store were shot but survived.  Adams was 19 at the time.  His accomplice, Richard Cobb, who was 18, was sentenced to death after a separate trial.

Legal challenges included a claim that Adams' trial counsel unreasonably failed to present evidence of Cobb's confession to shooting Vandever.  A federal district court had issued a stay of execution to consider claims that his trial and appellate lawyers provided ineffective assistance with regard to several issues.  The stay was lifted  by the federal appellate court and the Supreme Court refused to intervene.

This is the 17th execution in the United States this year, and the fifth in Texas.

R.I.P. Thomas Kemp

Roman Colosseum lit to protest an execution

On April 25, 2012, Arizona executed Thomas Kemp for the kidnapping and murder of Hector Soto Juarez in 1992.

Several states are changing their lethal injection protocol from a 3-drug "cocktail" to use of one drug -- pentobarbital -- due to the shortage of one of the three drugs as well as concerns that the combination, which includes a paralytic, may mask excruciating pain.  Arizona has gone to the one-drug procedure without adequate testing or analysis, and there are serious issues surrounding this method, which will be revisited after Kemp's execution, in which he began to "shake violently" when injected with pentobarbital.

This is the 16th execution in the United States this year, and the third in Arizona.

Now There Are 17!

From Amnesty International:

Five states have abolished the death penalty in the last five years, and 800,000 voters in California have endorsed a ballot initiative, which, if successful this November, would repeal capital punishment in the nation’s largest state. A majority exists in the Maryland State Legislature to repeal the death penalty and one legislative chamber in both Colorado and Montana have passed bills to repeal capital punishment in recent years. In Oregon, the governor has declared a moratorium on all executions.

Two-thirds of all nations (141) have rejected the death penalty. Amnesty International’s 2012 annual global death penalty survey placed the United States among the top five countries that continue to execute prisoners, with China, Iran, Iraq, and Saudi Arabia.

The shift in U.S. public opinion on the death penalty is reflected in opinion polls and in jury rooms. The latest Gallup poll shows public support for the death penalty at its lowest since 1972, and death sentences have plummeted nationwide over the past decade.

Laura Moye, director of Amnesty International USA’s Death Penalty Abolition Campaign, said: “Not only is the death penalty the ultimate human rights violation, but it is bad public policy. We are better off redirecting public funds and energy to solving the vast number of cold cases and providing greater support to the victims of violent crime, rather than wasting funds on maintaining this enormously expensive and inhuman practice.”

It's Official! The Initiative To Replace California's Death Penalty Qualifies For The November Ballot

The SAFE California Act, the initiative to replace California's multi-billion dollar death penalty with life in prison with no possibility of parole, has qualified for the November ballot.  This is epic.

With a death row population over 720, it is undisputed that California's death penalty system is broken beyond repair.  Despite over 30 years of sentencing more and more people to death, only about 1% of them have actually been executed –  a total of 13 executions since 1978, and none since 2006. It is a costly (an exhaustive study concluded that "California taxpayers have spent roughly $4 billion), time-consuming, unreliable and unworkable system that serves no useful purpose. Meanwhile, it drains judicial resources and diverts much-needed funds from truly effective public safety programs.

When it passes, SAFE California will require those convicted of murder to work and pay restitution to victim families through the victim compensation fund. And it sets aside $100 million in budget savings for local law enforcement for the investigation of unsolved rape and murder cases. Because while we spend time and resources on those already tried and convicted, in an average year, 46% of murders cases in California remain unsolved and 56% of reported rapes.

Recent polls show California voters are ready to replace the death penalty, and join a nationwide trend.  (Connecticut is on the verge of becoming the fifth state in five years to replace the death penalty, following Illinois, New Jersey, New Mexico and New York.)  Both the Public Policy Institute of California and Field Poll have found that when given the option, more California voters opted for life in prison without the possibility of parole over the death penalty.

As Jeanne Woodford the former Warden at San Quentin State Prison, and current Executive Director at Death Penalty Focus, put it, this is a "game-changer of massive proportions."

SAFE California is a historic campaign that will change California forever – for the better. Once we replace the death penalty in November, we will save millions in public safety dollars and California will never again risk executing an innocent person. We’ll soon have the opportunity to use  hundreds of millions of dollars in budget savings to improve personal safety for families across our state.

R.I.P. Shannon Johnson

Roman Colosseum lit to protest an execution

On April 20, 2012, Delaware executed Shannon Johnson for the murder of Cameron Hamlin in 2006.  Johnson was permitted to waive his appeals, and thus was executed without full review of the fairness of his trial or the reliability of his death sentence.   

A district court judge had stayed the execution to consider arguments by the Federal Public Defender that Johnson was mentally incompetent to waive his appeals and that his sister should be allowed to argue the issue on his behalf.  Federal public defenders also argued that there was overwhelming evidence that Johnson suffered from an intellectual disability making him ineligible to be executed.  The court of appeals lifted the stay and Johnson was executed minutes before a 3:00 a.m. deadline. 

This was the 15th execution in the United States in 2012 and the first in Delaware.

Death Penalty Proponents Lose Another Argument

Those of us representing defendants who have killed understand the utter fallacy of the argument that the death penalty deters killing.  It is nonsensical to think that when one is suffering from whatever disturbed state of mind that leads him or her to intentionally cause another's death they carefully weigh beforehand whether to do so based on what ultimate punishment they may receive (i.e., "Yes, I will kill because the worst that could happen is I get life without parole.")

Indeed, while it has long been argued by death penalty proponents that capital punishment is necessary to deter crime, it has never been conclusively proven to have a deterrent effect.  In fact, it has long been true that the states with capital punishment also have the most crimes of violence.

Albert Camus’ essay against the death penalty, Reflections on the Guillotine (1957), includes a refutation of the deterrence argument that remains salient today.  Camus, citing an earlier study which described pickpockets plying their trade at the public hanging of other pickpockets, goes on to explain that  the complexity of human nature is not so easily controlled by law: “When law ventures, in the hope of dominating, into the dark regions of consciousness, it has little chance of being able to simplify the complexity it wants to codify.”

And now we have more proof - - or lack of proof.  As reported in the Los Angeles Times, a panel of independent experts convened by the National Research Council released a report finding that the studies on the alleged deterrent effect of the death penalty contain fundamental flaws that render them meaningless.  For example, the studies fail to consider whether other forms of punishment, such as life without parole, may also act as a deterrent. The studies don’t “consider how the capital and noncapital components of a regime combine in affecting the behavior of potential murderers.”

More fundamentally, the research underlying deterrence studies is based on the assumption that those who kill can or even try to accurately calculate their risk of being executed if they were convicted.  But, as the chairman of the committee acknowledged, "nothing is known about how potential murderers actually perceive their risk of punishment.”

It  has become increasingly clear that capital punishment is not a productive tool for fighting crime and, indeed, undermines personal and public safety by draining needed resources from more effective methods.

Many people who have devoted their lives and careers to law enforcement, public safety and victims' rights, including former San Quentin Warden Jeanne Woodford, former Los Angeles D.A. Gil Garcetti, Supervisor Ron Briggs whose family created California's death penalty law, and Don Heller, who wrote it, have come to realize that the death penalty is counterproductive, that the old arguments in favor of its continued use no longer apply, and that the time has come to replace it.

The SAFE California Act is about to qualify for the November 2012 ballot.  If it passes it would replace California's multi‑billion dollar death penalty with life imprisonment without parole and require those convicted of murder to work and pay restitution to victim families through the victim compensation fund.  It would also set aside $100 million in budget saving for local law enforcement for the investigation of unsolved rape and murder cases.

Click here for more information on the SAFE California campaign and on how you can join the effort to replace the death penalty and enhance our personal and public safety.

R.I.P. Mark Wiles

Roman Colosseum lit to protest an execution

Ohio executed Mark Wiles on April 18, 2012, for the stabbing death of Mark Klima.

In requesting clemency, Wiles' defense team argued he should be spared because he confessed to the crime, showed remorse and maintained a good record in prison.  They further argued that the parole board had been inconsistent in prior decisions, and that Wiles was not "the worst of the worst." Clemency was also supported by a report that Wiles had suffered a head injury 12 days before the slaying, and that the injury was to the part of the brain that regulates impulse control.

In his final statement, Wiles said, "since this needs to be happening, truly I pray that my dying brings some solace and closure to the Klima family and their loved ones."

This is the 14th execution in the United States in 2012, the first in Ohio.

25 Years After McCleskey, Racial Bias Remains "An Inevitable Part Of Our Criminal Justice System"

Twenty-five years ago, the United States Supreme Court issued McCleskey v. Kemp, one of its more shameful decisions.  Despite overwhelming statistical evidence of systemic racial bias in Georgia's imposition of capital punishment, the Court upheld Warren McCleskey's death sentence.  It held that statistics proving a discriminatory effect were insufficient and that a showing of deliberate, purposeful discrimination -- a nearly impossible burden -- was required to establish a constitutional violation on equal protection grounds.  The majority 5-4 opinion, authored by Justice Powell, acknowledged that racial bias was "an inevitable part of our criminal justice system," but cynically concluded that if sentences stemming from such bias were tossed out it would call the entire system into question. 

I am not a fan of analogies to Nazi Germany, which in many ways was an incomparable horror.  But in the piece written below by my dear friend, the remarkable Denny LeBoeuf, the thought experiment she proposes is quite apt.  -- Lovechilde

If Germany Had The Death Penalty:  A Thought Experiment

By Denny LeBoeuf, cross-posted from the ACLU Blog of Rights

Imagine it's 1976. A high crime rate afflicts German cities, and the government reinstates the death penalty. "We'll have the strongest possible protections for people accused of capital crimes, providing them with free lawyers, right to experts, investigators, appeals to higher courts, and trial by a jury of their peers. This is not the Germany of the Nazi Party. We will never repeat those terrible errors."

Now imagine that 30 years later, statistical evidence shows that Jewish citizens disproportionately get the death penalty; crimes by Jews against Christians are more likely to be selected for a capital prosecution; Jews are routinely excluded from jury service. Further imagine that prosecutors defend all this by saying that Jews shouldn't sit on capital juries because they are mistrustful of German authorities, and that the German high court has ruled that statistical evidence of discrimination against Jews is inadmissible in a death penalty case.

You see where we're headed. My guess is that most people can't get past the second sentence of this thought experiment, let alone past the discrimination against Jews.

Bryan Stevenson, whose idea this is, asks this of America: "Do we deserve to have a death penalty?" If Germany does not — and they emphatically believe they do not — then why do we? Think the parallels are forced? Not accurate? Really?

Consider this: before the Civil War, crimes against Black people in the South were considered only as property crimes against their owners. The Supreme Court issued its Dred Scott decision in 1857, finding that Blacks have "no rights which the white man is bound to respect." Within a few years after the Civil War, the criminal justice system became an engine to produce bodies — Black bodies — to work in the same agricultural fields they had tended as slaves, and in the burgeoning industries of the post-Reconstruction South.



Doug Blackmon's Pulitzer-winning book, Slavery by Another Name, carefully documents the re-enslavement of Black Americans after the Civil War — by a re-tooled criminal justice system that charged, convicted and sentenced freed slaves and their children, grandchildren and great-grandchildren based on the need for free convict labor — not on guilt, innocence, culpability or fair procedures.

Meanwhile, as Black people were being targeted by the criminal justice system for undeserved punishment, the very same system was protecting the vigilante members of white supremacist domestic terrorist groups like the KKK and the Knights of the White Camellia, who were allowed to commit murder, arson and property theft in the open, without fear of arrest or prosecution.

So if a criminal justice system functions to protect white criminals (the Klan) and convict Black workers (for convict labor) with little or no regard for innocence or guilt, what is the one thing that system cannot accommodate? The equal participation in the system of Black people. That means no Black people on juries — by law for many years and by unlawful and unconstitutional discrimination after that. It also means shutting out statistical evidence of discrimination, no matter how explosive, careful and well-documented, that would prove the system — up to and including the sentencing of a person to death — is tainted by race discrimination. That's according to McCleskey, decided by the U.S. Supreme Court 25 years ago.

As a part of a coalition of capital defense attorneys, earlier this year ACLU Capital Punishment Project attorney Cassandra Stubbs participated in the first-ever hearing under North Carolina's Racial Justice Act, which aims to reverse the harm of McCleskey by allowing capital defendants to introduce statistical evidence showing race is a factor in the administration of the death penalty.
The lawyers are challenging the death sentence of Marcus Robinson, a Black defendant convicted for the death of a white person, who was sentenced to death by a jury tainted by a racially biased jury selection process.

Faced with overwhelming proof that Black people are continually excluded from death penalty juries in North Carolina, the prosecutors in Robinson's case argued, essentially, that Black people tend not to trust the criminal justice system, and don't believe in the death penalty as much.

Now back to the thought experiment. Prosecutors in North Carolina argue that Black people, who have been deliberately excluded from and discriminated against by America's criminal justice system since the Civil War, are less likely to trust that system, and therefore it's okay to continue to exclude them from participating in it. Now let's answer Bryan Stevenson's question: Does the United States deserve to have the death penalty?

R.I.P. David Alan Gore

Roman Colosseum lit to protest an execution

On April 12, 2012, Florida executed David Alan Gore for the rape-murder of 17-year-old Lynn Elliott in 1983. Gore confessed to committing murders of three other girls and two women, for which he received life sentences.

The courts refused to grant a stay in order to consider claims of ineffective assistance of Gore's trial attorney and his post-conviction counsel.  The trial attorney representing Gore in his 1992 resentencing hearing (Gore's original death sentence was reversed), who has since been disbarred, failed to present evidence of Gore's alcohol, drug abuse and mental health problems or inform the jury of the unlikelihood that Gore would ever be released if he received a life sentence.

Gore's post-conviction counsel attempted to prove that trial counsel, Robert Udell, provided incompetent representation but when Udell claimed he wasn't lead counsel and it was another lawyer named Jerome Nickerson who was at fault, appellate counsel unreasonably failed to locate Nickerson. 

In a final statement, Gore apologized to Elliot's parents, saying he was "truly sorry for my part in the death of your daughter."  He said he had become a different person after becoming a Christian, and prayed for Mr. and Mrs. Elliot that they could find peace, concluding:  "I just want to say I have had a tremendous amount of remorse and pray you and your family can forgive me. God bless all of ya’ll."

This is the thirteenth execution in the United States in 2012, the second in Florida.

Evolving Standards Of Decency: Who's Next?

I have previously written about the phrase, "evolving standards of decency," which is used in Eighth Amendment jurisprudence to analyze whether a given practice is cruel and unusual.  While the Supreme Court has so far refused to find that capital punishment offends "the evolving standards of decency that mark the progress of a maturing society," there has been a strong trend away from capital punishment on the state level, as the death penalty is increasingly seen as too fallible and too costly to remain on the books.

Connecticut is on the verge of becoming the fifth state in five years to replace the death penalty (following Illinois, New Jersey, New Mexico and New York).  Yesterday, a bill passed Connecticut's State Senate.  It is expected to pass the House, and Governor Daniel P. Malloy has already agreed to sign it.

(The legislation would not affect the sentences of the 11 inmates now on Connecticut’s death row, although it should be noted that the state has executed only one inmate in the last fifty-one years; Michael Ross was executed in 2005, after he gave up his right to appeal.)

Who's next?  As the New York Times reports, "repeal proposals are also pending in several other states, including Kansas and Kentucky, while advocates in California have gathered enough signatures to put an initiative to throw out the death penalty before voters in November."

The SAFE California Act would replace California's multi‑billion dollar death penalty with life imprisonment without parole and require those convicted of murder to work and pay restitution to victim families through the victim compensation fund.  It would also set aside $100 million in budget saving for local law enforcement for the investigation of unsolved rape and murder cases.

Former San Quentin warden Jeanne Woodford points out that:  “Connecticut’s estimated $5 million in annual death penalty costs pale in comparison to California’s $184 million per year. Spending on the death penalty for the entire state of Connecticut comes to about 3% of what we spend in California in one year.”  As Woodford says, Californa's death penalty is a failed system "that is extremely costly, harms public safety and always carries the risk of executing an innocent person. We have over 700 death row prisoners in California. It is the largest and costliest system in the country ‑‑ and the world."

We, as a nation, are clearing evolving when it comes to the death penalty.  There continue to be fewer death sentences imposed and fewer executions carried out each year.  There are also fewer states retaining capital punishment.  

Who's next?  You can help make it be California by joining the campaign.  For more information click here.

Quotes Of The Day

"For me, the most compelling reason to reject the death penalty is to set ourselves on the path to the kind of society we really want for our future.  I want something better for our future.  We cannot confront darkness with darkness and expect light." 

Connecticut State Senator Gayle Slossberg (D-Miford)

"Today is a dramatic and potentially historic day because the Senate has ... an opportunity to correct the arbitrariness, the discrimination, the random haphazard approach to the application of our death penalty in this state.''

Connecticut State Senator Eric Coleman (D-Bloomfield)

“I cannot stand the thought of being responsible for somebody being falsely accused and facing the death penalty. For me, this is a moral issue and realizing that mistakes are obviously made.”

Connecticut State Senator Edith Prague (D-Columbia)