Executing Child Molesters

I wondered why this old post discussing Troy King’s plan to extend the death penalty to child molesters received a spike in traffic the last two days. It’s because in that post I also discussed the first court test of such a law, and yesterday that court – the Louisiana Supremes – upheld it, affirming a death sentence for Patrick O. Kennedy, who was convicted of raping his eight year old step-daughter.

I have not read the opinion yet (which you can find here), but it doesn’t matter what it says. This is almost certainly going to Scotus. Well, to Justice Kennedy; everyone already knows exactly how all the other Justices will rule, so every brief will essentially be written to him. What will he do? Like I said in the earlier post, I’m betting he says it’s unconstitutional. I just can’t see the guy who authored the abominably bad Roper decision voting to expand the death penalty.

And if he does strike it down, that’s fine with me. Not because I care about the substantive issue, but because outside of Steve Spurrier (and maybe Baghdad Bob), no-one is more entertaining in defeat that Justice Scalia.

Afternoon Updates

First, the Decatur Daily reports today:

Three former Alabama Supreme Court justices are asking the country’s highest court to hear the case of Alabama death row inmates who say they don’t have adequate legal representation, but the state is arguing the inmates’ claim is “a work of fiction.”

I explained here that Alabama does an extremely bad job of providing attorneys to convicts on death row. Basically, if those folks want an appointed attorney, they have to first convince a judge that they have a valid claim. Stating a valid claim, though, requires extensive investigation, legal research and writing; in other words, stating a valid claim requires a lawyer. So, as the Tuscaloosa News put it today:

Inmates who are condemned to die have to convince a judge that they need legal representation to protect their rights and to prove that they have a substantial claim for an appeal.

But a suit filed by six death row inmates says they can’t make those cases effectively without an attorney. There’s a circular quality to their argument. They need a lawyer to convince a judge that they need a lawyer.

So the state is just wrong when it says that Alabama provides indigent capital defendants lawyers for post-conviction proceedings. That said, the state is going to win the lawsuit. No way is Scotus going to force the state to set up some kind of indigent program for post-conviction proceedings.

Second, the B’ham City counsel - only a few weeks after several members proudly declared their ignorance and homophobia - has just voted to adopt a new version of a resolution condemning, among other things, homophobia. An official declaration that gays are something other than the cause of the end of the world? Jerry Falwell must be spinning in his grave. Or wherever he is.

Third, once a terrorist, always a terrorist:

Victims of Eric Rudolph, the anti-abortion extremist who pulled off a series of bombings across the South, say he is taunting them from deep within the nation’s most secure federal prison, and authorities say there is little they can do to stop him.

Apparently, he’s writing nasty stories and sending them to fans who publish them on the web. He’s been doing so for quite a while; here’s my post on a similar report from a few months ago. Whether or not the prison authorities can prohibit the letters, like I said in the earlier post, the letters certainly justify Rudolph’s continued stay in a SuperMax prison.

Finally, a case I mentioned here is about to climax:

The owner of an adult store in Decatur launched her final appeal Monday against a state ban on selling sex toys, asking the U.S. Supreme Court to throw out the law as an unconstitutional intrusion into the bedroom.

Alabama’s Mike Nifong

I first posted about him here. Today, the Decatur Daily has an update.

In a nut shell, back in 2005, Assistant Attorney General Don Valeska – the chief of Troy King’s violent crimes division – knowingly hid favorable evidence from the defense and then lied about it to the court. When the truth was revealed, the judge responded by dismissing the state’s case. Alacrap reversed that action, but still granted the defendant a new trial.

So now Valeska is whining that the judge is biased. Right. Here’s some of the judge’s response:

“He can lie to me personally all he wants, but I will not allow him to lie to the court,” [Morgan County Circuit Judge Glenn] Thompson stated in a response he filed with the state Court of Criminal Appeals.

Thompson explained.

“Throughout the trial of the case, the defense counsel repeatedly requested that they be given access to material collected by the Decatur Police Department and submitted to the FBI, as well as any information provided by the FBI to the Decatur Police Department. Knowing full well that his representations to the Circuit Court of Morgan County were untrue, Mr. Valeska repeatedly represented that no such material existed,” Thompson’s response states. . . .

The judge explained his position on dismissing the capital murder charges against Moore.

“This court found that the actions of Assistant Attorney General Valeska representing the state of Alabama were so egregious that the only appropriate remedy under the law and the facts was to dismiss the charges pending against the defendant.” . . .

Also, Thompson commented on Valeska’s courtroom behavior.

“He refused to turn off his cell phone and after warning, allowed his cell phone to ring in court repeatedly,” Thompson stated. “It is my recollection, although I am not certain of the exact number, that on at least six occasions Mr. Valeska’s cell phone rang in open court. This court refrained from finding him in contempt although after each session he was repeatedly warned not to allow his cell phone to ring in court.”

Thompson further stated in his response that Valeska would be treated fairly in his courtroom during Moore’s second trial.

“I can assure the Court of Criminal Appeals that Mr. Valeska, if he appears for the re-trial of Mr. Moore, has nothing to fear from this court so long as he tells the whole truth without parsing words and turns off his cell phone,” Thompson stated. “Not only will the state of Alabama get a fair trial but the defendant will also get a fair trial.”

Biased? Only against attorneys so confident in the righteousness of their position that they think they can lie, cheat, or steal in order to win a case.

House Upholds Important Judicial Campaign Tool

Story here:

The state House of Representatives on Thursday rejected a bill that would have let juries, not judges, decide whether people convicted of capital murder should be put to death or serve life in prison without parole.

Under current law, juries give advisory verdicts in capital cases, but judges can override.

If a jury recommends the death penalty, a judge can impose a sentence of life in prison without parole. If a jury recommends life in prison without parole, a judge can impose a death sentence.

What the story does not mention is that when judges use override, nine times out of ten they use it to reject the jury’s life recommendation and impose a death sentence.

Whether or not to impose a death sentence is a serious question, one that ought to be answered by a person who is completely free of any outside influences. In a state that chooses judges through partisan elections, that person is not the judge.

That Ignorant Barbarians Support The Death Penalty . . .

Does not mean supporting the death penalty makes you an ignorant barbarian. 

But thanks anyway Mr. Bruton for giving the bloodthirsty and foolish among us – i.e. Troy King, vel sim – a great way to caricature anyone who wants to reform Alabama’s death penalty system. Henceforth, anyone who questions it as it stands will be labelled as some kind of America-Hating, One-World-Government-Loving, Tea-Sipping, European Sissy Pants. Go back to Europe and preen, please.

Indigent Defense In Capital Cases

The Tuscaloosa News has had two recent articles (here, and here) discussing Alabama’s death penalty system. They don’t say anything new, really, but are worth emphasizing.

Basically, both articles discuss the inadequate manner in which Alabama provides defense attorneys in capital cases and the ways in which that problem is exasperated by the manner in which Alabama appoints lawyers for appeals.

The first thing to get straight is that if there is a systematic failure to provide adequate attorneys, that would be a major problem. Our legal system is adversarial. We trust that if both sides have an equal opportunity to argue their case that the truth will be the result. But if one side is somehow prevented from adequately presenting its case, then the system won’t work properly. The decision-maker (the jury) will only hear one side of the story. Maybe that side was the right one, maybe not, no-one will ever know because no-one ever heard the other side. The important thing is to make sure that both sides are fully and vigorously presented.

So the question becomes whether or not Alabama has failed to ensure that the defense’s side is adequately presented. That seems to be the common wisdom, and my experience confirms it. We’ve handled several post-conviction cases where trial counsel was obviously unprepared.

That is not to say the attorneys were bad attorneys. They may have been excellent attorneys. But trying a capital case requires an enormous amount of resources. The attorney has to be an obstructionist; she has to raise every possible argument against every move by the state. At the same time, the defense attorney needs to know everything about the client, and also needs to know the significance for trial of everything about the client. That requires investigations and experts. It is very expensive to properly try a capital case.  

Alabama, though, pays defense counsel forty dollars an hour for out of court work and sixty dollars an hour for in court work. As for experts, you’ve got to go beg the judge for extra funds. In order to adequately defend the capital case, the attorney needs to dedicate a huge portion of his time to it, and at those rates, that just is not possible. The result is cut-rate defenses.  

I do not think the solution is better pay. Rather, it would be to establish a centralized group whose only job is defending capital cases. Then the attorneys will not only have the expertise to properly defend, but they will have all the time and resources they need to carry out that defense. They won’t have to worry about bringing in enough money to pay for secretaries, and electricity, and still put food on their tables.

The Tuscaloosa News has another article discussing how this type of program has worked in Georgia:

Firefighters pulled four charred bodies out of the wood clapboard flophouse on Troup Street in/sValdosta, Ga., after a white-hot blaze in October 2005 melted windows up and down the block and left the house a smoldering heap.

Within hours, Cynthia Allen was arrested for setting the fire and thrown in jail.

Georgia prosecutors soon will present a jury with a simple argument: She did it. She must die.

It would be an easy case if it weren’t for Boyd Young and his colleagues. They intend to make the jury’s choice — life or death — much more difficult.

As Allen’s lawyers, they’ve spent months combing through the wreckage of her life, trying to follow clues that might demystify her behavior.

What explains the vacant look in Allen’s eyes, and her tendency to answer the simplest questions with rambling incoherence? Is there more to the stories in Valdosta/sthat cast Allen as an aggrieved tenant of the flophouse and a constant target of violent physical and mental abuse?

These hints point toward a dreadful existence for Allen, stretching as far back as her childhood in a dangerous New Orleans housing project.

Chasing down those clues is taking Young and his colleagues on an arduous and emotional journey through a world thick with poverty, dysfunction and tragedy.

They’ve essentially become Allen’s biographers, documenting every important facet of her life and preparing to explain it — and why it matters — to a jury.

This is how they’ll defend her, because it’s the only choice they have.

“Cynthia is just not somebody who belongs on death row, not even close,” Young said. “That’s what we’ve got to prove.”

This is the new face of capital defense in Georgia.

Allen’s lawyers work for the Office of the Georgia Capital Defenders, a state-funded, centralized operation of well-trained lawyers and investigators who were assembled in 2005 to handle nothing but the state’s death penalty cases.

In each case, the office assigns at least two attorneys and a full-time investigator. One attorney is on staff; the other is typically a private practice lawyer from the town where the case is being tried.

They spend what’s necessary. They do what’s necessary. They work every case as if it were their only one. . . .

Their record: 23-0.

Some may object to this because it means fewer executions. There is no point arguing with a person who raises that objection.

Others may question the cost of such an office. To that, I say I do not know. The state would no longer be spending money on individual appointments. It would also save on appellate litigation, as the better representation at trial will make the appeals much less complicated. But I’m sure the expenses would exceed these savings. So the question becomes how much we are willing to spend to make sure the death penalty is fairly administered?

By fairly administered, I don’t mean simply making sure we don’t kill innocent people. I mean making sure we kill only people who are guilty and who truly deserve to die. When Alabama executes someone, that person’s blood is on all of our hands. I, for one, am willing to pay a fairly high price to make sure that blood is justified.

More Capital Punishment News

The ACS blog highlights this article by Alabama attorney Bryan Stevenson:

One day, the fog of fear and anger will lift enough in America for capital punishment to be abolished. Perhaps on this clearer day, we’ll reconcile our rhetoric about human rights and compassion with mass incarceration, torture and excessive punishment. Maybe we will reject the arrogance that justifies executions simply because our government believes it has the power to kill. Most likely, an improved climate will expose the bizarre bureaucracy of state-sanctioned killing as an unreliable, inaccurate and profoundly unfair system that is simply too costly and burdensome to continue. However the day comes—and it will come—I hope we get there soon. The longer we tolerate the mistakes, discrimination and abuse of power that characterize the modern death penalty, the more we sustain a legacy of indecent brutality that compromises the evolution of human rights in this country and around the world.

He makes valid points, but I also think he overstates his case. I disagree, for example, with his statement that “Killing someone to prove that killing is wrong is the illogical, ill-conceived response of people who have power but no vision.” I have no qualms with the principle of penalizing death with death. Some crimes are so heinous that the only appropriate response is death, and it if anyone is “illogical” it is the person who invokes platitudes about human dignity in order to save a person who has just demonstrated the ultimate contempt for human dignity by committing murder. Sorry, you can’t have it both ways.

That said, if all I knew about the death penalty was that Bryan Stevenson opposed it and Troy King supported it, I would be in the prohibition camp.

Activist Judge

Regular readers know I think that term is a load of crap, and that I have very little patience for anyone who uses it, because – no matter who invokes it – what it invariably means is nothing more than “this judge made a decision I do not like.” But, if there is any case in the world where a judge actually has imposed his own views on an unwilling populace, it’s this one:

Brandon Deon Mitchell was sentenced Wednesday to death for a Thanksgiving Day 2005 triple murder after the judge overturned the jury’s 10-2 vote for life without parole.

The intro to “Law & Order” notwithstanding, in the criminal justice system the people are represented by the jury. And this particular jury heard all the evidence, considered all the arguments, and decided that no, in this particular case death was not appropriate. Then one elected judge in a rabidly death penalty state decides that his own opinion is better than that of ten jurors.

This is not a unique occurrence. Alabama law lets the judge override the jury’s recommendation for life or its recomendation for death. Judges use that power all the time. But they almost always use it like the judge did in this case: Ninety per cent (90%) of the time judges use the override, they use it to reject the jury’s pro-life decision and impose a death sentence.

Like I said, I think this is bad policy. I see no reason whatsoever to trust a judge’s decision more than the collective wisdom of the jury, especially not when that judge has to run for re-election in a state that is extremely pro-death penalty. I also think it is unconstitutional.

Basically, before Alabama can execute someone, Alabama has to do three things: 1) convict the person of a capital crime; 2) prove beyond a reasonable doubt that at least one “aggravating factor” to that crime was present; 3) demonstrate that the aggravating factor, or factors, outweigh any existing mitigating factors.

Its absolutely settled that the first two things are the sole province of the jury. If the jury says no on either, then that’s it, no death penalty.

The unsettled question is who gets to decide the third question. Most states have given that task to the jury alone. Alabama, by allowing judicial override, has said either the judge or the jury. In other words, in Alabama, there can be no death penalty if the jury votes nay on one or two, however, if the jury says yea on one and two, then, even if the jury says nay on three, the judge can impose death if the judge himself decides the aggravating factors outweigh the mitigating factors.

I think that is unconstitutional.

Over the last few years, Scotus (Scalia in particular) has re-invigorated the sixth amendment right to a jury trial by holding in several cases that facts essential to a penalty must be found by the jury beyond a reasonable doubt. That was the idea behind the end of the mandatory federal sentencing guidelines. It’s also the idea that made the second factor a question for the jury.

Now, here’s why I think that idea should also eliminate judicial override. Facts essential to the penalty must be found by the jury beyond a reasonable doubt. All three factors – capital crime; existence of an aggravating factor; aggravating factors outweigh mitigating factors – are essential to the death penalty. Hence, they all must be found by the jury beyond a reasonable doubt. That would mean the judge can not decide the third any more than the first two. If the jury says no death, that’s it, no death.

The objection to my analysis is that the weighing process is not a factual determination, but a moral judgment incapable of being subjected to standards like beyond a reasonable doubt standard. My response would be that beyond a reasonable doubt is not a quantitative measurement, but an expression of confidence. So it would be perfectly appropriate to apply it to the weighing process. Before the state can impose death, the jury must say that it is convinced beyond a reasonable doubt that death is appropriate.

That’s just my view on the current state of conlaw and its application to Alabama’s death penalty procedures. Regardless of whether you agree with me on that or not, I think we can all agree that as a matter of policy, we ought to get rid of judicial override. If twelve of our peers decide death is inappropriate, what is there to complain about?

Death Penalty News And Views

First, the news.

You remember Troy King’s promise to introduce legislation that would extend the death penalty to child molesters? Well, it does not mention King’s proposal - maybe because King thinks “The ABA is a liberal, activist organization with an agenda they constantly push“  -  but the American Bar Association Journal has an article this month discussing similar laws in other states.  The intro:

No one in the United States has been put to death for a crime other than murder since 1964.

But if the state of Louisiana has its way, convicted child rapist Patrick O. Kennedy would become the first inmate in more than four decades to be executed for a crime in which the victim wasn’t killed. The state supreme court is expected to decide Kennedy’s fate this year.

In pressing for Kennedy’s execution, prosecutors also have put Louisiana on a collision course with the U.S. Supreme Court, which in 1977 banned executions of rapists who don’t kill. That means prosecutors and politicians in states with similar laws likely will follow Kennedy’s case as it winds its way through the system toward an all but certain date with the justices.

As with any legislation, this raises two questions: Is it a good idea? And is it constitutional?

As for the first, the article does a good job summarizing the pros and cons. All I’ll say is that I find troubling this language by an Oklahoma Democrat who sponsored one of these bills:

“We allow the death penalty for someone who has killed a body. We shouldn’t allow someone who has killed a soul to escape.”

Equating damage to ”the soul” with damage to “the body” would be a very radical departure from the current state of the law. Would mere insults now be sufficient to imprison someone for battery?  And what about proof? Would the state need expert testimony about the viability of the victim’s soul? Who would that be? A psychiatrist? A pastor? Or could the victim testify to her own deadness? Also, what does this say about the victim? She is no longer a person? Should we now cast her out into the wilderness?

Then again, we have capital punishment because the Bibe says an eye for an eye, so why not adopt the Bible’s rule for child rape? After all, “the Judeo-Christian God [is] the source of our law and liberty.” Deuteronomy 22:28-29 lays  out that God’s plan for child rape:

If a man happens to meet a virgin who is not pledged to be married and rapes her and they are discovered, he shall pay the girl’s father fifty shekels of silver. He must marry the girl, for he has violated her. He can never divorce her as long as he lives.

How’s that for good ‘ol Judeo-Christian/traditional/family values? 

Then again, given our state’s recent Constitutional Amendment barring gay marriage, the Bible’s rule for child rape would pose perhaps insurmountable problems where the attacker and the victim were the same sex. 

Anyway, to the constitutional issue. As the article points out, in the 1976 case of Coker v. Georgia, Scotus held that executions for rape violated the Eighth Amendment ban on cruel and unusual punishments. The rape victim in Coker, though actually 16, was called an adult in the opinion, whereas the new laws extend the death penalty to the rape of children. The argument will be whether or not that is a distinction with a difference.

The result? Well, to start, Scalia, Thomas, Alito, Roberts, Ginsburg, Stevens, Souter, and Breyer can all take the day off. We all know right now – and they all know right now – exactly how they will rule in the case. The first four will say hang ‘em high; the latter four will say no way. That leaves Kennedy as the decider. My guess? His vote has recently done much to limit the application of the death penalty, so I’ll tentatively guess he’ll vote no.

Now, the views. Yesterday I posted a clip of Saddam’s execution set to the music from Benny Hill and asked if it was bad taste or insightful commentary. I think it is the latter, on two levels.

The Tuscaloosa News today highlights the first.

The hanging, with its hooded, taunting goons and cramped, makeshift gallows, resembled the snuff films terrorists were routinely putting out at the beginning of the Iraq war as they beheaded prisoners for shock value.

And if you don’t think the execution showed not the strength of the Iraq government and the “democracy” we are trying to foster there, but its weakness, consider this: the actual noose that was placed around Saddam’s neck is now reportedly in the possession of none other than Shiite leader Muqtada/sal-Sadr, and not the government of Iraq.

Ridiculous is the only word I could think of to describe the execution. It made a complete joke of the entire trial that led to Saddam’s death. Like the editorial says, if our goal in Iraq is stability and the rule of law, that execution set us back quite a ways. I thought the video captured this very well.

But the video speaks to more than just Iraq. Albert Camus famously observed that if the death penalty is supposed to deter crimes, then the government “would give executions the benefit of the publicity it generally uses for national bond issues or new brands of drinks.” In other words, rather than hiding the execution inside the walls of a prison and allowing less than a dozen people to see it, we ought to have every execution occur in full public view.

Every time Alabama executes someone, it ought to be done in the open. Perhaps on the grounds of the courthouse where the condemned was convicted. Here in B’ham, that would be the middle of Linn Park. We could turn off the fountains and set up the gallows in their place. If you worked in City Hall, the Courthouse, or some of the adjacent office buildings, you could watch it without even going outside. And in case anyone missed it, it ought to be released on video. Just like Saddam.

In short, if we want the death penalty to deter – or if we even want an honest discussion of what we are all doing when we execute people - than we all must see things like this as they happen:

And this:

And this:

Think of the many benefits of having things like that occur in public.

As they argued that the death penalty is essential to a civilized society, death penalty proponents would be able to point at the severed head, or dangling corpse, or bullet riddled body, or smoking eyes, whichever the case may be.

It would greatly deter crime. Surely someone in the audience would think something like this: “I was planning to go out tonight and indulge in illegal drugs as a means of coping with the abuse I endured as a child, and then when someone insulted me, I was going to get into a fight with them, and when the affects of the abuse, my temper, and the fight combined to push me over the edge, I was going to kill the guy and take his wallet. But I guess now I won’t do that.”

The friends and family of the killer’s victim would feel much better with this scene as the closing and finale of their tragedy. How comforting it will be for them in the future to recall such images.

And what of the friends and family of the killer himself?  The public execution will also teach them important lessons.

Sure, the executed killer was at one time a newborn child. Maybe his parents even loved him. Perhaps he even requited their love. Could be some folks continued to love him even as he was executed in full view of the entire world.

Well, even if that is the case, none ought to pity them. The execution is also the fault of the parents. The Bible clearly teaches (Proverbs 22:6):

Direct your children onto the right path,
      and when they are older, they will not leave it.

So if the child departs, then obviously it is because the parent failed to put them on the right path. The execution will remind all of us as parents to diligently discipline our kids.

Some may object that their child is unruly, and will never obey. Well, the Bible has something to say about that as well (Deuteronomy 21:18-21):

“If a man has a stubborn and rebellious son who will not obey the voice of his father or the voice of his mother, and who, when they have chastened him, will not heed them, then his father and his mother shall take hold of him and bring him out to the elders of his city, to the gate of his city. And they shall say to the elders of his city, ‘This son of ours is stubborn and rebellious; he will not obey our voice; he is a glutton and a drunkard.’ Then all the men of his city shall stone him to death with stones; so you shall put away the evil from among you, and all Israel shall hear and fear.

Hence, if the excuse is an unruly child, then the state is simply doing what the parents ought to have done long ago. Again, the public execution will remind parents that they ought to go ahead and do their Biblical duty, rather than letting the state one day do it for them. It’s called personal responsibility.

Shockingly Bad Taste? Or Poignant Social Commentary?

Benny Hill meets Saddam Hussein: