Criminal Justice

  • June 2, 2014
    Guest Post

    by Frank Housh, owner of Housh Law Offices, PLLC, and chair of the ACS Western New York Lawyer Chapter. He participated in the preparation of the petition for a writ of certiorari in Johnson v. Texas, 509 US 350 (1993), a case related to the issue of the intellectual capacity of the defendant in a capital case.

    The Supreme Court’s May 27 decision in Hall v. Florida makes clear that fundamental notions of human dignity and the validity of the scientific method axiomatic in developed nations of the 21st Century have found no purchase by the majority of the Court. As a nation which still executes its own, the United States remains a peculiar outlier in the international order; the fact that our constitutional jurisprudence still tinkers with the obsolete machinery of death drags down the rule of law below the minimum standards of the world community.

    In 1989, a 5-4 Supreme Court in Atkins v. Virginia held that executing the “mentally retarded” was a violation of the Eighth Amendment. “Mentally retarded,” however, remained undefined in the decision. What followed was a macabre race to the bottom among the states, including Florida’s bright-line standard that funneled those capital defendants with an IQ of 69 or less to life without parole and those with a score of 70 and above to the gallows (Freddie Lee Hall scored a 71). Unfortunately, that race continues, as Hall does little to clarify the issue.

    Hall had two holdings: first, the more palatable “intellectual disability” is the phrase of choice over “mental retardation;” second, IQ score alone cannot be the final and conclusive evidence of the defendant’s intellectual capacity because “experts in the field would consider other evidence” due to the presence of a “standard error measurement.” No further guidance was given as to what constitutes a constitutionally permissible scheme to determine the the minimum standard of intellectual function necessary to strap someone to a gurney and shoot poison into them until they die.

  • May 12, 2014

    As education inequality increases, hostilities between public education and charter schools continue. Although many charter schools were established to “develop test kitchens for practices that could be exported into the traditional schools” it has “proved difficult to encourage the kind of sharing of ideas that charter schools were originally supposed to foster, given competitive dynamics.” Javier C. Hernandez at The New York Times comments on “charter and public schools and a chasm between.”
     
    Garrett Epps at The Atlantic describes a troubling scene which resulted in the shooting of an innocent man when a law enforcement official mistakenly accused him of car theft. In his article, Epps breaks down Tolan v. Cotton, in which for “the first time in a decade” the Supreme Court “held against law enforcement in a ‘qualified immunity’ case.”
     
    Adam Liptak at The New York Times discusses how “the deep and often angry divisions among [Supreme Court] justices are but a distilled version of the way American intellectuals — at think tanks and universities, in opinion journals and among the theorists and practitioners of law and politics — have separated into two groups with vanishingly little overlap or interaction.”
     
    The controversial execution of Clayton Lockett raised new questions about the merits of capital punishment in America. Boer Deng and Dahlia Lithwick at Slate explain why “in the push to abolish capital punishment, opponents of the death penalty have made it less safe.”
     
    Last week, an Arkansas state trial judge struck down the state’s ban on same-sex marriage. Lyle Denniston at SCOTUSblog breaks down Wright v. Arkansas

     

     

  • May 7, 2014
    Guest Post
    by Joseph Thai, Watson Centennial Chair in Law and Presidential Professor of Law, University of Oklahoma College of Law
     
    If there is a silver lining to the rushed—and botched—execution of Clayton Lockett last week in Oklahoma, it is the national soul searching that it ignited over the place of the death penalty in our society. The public post-mortem has appropriately spotlighted the means by which the state attempted to kill Lockett—the injection of a secretly procured drug cocktail that failed to put him to death in the “humane” manner intended, but instead caused him to writhe in agony for over half an hour before he died of a traumatic heart attack. But hidden in plain sight was another troubling dimension to the double execution Oklahoma had planned for that night, with the second now on hold. Both condemned men were black.
     
    The mug shots of Lockett and the other condemned prisoner, Charles Warner, splashed across the front pages and screens of news outlets across the nation. They stared out at the viewer, expressionless, but not lifeless, bound to the same fate, and bound by race.
     
    It is no secret that race infects the death penalty. In the landmark case of McCleskey v. Kemp, which involved a challenge to capital punishment in Georgia as racially biased, the Supreme Court in 1987 acknowledged that capital sentencing “appears to correlate with race.” In fact, the correlations drawn by a seminal study of the death penalty in that southern state were stark: among them, a defendant was 4.3 times more likely to draw the death penalty if the crime involved a white victim rather than a black one, and the racial combination most likely to result in the death penalty was a black defendant and white victim. The Court rejected the challenge in a deeply divided 5-4 ruling, accepting that “apparent disparities in sentencing are an inevitable part of our criminal justice system,” but reasoning that “the Constitution does not place totally unrealistic conditions on its use.”
     
  • May 7, 2014
    Guest Post

    by Vincent Southerland, Criminal Justice Practice, NAACP Legal Defense and Education Fund

    America is finally starting to take its first small steps on the path to curing its decades-long addiction to mass incarceration. Recently, the nation’s top law enforcement officer, Attorney General Eric Holder, testified before the United States Sentencing Commission and called for reductions to federal sentences for certain drug offenses. In doing so, Attorney General Holder declared that “over-reliance on incarceration is not just financially unsustainable, it comes with human and moral costs that are impossible to calculate,” a statement many of us—who for years have been raising the alarm bell about America’s mass incarceration problem—have long known to be true.

    Attorney General Holder’s comments strike at the heart of the problem: mass incarceration has devastated African-American communities, families, and lives all around the country. Sustained changes to the policies and attitudes that created this epidemic, however, are the real key. In order for that change to happen, our nation’s moral orientation with mass incarceration and criminal justice will have to adjust accordingly.

    At bottom, criminal justice reforms need to be driven by the moral imperative of repairing all that is wrong with the current system. As advocates for change, we must make sure that the reform narrative includes the human costs of mass incarceration and a broken criminal justice system, not just the concern over dollars and cents. The Moral Monday movement—a multi-issue, grassroots, multiracial campaign active in the courtroom, streets, and the ballot box—offers a salient example of how ethics and the lived experiences of real people can drive change and incite action. The movement shifted North Carolina’s political discourse toward morality while focusing on individual stories and the damage done to real people by real, and unjust, policies.

  • May 6, 2014

    by Jeremy Leaming

    Oklahoma lawmakers sparked debate over the death penalty and provoked a much-needed discussion about the importance of impartial courts last week when one of two planned executions went horribly awry.

    State officials, including Gov. Mary Fallin, pushed for the execution of two death row inmates even though the Oklahoma Supreme Court had stayed the executions arguing that more information was needed to determine whether the state’s new combination of drugs for killing death row inmates passed constitutional muster. That pressure led to the state supreme court lifting its stay and resulting in the bungled execution of Clayton D. Lockett. (Lockett died of a massive heart attack more han 40 minutes after state executioners attempted to kill him.) The second execution was temporarily put on hold.

    In a piece for the Tulsa World, Joseph Thai, the Presidential Professor of Law  and Watson Centennial Chair in Law at the University of Oklahoma College of Law, blasted lawmakers for working to keep the methods of execution secret.

    “Though I am both a law professor and a lawyer, I write as an Oklahoma citizen and taxpayer. Our state executes more of its citizens per capita than any other state. Because Oklahoma imposes capital punishment on behalf of its citizens, and because its taxpayers bear the costs, the state must not shroud its executions from public scrutiny.”

    Thai added that as “Oklahomans, we may disagree with each other – and with the rest of the country – on the morality, efficacy and fairness of the death penalty. But in a civilized society, hopefully we can all agree that, as long as our state puts human beings to death, it should do so without unnecessary pain and suffering.”

    Read Thai’s entire piece here and register for an ACS May 7 call featuring Slate’s Dahlia Lithwick and death penalty expert Megan McCracken on how impartial courts can help ensure that state lawmakers carry out executions without trampling constitutional rights and principles.