American Criminal Justice System B0rken, Film at 11

by Belle Waring on December 13, 2011

This excellent article from Mother Jones’ Beth Schwartzapfel details how a guilty rapist tried repeatedly to confess to a crime of which another man had been convicted, only to succeed after the innocent man had died. The ensuing exoneration was so complete that then-Governor Rick Perry had to issue a pardon to the dead man, not something Texas governors are generally inclined to do. Rick Perry’s faith in Texas’ system, however, remains serenely unshaken.

A string of devastating stories has put Texas justice, in particular, under a cloud. In addition to Cole’s postmortem exoneration and the execution of Cameron Todd Willingham, chronicled in The New Yorker in 2009, there is also the case of Anthony Graves, who served 18 years for a gruesome murder while the true killer confessed again and again. Graves was finally freed in 2010 following a Texas Monthly exposé.

Cole, Willingham, and Graves were all convicted under prior Texas governors. But Perry has done little to improve the state’s criminal-justice system, which has almost a million people in its grip. In 2001, he vetoed a bill banning the execution of the mentally disabled. In 2003, he cut the prison system’s budget by $230 million, slashing education programs, drug treatment, and food; when an independent auditor warned that was untenable, Perry cut the auditor’s office too. In 2007, his administration backed a bill making some child sex offenders eligible for the death penalty. While Perry has signed legislative reforms covering eyewitness identification and access to DNA testing, the system still offers scant options for the many people imprisoned for crimes they did not commit.

Radley Balko’s blog The Agitator remains an indispensable source of information on cases like these, as well as the uncountable cases in which the War on [Some People Who Use Some Kinds] of Drugs* has metastasized into a cancer that gets untrained local law enforcement rolling out in surplus military gear to perform ill-advised and pointless SWAT-style raids. (With tanks. No, really.) And shoot everybody’s dog when they get there. And maybe their grandmother. Seriously, don’t read the blog if you don’t want to hear about the cops shooting someone’s dog every goddamn day. His recent coverage of the OWS movement has been…how shall I say this…not all I would have hoped from a lover of liberty, but no one’s obliged to agree with me all the time, and it’s not as though it’s rendered the blog unreadable or something.

*Courtesy of Lawyers, Guns and Money. Like Sadly No!, we are aware of all internet traditions.

{ 44 comments }

1

bh 12.13.11 at 3:43 am

Radley Balko’s blog The Agitator remains an indispensable source of information on cases like these, as well as the uncountable cases in which the War on [Some People Who Use Some Kinds] of Drugs has metastasized into a cancer that gets untrained local law enforcement *and Shaq* rolling out in surplus military gear to perform ill-advised and pointless SWAT-style raids.

Sorry, thought that needed some nuance. You all should feel reassured now.

2

Antonio Conselheiro 12.13.11 at 3:46 am

There is also the case of Anthony Graves, who served 18 years for a gruesome murder while the true killer confessed again and again. Graves was finally freed in 2010 following a Texas Monthly exposé.

As Scalia has pointed out, finality and proper procedure are more important than unrealistic moralistic concepts like “justice”. Finality and proper procedure give closure to the victims and the community and allow the healing process to begin, reaffirming the stability of the public order and the inevitabilty of the legal process.

3

john b 12.13.11 at 3:47 am

At the risk of derailing the thread, even if the dude linked by BH had been the worst paedo since Fred West (rather than, as it turned out, innocent), I’m still struggling to work out the public interest in sending sports stars to join SWAT raids on suspected perverts.

4

Substance McGravitas 12.13.11 at 3:54 am

For a while there used to be a column in alternative weeklies called Police Beat in which all the news was about policemen committing crimes. I miss it.

In its place, I guess there’s Just Busted.

5

Robert Zimmerman 12.13.11 at 5:12 am

David Grann’s New Yorker article on Willingham is a fantastic piece of journalism. But even with all of that detail, he doesn’t quite plumb the depths of the rot, partly because a couple of the principal actors doubled down after the story came out. It was TV interviews in both case — I guess that’s where an idiot can really be an idiot.

John Jackson, the prosecutor, suggested to Nightline that Willingham was a devil worshiper who burned the shape of a pentagram into his floor. It’s kind of true — there’s a pentagram-like blob, with rays that point to the windows and the door, the sources of oxygen (I was kind of obsessed with this case for a while, so I have the forensic drawing and many many other details on my blog, linked above).

David Martin, Willingham’s lead defense attorney, told Anderson Cooper that he went out into his backyard, poured lighter fluid on a piece of carpet, and set it on fire. What was left looked just like Willingham’s floor, and to Martin that proved his clients guilt. Like Jackson, he has no doubt that the scumbag got what he deserved.

Martin and Jackson are Perry’s kind of people — superstitious, vindictive, and stupid. When Perry was getting a lot of heat about Willingham in fall 2009, one way he pushed back was with the fact that Willingham’s defense attorney believed that his own client was guilty. From the moment Willingham was arrested until he was murdered, the stupidity and ill will and hypocrisy is absolutely nauseating. Perry would clearly like to keep it that way. In those Balko articles there’s plenty of the same kind of thing — dull-witted abuse of power plus a lot of indifference creating a hell on earth called “justice.”

And there’s a final ironic connection between Perry and Willingham. Perry’s general council when he brushed off Willingham’s final appeal was David Medina. Medina was caught up in his own little arson case in 2008 (it was his wife who was charged with arson, he was charged with fabricating evidence). The fire at his house was suspicious in roughly the same ways as Willingham’s fire. Needless to say, he got a much better lawyer — I doubt that he’d let the likes of David Martin defend his dog. These days he’s sitting on the Texas Supreme Court.

6

Dr. Hilarius 12.13.11 at 5:36 am

The dog always gets it, even if it’s a golden retriever, wagging its tail with a tennis ball in its mouth.

The first injection of military hardware into domestic policing came under the Law Enforcement Assistance Administration within the US Dept. of Justice. In the 1970s little towns in Oklahoma were getting armored troop carriers. The LEAA money really started the whole SWAT mania. The subtext was punching hippies, protestors and potty-mouthed college professors.

This most recent wave of militarization is, of course, to fight the war on terror. Just this week the Discovery channel program “Sons of Guns” detailed the Baton Rouge sheriff getting an M-40 grenade launcher and heavy machine gun added to the department’s patrol boat. The Sheriff announces himself the first line of defense against terrorists. Now, I like an M-40 grenade launcher as much as the next guy but this is insane.

Almost none of the night-time SWAT raids by police make any sense. Not that long ago the Pierce Co. (Tacoma) sheriff’s office did a night raid, with all the black uniforms, kevlar vests and assault rifles, to get a guy thought to be a small-time marijuana dealer. Why they couldn’t arrest him in daylight as he walked to his car or just pull him over on the usual pretext of a dim license plate light was never explained. What happened was the dealer thought he was being ripped off in a home invasion. He shot at the black-clad figures who had just busted down the door. He was badly wounded and killed a deputy. County went for the death penalty. After being convicted on a lesser charge (the jury rejecting a mistaken self-defense argument) he was sentenced to a life sentence. I don’t recall if there was a dog to shoot.

7

Keith Kisser 12.13.11 at 6:26 am

john b @3:

I’m still struggling to work out the public interest in sending sports stars to join SWAT raids on suspected perverts.

It combines everything Americans love and respect: guns, brutality and celebrities.

8

Arijit 12.13.11 at 6:50 am

Here in Arizona, we have Steven Seagall to drive tanks through people’s home and kill not just the family dog, but hundreds of chickens, too.

http://www.forbes.com/sites/erikkain/2011/09/02/actor-steven-seagal-and-sheriff-joe-arpaio-dispute-puppycide/

9

dbk 12.13.11 at 7:14 am

For commenters interested in following this grim topic, one of the best sites I’ve discovered is solitarywatch, which started as a project by Washington and Lee Law School. The home page provides a long list of links to related sites. One of the (few) inspiring initiatives is that of the American Friends Service Community, specifically their “Healing Justice” project.

10

William Timberman 12.13.11 at 8:02 am

The paraphrase of Justice Scalia @ 2 is emblematic. Injustice as administrative necessity convenience. Some enjoy it, as Justice Scalia seems to, and some, like Barack Obama, clearly don’t. Should that make any difference to the victim?

This is a very bad movie we’re trapped in, and worse still, it isn’t a movie — not this time.

11

Joe 12.13.11 at 9:04 am

SWAT teams shooting family pets and knocking off grandmothers is the inevitable consequence of arming local police forces with surplus military equipment. All those absurd reality shows with over-the-hill action stars aren’t helping either. The whole thing is rotten to the core.

12

Belle Waring 12.13.11 at 9:11 am

Yeah, Shaq, that detail just makes it extra American. Isn’t Scalia on record saying that whoever got executed (in a case in which the wrong person is executed) had probably committed some other death-penalty-worth crime, so it was all good? What I don’t understand is why the prosecutors and DA’s etc don’t care that every time they lock up the wrong guy, the actual criminal is out there possibly committing more crimes. How could there be “closure” or “finality” for the family of a murder victim if they found out the murderer had just killed someone else’s daughter?

The person I also wonder about/feel for is the woman who wrongly ID’ed the man the rapist. You would feel so awful and also vulnerable knowing you let the real rapist get away…I don’t know how you would begin to apologize to him or his family; it’s like the rape had two victims.

13

JamesP 12.13.11 at 9:29 am

There’s a whole chapter on “misidentifying your rapist” in Kathryn Schultz’s “Being Wrong”

14

Murc 12.13.11 at 10:26 am

Radley Balko does incredible work when it comes our fucked up criminal justice system, and is worthy of our moral, and financial, support in this regard. He has made the world a better place for being in it. That said, I see people make this mistake all the damn time:

His recent coverage of the OWS movement has been…how shall I say this…not all I would have hoped from a lover of liberty

Balko is not a lover of liberty.

He is a libertarian.

There is a difference.

15

Davis X. Machina 12.13.11 at 11:14 am

Schrechlichkeit. The occasional execution of an innocent just shows we mean business.

16

Belle Waring 12.13.11 at 11:22 am

Murc: the implication is that he is not, perhaps, a lover of liberty in every regard. Dr. Hilarius: an M-40 grenade launcher and heavy machine gun? Are you fucking kidding me? Someone watched Red Dawn a few too many times. Well, when the Baton Rouge police department has to go out and shoot a bunch of black people fleeing New Orleans after the next Cat. 5 hurricane, at least they’ll be able to do it up proper.

The merging of the “War on Drugs” with the “War Against Terrorism” is about the worst thing to happen to American civil liberties since…um…we started killing US citizens abroad without a trial or even any charges? So, the worst thing in the last 10 minutes, but still really bad. It’s a money-maker for the defense companies and an effective penis-enlarging method for your local popos. Please contact your defense contractors if you have a SWAT raid yielding less than one ounce of pot and killing more than four dogs.

17

mw 12.13.11 at 12:15 pm

It’s good to see more CT focus on this. But folks on the left really need to give up the reassuring but false belief that this is primarily a partisan problem that can be blamed on Perry, Scalia, et al. I mean — is the justice system in Texas really worse than in Chicago?

http://news.medill.northwestern.edu/chicago/news.aspx?id=6125
http://www.chicagoreader.com/chicago/police-torture-in-chicago-jon-burge-scandal-articles-by-john-conroy/Content?oid=1210030

Which are the only two states where citizens recording police who are committing abuses in the line of duty is a felony wiretap offense? The answer is Massachusetts and Illinois, not Alabama and Mississippi. Columbia, Missouri — where the infamous dog-shooting Youtube SWAT raid took place — is a liberal college town. Am I saying it’s worse in ‘blue’ regions than ‘red’ ones? No — just not any better.

Lastly, one critical factor that hasn’t been mentioned so far is the impact of federal and state asset-forfeiture laws which make the war on drugs vastly profitable for law-enforcement agencies. Here’s the indispensable Radley Balko on the topic:

http://reason.com/archives/2010/01/26/the-forfeiture-racket/singlepage

18

Brett Bellmore 12.13.11 at 12:16 pm

In defense of Scalia, (And he’s not my favorite Justice.) on the face of it the constitutional guarantee of due process is a guarantee that the process be followed, not that it produce a just result. And ANY fixed process is going to have a failure rate. The only way to exclude the possibility of false positives is to drive the rate of false negatives to 100%. To have a legal system AT ALL is to accept that injustices will occasionally be done.

This is why we have executives who can issue pardons, after all. Because it’s the elected branches that are entitled to make ad hoc decisions, not the judiciary.

This is not to say that I’m particularly fond of the actual procedures we have in place. To put it mildly, I’m not. But as a general observation which applies to any conceivable set of procedures, I think he’s right.

In any event, what Scalia actually said.

19

marcel 12.13.11 at 12:29 pm

Brett: Your disclosureScalia, (And he’s not my favorite Justice.)” begs the question: Who is your favorite justice (as well as, perhaps, why)?

20

Belle Waring 12.13.11 at 12:39 pm

I see Brett as a Kennedy man; neutral, kind of fades into the background, sometimes makes the correct choice, other times throws in with Scalia et al.

21

rea 12.13.11 at 12:39 pm

on the face of it the constitutional guarantee of due process is a guarantee that the process be followed, not that it produce a just result

Sigh. Learned lawyers and judges have been debating the meaning o0f the due process clause of the 14th Amendment for more than 150 years now. Mr. Bellmore is oblivious to this debate, and thinks he can start over from the beginning with the words of the amendment and get a better result. Of course, neither Scalia nor just about anyone else with the expertise to offer an opinion we need to take seriously believes there is no substantive component of due process.

22

Brett Bellmore 12.13.11 at 12:44 pm

Thomas, actually. Not always right, none of them are, but less of a finger to the wind, probably because after that hearing he doesn’t give a damn if he makes anyone in Washington happy.

“Mr. Bellmore is oblivious to this debate, and thinks he can start over from the beginning with the words of the amendment and get a better result.”

Why, yes: I think that, as the legal system proceeds on it’s drunkard’s walk away from the written constitution, piling precedent upon precedent, it is occasionally useful to return to the actual text which is allegedly being interpreted.

23

Walt 12.13.11 at 1:01 pm

Brett, why does such bullshit have an attraction to you? The clear words of the Constitution do not mandate “any process, no matter how unfair,” and yet here you are, insisting that they do. What’s the appeal? Do you somehow get the sense that the knowledge that an innocent man was punished proves that the system works, since it means that the standard isn’t set too high?

24

Julian 12.13.11 at 1:19 pm

Brett links to a Scalia opinion, but I don’t think it contains the quote most people think of when discussing the “actual innocence” quote:

“This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”

Now, Scalia put hand bunnies around “actual innocence,” because when you take the hand bunnies off, it looks just like he’s saying that we can murder the innocent because nobobody at this petting zoo guaranteed results. However, with the hand bunnies on, he’s instead making a deep epistemological point about the limits of certainty. Hand bunnies!

This reminds me of Sasha Volokh leaping on board the “we wouldn’t have the constitutional authority to save the earth from an asteroid” bandwagon:
http://volokh.com/2011/02/15/asteroid-defense-and-libertarianism/

The law is not a mindless automaton. It operates through human discretion. If you think Thomas and Scalia are noble because they’re willing pitch in and ensure the steady operation of the machinery of death by “process,” your priorities are confused, because they contort like Mongolians (I saw a TLC show about how many contortionists are produced and trained in Mongolia) to avoid the relentless application of law on other subjects closer to their hearts.

25

Scott Martens 12.13.11 at 1:50 pm

Brett, you are just plain wrong. The whole point of substantive due process; the entire logic behind the privileges and immunities clause; the 14th Amendment (which forbids the states from depriving Americans of their fundamental rights as American citizens); and a whole line of deeply enshrined common law principle (entrenched by “reception statutes” in 49 of the 50 states, and implied in federal law by the 7th amendment) going back at least to Blackstone (“better that ten guilty persons escape than that one innocent suffer”) and even further to the 15th century English law text “De Laudibus Legum Angliae” (whose author probably stole the line from Maimonides); all weigh against your claim. Even Scalia admits sometimes that due process means procedures must be basically fair (i.e. McDonald v. City of Chicago) and not just in compliance with codified law.

26

Antonio Conselheiro 12.13.11 at 1:55 pm

I am so happy that my malicious and not completely accurate paraphrase found a supporter.

27

Steve LaBonne 12.13.11 at 2:04 pm

Fiat justitia ruat caelum.

28

Meredith 12.13.11 at 3:11 pm

Another angle on procedural issues: the underfunding of the entire judicial branch and the glut of cases wending their way through criminal court (war on drugs, mostly), a situation which only encourages judges to pressure the defense through various pre-trial rulings to agree to a plea bargain rather than mount a full defense. Also, the deference judges give to police testimony and to the prosecutor (Law and Order episodes notwithstanding). Also, the huge advantages the prosecution has re discovery in most states. Not to mention the obvious, the underfunding of public defenders. Even when all is done within the bounds of “proper procedure,” it hardly amounts to “due process.”

29

Anderson 12.13.11 at 3:33 pm

That bit from Scalia always makes me trot out Montaigne:

How many innocent people have we known that have been punished, and this without the judge’s fault; and how many that have not arrived at our knowledge? This happened in my time: certain men were condemned to die for a murder committed; their sentence, if not pronounced, at least determined and concluded on. The judges, just in the nick, are informed by the officers of an inferior court hard by, that they have some men in custody, who have directly confessed the murder, and made an indubitable discovery of all the particulars of the fact. Yet it was gravely deliberated whether or not they ought to suspend the execution of the sentence already passed upon the first accused: they considered the novelty of the example judicially, and the consequence of reversing judgments; that the sentence was passed, and the judges deprived of repentance; and in the result, these poor devils were sacrificed to the forms of justice. Philip, or some other, provided against a like inconvenience after this manner. He had condemned a man in a great fine towards another by an absolute judgment. The truth some time after being discovered, he found that he had passed an unjust sentence. On one side was the reason of the cause; on the other side, the reason of the judicial forms: he in some sort satisfied both, leaving the sentence in the state it was, and out of his own purse recompensing the condemned party. But he had to do with a reparable affair; my men were irreparably hanged. How many condemnations have I seen more criminal than the crimes themselves?

30

Watson Ladd 12.13.11 at 4:34 pm

How many people need to die before the police improve their lineup procedures? The DA’s know that these procedures are broken, but contesting them is an uphill battle because courts are reluctant to require more then they have in the past.

31

Hortense 12.13.11 at 5:06 pm

Like the Bork pun in the title.

32

tomslee 12.13.11 at 7:15 pm

Despite the self-described “malicious and not completely accurate” nature of AC’s paraphrase, there does seem to be a focus on the need to “give closure to the victims”. Closure has always seemed a dubious and unrealistically tidy concept, and its Wikipedia entry seems lacking in substance too.

Are there any solid reasons for making “closure” a goal of the justice process?

33

Watson Ladd 12.13.11 at 7:18 pm

tomslee, in civil cases a fast resolution enables people to decide what to do. When you can’t say who owns a farm or something else, it creates real problems that can destroy the value of the item in question.

34

chris y 12.13.11 at 7:54 pm

As a judicial principle, Fiat justitia ruat caelum has priority over Scalia by about two millennia.

35

Norwegian Guy 12.14.11 at 3:15 am

“In defense of Scalia, (And he’s not my favorite Justice.) on the face of it the constitutional guarantee of due process is a guarantee that the process be followed, not that it produce a just result. And ANY fixed process is going to have a failure rate. The only way to exclude the possibility of false positives is to drive the rate of false negatives to 100%. To have a legal system AT ALL is to accept that injustices will occasionally be done.”

Then I must assume Scalia is an opponent of the death penalty, right?

36

Brett Bellmore 12.14.11 at 11:58 pm

I am at a complete and utter loss how you could have concluded that from what I wrote.

37

Michael Drake 12.15.11 at 12:26 am

” it is occasionally useful to return to the actual text which is allegedly being interpreted.”

Quite right. So let’s not leave out one-half of the two words allegedly being interpreted. The word “due” is helpfully defined by Webster’s 1828 as “Owed; that ought to be paid or done to another,” and “Proper; fit; appropriate.”

That so, the phrase “due process” is thus ineliminably evaluative: while the plain text of provision might not require a just result, it does explicitly require a just process. And then of course one can meaningfully wonder how it is that procedures that generate a manifestly unjust result in a particular case can, as applied in that case, sensibly be characterized as “just.”

38

Brett Bellmore 12.15.11 at 11:48 am

Of course one can meaningfully wonder that, and there are numerous ways in which the American ‘justice’ system is unjust, and almost specifically designed to generate injustices. To point out my own personal hobby horse, the fact that the system does not compensate people who are put through it and found innocent is functionally equivalent to giving prosecutors the power to levy enormous fines without benefit of trial. Because the trial itself is the fine, if not compensated. No trial by jury can protect you from THAT power. (The grand jury is supposed to, of course, but has fallen victim to the legal system’s determination to render the jury system pointless by transforming jurors into the proverbial mushrooms.)

The point here, I think, is that the Constitution does not require a procedure which is perfect. To have a functioning legal system at all is to accept that there will be mistakes, that following even the procedure which is due one will result in an injustice. Because even a system which is, on the whole, just, (Not our’s, IOW.) will generate occasional injustices.

So that demonstrating an injustice is not to demonstrate unconstitutionality. You need something more. Now, I might disagree with Scalia whether in a particular case that something more has been met, but I agree with him on the abstract point he was making.

It’s impossible to close the circle, to make a perfect justice system. And it’s not the Court’s responsibility to attempt that. That’s why we have “pardons”, and if the pardon was unconscionably late, why, that’s not Scalia’s doing, is it? In this case, possibly not Perry’s either, given Texas’ unusual system of pardons, where the Governor can’t pardon somebody until a board approves of it.

39

Davis 12.15.11 at 4:05 pm

The point here, I think, is that the Constitution does not require a procedure which is perfect.

That’s not the argument here, however. The argument (at least as developed in this thread) is that the Due Process Clause of the Constitution requires a remedy if the evidence shows that a prisoner was wrongly convicted in a particular case. This isn’t an argument that the system has to be perfect; it’s an argument that the system has to correct its mistakes when they’re identified. In his habeas decisions, Scalia has made it clear that he doesn’t consider the continued imprisonment or execution of someone who the evidence shows to be actually innocent involves any constitutional violation.

Those of us who think that Due Process entails, in part, remedying clearly unjust results think that such cases present egregious constitutional violations. The text of the Constitution simply does not answer this question, and so for all his claims of “originalism”, Scalia’s position is nothing more than an illustration of his policy preferences. (Moreover, his public statements make it clear that he considers such results to be consistent with Catholic doctrine as well, which seems downright laughable to me; but I’m not a Catholic, so what do I know?)

40

ragweed 12.15.11 at 5:44 pm

tomslee – Closure for crime victims is an interesting subject. In terms of the criminal justice system, victims usually feel a sense of “closure” when the sentance is carried out. There is a sense of vindication – the guilty are punished for what they did. Every victim has a different experience and a different emotional response, so it is difficult to generalize, but one of the ironic things is that the death penalty can often make closure more difficult, because the appeal process drags out for so long. There is a lot of information on this from organizations like Murder Victims Families for Reconciliation.

dbk – the American Friends Services Committee has had a long record of really good work in this area. I have some books and reports they put out on prison reform, justice reform and the militarization of the police from the 1970s. Its been one of their issues since the 1960s, at least.

[As an aside, I once worked on a small committee started by one of the bomb-throwing radicals from the late 60s-early 70s. He had done many years in both state and federal prison for "liberating" funds from a bank, and had finally gotten out due to some legal technicalities. We were trying to get the last of his co-defendants out of prison on an executive clemency (all the rest of the group had served their time or been paroled - except for the one African-American, suprise, suprise). At one point he was telling us how supportive the AFSC had been in his defense and the defense of similar armed activists. He joked "Those Quaker pacifist were our biggest supporters for armed struggle."]

41

Norwegian Guy 12.16.11 at 4:28 am

“I am at a complete and utter loss how you could have concluded that from what I wrote.”

Well Scalia accepts that injustices will occasionally be done, since the legal system is imperfect. But since he isn’t opposed to the death penalty, this means he accepts that innocents will be executed, and that makes him a monster.

42

Sebastian H 12.16.11 at 5:13 am

Do you accept that innocents will end up in jail for the rest of their lives?

43

Dr. Hilarius 12.16.11 at 5:27 am

The idea that executive clemency serves to correct the mistakes of the criminal justice system has little reality. There is no constituency for crime or criminals. The federal courts in the US have been able to fix errors in the lower courts because the judges have lifetime appointments and are more insulated from political pressures. Governors will not risk votes by granting clemency. I recall reading that Gov. George Bush never even read any clemency petitions.

The 1996 Antiterrorism and Effective Death Penalty Act greatly reduced the ability of the federal courts to review errors by lower courts. This dramatic restriction on habeas passed the Senate and House by large majorities and was signed into law by Bill Clinton. In the wake of the Oklahoma bombing, no one wanted to look soft on terrorists. A plaintiff can have clear evidence of actual innocence but be unable to have a hearing on the merits.

Scalia can say there is no constitutional violation in executing an innocent person precisely because he gets to define the parameters of constitutionality. He easily could have found precedent to support some sort of safety valve in cases of actual innocence, at least in death penalty cases, but chose not to do so. Because he’s a nasty, cold-hearted bastard.

44

Martin Bento 12.16.11 at 9:33 am

Let’s call “closure” in criminal cases what it is: revenge. People have been seriously wronged and want the perpetrator to suffer – perfectly natural, nothing wrong with it, but nothing particularly noble. either. I buy tit-for-tat as a foundation stone of human moral instincts, and any system based on that has to include retaliation. But I think kidding ourselves that our vengeful instincts are food for our souls or a necessary part of making the world a better place, and pretty much only those things, is letting us get away with too much. We really should rethink long incarceration. It is extremely cruel, and our hypocrisies enable us not to see the cruelty of it.

Last time we went round on a topic related to this, someone argued that long incarceration did decrease the crime rate in recent years by keeping the criminals behind bars and not committing crimes for decades. In the course of the debate, I looked over the FBI Uniform Crime Statistics and discovered that this could not be a major factor, as most of the decline – proportionately, not just in absolute terms – was among youth, and there were no 18 year olds that had been in prison 15 years. It’s one of those things people believe intuitively that ain’t so. BTW, that was a long comment thread, and is an example of why I’m an apologist for long threads. I’ve learned things in long threads. A typical 25 comment thread is 25 off-the-top reactions to the OP, none building on one another. No one comes away knowing much more than they did coming in, from what I can see.

Comments on this entry are closed.