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July 3, 2008

My (already dated) musings on the SCOTUS criminal docket

Though I wrote this piece a while ago and have not had a chance to update it recently, now finally appearing at this link at SSRN is a draft of a short piece of mine complaining about the Supreme Court's tendency to consider on the merits too many death penalty cases and too few other cases.  (These complaints should be familiar to regular readers, but this draft has a lot more footnotes and a few new ideas than my usual blog grumbling.)  The piece is titled, "A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death'," and here is the abstract:

In a lecture at the University of Chicago, U.S. Supreme Court Associate Justice Stephen Breyer highlighted that he has two jobs: the first job, he explained, is deciding what to decide, and the second job is then to decide what the Court has decided to decide. Many devote careers to analyzing and criticizing exactly how Supreme Court Justices perform their second job of deciding the cases the Court has decided to decide; far less attention has been devoted to analyzing and criticizing exactly how Supreme Court Justices perform their first job of deciding what to decide.

This commentary directs attention (and criticism) toward the Justices' performance in their first job of deciding what to decide in the arena of criminal justice. This commentary contends the Supreme Court has recently done a poor job setting its own agenda and its failings have had a negative impact on state and federal legal systems. Specifically, the Supreme Court has become caught up in a "culture of death": the Court devotes extraordinarily too much of its scarce time and energy to reviewing death penalty cases and adjudicating the claims of death row defendants. As the title of the commentary is intended to suggest, this phenomenon a "capital waste" that results in various problems for the administration of both capital and non-capital sentencing systems.

Beyond criticizing the Supreme Court's troublesome affinity for obsessing over capital cases, this commentary explores under-examined agenda-setting dynamics that shape the Court's engagement with legal issues and its work-product. In addition, as a final coda suggests, changes in Court personnel might prove to be as consequential with regard to how the Court sets its docket as with regard to how the Court resolves cases.

Because this piece is very much a work in progress (and needs to be updated to reflect the last few months of SCOTUS activity), I am eager to get feedback and reactions via comments or e-mail.

July 3, 2008 at 02:13 PM | Permalink

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Comments

Thanks for this. I've followed this aspect of your blog posts with interest and I look forward to reading a more extended treatment of the issue.

Posted by: anonymous | Jul 3, 2008 2:33:35 PM

Also, minor typo in the abstract (last word of this):

the second job is then to decide what the Court has decided to decided

Posted by: anonymous | Jul 3, 2008 2:35:14 PM

"Exonerated by DNA, Patrick Waller is released from prison (today)

“I’m free.”

Patrick Waller, 38, said those two words when he called his North Carolina relatives after being released from prison this morning. He had spent more than 15 years in prison for crimes he did not commit."
Houston Chronicle

Not a death penalty case, but another in a growing line of evidence that error is too endemic to accept the finality of death in the criminal justice system. Death is different.

This one is a dp case:
Execution of man on Texas death row since 1984 stalled again (today)
LIVINGSTON — A state district judge has signed an order halting the date of the lethal injection execution of Texas's longest-serving death row prisoner, a Dallas television station reported.

WFAA-TV reported Wednesday Lester Bower's July 22, 2008 execution date was stayed by state District Judge Jim Fallon on Tuesday. Fallon's order grants Bower's prolonged request for a court to decide whether cigarette butts and strands of hair found at the murder scene, will undergo DNA testing, the station reported.

"Well I'm happy about that," Bower, 60, told the station. "Anytime you can get the date stopped, get the system stopped... I've been waiting 24 years for a court, any court, anywhere, just to hear the evidence."

Surprise, surprise - both in Texas.

Posted by: peter | Jul 3, 2008 4:29:53 PM

peter, the second story is kind of useless.

I'm not sure what the first one is meant to show. Now that DNA testing has progressed to the point it has, perhaps that's a reason for more death sentences, as we can now be even more confident in a conviction that's been verified by DNA evidence.

Posted by: | Jul 3, 2008 4:46:53 PM

This post is timely because I was thinking about this issue last night.

One big issue is that the court doesn't get to decide what to decide in a vacuum. It has to take what it can get from the various appeals that are made to it. And the procedural histories and underlying fact situations of the various cases do not make it easy or simple for the court to form a logically consistent 'agenda,' especially when you have so many different personal and political agenda embodied in the justices themselves.

I agree with you that there are areas of the law that are neglected. But the only way I see this being remedied is by the court addressing more cases; not simply by somehow doing a better job of cherry picking cases. And as Tom Goldstien over at SCOTUSblog has shown, the recent trend of the court is to take less cases, not more.

D

Posted by: Daniel | Jul 3, 2008 6:40:18 PM

Peter:

Where there is any arguably serious doubt of guilt, don't execute. Where there isn't -- which is the case for hundreds of these convicted killers -- there exists, obviously, no innocence-related resson to disrespect the jury's judgment.

Posted by: Bill Otis | Jul 3, 2008 10:07:03 PM

Doug,

I don't disagree in theory with your belief that the Supreme Court spends too much on death penalty cases. The solution to that is to eliminate the death penalty. Then it would spend no time at all on those cases, which is the proper amount.

As long as the death penalty exists, however, the Supreme Court--the institution that has the supreme responsibility in our nation for enforcing constitutional dictates--has a duty to carefully review death cases. After all, rare is the case that has higher stakes: literally, the very life a citizen and one of the parties. When the Supreme Court denies certiorari in a death penalty case because there is not a circuit split or because the constitutional question presented is not interesting--even though the circuit court got the constitutional question wrong--a grave injustice has occurred: a citizen's unlawful death. The unlawful killing of a citizen by the State is always intolerable in a democracy. The Supreme Court should therefore grant cert more often in death cases, not less.

Bill,

When the State does not play fair (almost every case), e.g., by suppressing evidence or coercing an involuntary confession, the jury has been deprived of relevant information (or given false information). When a decision is reversed for the State's failure to play fair, it is not "disrespecting the jury's judgment." It is recognizing that the State tricked the jury, and that a new jury that has not been so hoodwinked should be able to decide whether guilt has been proved beyond a reasonable doubt.

Posted by: DK | Jul 3, 2008 11:04:57 PM

"Doug, I don't disagree in theory with your belief that the Supreme Court spends too much on death penalty cases. The solution to that is to eliminate the death penalty. Then it would spend no time at all on those cases, which is the proper amount."

Now this is a novel theory of constitutional adjudication: In order to correct its misguided management of its own time, the Court has the authority, which it should use, to nullify the capital punishment laws of 37 states and the federal government, notwithstanding that capital punishment has been declared, in Gregg v. Georgia, to be permissible under the Eighth Amendment.

New version of Article III: "The judicial Power of the United States shall be vested in one supreme Court, which may stike down such laws as it sees fit in order to remedy its mismanagement of its own time."

Far out.

Posted by: Bill Otis | Jul 4, 2008 12:23:07 AM

Bill,

You may want to reread what I wrote.

Posted by: DK | Jul 4, 2008 12:29:03 AM

"When the Supreme Court denies certiorari in a death penalty case...even though the circuit court got the constitutional question wrong--a grave injustice has occurred: a citizen's unlawful death."

An execution carried out under a court order that has been subject to review in the court of appeals can hardly be "unlawful" whether one agrees with the appellate judgment or not.

Of course abolitionists view EVERY appellate judgment affirming a death sentence as having gotten the "constitutional question wrong," since in their view (consistently rejected for decades by the Court, Congress and the electorate) the Constitution bars capital punishment.

How neat it must be to feel that simply by defining one's position as correct it ipso facto BECOMES correct.

Far out. Again.

Posted by: Bill Otis | Jul 4, 2008 12:38:45 AM

"Bill, You may want to reread what I wrote."

I QUOTED what you wrote, which is more than you did for me, despite my repeated requests, in our recent (and unfinished) discussion of my supposed position on government health plans.

Posted by: Bill Otis | Jul 4, 2008 12:53:06 AM

DK:

I hope you will join me on this Fourth of July in celebrating the birth of our country -- a land of astounding generosity, decency and opportunity; a beacon to the world; and the dreamed-of destination for immigrants from across the globe, many of whom literally risk their lives to get here.

In that regard, let me quote Professor Alan Kors of the University of Pennsylvania, who recently addressed the hold-your-nose attitude of contempt for the country embraced by so many elitists in the privileged class:

"Faced with the accomplishments of their own society, however, Western intellectuals have the sensitivities of the princess and the pea. In the midst of unparalleled social mobility, they cry "caste." In a society of unparalleled bounty, they cry either "poverty" or "consumerism," depending on the moment of the economic cycle. In a culture of ever more varied, self-defined, and satisfying lives, they cry "alienation." In a society that has liberated women, racial minorities, religious minorities, and sexual minorities to an extent that no one could have dreamed possible just 50 years ago, they cry "oppression." In a civilization of boundless private charity, they cry "avarice." In an economy in which hundreds of millions have been free riders upon the risk, knowledge, capital, and military sacrifice of others, they cry "exploitation." In a society that broke, on behalf of merit, the seemingly eternal chains of station by birth, they cry "injustice." ###

Jeremiah Wright and his ilk to the contrary, we should thank our lucky stars to be living here.

Posted by: Bill Otis | Jul 4, 2008 1:14:39 AM

Bill
What ever claims you may make for the credibility of the process of criminal justice today (and many of us would argue with that!) does not remedy the errors of the past, many of which were perpetrated through junk science (albeit in some cases only apparent today), prejudice, inadequate investigation, reliance on false testimony/identification, poor defense, etc. Most people will accept that these ARE problems of the past, yet the long queues of people sitting on death row around the country have little chance of redress for those errors. Who is to say where there is arguable doubt? Before the advent of DNA testing, still incidentally not given as a right, who knows how many innocent people have lost their lives? Not you, not Bush, not Scalia. No-one seeing the cases developing today, some arising from dna testing, others arising out of other rigorous post-trial investigation (by third parties), can claim that error does not exist or that it is so small as to be insignificant and therefore acceptable.
Ultimately, the debate about whether the Constitution allows the death penalty or not is irrelevant - just as it was for the issue of slavery or womens rights, etc. Is anyone truly in doubt that the Framers would have provided protection to US citizens had they appreciated the levels of inefficiency and error, randomness and prejudice, revealed by science and other study? That protection can only be provided by the abolition of the death penalty. July 4th may swell our pride in America - but let's not get carried away that the achievements you list are unique to us. Like it or not, we are inextricably bound to our neighbors and friends around the world - many whose culture and history we share - and who look upon our ties to the death penalty with incredulity and horror.

Posted by: peter | Jul 4, 2008 3:06:02 AM

Peter:

You raise important points. I addressed some of them in a recent on-line debate I had, hosted by the Federalist Society. I'm going to adapt my answer from that. It's long, and I apologize for that, but the question is sufficiently grave that a long response is warranted.

The question is whether, if there were proof, instead of mere insistence, that an innocent person had been executed in the modern era, I would become an abolitionist.

I would not, for several reasons.

First, while the state's taking the life of an innocent person is, to say the least, an extremely bad thing, the real world demands that we ask: what are the alternatives?

In the wake of 9-11, we launched a war in Afghanistan, knowing that we would wind up killing hundreds or perhaps thousands of innocent people -- which has happened, and will continue to happen as long as we are engaged there. Our citizens know this, but support the war against al Qaeda by a considerable majority.

Why?

Because the alternative is worse.

The killing of innocent people that the war entails is acceptable because of what we get for it, namely, the disruption of terrorist infrastructure. Something similar was also true in World War II but on a far larger scale. We killed thousands of innocent Germans and Japanese, including children, knowing full well what we were doing. We did it anyway, because the alternative was worse -- a fascist empire ruling the world.

Accordingly, whether we should bear the moral cost of creating the risk of killing the innocent is not, as abolitionists surmise, a question that answers itself. It depends on what we get in exchange.

This trade-off is recognized in ordinary law as well. The law of self-defense permits an individual (including a police officer acting as an agent of the state) to use deadly force when he reasonably, though mistakenly, believes he is facing an imminent threat of serious bodily harm or death. The reason we permit police and others to kill even when they are wrong is that we want to preserve their right effectively to defend themselves in the far more numerous instances when they are right.

The same recognition of unhappy but justified trade-off's applies to the death penalty. (Indeed, in view of the accumulating evidence that capital punishment saves hundreds of lives through deterrence, one could argue that it is justified by a fairly straightforward application of the principles of societal self-defense, see Sunstein, "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs," 58 Stan. L. Rev. 703 (2005) (with Adrian Vermeule)). We know how to reduce the risk of executing the innocent, and we have done so to an astonishing degree. Not for nothing is there no consensus proof that we have executed an innocent person in the modern era. There is no judicial process IN THE WORLD as rigorous, painstaking and demanding as the process in this country for putting someone to death.

At the same time, we value a justice that, in extreme cases, can say "enough" and make it stick. There are still the John Couey's, John Allen Muhammed's, and Timothy McVeigh's of this world. No sober person questions their guilt. Abolitionists notwithstanding, the desire to execute them does not take root in a petulant anger, much less barbarism. The desire to execute Couey & Co. is, instead, the desire for the only punishment that fits. A mere term of imprisonment, no matter how long, for a person who repeatedly rapes and buries alive a nine year-old child is incongruous to the point of absurdity.

Preserving society's right to impose the death penalty, even knowing that there is a (miniscule) risk of executing the innocent, is, in short, worth the justice we get in exchange.

I would add only one more point about the questions of fallibility and error. Some abolitionists have shown that they understand the importance of trade-off's. Indeed they have invested considerable energy of late arguing that the cost trade-off's between the death penalty and life without parole clearly favor the latter.

At the same time, and curiously, they have not addressed a far more important trade-off. That is the trade-off between lives that may be lost to the fallibility of judges and juries versus those we know have been lost to the fallibility of prison administrators and security personnel.

If we abandon capital punishment, the sometimes very strong, and sometimes very clever, killers who would have been executed are not going to disappear. They are going to prison. Those who work in prisons provide as much security as they possibly can, since they don't want to fall victim to a direct attack, or get hurt (or killed) having to intervene in a fight among inmates or inmate gangs. But even with the strongest incentives to make prisons safe, it cannot be done infallibly. Indeed, more than 100 defendants found guilty of capital murder since Gregg was decided WERE IN PRISON WHEN THEY KILLED THEIR VICTIMS. (I am putting to one side here the dozens of additional murders commited by inmates who escaped or were erroneously released).

The point abolitionists miss is that human fallibility, and its sometimes fatal consequences, cannot be avoided no matter what remedy the law applies. Human fallibility is inescapable. The only sensible question is how to manage it in the way that minmizes the risk of losing innocent life. The record over the last 30 years shows that we are massively more likely to see the deaths of innocent people if we keep determined killers alive and kicking in prison than if we execute them.


Posted by: Bill Otis | Jul 4, 2008 8:47:18 AM

So much moral depravity on display...

For people like Bill, guilt and innocence are really irrelevant. Bill divides his countrymen into two classes of people: "criminals" and "law-abiding." While this conceptualization of the world is philosophically indefensible, and appears to be but a thin overlay for racism, it is nonetheless a widespread phenomenon in America. While I do not know if it happens in other nations, I would wager a bet that, if it does, it is much more pervasive in the U.S., which seems to have become especially sick over the last three decades as Bill's political cohorts have unfortunately been given the reigns. Indeed, this phenomenon was even the driving force behind Justice Scalia's opinion in Heller.

Under this framework, even innocent people can be "criminals." For example, a poor black person from the black part of town who wears saggy pants. Many exonerees have in fact had criminal records (that's why the State framed them in the first place). Those that don't nevertheless almost always (1) are black and (2) come from the same poor environment as those that do (hence their huge disadvantage when the State accused them of the crime). By the lot that divide their countrymen in two groups, these people are filed under "if he didn't do this, he did something." He is, therefore, a "criminal."

Because people like Bill operate under the delusion that they can kill their way out of the problems their economic and social policies have created, all these "criminals" are fair game for the death penalty, whether they ever committed a murder or not. The value he places on these people's interest in their very lives is very slight. They're expendable.

Bill is confident that he--and people like him--will never get the short end of the sticks he is doling out. You can rest assured that if Bill ever found himself on death row for a crime he did not commit, he would instantly repudiate everything he wrote above. You see, Bill has no real principles. But he knows enough about how the system operates to know he will never be in that unfortunate circumstance. So he is left free to posture at will.

Posted by: DK | Jul 4, 2008 11:26:42 AM

For people like DK, every criminal thug, but particularly the murderous ones, are all innocent. DK does not divide his countrymen at all. He views them all as equal, whether child rapist or Red Cross volunteer. While this conceptualization of the world is philosophically indefensible, and appears to be but a thin overlay for his love of criminals, it is nonetheless a widespread phenomenon among the Left. While I do not know if it happens in other nations, I would wager a bet that, if it does, it is much more pervasive in the U.S., which seems to have become especially sick over the last three decades as DK's political cohorts have unfortunately been given the reigns on the Supreme Court. (see Boumedienne v. Bush, Roper v. Simmons,...etc.) Indeed, this phenomenon was even the driving force behind Justice Kennedy's opinion in Kennedy v. Louisiana.

Under this framework, even criminals can be innocent. For example, a child rapist from Louisiana. Everyone scheduled for execution was tried by a jury of his peers, has an average of 10 years' worth of appeals, enjoyed the presumption of innocence and the high standard of proof that comes with it. By DK's blithe ignorance of such facts, these people are filed under "anyone charged with a crime must be framed by those evil prosecutors." He is, therefore, worth defending.

Because people like DK operate under the delusion that the more criminals out on the street the better, all criminals are innocent, regardless of the strength of the evidence and the due process they enjoyed. The value he places on the victims is non-existent. They do not even add up to being an after-thought.

DK is confident that he--and people like him--will never get the short end of the sticks he is doling out. You can rest assured that if DK ever found his children raped, he would instantly repudiate everything he wrote above. You see, DK has no real principles. But he knows enough about how the system operates to know he will never be in that unfortunate circumstance. So he is left free to posture at will.

You see, 2 can play at this blathering game.

Posted by: realist | Jul 4, 2008 11:56:58 AM

DK:

Having in recent days brazenly lied about my position -- twice -- you are scarcely in a position to resume the show now.

Not that this will stop you.

Just to be clear: You do not know me and you do not speak for me. My positions can be found in what I write, not in what you write.

This most recent screed of yours does not even attempt to analyize the post to which it ostensibly responds. It is, instead, a re-hassh of the Marxist, class-is-everything line that has you so entranced. You are right now running way ahead in the contest to be the johnny-one-note of this blog.

News flash: Marxist economic determinism was discredited a very, very long time ago. Time to find a different theme.

You're a remarkably rude and bitter man, and a dishonest one to boot. You routinely pour out your bile, not just on me, but on people who have done more for the country than you have or ever will. You do this from the cover of anonymity, a cover I don't seek and have never used.

I invited you to join me in celebrating the Fourth of July. I thought that for maybe one day, just one day, you could appreciate the gratitude we all owe to those who went before us to give us a land of freedom and opportunity that we (and that includes me) did little to earn.

Your typically snarling response shows that this is not to be. It's a shame.

Posted by: Bill Otis | Jul 4, 2008 12:25:48 PM

realist:

Your response was ten times better than mine.

Drat! But thanks.

A happy Independence Day to you.

Bill

Posted by: Bill Otis | Jul 4, 2008 12:33:07 PM

Bill
I thank you for your full and frank response. I accept that you and many others believe the points you have made. I judge many of them wrong both in fact and in relevance. In fact, the only basis on which you could truly believe them as a whole is if you are prepared to believe that, as a society, the US is fundamentally different from all others in this world. It patently is not. The bulk of its population comprises immigrants and the sons and daughters of immigrants. America is not so old, or so divorced and isolated from the rest of the world, that it comprises a population as distinct from all others, as would Martians if they existed. The obsession that America is different is wrong, and probably dangerous - both for our relations with the rest of the world, and for ourselves, as we give ourselves a false identity.

Taking your points (roughly)in order:
"What are the alternatives?"
The alternatives exist in all those nations that have abolished the death penalty. It is pointless to pretend they do not exist. For certain, some of these can be seen to be more successful than others. But equally certain is the fact that when measured against us, it is apparent they are more or equally successful.

You refer to 9/11 and the consequential war in Afghanistan. America, with Allies, went to war to achieve what? Retribution for the loss of life for an abominable act of terrorism? To eliminate terrorism? To achieve "the disruption of terrorist infrastructure"? Was that action really proportionate? Of course not. Was it effective? Of course not. As a war against terrorism it has been spectacularly unsuccessful, and America and its Allies remain under just as much threat, and arguably more so, than if the war had not begun. Certainly we have killed many innocent Afghan people. You may find that merely regrettable, many others find it immoral and incomprehensible. Our allies, incidentally, are more likely to justify their involvement on the basis of a war against the drugs trade. But even on that, the level of success is questionable. So, what have we got in exchange? In September 2006, the UK newspaper, The Independent, published an article entitled "The bitter legacy of 9/11", and reported:
2,973 Total number of people killed (excluding the 19 hijackers) in the September 11, 2001 attacks

72,000 Estimated number of civilians killed worldwide since September 11, 2001 as a result of the war on terror

2 Number of years since US intelligence had any credible lead to Osama bin Laden's whereabouts

2,932 Total number of US servicemen and women killed in Afghanistan and Iraq since September 2001

1,248 Number of published books relating to the September 11 attacks

$119m Ticket sales for anti-Bush documentary Fahrenheit 9/11

I doubt you will be keen to update those figures today.

You then try to suggest that the act of the death penalty is somehow a "self-defense" against killers, and compare it to the license we give to police officers to carry and use weaponry, to kill if necessary. (Funny (as an aside), when involved in foreign conflicts we are always eager to disarm "civilian" populations. At home, we expand the rights to own and use weapons.) In fact, the evidence suggests that the carrying of weapons by the police is not of itself a deterrent to crime, and that officers may themselves be at greater risk from policies that protect or extend gun ownership. An MSNBC headline a year ago said "Police deaths up sharply in first half of year.
Officials blame more violent criminals with deadlier guns after lapse of ban. Some of those weapons, like the widely feared Intratec Tec-9, were banned until 2004, but they became legal when Congress refused to extend the Violent Crime Control and Law Enforcement Act of 1994, even though President Bush, an opponent of gun control, promised to sign an extension."

So is the death penalty a more effective form of self-defense than incarceration? The true answer is that it needn't be. Less crowded, better managed and more humane, secure accommodation can ensure parity. Better education and preparation for post-incarceration re-entry to society for some, will minimize incidence of recidivism.

"There is no judicial process IN THE WORLD as rigorous, painstaking and demanding as the process in this country for putting someone to death." That may be, but most of our closest allies do not have a process for putting someone to death, so it is a rather empty statement.

"the accumulating evidence that capital punishment saves hundreds of lives through deterrence". There is no such evidence, merely statistical exercises that are open to peer criticism, and that mostly themselves admit fallibility. No-one has yet explained why in those states that have the death penalty, the rates of murder are not less than those who have not; and in some cases are substantially greater.

"The point abolitionists miss is that human fallibility, and its sometimes fatal consequences, cannot be avoided no matter what remedy the law applies." I think this actually is something that you fail to grasp. We cannot eliminate risk in virtually all aspects of life. What gives us the right to knowingly put at risk innocent people in a death penalty machine run by the state? Risk management can demonstrably be better handled as those who have abolished the death penalty can show us if we are prepared to open our eyes and see.

Posted by: peter | Jul 4, 2008 1:28:38 PM

Anyone willing and able to kill an innocent person even after 10 years of that person's appeals protesting his or her individual innocence (as Bill acknowledged he is, see his first post in this thread) is about the biggest monster around and a far biggest threat to our way of life than any terrorist.

Posted by: Anon | Jul 4, 2008 3:00:36 PM

Anon:

"Anyone willing and able to kill an innocent person even after 10 years of that person's appeals protesting his or her individual innocence (as Bill acknowledged he is, see his first post in this thread) is about the biggest monster around and a far biggest threat to our way of life than any terrorist."

I wonder if we are reading the same blog.

My first post in this thread reads in toto as follows: "Where there is any arguably serious doubt of guilt, don't execute. Where there isn't -- which is the case for hundreds of these convicted killers -- there exists, obviously, no innocence-related resson to disrespect the jury's judgment."

Where in that post do I say that I'm "willing and able to kill an innocent person?" Actually, I say pretty much the opposite -- that WHERE THERE IS ANY ARGUABLY SERIOUS DOUBT ABOUT GUILT, DON'T EXECUTE.

As for this "monster" stuff, you're late. DK has already plowed that field.

Now I could say that you're the "monster" for proposing a sentence of imprisonment, knowing full well that prisoners can and do kill while incarcerated, that this has happened dozens of times, and that on account of the inescapable fallibility of prison administrators, it will always be thus. Executed killers, on the other hand, never kill again.

But I'm not going to call you a monster, because that is not in keeping with a civilized debate. It's just a way of blowing smoke. I will, however, call you mistaken.

Posted by: Bill Otis | Jul 4, 2008 4:24:21 PM

I can only go back to the Patrick Waller case that Peter referenced in this blog. He was just released after 15 years in prison for a crime he did not commit. He was exonerated by DNA. He is the 19th man in Dallas County since 2001 to be exonerated by DNA evidence after being convicted for crimes they did not commit. He was identified by the four people who were adbucted (three from photos, and one in a line up).

This is the odious part. In 2001 he requested DNA testing and the DAs office opposed the request. The judge denied the request. In 2005 he was again denied. In 2007 the new DA Craig Watkins granted it.

I tend to think this is egregious prosecution.

Posted by: beth curtis | Jul 4, 2008 5:18:57 PM

We have rule of law in this country. Once a person has been convicted, he is, by definition, guilty. Therefore, the question is not why Mr. Waller was not given a DNA test. The question was why a man who enjoyed the presumption of innocence but was convicted by a jury of his peers nevertheless deserved a DNA test.

Any criticism of the criminal justice system must begin with the fact that it was the system that set him free. He was not liberated by his lawyer who broke him out of prison.

Therefore, indictments of the entire system seem impossibly silly. The reality of this system is that it is staffed by human beings, thus capable of making mistakes. The beauty of this system is that it is self-correcting. The fact that this system includes multiple layers of review is to prevent the worst kind of mistake. Mr. Waller is not the first person to be wrongly convicted and I doubt he will be the last. If people have constructive suggestions about how to improve the system, I (and your legislatures) look forward to hearing them. If people like DK and Anon simply want to hurl invectives, as I just demonstrated, 2 can play at that game, though it will be to the benefit of none.

Contrary to their feverish imagination, we do not take pleasure in the conviction of the innocent. We also cannot avoid noticing the hypocrisy of the other side. Whenever a criminal has been executed, what we see are complaints against the system even though it is essentially the same system that sets people like Mr. Waller free. Can peter explain why the system is to be trusted whenever it sets people free but why it can't be trusted when it executes someone? Such selectiveness give rise to the suspicion that some people don't care about the integrity of the system at all. They simply care about setting criminals free. I don't see how this kind of myopia is any better than the stereotypical overzealous prosecutor. In fact, I'm inclined to say that they deserve each other.

peter can dig up examples of criminals who were set free by DNA tests. I in turn can find plenty of examples when the DNA test convicts rather than acquits. Not surprisingly, people like him tend to be remarkably silent on that subject, as if the DNA test can only acquit. peter can find examples like Mr. Waller. I can find examples of criminals who have been set free and promptly go off and kill again. (Do the names Willie Horton and Richard Allen Davis ring a bell?) If isolated examples like Mr. Waller suffice to convict the whole system, do examples like Horton and Davis show that anybody released from prison must be a murderer?

Posted by: realist | Jul 4, 2008 8:06:13 PM

Bill said, "Where in that post do I say that I'm "willing and able to kill an innocent person?"

When you said that if an innocent person got the death penalty, your views on killing people generally (ie capital punishment) wouldn't change. Once you admit that killing an innocent person wouldn't change your views, then you're willing and able to kill an innocent person.

Actually, I say pretty much the opposite -- that WHERE THERE IS ANY ARGUABLY SERIOUS DOUBT ABOUT GUILT, DON'T EXECUTE.

And who gets make the decision about whether there is any arguably serious doubt? I say we leave it up to the inmate.

Posted by: Anon | Jul 4, 2008 11:53:57 PM

Peter:

You don't get it, Bill's type of people aren't the ones who end up on death row running the risk of wrongful execution - the privileged & politically connected. He can afford to be flippant and cavalier about the risk of executing the innocent as he, his kin & his kith aren't the ones that will have to sit in a cage, wrongly convicted, wondering when their chances of freedom will run out. Even with the longest sentence imaginable the wrongly convicted know where there is hope, there is life.

Posted by: karl | Jul 5, 2008 12:36:05 AM

karl:

A while back, weren't you upbraiding me for using ad hominems?

Since then, your comrade-in-arms DK has called me a racist, a monster and a murderer.

Where is your post upbraiding him for that?

I'll be waiting for your answer. In the meantime, let's have a look at your latest entry (which is ad hominem not just toward me, but, in a real class move, toward my family as well):

"Bill's type of people aren't the ones who end up on death row running the risk of wrongful execution - the privileged & politically connected...."

Actually, my "type of people" -- whoever that is -- don't wind up on death row because they don't commit murder. If you have evidence that they do, or reasonably could be suspected of doing so and escape prosecution on account of "privilege," I'd be interested to see it.

So where is it?

"He can afford to be flippant and cavalier about the risk of executing the innocent as he, his kin & his kith aren't the ones that will have to sit in a cage, wrongly convicted, wondering when their chances of freedom will run out."

I just love seeing how absolutely rote it is with you that death row consists of innocents. You know this is false, but it never stops you from hewing to the party line.

There will be erroneous convictions (and erroneous acquittals) in any conceivable system, including LWOP. So I wish you'd quit being so flippant and cavalier about the fact that under the your preferred alternative, in which convicts eventually will die in jail, they'll be forced "to sit in a cage, wrongly convicted, wondering when their chances of freedom will run out."

The key item of evidence you never mangage to come up with is a single case in which any neutral and authoritative body has found that an innocent person has been executed for at least 40 years.

Well, now wait, there was one case -- Roger Kieth Coleman. In that one, finger-wagging abolitionists told us for more than a decade that DNA testing would prove that Coleman was innocent. They did this right up to the moment that DNA testing proved he was guilty. They then quietly slipped away, never to mention Coleman again, and, more to the point, never to take responsibility for the sulfuric and false accusations they made against Coleman's prosecutor, judge and jury.

But what's one innocence hoax when you can do another in a jiffy?

"Even with the longest sentence imaginable the wrongly convicted know where there is hope, there is life."

I think you mean to say, "where there's life, there's hope." And that's true. Where, for example, convicts are not executed, they have the hope of murdering again, and they do it all the time. Indeed, as I said earlier in a statement that has not been disputed, since Gregg was decided in 1976, more than 100 people have been murdered in jail by inmates housed there. (It's probably lots more than 100, but that's the only figure I can verify).

It is no answer to say that prisons should be made safer. Sure, the more safety the better, but prisons will never be infallible any more than trials are infallible. There simply IS no system that can be guaranteed to preserve all innocent life. The only realistic question is what system does best at preserving it. (This is the trade-off you falsely characterize as flippancy).

By any measure, a system in which gruesome killers get executed -- even with its risks -- is more likely to preserve innocent life than a system of imprisonment that not only creates a RISK that innocent people will be killed, but that we know for a fact HAS RESULTED in incomparably more deaths of innocent people than the modern death penalty is even accused of doing.

Posted by: Bill Otis | Jul 5, 2008 10:36:56 AM

Mr. Otis, if only life were so simple. See this previous blog post by our host: "Could tough three-strikes laws increase crime?"

Posted by: George | Jul 5, 2008 3:20:57 PM

George:

The purest form of simplicity I've seen on this blog is from death penalty abolitionists, who would bar capital punishment no matter what the facts of the case, no matter how incontrovertible the evidence of guilt, no matter how many times the killer has done it before, no matter if he's already serving a life term for a previous murder, no matter if it's a contract killing, no matter anything.

Would that life were so simple as to have a one-size-fits-all answer on capital punishment no matter what facts are.

Posted by: Bill Otis | Jul 6, 2008 9:19:09 AM

Is there any way we can disable commenting from DK and Bill Otis? They pretty much ruin 90% of all threads they participate in.

Posted by: | Jul 6, 2008 6:40:27 PM

Jul 6, 2008 6:40:27 PM:

1. This is not your blog and you do not determine who posts here.

2. It IS Doug Berman's blog, and if he asks me to stop I will do so forthwith.

3. If you don't want to read posts of particular individuals here, you know how to use the scroll button.

4. I am of course unable to assess whether YOUR posts are ruining any threads, since you don't identify yourself and suggest muzzling others from behind the cover on anonymity.

5. If you want to explain what you find in my posts that is untruthful, I'm all ears. Right now you simply state a conclusion.

6. DK has made outlandish, false and dishonest accusations against me and others who support the death penalty. If similar accusations had been made against you, I would not object to your right to respond. Why do you object to mine?


Posted by: Bill Otis | Jul 6, 2008 11:37:58 PM

Bill, thanks for pointing out to me that this is not my blog and that I do not determine who posts here. Perhaps the fact that I'm forced to write this partially explains why your posts here are generally a big waste of space? (In fact, I'd say your number 1 is exactly the sort of comment I expect from you. Your comment is true of course, but that doesn't make it any less obnoxious.)

Who I am has nothing to do with whether you're posts are obnoxious and a waste of space. I'm just a long time reader who is slightly annoyed that I have to waste time scrolling past so many useless comments. But as you so thoughtfully pointed out, this is not my blog, so all I can do is appeal to Professor Berman to consider not letting you comment -- or perhaps more reasonably, ask you to stop posting so many times.

Posted by: 6:28 | Jul 7, 2008 9:21:34 AM

Jul 7, 2008 9:21:34 AM:

"Bill, thanks for pointing out to me that this is not my blog and that I do not determine who posts here. Perhaps the fact that I'm forced to write this partially explains why your posts here are generally a big waste of space?"

Who "forced" you? Answer: No one. You chose to because you wanted to make a response. Is there some reason I can't do the same?

Your statement that my posts are a big waste of space is still a just conclusion, and it doesn't become anything other than a conclusion by repeating it.

Have you considered the possibliilty of ANSWERING posts you think for any reason are misguided (or worse)? That has the advantage of dealing in specifics. Something wrong with that? Many other commenters do it. Is there some reason you can't?

"(In fact, I'd say your number 1 is exactly the sort of comment I expect from you. Your comment is true of course, but that doesn't make it any less obnoxious.)"

Like your suggesting that I get blocked was NOT obnoxious.

"Who I am has nothing to do with whether you're posts are obnoxious and a waste of space."

That is correct. It has plenty to do, however, with whether it's really the thing to do to be taking potshots at commenters who let people know who they are, while shooting from behind the curtain.

There may be perfectly legitimate reasons for commenters here to remain anonymous. The opportunity to unload on other commenters is not one of them.

"I'm just a long time reader who is slightly annoyed that I have to waste time scrolling past so many useless comments."

Your being annoyed is hardly a justification for censorship. And the time you need to "waste" scrolling is, what, twelve seconds per post? Eight seconds?

"But as you so thoughtfully pointed out, this is not my blog, so all I can do is appeal to Professor Berman to consider not letting you comment..."

You already have.

"...or perhaps more reasonably, ask you to stop posting so many times."

OK, now we're getting somewhere. When you ASK, rather than just try to get me blocked, that provides a hope of your telling me how many posts you think are "enough," what the criteria are for reaching that conclusion, and whether you think I or anyone else is obliged to just sit there while others, DK in particular, grossly misrepresent their opponents' positions and hurl around insults like "racist" "murderer" and "monster."

At any time you could have piped up to say, "Hey DK, could you calm down a bit and try to stick to analyitical stuff? That would help improve the blog."

Did you ever say that? Absent that from you and others, do you think I'm obliged to just sit here and whistle past that kind of calumny?

Maybe I should just ignore him -- I grant you that. If I did, my posting numbers would go way down, but not to zero. The problem, apart from the epithets, is that his substantive positions are simply astonishing. Should they go unanswered? Is that what debate is about?


Who I am has nothing to do with whether you're posts are obnoxious and a waste of space. I'm just a long time reader who is slightly annoyed that I have to waste time scrolling past so many useless comments. But as you so thoughtfully pointed out, this is not my blog, so all I can do is appeal to Professor Berman to consider not letting you comment -- or perhaps more reasonably, ask you to stop posting so many times.


Posted by: Bill Otis | Jul 7, 2008 10:51:50 AM

Jul 7, 2008 9:21:34 AM:

The last paragraph of my prior post was a quotation from you that I left in by mistake. I apologize for the error.

Posted by: Bill Otis | Jul 7, 2008 10:56:42 AM

"Who 'forced' you? Answer: No one. You chose to because you wanted to make a response. Is there some reason I can't do the same?"

Bill, this is my point. No one literally forced me to respond. This is obvious. Likewise, it was obvious in my prior post that I knew that this is Professor Berman's blog. These are typical comments, in my experience, from you. They add nothing to the conversation. They are just space fillers. The fact that I must scroll past these comments, again and again, from you is not the end of the world. I’ll continue to read this blog whether you post here or not. But since it would make my viewing pleasure better if you did not, and I suspect it would make others viewing pleasure better here if you did not post, I see no problem with my asking the professor to ask you to stop posting or to simply disable comments from you.

I agree with you that most of DK's posts are also obnoxious. Most of his points are juvenile. I suspect that pretty much everyone here agrees with you on that. So why clog up the comment section with post after post pointing out what is obvious? If DK says that anyone who supports the death penalty is a monster, there’s no need to go on and on how this isn’t true. We get it.

Posted by: Not the same | Jul 7, 2008 11:55:15 AM

Not the same:

Thank you for posting under a name. I appreciate it.

"If DK says that anyone who supports the death penalty is a monster, there’s no need to go on and on how this isn’t true. We get it."

I think you're probably right about that, but I have no way of knowing for sure unless people say so. I don't like to just assume what other people think. It's more polite, and more informative, to ask them.

"The fact that I must scroll past these comments, again and again, from you is not the end of the world. I’ll continue to read this blog whether you post here or not. But since it would make my viewing pleasure better if you did not, and I suspect it would make others viewing pleasure better here if you did not post."

You also have no way of knowing what other commenters think unless you ask them.

Now you may be right. Believe me, I've had enough of DK myself. But I'm the target, not you, so I would respectfully suggest that I have more of a reason to respond to him than you.

And there's this as well: To my knowledge, I am the only (former) career prosecutor who posts here regularly. The site is dominated by the defense bar. There's nothing wrong with that -- indeed it's to be expected -- but it does mean that if there is to be someone to defend prosecutors, I probably have the job. So while my posts are disproportionate in number (and I'll agree with you on that for purposes of argument if nothing else), they are NOT disproportionate in point-of-view. Indeed you could triple the number of posts I put up, and the site would CONTINUE to be overwhelmingly pro-defense.

Diversity of viewpoint doesn't hurt. Some would say it helps.

Let me ask again a question I posed earlier this morning: How many posts do you think are "enough," what are the criteria for deciding on a number? The problem with DK is not merely invective. It's that he misrepresents my (and others') positions, and just won't stop. I think it's fair for me to correct this and say what I actually think. Do you disagree?

One more point: While I am a former prosecutor, my positions are actually mainstream. I support the death penalty; I support prison as the standard means of punishing serious crime; and I am of the view that the criminal justice system is by-and-large fair and accurate -- and not a Plot by the Ruling Class to savage everyone else.

These beliefs do not enjoy universal subscription on this blog, to say the least. So why wouldn't I defend them, and why do you regard my doing so as something to be blocked?

Posted by: Bill Otis | Jul 7, 2008 1:13:21 PM

Not the same:

I will not be posting for the next three days or so (beach time), so you will be able to enjoy the site as you wish. But I will resume when I return.

When commenter X takes a swipe at commenter Y, commenter Y is entitled to some pushback. That is not particular to me. You might find it "obnoxious," but the alternative is to become a pin cushion. Not my cup of tea, nor is there any reason it should be.

Your "reading pleasure" -- or mine or anyone else's -- shouldn't be and is not the primary criterion for deciding when to make a comment here.

I think you could have handled this better. Instead of just asking Doug to block DK and me, wouldn't it have been preferable to say this first: "Hey Bill, you're becoming pre-occupied with DK. Your posts were better before you started in with him. Yes, he's out-to-lunch, but you would be better advised to just return to analytical stuff. I'm a long time reader, and it's getting wearing. So please take a deep breath, and so should he."

To try to get anyone blocked without saying something like that first is an over-reaction and not the way to go. Do you disagree?

Posted by: Bill Otis | Jul 8, 2008 8:04:07 AM

Bill,
Speaking for myself. Although I do not always agree with your post I find that your post are entertaining and informative. I actually like reading your comments. So please ignore some of the knucleheads on this site and keep posting.

By the way I very much support the death penalty. Not a lawyer just someone who likes reading about the law.

Posted by: BS | Jul 8, 2008 12:43:09 PM

Hey Bill, you're becoming pre-occupied with DK [anod others]. Your posts were better before you started in with him. Yes, he's out-to-lunch, but you would be better advised to just return to analytical stuff. I'm a long time reader, and it's getting wearing. So please take a deep breath, and so should he

Posted by: Not the same | Jul 8, 2008 1:41:28 PM

BS:

Thanks. I appreciate your generous words. I expect to keep piping up.

Posted by: Bill Otis | Jul 10, 2008 11:20:58 PM

Not the same:

Hoisted on my own petard. Fair enough.

For a sentencing commentary that has nothing to do with DK and criticizes only Supreme Court justices, you may want to have a look at the article in the Federalist Society magazine that Doug linked earlier today.

Posted by: Bill Otis | Jul 10, 2008 11:27:15 PM

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