April 23, 2012
Effective account of Ring's (limited) impact a decade later
The Lincoln Journal Star has this effective new article concerning the Supreme Court's Sixth Amendment ruling about capital sentencing procedures in Ring v. Arizona. The piece is headlined "Death-penalty ruling still resonates 10 years later," and here are excerpts:
It has been nearly 10 years since the U.S. Supreme Court ruled in an Arizona case, prompting then-Gov. Mike Johanns to call Nebraska lawmakers into a special session to change how the state sentences people in capital cases. But the verdict is still out on the overall effect of the case known as Ring v. Arizona.
"I think Ring has had a significant effect on the death penalty, but the impact has not been as broad as some predicted," said Richard Dieter, executive director of the Death Penalty Information Center.
The June 2002 ruling said that juries, not judges, must have the final say in who gets the death penalty. In Nebraska, only judges had handed down death sentences since state lawmakers decided in the 1970s there was the potential of bias by juries. The ruling also forced changes in death penalty laws in Arizona, Montana, Idaho and Colorado, because those states also left it to judges to determine if a killer should be executed.
And it wasn't long after that lawyers began questioning whether Ring would apply retroactively to death row inmates sentenced by judges. Lower courts were divided. The Nebraska Supreme Court was among those to rule that the U.S. Supreme Court ruling was not retroactive. U.S. District Court Judge Joseph Bataillon of Omaha ruled that is was.... The high court eventually ruled in Schriro v. Summerlin that Ring would not be retroactive, overturning a ruling by the 9th U.S. Circuit Court of Appeals....
Said Dieter of the Death Penalty Information Center: "Many death row inmates received no relief." Overall, he said, juries are not automatically more lenient than judges.
"And at least in Arizona, it has taken some time for the defense bar to adapt to the kind of sentencing presentation that works best with juries," he said. "It is a special skill. In the long run, the requirement of a unanimous jury for a death sentence -- which is what most states employ -- gives the defendant better odds of avoiding the death penalty. Individual jurors may be reluctant to impose death, knowing how many mistakes have been made in convictions in recent years."...
In Nebraska, jurors decide only whether aggravating factors exist. That could include things such as whether the killing was especially heinous or whether it was committed for money. Aggravating factors are supposed to be weighed against mitigating factors, which could include a defendant's background. A three-judge panel then decides if the death penalty is warranted if aggravating factors are found by the jury....
Meanwhile, Ring still is resonating in the courts. Last year in Florida, for example, U.S. District Judge Jose Martinez declared Florida's death penalty violated Ring because jurors are not required to make findings beyond a reasonable doubt on the aggravating factors that can result in a sentence of death. "Even though it has been 10 years, the legal issues surrounding Ring have not been settled," Dieter said.
Notable news and notes about prisons and prisoners
Winding my way around Google News this evening allowed me to come across this array of notable new stories about prisons and prisoners:
From the Chicago Tribune here, "They may call him 'gov,' but Blago is dishwasher in prison"
From the Los Angeles Times here, "California prisons detail plan to downsize, cut costs"
From the New Orleans Times-Picayune here, "Justice Department accuses Orleans Parish sheriff of failing to improve jail"
From the Idaho Statesman here, "Grieving mom erects cross at Idaho prison gates"
From the Washington Post here, "Prison set Chuck Colson free"
Should NC prosecutors stall appeal of first Racial Justice Act ruling and focus on a "better" test case?
Though I have not yet been able to read fully the 168-page order in the first big case decided under the North Carolina Racial Justice Act (basics here), I have been able to think about whether North Carolina prosecutors to invest heavily in fighting this ruling via appeals. Specifically, I wonder if, due to the optics of this first case and how it has garnered such attention, even a reversal on appeal could be a Pyhrric victory for those in North Carolina interested in preserving a functional capital justice system in the state. Let me explain with a little background.
The first big ruling in the first test of the NC Racial Justice Act involved Marcus Robinson, a black defendant convicted in the shot-gun murder of a white teenager more than 20 years ago. The state trial judge, Superior Court Judge Greg Weeks, concluded that "race was, in fact, a significant factor in the prosecution's use of peremptory strikes" and thus vacated Robinson's death sentence and imposed a sentence of life imprisonment without possibility of parole. Among Judge Weeks' notable comments, he found that the defense team had "presented a wealth of evidence showing the persistent, persuasive and distorting role of race in jury selection in North Carolina."
Whatever the intricacies of the legal debate over the NC Racial Justice Act, the optics and timing of this case made it a strong test case for the defense. The defendant was black, the victim white, and the jury selection 20 years earlier produced a jury that convicted Robinson which had nine whites, two blacks and one American Indian. In various ways, this case "looked" on the surface to be just the kind of case that the Racial Justice Act was enacted to examine most closely. (Perhaps further aiding Robinson, though arguably not pertinent to the RJA legal issues, his co-defendant in the killing got a life sentence and there have been questions about which defendant was the shooter.)
Meanwhile, in a number of other 150+ pending cases awaiting an evidentiary hearing on NC Racial Justice Act claims, the defendant is white and his victim is white, the case was tried much more recently, and the sentencing jury was more racially mixed. Those kind of cases do not look on the surface to be the kinds of cases that would prompt a legislature to pass a Racial Justice Act, and there is every reason to still be unsure if and when any white defendants will be able to use the RJA to block their death sentences.
I assume NC prosecutors might have a chance to convince a North Carolina appeals court to interpret the RJA narrowly and ultimately conclude that race was not a "significant factor" in the Robinson case. But such a "victory" by prosecutors on appeal could (and likely would) play into a broader national anti-death-penalty narrative about southern capital punishment systems continuing to reflect racial biases and animus. That reality alone might prompt the NC appellate courts to be especially wary to reverse this first pro-defendant RJA ruling. Moreover, based solely on the trial court's findings and ruling, Robinson surely would be able to make a strong pitch for executive clemency (or might try to bring a new round of federal appeals) in a continued effort to stall or block his execution even if his first-round RJA victory were reversed on appeal.
Consequently, I wonder if strategic NC prosecutors (and their amicus supporters) might now, rather than heavily gear up for the appeal in the Robinson case, focus their time, energy and arguments on a "better" RJA test case in order to explore in a less "unattractive" setting whether litigation under the NC Racial Justice Act is always going to favor defendants in all settings or just in some. I am not sure whether and how NC prosecutors might ensure a "better" test case concerning the RJA comes up for a decision next. But, whatever might be involved, I cannot help but thus prosecutors would be wise at this moment to focus on another front in this RJA litigation battle.
Related post on first NC Racial Justice Act ruling:
"Federal Anticrime Programs Hold Their Own in Another Tough Budget Year"
The title of this post is the the title of this astute observation via Ted Gest writing at The Crime Report. Here are some numbers via the start of Ted's posting:
Despite the austere budget climate in Washington, many Department of Justice criminal justice agencies seem to be holding their own as Senate and House committees that fund the department allocate their money for the federal fiscal year starting October 1. The two largest Justice Department components, the FBI and Bureau of Prisons, both would get increases under funding approved by a Senate appropriations subcommittee. The FBI would get $8.2 billion, $114 million above this year's level, for such items as national security and cyberterrorism investigations and violent crime reduction. The prison bureau would get a $269 million increase to $6.8 billion, which would among other things "enable the activation of new prisons that are currently sitting empty due to lack of funds."
April 22, 2012
Rare capital clemency granted to Georgia defendant hours before execution
On the same day this past Friday that I had the honor and pleasure of participating in a fantastic clemency symposium at the St. Thomas School of Law in Minnesota, a death row defendant in Georgia had the surprise and good fortune to be granted clemency to avoid his scheduled execution. This local story reports on this rare grant of capital clemency from The Peach State:
Three days after staying the execution of Daniel Greene, the five-member [Georgia Board of Pardons and Paroles] voted to commute his death sentence to life without parole, an unusual move that elicited mixed reactions from the tight-knit community....
Greene, 42, was convicted in 1992 of fatally stabbing 20-year-old Bernard Walker, a former schoolmate who walked in on a robbery at a convenience store in Reynolds, Ga. Greene, whose attorneys claim he was under the influence of drugs, stabbed four other people the same night in a rampage that spanned three Middle Georgia counties.
Bob Bacle, the former Reynolds police chief who had addressed the paroles board this week on behalf of the victims and planned to attend the execution, condemned the decision, saying that justice had been subverted. "What good was it to have a trial 21 years ago and then 21 years later five folks on the board of pardons can second-guess a jury?" Bacle said in an interview. "That's what we've got a system of justice for. What does this tell criminals out there coming along now?"...
The board did not immediately explain its decision. But interviews and court filings suggest the panel may have been moved by Greene's supporters, who said the stabbings were out of character. Greene had been a model inmate on death row, they said, receiving a reprimand only once -- for having too many stamps.
While the Taylor County community was scarred by the crimes, many had greeted the specter of execution with ambivalence, including some of Walker's family members. A petition with more than 500 signatures urging clemency was presented to the board, and a number of well-respected members of the community had spoken on Greene's behalf....
One of Greene's more outspoken supporters had been Patty James Bentley, the chairwoman of the Taylor County Commission who is campaigning for a seat in the state House of Representatives. She wrote an emotional letter to the board asking it to spare Greene. "I really just praise God," she said, "and I pray that Bernard's family will find some peace."...
Mark Shelnutt, a Columbus attorney who prosecuted Greene, told the paroles board that a key factor in seeking capital punishment against Greene had been that life without parole was not an option for Georgia juries at the time. "Obviously, life without parole is no slap on the hand," Shelnutt said. "He’s never going to get out of jail."
The board's decision marked just the fourth time it's granted clemency since 2002.
George Will urges SCOTUS to find juve LWOP unconstitutional in all cases
I am intrigued and pleased to see that George Will's latest column in the Washington Post adopts the same position as I have embraced in the two juve LWOP cases, Miller and Jackson, now before the Supreme Court. Will's column is headlined "Cruel and unusual — a test case," and here are excerpts:
Today, 221 years after the Bill of Rights was added to the Constitution, the Supreme Court is again pondering the Eighth Amendment’s proscription of “cruel and unusual punishments.” The case illustrates the complexity of construing some constitutional language in changing contexts of social science and brain science.
Evan Miller, whose five suicide attempts surely had something to do with the serious domestic abuse he suffered, was complicit in a brutal murder and in 2006 was sentenced to life in an Alabama prison without the possibility of parole. Kuntrell Jackson was involved in a video store robbery during which an accomplice fatally shot the store clerk. In 2003, Jackson was sentenced to life in an Arkansas prison without the possibility of parole. Miller and Jackson were 14 when they committed their crimes. Both were tried as adults before judges who had no discretion to impose any other sentence. Such mandatory sentences preclude judges weighing a consideration of Eighth Amendment jurisprudence — proportionality.
Before its June 26 recess, the Supreme Court will decide whether sentencing children to die in prison is cruel. It certainly is unusual: Although 2,300 current prisoners have been sentenced to life without parole for crimes committed as juveniles (age 17 or younger), just 79 prisoners in 18 states are serving sentences of life without parole for crimes committed when they were 13 or 14.
The court must consider not only what is society’s sense of cruelty but also how that sense should be shaped by what some new technologies reveal about adolescent brain biology. Shakespeare’s shepherd in “The Winter’s Tale” did not need to see brain scans to wish that “there were no age between ten and three-and-twenty, or that youth would sleep out the rest; for there is nothing in the between but getting wenches with child, wronging the ancientry, stealing, fighting.”
And with age-related laws restricting the right to drink, drive, marry, serve on juries, etc., all American states have long acknowledged adolescents’ developmental shortcomings. Neuroscience, however, now helps explain why aspects of adolescents’ brains make young people susceptible to impulsive behavior and to failing to anticipate and understand the consequences of it....
In 1958, the court said: “The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Justice Antonin Scalia has warned: “A society that adopts a bill of rights is skeptical that ‘evolving standards of decency’ always ‘mark progress,’ and that societies always ‘mature,’ as opposed to rot.” But even the “originalist” Scalia, although disposed to construe the Constitution’s terms as they were understood when ratified, would today proscribe some late-18th-century punishments, such as public lashing and branding.
Denying juveniles even a chance for parole defeats the penal objective of rehabilitation. It deprives prisoners of the incentive to reform themselves. Some prisons withhold education, counseling and other rehabilitation programs from prisoners ineligible for parole. Denying these to adolescents in a period of life crucial to social and psychological growth stunts what the court in 2005 called the prisoner’s “potential to attain a mature understanding of his own humanity.” Which seems, in a word — actually, three words — “cruel and unusual.”