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April 4, 2011

Is "death penalty sentencing as important as innocence" for review by prosecutors?

The question in the title of this post is inspired by this guest blog post authored by Lisa Graybill, Legal Director of the American Civil Liberties (ACLU) of Texas, appearing at the website of the Dallas Morning News. The piece is headlined "Review of unfair death penalty sentencing as important as innocence," and here is how the piece starts and ends:

Though death sentences and executions have declined in recent years in Texas, the state remains the national leader in executions. The Dallas County District Attorney's Office, under Craig Watkins's leadership, should be commended for taking a serious look at the questionable procedures and shoddy evidence routinely used in the past that have plagued former administrations and led to scores of wrongful convictions.  But Dallas County still remains a leader among Texas counties in seeking and receiving death sentences and is on track to replace Harris County as the infamous "capital of capital punishment."  Its recent handling of decades-old capital cases, including the resentencing trials of Ronald Chambers and Fernando Garcia and the retrial of Jonathan Bruce Reed now taking place, reveal serious shortcomings in its consideration of capital cases and decisions to seek death and its total unwillingness to review the unfair sentencing practices it inherited....

Since his election in 2006, District Attorney Craig Watkins has made a very public commitment to reform.  He deserves praise for the establishment of the Conviction Integrity Unit in his office and his willingness to take a look at the mistakes of the past.  In seeking death sentences against Mr. Chambers, Mr. Reed, and Mr. Garcia, however, he has not distanced himself from the misconduct left at his door by former administrations.  A true commitment to justice and integrity requires not only taking a look at the sad legacy of wrongful convictions, but bringing the same level of scrutiny to the unfair and troubled sentencing practices of the past.  He had the opportunity to do so in Mr. Chambers' case, but of course, for Mr. Chambers it is now too late.  However, Mr. Watkins still has an opportunity to consider the tainted legacy and extend his promise of reform to sentencing in other capital cases, starting with the retrial of Jonathan Bruce Reed and the resentencing trial of Fernando Garcia.  He should do so.

Because I do not know a lot of the specifics, I am in no poistion to comment on the merits of the capital cases against Chambers, Reed, and Garcia.  What I do know is that prosecutors generally have precious little time and often even less interest in reviewing and reconsidering decisions made by prior prosecutors.  For this reason (and some others, including the fact that courts will rarely hear innocence claims but often will allow repeat attacks on "unfair and troubled" capital sentencing practices), I am pleased to learn that Dallas County DA Watkins is giving more attention to innocence review than to death sentence review.  But perhaps others agree with the suggestion that each are just as important.

April 4, 2011 at 06:24 PM | Permalink


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Gauzy and subjective characterizations like "unfair and troubled" are just what the doctor ordered when the agenda du jour is nibbling around the edges of the DP without being candid enough to say what the real objective is, to wit, complete abolition no matter how gruesome the murder(s) or how clearcut the proof of guilt.

Q: So why is the ACLU being so circumspect about its real goal?

A: Because its real goal won't sell, as polling uniformly attests and it full well knows.

So it has to be muddled.

Unfortunately for the ACLU, today we learned that the Obama Administration, directly contrary to its previous holier-than-thou position, is going to put 9-11 mastermind KSM on trial before a military commission. This means the prospect of the DP will be on the table, and loudly.

The abolitionist forces mostly took a powder during the McVeigh case and the Beltway sniper. I expect they'll do the same with KSM. The alternative is going public with the view that a self-confessed (indeed, self-proclaimed) scheming butcher of staggering proportions should get a sentence qualitatively identical to the one you'd give a guy who sells heroin or knocks over the liquor store.

The public will buy that stance even less than it buys abolitionism right now, which isn't all that much. So, as a strategic matter, the ACLU is smart to complain about the current selection of relatively obscure cases before the flow of events in the KSM prosecution reminds the voters of why they have the DP, and why they're not about to give it up.

Posted by: Bill Otis | Apr 4, 2011 7:13:19 PM

Once guilt is established I really don't care. Actual innocence should be the only exonerating condition, not degree of culpability, whether the facts viewed in the light most favorable to the offender actually make out a case of premeditation or any of the innumerable other factors abolitionists throw against the wall hoping for something to stick. Only actual innocence in the underlying conduct. And on that issue I completely disagree with the stance taken by our courts, evidence of actual innocence should be given a fair hearing at any time without prejudice to the condemned.

Posted by: Soronel Haetir | Apr 4, 2011 7:28:59 PM

Soronel, it's testament to the relentless efforts of conservatives in Congress and the courts over the past 30 or 40 years that sensible folks such as yourself somehow find it necessary to argue in favor of giving actual innocence a fair hearing.

Posted by: John K | Apr 5, 2011 2:38:07 PM

"And on that issue I completely disagree with the stance taken by our courts, evidence of actual innocence should be given a fair hearing at any time without prejudice to the condemned."

Which courts are you disagreeing with, Soronel? The Supreme Court did, in fact, send the Troy Davis case to the District Court for a thorough hearing on his innocence claim despite the procedural barriers.

Posted by: Kent Scheidegger | Apr 5, 2011 5:20:39 PM


An example I would use would be Osbourne 2008. I don't care whether the evidence was available at the time of trial or not, so long as it was not actually examined as part of the trial and if examined now could prove innocence. (Again, actual innocence, not some form of mitigated offense).

I would also simply not hold the choices of counsel against an inmate. But again, once degree of culpability is removed from consideration the choices of counsel don't matter so much as they do now. It doesn't matter how rotten someone's childhood was, how intoxicated they were at the time of offense or much of anything else. Anything less than actual innocence in the criminal conduct and I just don't care about the punishment, so long as the conduct rises to being a felony and the punishment does not go beyond a few barbaric practices that are nowhere close to being in play in the modern US.

Posted by: Soronel Haetir | Apr 5, 2011 8:01:02 PM

Thank you for sharing,it is very helpful and I really like it!

Posted by: Big pony | Apr 11, 2011 6:03:31 AM

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